Public Service Company of Colorado v. Shoshone-Bannock Tribes Kelsey Edmo, Sr. Captain J. Weisbacher, Acting Chief of Tribal Police

PREGERSON, Circuit Judge,

dissenting:

Public Service Company of Colorado (“PSC”) originally came to federal court complaining of the Shoshone-Bannock Tribes’ (the “Tribes”) total ban on transportation across reservation land of spent nuclear fuel. In my view, PSC’s suit has become moot because the Tribes have completely eliminated the total ban complained of by PSC. Moreover, the facts of this case do not fit within any of the exceptions to the mootness doctrine. • I therefore respectfully dissent.

In October of 1991, the Tribes’ police halted a PSC shipment of spent nuclear fuel waste at the reservation border. The police were acting under a tribal resolution that placed a total ban on such shipments. PSC’s complaint challenged the validity of this tribal ban on nuclear shipments across the reservation.

During the pendency of this appeal, the Tribes, through legislation, replaced the total ban on transportation of nuclear waste with a moderate and comprehensive scheme to merely regulate such transportation. The amended regulations allow transportation of nuclear waste across reservation lands, so long as the transporters obtain a permit from the Tribes, notify the Tribes of impending shipments, and do not violate applicable federal safety standards. The Tribes enforce the regulations by imposing fines. Under the revised rules the Tribes will no longer block shipments of spent nuclear fuel waste *1208 from crossing reservation land unless the Tribes first obtain an injunction duly issued by a tribal or federal court.

Article III of the Constitution limits the jurisdiction of federal courts to suits that present actual, ongoing cases or controversies between litigants. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 , 110 S.Ct. 1249, 1253 , 108 L.Ed.2d 400 (1990); Deakins v. Monaghan 484 U.S. 193, 199 , 108 S.Ct. 523, 527 , 98 L.Ed.2d 529 (1988). Federal courts are confined to resolving “real and substantial” controversies, “admitting of specific relief through a decree of a conclusive character as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Lewis, 494 U.S. at 477 , 110 S.Ct. at 1253 (quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241 , 57 S.Ct. 461, 464 , 81 L.Ed. 617 (1937)). Moreover, the specific grievance must continue to be present at every stage of the proceedings or else jurisdiction is lost. Id.

Where a defendant moves for dismissal of a case for mootness, the plaintiff bears the burden of demonstrating that a present case or controversy survives. See Coverdell v. Dept. of Social & Health Services, 834 F.2d 758 , 766 (9th Cir.1987). In the case at bar, the action of the tribal police was taken under the authority of a tribal rule that has since been superseded. Therefore, for us to retain jurisdiction, PSC must show that it continues to have a “ ‘specific live grievance,’ ” against application of the current rules to itself, and not just ‘“an abstract disagreement]’ ” over whether or not the current regulations are preempted by federal law. Lewis, 494 U.S. at 478 , 110 S.Ct. at 1253 (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580 , 105 S.Ct. 3325, 3332 , 87 L.Ed.2d 409 (1985)).

The majority argues that: (1) PSC’s grievance remains alive because its original claim, against the Tribes’ ban, is not moot; arid (2) PSC’s claim is subject to certain exceptions to the mootness doctrine.

(1) CONTINUING HARM.

First, the majority argues that a specific controversy continues because the “[t]ribes have merely replaced one regulation alleged to be preempted by the [Hazardous Materials Transportation Act (the “HMTA”) ] with another which is alleged to be similarly preempted.” This may be true, but the majority fails to explain its further assertion, critical to the mootness inquiry, that PSC is likely to suffer some injury as a result of the new regulations.

The only actual injury that PSC alleges is that its shipments were stopped at the reservation border. Whereas the previous regulations banned shipments of spent fuel, causing a PSC shipment to be stopped at the reservation border, the current regulations merely regulate such shipments. The new regulations do not permit the Tribes to stop shipments at the border without prior judicial process. In other words, the injury that PSC complained of is very unlikely to recur under the revised regulations.

