AUDUBON OF KANSAS, INC., Plaintiff - Appellant, v. UNITED STATES DEPARTMENT OF INTERIOR; DEBRA HAALAND, Secretary of United States Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE; MARTHA WILLIAMS, Director of United States Fish and Wildlife Service, Defendants - Appellees, and KANSAS DEPARTMENT OF AGRICULTURE; KANSAS DEPARTMENT OF AGRICULTURE, DIVISION OF WATER RESOURCES; Defendants.
No. 21-3209
United States Court of Appeals for the Tenth Circuit
May 15, 2023
PUBLISH
FILED
United States Court of Appeals
Tenth Circuit
May 15, 2023
Christopher M. Wolpert
Clerk of Court
Appeal from the United States District Court for the District of Kansas
(D.C. No. 2:21-CV-02025-HLT-JPO)
Burke W. Griggs of Griggs Land & Water, LLC, Lawrence, Kansas, for Plaintiff-Appellant.
Arielle Mourrain Jeffries, Attorney, Environment & Natural Resources Division, Department of Justice (Todd Kim, Assistant Attorney General, with her on the brief), Washington, D.C., for Defendants-Appellees.
Lynn D. Preheim & Christina J. Hansen of Stinson LLP, Wichita, Kansas, filed an amicus curiae brief on behalf of Defendants-Appellees, for Big Bend Groundwater Management District No. 5.
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
PHILLIPS, Circuit Judge.
Bureaucracy and groundwater have at least two things in common: they trudge along at a slow, arduous pace, and they become harder to redirect over time. Appellant Audubon of Kansas (Audubon) is frustrated with federal bureaucracy for these reasons, and understandably so. The United States Fish and Wildlife Service (the Service) has known for decades that junior water rights-holders are impairing its senior water right in Quivira Wildlife Refuge (the Refuge), threatening the endangered species there. Despite years of study
Audubon filed this lawsuit seeking to force the Service to protect the Refuge water right. But in 2023—after oral argument in this appeal—the Service did act by requesting full administration of the Refuge water right, which was a remedy Audubon sought for its failure-to-act claim. For its claims of unlawful agency action, Audubon also sought to set aside an agreement between the Service and a water district. But new evidence convinces us that all material terms of this agreement have expired.
The Service argues that Audubon‘s claims are moot; Audubon counters that its claims aren‘t moot or that a mootness exception should apply. Both parties have moved to supplement the appendix on the issue of mootness, and we granted those motions. Because the Service‘s allegedly unlawful agreement has expired, we agree that Audubon‘s claim of unlawful agency action under
I. Factual Background
A. The Service‘s Senior Water Right
Since its creation in 1955, the Refuge has earned regional, national, and global renown as an important natural resource. Its saline wetlands provide shelter for endangered birds, including the whooping crane, the piping plover, the interior least tern, and the bald eagle. The migratory birds that visit the Refuge need “flooded conditions at proper times during the year, particularly during spring and fall migration.” App. vol. 1, at 123. To supply adequate water for these species, the Refuge largely “depend[s] on surface water from the Rattlesnake Creek.” App. vol. 2, at 255. But the amount of surface water available is intricately linked to the availability of surrounding groundwater.
The Service holds a Kansas water right to protect the Refuge, which encompasses 7,000 acres of wetland habitat for migratory birds and endangered species. The Refuge water right is “senior in priority to about 95% of the water rights in the basin.” App. vol. 1, at 63. As a senior rights-holder, the Service has priority to use over 14,000 acre-feet of surface water from Rattlesnake Creek every year. Junior rights-holders must rely on the remaining water.
Under Kansas law, the chief engineer of the Kansas Department of Agriculture Division of Water Resources (Water Division) enforces and administers water rights “in accordance with the rights of priority of appropriation.”
B. Impairment of the Refuge Water Right
Beginning in the 1980s, the Service expressed concerns to the Water Division and the Big Bend Groundwater Management District #5 (Big Bend) that junior rights-holders were pumping groundwater out of priority, preventing the Refuge from fully exercising its water right. The Service‘s complaints launched a decades-long dialogue between the Service, the Water Division, and Big Bend about how to protect the Refuge water right. Together they tried various solutions, including a partnership with local water users in 1994 and a twelve-year management plan beginning in 2000. But by 2012, these solutions had done little to alleviate the Service‘s main concern—that junior rights-
In 2016, the Water Division released an impairment report, finding that “the Refuge‘s water supply has been regularly and substantially impacted by junior groundwater pumping.” App. vol. 1, at 60. Using computer-generated modeling, the Water Division concluded that junior rights-holders were pumping 30,000 to 60,000 acre-feet per year “that would have otherwise flowed through or past the Refuge.” Id. at 69. Because groundwater moves slowly over time, the Water Division estimated that, even if all junior rights-holders immediately stopped pumping out of priority, it would take at least two years (possibly even decades) to restore the streamflow to the Refuge and Rattlesnake Creek. The Water Division identified only two solutions to the impairment: (1) reducing junior groundwater pumping in the long term or (2) augmenting Rattlesnake Creek‘s stream flow from external sources. Still, the Water Division emphasized that it would not act on its findings “without the written request of the Service to secure water.” Id. at 57.
