for the spectacled eider and the Steller’s eider should be dismissed with prejudice as moot. Defendants further argue that FWS is entitled to summary judgment on the remaining part of Count VIII alleging that BLM and FWS consultations on the proposed leasing program and decision to proceed were inadequate because they failed to consider the impacts on critical habitat. The parties agree that plaintiffs’ claim that FWS violated the ESA by failing to designate critical habitat for the spectacled eider and the Steller’s eider is moot. The parties disagree as to whether that claim should be dismissed with or without prejudice. A dismissal on mootness grounds is without prejudice to future suits on the merits of the same claim. See Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir.1979) (<HOLDING>); DiGiore v. Ryan, 172 F.3d 454, 466 (7th
holding that an adjudication on summary judgment is an adjudication on the merits holding that a partial adjudication on the merits followed by a voluntary dismissal without prejudice of the remaining claims is not a final judgment that gives rise to appellate jurisdiction holding that a dismissal on statute of limitations grounds is an adjudication on the merits for purposes of res judicata holding that the dismissal without prejudice of the prior actions on grounds of mootness does not serve as a final adjudication on the merits so as to bar this action holding that a dismissal on limitations grounds is a judgment on the merits