Appellate Case: 15-1030 Document: 01019760662 Date Filed: 02/03/2017 Page: 1

No. 15-1030

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAGS OVER THE ARKANSAS RIVER, INC.,

Plaintiff-Appellant
v.
BUREAU OF LAND MANAGEMENT, et al.,
Defendants-Appellees
and
OVER THE RIVER CORPORATION,
Defendant-Intervenor-Appellee

JOINT MOTION BY ALL PARTIES FOR DISMISSAL OF THE

APPEAL ON GROUNDS OF MOOTNESS
AND
RESPONSE BY THE APPELLANT AND FEDERAL APPELLEES TO
OVER THE RIVER CORPORATIONS MOTION TO DISMISS

1. On January 25, 2017, Intervenor-Defendant-Appellee Over

the River Corporation (OTR Corp.) filed a motion seeking dismissal of

this appeal. On the same date, this Court issued an order directing the

Appellant and Federal Appellees to file a response to the motion by

February 6, 2017.

2. All parties to this appeal hereby agree that OTR Corp.s

decision not to pursue the Over the River Project, its relinquishment of
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the Bureau of Land Management (BLM) permit, and BLMs

termination of the permit render this case moot. Briefly, the facts

rendering this case moot are as follows.

a. On January 25, 2017, BLMs Royal Gorge Field Office

received a phone call from Project Director Jonita Davenport for the

Over The River Project, and Field Manager Keith Berger of BLMs

Royal Gorge Field Office received a confirming letter from counsel for

the OTR Corp., stating that Christo had decided to focus all of his

energy, time, and resources on another of his projects, a project in Abu

Dhabi. See Attachment A (Declaration of Jonathan Henery at 2) and

Exhibit 1 (email from OTR Corp. to BLM Field Manager Keith Berger).

Accordingly, OTR Corp. explained that it was permanently

relinquishing its BLM permit for the Over The River Project and stated

that it will not be resubmitting an application for a permit for the

project in the future. Attachment A at 3.

b. On January 31, 2017, BLMs Field Manager Keith

Berger sent a Decision Letter to Over the River Corporation

terminating the land use permit (LUP) for the Over The River Project,

LUP COC-744844. See Attachment B. BLMs letter acknowledges OTR

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Corp.s decision to relinquish the permit and terminates the permit

pursuant to 43 C.F.R. 2920.9-3(a)(4), which provides for termination of

a land use authorization by mutual agreement. Accordingly, there is no

outstanding permit authorizing OTR Corp. to use BLM land for the

project at issue in this case.1

c. All parties to this appeal agree that OTR Corp.s decision

not to pursue the project and relinquish the permit and BLMs

cancellation of the permit render this appeal moot. A case is moot

where the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome, . . . or where the relief sought

can no longer be given or is no longer needed. Front Range Equine

Rescue v. Vilsack, 782 F.3d 565, 568-69 (10th Cir. 2015) (internal

citations and quotation marks omitted). The crucial question is

whether granting a present determination of the issues offered will

1OTR Corp. also has sought to terminate the other permits and
authorizations by State and local permitting agencies for the Over The
River Project. See Attachment A (Declaration of Jonathan Henery at
2), Exhibit 2 (email providing notice that OTR Corp. is relinquishing its
Fremont County permit), Exhibit 3 (email from OTR Corp. providing
notice of Termination of Memorandum of Agreement between the State
of Colorado and OTR Corp.), and Exhibit 4 (email providing the
Colorado State Land Board notice of termination of OTR Corp.s Other
Use Lease).