Big Bend responded to the impairment report by emphasizing that “water holder[s] should not expect to be able to fully exercise the right each and every year.” Id. at 163. Because water-rights certificates “are based on the maximum
In response to comments by Big Bend and others supporting augmentation as the primary remedy, the Service brought up concerns about “legal and technical challenges in using augmentation.” App. vol. 1, at 200. Legally, the Service was concerned that its needs for water would exceed the statutory limits on augmentation. And practically, the Service was concerned that many of the augmentation proposals would still not support the Refuge‘s water needs and that some proposals could further degrade the water quality in the basin. The Service insisted that “solving an issue of over-pumping with further pumping is not a sustainable solution.” Id.
The Service formally requested to secure its water right from the Water Division for 2017, 2018, and 2019. While the Service worked with Big Bend to solve the impairment, the Water Division refrained from “impos[ing] strict administration of water rights” to allow Big Bend “more time to develop and implement a locally-developed solution.” App. vol. 2, at 382. During this
In 2019, the Water Division rejected Big Bend‘s proposed solution. Further, that year the Water Division prepared a plan to protect the Refuge water right in 2020 through 2022 by administering junior water rights. But the Service soon encountered political pressure not to enforce the Refuge water right.
In October 2019, the Service publicly committed to refrain from requesting its water right from the Water Division in 2020. The Service also withdrew its 2019 request for its water right. The Service promised to use 2020 to “continue to work to find local, voluntary, collaborative and non-regulatory solutions, including augmentation, to address the water needs of the community and the wildlife conservation purposes of the refuge before determining if more formal measures are necessary.” Id. at 412.
C. The Memorandum of Agreement
In July 2020, the Service and Big Bend signed a Memorandum of Agreement (MOA) outlining a “local, voluntary, collaborative solution to resolve the Service‘s water impairment complaint.” Id. at 413. The parties agreed that augmentation would “be the primary mechanism” to address the
After NEPA review, the parties agreed that they would create a “Subsequent Agreement” with “additional details of the projects.” Id. The MOA would “serve[] as the basis for the Subsequent Agreement,” and the Subsequent Agreement would “specify all terms and obligations related to the planning, design and implementation of an augmentation wellfield and the development of the water rights purchase and movement programs.” Id. The Service and Big Bend described the MOA as “put[ting] the proper assurances in place . . . until the Subsequent Agreement is executed.” Id.
The MOA outlined both short-term and long-term projects. Short-term projects, including a work plan for an augmentation wellfield for Rattlesnake Creek, would be completed within the first five years of the agreement. Long-term projects, including a program to purchase water rights, would be completed beyond five years. The MOA also included a more detailed timeline for certain actions. Big Bend planned to apply for federal funding by August 2020, and it expected to hear back by November 2020. By May 2021, the Service and Big Bend planned to complete the Environmental Assessment. And
Throughout the long negotiation process between the Service, the Water Division, and Big Bend, Audubon kept a careful eye on proposed solutions to the impairment of the Refuge water right. In 2016, Audubon submitted comments in response to the Water Division‘s impairment report, emphasizing the Refuge‘s value to migratory birds. In 2017, Audubon warned the Water Division that an augmentation solution would violate federal law. Audubon also insisted that the Service undergo administrative review “of any proposed resolution of the Refuge‘s impairment” to comply with NEPA and the APA. Id. at 369. And in 2018, Audubon threatened to sue the Service and the Water Division if they didn‘t secure the Refuge water right.
Finally, in March 2021, Audubon sued the United States Department of the Interior, the Service,1 and state defendants representing the Kansas Department of Agriculture and the Water Division, alleging violations of state and federal law for these agencies’ failure to protect the Refuge water right.
