NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAY HYMAS, DBA Dosmen Farms, No. 18-35488

Plaintiff-Appellant, D.C. No. 4:16-cv-05091-SMJ

v.

MEMORANDUM*

U.S. DEPARTMENT OF THE INTERIOR;

RYAN K. ZINKE, Secretary of the United States Department of the Interior; JAMES

W. KURTH, Acting Director of the United

States Fish and Wildlife Service; DOES, 1- 10,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted December 9, 2019 Seattle, Washington

Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.

Jay Hymas appeals a final order dismissing his suit against the U.S.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. Department of Interior, its Secretary, and the Acting Director of the Fish and

Wildlife Service. Hymas complains that the Fish and Wildlife Service improperly

favored incumbent farmers when awarding cooperative farming agreements1 upon

which he bid. He seeks declaratory and injunctive relief, as well as bid preparation

costs. The district court found that a policy issued by the Fish and Wildlife Service

in 2017 rendered Hymas’s Administrative Procedure Act claim moot and that an

opportunity for Hymas to bid on cooperative farming agreements following a

decision by the United States Court of Federal Claims rendered his claim for bid

preparation costs moot. We disagree.

A case becomes moot when it no longer presents a live issue, the parties lack

a legally cognizable interest in the outcome, or the challenged conduct is so altered

that it now presents a substantially different controversy. Am. Diabetes Ass’n v.

U.S. Dep’t of the Army, 938 F.3d 1147, 1152 (9th Cir. 2019). “[A] defendant

claiming that its voluntary compliance moots a case bears the formidable burden of

showing that it is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

1 The 2017 policy, discussed below, refers to these agreements as cooperative agricultural agreements, and the agreements awarded in 2015 are procurement contracts. For consistency, this decision refers to all of the past and future agreements as cooperative farming agreements.

2 U.S. 167, 190 (2000)). Defendants have failed to meet this burden.

The Fish and Wildlife Service remains free to amend or revoke its new

policy at any time. Bell v. City of Boise, 709 F.3d 890, 899–901 (9th Cir. 2013).

Moreover, it has not repudiated its previous practice of prioritizing incumbent

farmers when awarding cooperative farming agreements. The contents of the new

policy allow it to engage in that same practice while the policy is in place. Ne. Fla.

Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.

656, 662 (1993); Forest Guardians v. Johanns, 450 F.3d 455, 462 (9th Cir. 2006);

cf. Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir. 2014). Under the new policy,

the Fish and Wildlife Service has discretion to adopt objective criteria to assess

bids for each cooperative farming opportunity posted. The policy contains a non-

exhaustive list of objective criteria, the first of which favors incumbent farmers.

And nothing in the new policy requires that more than one criterion be adopted for

a particular project. Therefore, the new policy has not resulted in a substantially

different controversy. Cf. Am. Diabetes Ass’n, 938 F.3d at 1152. The controversy

was, and still is, whether or not it is permissible to favor incumbent farmers when

awarding cooperative farming agreements.

Defendants’ arguments regarding the claim for bid preparation costs concern

the merits, and hence are best considered by the district court on remand.

REVERSED AND REMANDED.

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