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have some effect in the real world. Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010) (emphasis

in original, internal citations and quotation marks omitted). There is

no point in ordering an action that has already taken place. Id. at

1111. The action sought by Petitioner a setting aside of BLMs land

use authorization allowing the Over The River Project has already

taken place.

d. The circumstances of this case do not come within the

narrow exception to mootness based on voluntary cessation. That

exception exists to counteract the possibility of a defendant ceasing

[allegedly] illegal action long enough to render a lawsuit moot and then

resuming the [allegedly] illegal conduct. Silvery Minnow, 601 F.3d at

1115 (internal citation and quotation marks omitted). Voluntary

cessation of offensive conduct will only moot litigation if it is clear that

the defendant has not changed course simply to deprive the court of

jurisdiction. Id. at 1115-16 (internal citation and quotation marks

omitted). As the attachments demonstrate, neither OTR Corp. nor

BLM changed course to deprive the court of jurisdiction. BLM

terminated the land use permit because OTR Corp. has stated that it is

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permanently relinquishing the permit with no intention of reapplying

for it. As OTR Corp. has explained, Christo has decided to focus his

energy on a different art project.

3. Plaintiff-Appellant Rags Over the Arkansas River (ROAR)

requests that this Court vacate the portion of the district court

judgment regarding the Federal Land Policy and Management Act

(FLPMA). See, e.g., Wyoming v. U.S. Dept of Agric., 414 F.3d 1207,

1213 (10th Cir. 2005) (when causes beyond the Appellants control make

a pending appeal moot, the general practice is for the Court of Appeals

to vacate the judgment below and remand with directions to dismiss).

ROAR acknowledges that vacatur of the district court decision

regarding the National Environmental Policy Act (NEPA) issues is not

warranted, because those issues were not challenged in this appeal and,

therefore, the district courts ruling as to NEPA are final.

4. The Appellees do not oppose the request for partial vacatur.

See, e.g., Camreta v. Greene, 563 U.S. 692, 714 n. 11 (2011) (vacating

the portion of the ruling before the Supreme Court but leaving

untouched the unchallenged issues); Front Range, 782 F.3d at 571

(vacating district courts judgment and dismissing the appeal as moot).

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The Appellees further agree that, if this Court does not direct partial

vacatur, they would not oppose a motion by ROAR in district court

seeking vacatur of the judgment regarding the FLPMA issues.

5. The parties agree that each party will bear its own costs and

fees for all proceedings in this case.

Respectfully submitted,

/s/ Katherine W. Hazard

KATHERINE W. HAZARD
Appellate Section
U.S. Department of Justice
Environment & Natural Res. Div.
P.O. Box 7415
Washington, D.C. 20044
(202) 514-2110
katherine.hazard@usdoj.gov
Counsel for Federal Appellees

/s/ Michael R. Harris
MICHAEL R. HARRIS
Legal Director
Friends of Animals
7500 East Arapahoe Rd., Ste. 385
Centennial, CO 80209
(720) 949-7791
michaelharris@friendsofanimals.org
Counsel for Appellants
Rags Over the River

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/s/ Lori J. Potter

LORI J. POTTER
Kaplan, Kirsch & Rockwell
1675 Broadway, Suite 2300
Denver, CO 80202
(303) 825-7000
lpotter@kaplankirsch.com
Counsel for Appellees
Over The River Corp.

Feb. 3, 2017
DJ 90-1-4-13640

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CERTIFICATE OF COMPLIANCE

I hereby certify that:

1. All required privacy redactions have been made per 10th

Cir. R. 25.5;

2. The electronic submission has been scanned for viruses

with Microsoft Forefront Client Security and, according to the

program, is free of viruses.

I further certify that the motion complies with the format,

volume, and type-face requirements of FRAP Rules 27(d) and

32(a)(5) and (6) because the motion has been prepared in 14-point

Century, a proportionately spaced font, and is 959 words.

s/ Katherine W. Hazard

CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2017, I electronically filed the

foregoing joint motion with the Clerk of Court for the United States

Court of Appeals for the Tenth Circuit by using the appellate CM/ECF

system. All participants in the appeal are registered CM/ECF users

and will be served by the appellate CM/ECF system.

s/ Katherine W. Hazard