CIVIL PROCEDURE
United States Court of Appeals, Ninth Circuit
Steve Stenquist
In Department of Fish and Game v. Federal Subsistence Board, 62 F.4th 1177 (4th Cir. 2023), the court of appeals held that a dispute is not moot if the basis for the dispute ends before the dispute can be fully litigated and said basis is likely to repeat itself under similar circumstances. (Id. at 1184-85). In 2020, the Federal Subsistence Board (FSB) approved two emergency changes to Alaskan hunting practices. (Id. at 1180). One change was to give the Organized Village of Kake a temporary open hunt of six months to allow it to combat food insecurity concerns that arose because of the Covid-19 pandemic. (Id.) The other was to disallow hunting for non-subsistence purposes for two years in an area of Unit 13 within Alaska. (Id.) Both of these provisions expired before the case was considered by the Ninth Circuit, so the Court reviewed these measures for mootness. (Id. at 1181). The Court held that both measures ended before the dispute could be fully litigated and thus, both met the first requirement to not be moot. (Id. at 1181-84). The Court also ruled that the open hunt given to the Village of Kake met the second requirement of being likely to be repeated because, even though the specific circumstances of the Covid-19 pandemic were not likely to repeat, the FSB had tried to grant open hunts in the past for other similar food shortage emergencies. (Id. at 1182). Finally, the two-year prohibition on non-subsistence hunting in Unit 13 did not meet the second requirement to not be moot because every time the FSB wishes to order a similar prohibition it must conduct a new investigation and file a new report on the circumstances justifying the prohibition, meaning that such a prohibition would not repeat under similar circumstances. (Id. at 1184-85). Thus, a dispute is not moot if the basis for the dispute ends before the dispute can be fully litigated and if said basis is likely to repeat itself under similar circumstances. (Id.)
