NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 17 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

EUGENE LITTLE COYOTE, No. 09-35527

Plaintiff - Appellant, D.C. No. 1:08-cv-0003-RFC

v.

MEMORANDUM *

UNITED STATES DEPARTMENT OF

THE INTERIOR; BUREAU OF INDIAN

AFFAIRS; EDWARD PARISIAN, Rocky Mountain Regional Director; MARJORIE EAGELMAN, Superintendent of the Northern Cheyenne Reservation,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding

Argued and Submitted March 5, 2010 Portland, Oregon

Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.

Eugene Little Coyote is the former President of the Northern Cheyenne

Tribe. He was removed from office by the Tribal Council during an allegedly

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. unconstitutional special session. Following his ouster the Tribal Trial Court and

Tribal Constitutional Court issued contradictory decisions regarding the validity of

his removal. Subsequently, Edward Parisian, Rocky Mountain Regional Director

for the Department of the Interior, Bureau of Indian Affairs (“BIA”), approved

budget resolutions and recognized the Vice President, Rick Wolfname, as the

interim President of the Northern Cheyenne Tribe (the “Parisian Decision”).

Parisian explained in his decision that he was prompted to act by the need to

resolve the impasse threatening the ability of the Tribe to perform basic

governmental functions.

Little Coyote sued the BIA in federal district court seeking an injunction

preventing implementation of the Parisian Decision and preventing the BIA from

withdrawing its recognition of Little Coyote as the President of the Northern

Cheyenne Tribe. During the pendency of this litigation, the Northern Cheyenne

Tribe held a presidential election in which Little Coyote ran and was defeated. The

BIA argued that the intervening presidential election rendered Little Coyote’s suit

moot because the court could no longer grant any effective relief to his claims.

The district court agreed and dismissed the case for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1). We

agree.

2 “[A] case is moot . . . when one or both of the parties plainly lacks a

continuing interest in the outcome of the litigation.” Gator.com Corp. v. L.L.

Bean, Inc., 398 F.3d 1125, 1135 (9th Cir. 2005) (en banc) (citation and internal

quotation marks omitted). “The basic question is whether there exists a present

controversy as to which effective relief can be granted.” Outdoor Media Group,

Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) (quoting Vill. of

Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir. 1993)).

Little Coyote concedes that the tribal presidential election was valid and that

he cannot be returned to the office of President. He nonetheless argues that the

election did not moot this litigation because he has claims for back salary and

attorney fees against the Tribe and the Parisian Decision might preclude him from

prevailing on those claims. Such an allegation is purely speculative. Furthermore,

the claims are not alleged in the complaint and we decline to construe the

complaint to encompass hypothetical claims that may or may not be brought

against the Tribe in the future. Indeed, the Northern Cheyenne Tribe is not even a

party to this case.

Little Coyote’s claims do not fall within the capable of repetition yet

evading review exception to the mootness doctrine because there is no reasonable

expectation that he will be subject to the same injury again. Native Vill. of Noatak

3 v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994). The district court was,

therefore, unable to grant Little Coyote any effective relief and the dismissal under

Rule 12(b)(1) was proper.

AFFIRMED.

4