A recent Sixth Circuit case pithily illustrates the potential fate facing plaintiffs who, after failing to obtain injunctive relief against ongoing land development, discover that subsequent events have outstripped the very purpose of the litigation.
In Weiss v. Sec’y of the U.S. Dep’t of the Interior (6th Cir., 10-1313, Jan. 25, 2012) (PDF), Julie Weiss and other citizens of Benton Harbor, Michigan sued Benton Harbor, the National Park Service and the Army Corps of Engineers after the city leased a portion of a public park to a developer for conversion into a golf course. Seeking to block the development, Weiss alleged, among other things, that the development would have adverse environmental consequences and would also violate the National Historic Preservation Act. Weiss sought, but was denied, injunctive relief below, and she did not appeal that ruling. Meanwhile, the development project and litigation moved forward in tandem. After the district court rendered summary judgment to the defendants, Weiss sought appellate relief. By the time the matter reached the Sixth Circuit for decision, the golf course had been completed.
Writing for a unanimous panel that included Judges Cook and Daughtrey, Judge Kethledge generally affirmed the district court ruling but also found certain of Weiss’s claims to be moot. Under federal law, before a federal agency can approve a major project, it must “predict the project’s environmental consequences. Weiss asks us to order the agencies to redo their predictions.” Because the golf course had been completed, the Court refused, observing that such predictions “are beside the point”: they “have either come to pass or not.” Under such circumstances, the Court likened Weiss’s argument to “ask[ing] a meteorologist on Friday to redo the Thursday forecast.” Equally moot, the Court found, were Weiss’s historic preservation claims: “any effects on the Park’s historical character have already occurred,” preventing the Court from providing “meaningful relief” and rendering “any declaratory judgment … an advisory opinion.” Based upon the practical effect of the defendants’ actions, the Court vacated the district court’s judgment as to those claims and remanded with instructions to dismiss as moot.
Weiss serves as an object lesson regarding the potentially crucial importance of preliminary injunctive relief. Having lost below on the injunction and having declined to appeal such loss, Weiss continued litigating even as events overtook the very relief she sought. In cases where one party’s unimpeded action can moot the point of the the lawsuit, the first few weeks or months — where injunctive relief will be decided — can prove dispositive, and appellate review of an adverse decision should be sought immediately.