Wild Equity Institute v. City

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILD EQUITY INSTITUTE; CENTER
FOR BIOLOGICAL DIVERSITY;
NATIONAL PARKS CONSERVATION
ASSOCIATION; SURFRIDER
FOUNDATION; SEQUOIA AUDUBON,
non-profit corporations,
Plaintiffs - Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO; ED LEE, Mayor of the City
and County of San Francisco; PHILIP
GINSBURG, Director, City and County of
San Francisco Recreation and Park
Department,
Defendants - Appellees,
SAN FRANCISCO PUBLIC GOLF
ALLIANCE,
Intervenor-Defendant -
Appellee.
No. 13-15046
D.C. No. 3:11-cv-00958-SI
MEMORANDUM*
FILED
MAR 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted March 11, 2015
San Francisco, California
Before: W. FLETCHER, DAVIS ** , and CHRISTEN, Circuit Judges.
Wild Equity Institute appeals from the district court’s order dismissing this
case as moot. This case originated as an Endangered Species Act (ESA) Section 9
claim against the City and County of San Francisco, which was then operating
Sharp Park Golf Course without any type of ESA permit. After Wild Equity filed
suit, the City requested that the Army Corps of Engineers initiate consultation with
the Fish and Wildlife Service (FWS) under ESA Section 7 in connection with the
City’s application for a Clean Water Act (CWA) Section 404 permit. The district
court stayed proceedings pending the outcome of the consultation, then concluded
that the case was moot once FWS issued its Biological Opinion and Incidental
Take Statement (ITS) following the Section 7 consultation. Wild Equity argued on
appeal that the ITS had no independent force prior to its incorporation into the
City’s CWA permit. However, the Corps has since issued the relevant permit,
which incorporates the terms of the ITS. California has also provided its state
** The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

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certification as required under CWA Section 401. Accordingly, and as Wild
Equity has acknowledged, this appeal is moot.
However, Wild Equity argues that the capable of repetition yet evading
review exception to mootness applies. The capable of repetition exception
permit[s] suits for prospective relief to go forward despite abatement
of the underlying injury only in the exceptional situations where the
following two circumstances [are] simultaneously present: (1) the
challenged action [is] in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party would be subjected to the
same action again.
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990) (internal citations and
quotation marks omitted). Neither of these requirements is satisfied here. Because
there is nothing that dictates a short interval between the issuance of an ITS and a
Section 404 permit, the type of action at issue is not necessarily one “of ‘inherently
limited duration’” that belongs to a “class[] of cases that, absent an exception,
would always evade judicial review.” Protectmarriage.com-Yes on 8 v. Bowen,
752 F.3d 827, 836 (9th Cir. 2014) (quoting Doe No. 1 v. Reed, 697 F.3d 1235,
1240 (9th Cir. 2012) (emphasis added)). The issuance of the ITS and CWA permit
have also fundamentally changed the legal landscape within which the parties are
operating, reducing the likelihood that this issue will arise again between these
3

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particular parties. See In re Bunker Ltd. P’ship, 820 F.2d 308, 312 (9th Cir. 1987).
We therefore lack jurisdiction over this appeal.
APPEAL DISMISSED.
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