Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. United States Department of Energy

The Southwest Center for Biological Diversity and the Sierra Club (collectively “Southwest”) challenge the legality of the *1302 Department of Energy’s (“DOE”) sale of Elk Hills to Occidental Petroleum (“Occidental”). Southwest contends the DOE violated section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., by refusing to engage in consultation with the Fish & Wildlife Service (“FWS”) prior to completing the sale of Elk Hills and by failing to ensure that the sale would not jeopardize the continued existence of threatened and endangered species. In granting summary judgment in favor of the DOE and Occidental, the district court determined that the completed sale of Elk Hills mooted the controversy. Alternatively, the district court determined that the DOE did not violate section 7 of the ESA.

We have jurisdiction under 28 U.S.C. § 1291 (1994). We conclude that the completion of the Elk Hills sale did not moot the controversy between the parties. We further conclude that Congress waived section 7’s consultation requirement as to the DOE’s sale of Elk Hills. See National Defense Authorization Act of 1996, Pub.L. No. 104-106, 110 Stat. 631 (1997). Accordingly, we…