As to the likelihood that PSC will suffer any other injuries under the revised regulations, we have only speculation. PSC admitted at oral argument that the Tribes may impose some reasonable regulations on its shipments of spent fuel, consistent with federal regulations, and that it may charge reasonable fees. PSC’s only apparent complaint against the current regulations is that they are in some manner inconsistent with the HMTA. But the only specific inconsistency PSC could point to in oral argument was a requirement of advance notification to the Tribes of shipments covered by the HMTA. There is no evidence that the Tribes would actually apply this provision to future shipments by PSC in a manner that would conflict with the HMTA. We can only guess.

Thus PSC has not shown that the threat of continuing injury is actual rather than merely speculative. See Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (adverse effect of policies on existing interests of parties was too remote and speculative to justify declaratory relief). It is noteworthy in this regard that PSC is currently subject to an injunction issued by the United States District Court for the District of Idaho that prevents it from transporting any spent nuclear fuel in Idaho until completion of an Environmental Impact *1209 Report sometime in 1995. See Public Service Co. v. Andrus, 825 F.Supp. 1483 (D.Idaho, 1993), order modified by, 1993 WL 388312 (D.Idaho, Sept. 21 1993). We do not even know when or if PSC will ever again ship spent fuel in Idaho.

PSC must not only show that there are hypothetical circumstances under which it could still be injured, it must also provide evidence that there is a reasonable likelihood that these circumstances will come to pass. This it has not done.

(2) EXCEPTIONS TO THE MOOTNESS DOCTRINE.

The majority also evinces concern that the Tribes might return to an all-out ban on transportation of spent waste if we were to hold the instant case moot. The majority therefore claims that jurisdiction is proper because the issue raised by this appeal is capable of repetition yet evading review, and because it resulted from the Tribe’s voluntary cessation of the complained of activity. These exceptions to the mootness doctrine are completely inapposite to this appeal.

The first exception, capable of repetition yet evading review, is inapplicable because this is not one of the “exceptional situations” in which the challenged action, imposition of a ban on transportation, is so short in duration that it is likely to always become moot before federal court litigation is completed. See Lewis, 494 U.S. at 481 , 110 S.Ct. at 1255 (quoting Los Angeles v. Lyons, 461 U.S. 95, 109 , 103 S.Ct. 1660, 1669 , 75 L.Ed.2d 675 (1983)).

The second exception, voluntary cessation, is also inapplicable. “[Vjoluntary cessation of allegedly illegal conduct, standing alone, does not necessarily render a case moot.” Coral Const. Co. v. King County, 941 F.2d 910 , 928 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 875 , 116 L.Ed.2d 780 (1992). Generally, a legislative change is deemed to make a case moot where “it can be said with assurance that ‘there is no reasonable expectation ...’ that the alleged violation will recur,” and where interim events have eliminated the effects of the alleged violation. County of Los Angeles v. Davis, 440- U.S. 625, 631, 99 S.Ct. 1379, 1383 , 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 , 73 S.Ct. 894, 897 , 97 L.Ed. 1303 (1953)).

The problem with the majority view is that there is no evidence, and PSC does not even allege, that the tribes are at all likely to reissue a total ban. That ban was passed by resolution in the heat of a jurisdictional dispute among Idaho, PSC, the federal government, and the Tribes, and in response to impending, unregulated shipments of dangerous materials by PSC. It was replaced by a comprehensive set of regulations that 'permit transportation of the waste while addressing the concerns that prompted the total ban. The majority does not explain why the Tribes would want to return to their previous, more primitive, attempt tó maintain safety on their roads.

PSC’s appeal is therefore moot because PSC has not met its burden to show that a specific live grievance survives under the Tribes’ new regulatory scheme, or that there is any likelihood that the Tribes will revert to the ban of which PSC originally complained. I would dismiss PSC’s appeal and vacate the district court judgment. See Ringsby Truck Lines v. Western Conf. of Teamsters, 686 F.2d 720, 721-23 (9th Cir.1982) (discussing duty to set aside district court judgment where circumstances beyond the control of the appellant have rendered the case moot). I express no views on the merits of the appeal.