Audubon sued the Service under the National Wildlife Refuge System Improvement Act (NWRSIA) and NEPA, relying on judicial review under the APA for both claims. Audubon alleged both a failure to act and unlawful actions under NWRSIA and unlawful actions under NEPA.2 Audubon also sued state defendants for violating state water statutes and the Service for unlawfully disposing of federal property. In its prayer for relief, Audubon requested a declaratory judgment for the NWRSIA and NEPA violations and injunctive relief requiring the Service and state defendants to comply with NWRSIA by enforcing the Refuge water right. Audubon also sought a writ of mandamus requiring the Service to “request[] the full administration of all water rights in the Rattlesnake Creek sub-basin that have impaired and are impairing the Refuge Water Right.” App. vol. 1, at 52. And Audubon sought a similar writ of mandamus against the chief engineer of the Water Division to “comply with [the Service‘s] request.” Id.
The Service moved to dismiss under
The district court granted the Service‘s motion to dismiss on all claims. Audubon of Kan., Inc. v. U.S. Dep‘t of Interior, 568 F. Supp. 3d 1167, 1184 (D. Kan. 2021).3 The court explained that Audubon had “failed to carry its burden in showing that such final agency action has occurred at this stage,” so its APA claims must fail. Id. at 1180–81. The court found that even if Audubon identified a final agency action, it had still failed to identify a “legally required, non-discretionary action” to challenge agency inaction under the APA. Id. at 1181–82. Similarly, the court found no “‘major federal action’ sufficient to implicate NEPA‘s requirements.” Id. at 1183. So the court dismissed Audubon‘s NEPA and NWRSIA claims without prejudice, both of which depended on the APA for judicial review. Id. at 1184. Audubon timely appealed the dismissal of its claims against the Service.
III. Factual Developments on Appeal Relevant to Mootness
Based on new facts that developed on appeal, both parties moved to supplement the appendix on the mootness issue, and we granted their motions.
After Audubon filed its notice of appeal, the Service wrote Big Bend in January 2022 and renewed its promise not to request its water right while Big Bend continued its NEPA review. Appellant‘s Suppl. App. at 3. As the Service put it, the MOA “culminated” in December 2021, eliminating any need for a renewed MOA, “which may distract resources from engaging in the NEPA process.” Id. The Service stated that it would continue to collaborate with Big Bend to “determine short and long-term actions that remed[y] the Refuge‘s impairment and promote[] water conservation in the Rattlesnake Creek Basin.” Id.
But in February 2023, the Service filed a request to secure water with the Water Division. In a letter to the Water Division on February 10, 2023, the Service explained that “no alternative exists” under Big Bend‘s NEPA review “that will provide complete remedy for the impairment of [the Service‘s] senior
The Service acknowledged that augmentation could remain part of the remedy, and the Service promised to “remain engaged in the planning process to help assess the feasibility and impacts of the augmentation well field, which will determine the appropriate level of augmentation.” Id. Like the 2022 letter, the Service‘s 2023 letter maintained that the MOA‘s “substantive terms . . . expired on December 31, 2021.” Id. at 5.
DISCUSSION
I. Are Audubon‘s claims now moot?
“We review questions of mootness de novo.” Rio Grande Silvery Minnow v. Bureau of Reclam., 601 F.3d 1096, 1109 (10th Cir. 2010) (citing R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1107 (10th Cir. 2007)). If a case is moot, we lack subject-matter jurisdiction. Id. (citing Unified Sch. Dist. No. 259 v. Disability Rts. Ctr. of Kan., 491 F.3d 1143, 1146–47 (10th Cir. 2007)).
A. The Parties’ Mootness Arguments
In its response brief, the Service argues that Audubon‘s
More recently, after providing us with the February 2023 letter, the Service argues that Audubon‘s claims are moot because “[n]ot only have the [MOA] and any perceived commitments in the 2022 letter to [Big Bend] . . . expired on their own terms, but the Service has also now filed a request to secure water for 2023—the relief requested by [Audubon].” Appellees’ Mot. to Suppl. App. 2.
Audubon counters that the MOA has not expired, contending that the effort “to develop an augmentation wellfield—the central effort formalized by the MOA—is still in place” and that the MOA remains in force through 2028. Appellant‘s Resp. to Appellees’ Mot. to Suppl. App. 2. Audubon also argues that the Service “mischaracterize[s] [its] desired relief,” and that though administering water rights according to priority of appropriation is necessary relief, it isn‘t sufficient. Id. at 3–4. Audubon claims that the request to secure water “does nothing on its own,” forecasting that the Service‘s request will secure at most “temporary” relief for the Refuge. Id. at 6. And Audubon maintains that even if the February 2023 letter would otherwise moot the case, a mootness exception still applies.
To satisfy Article III‘s case-or-controversy limitation, “a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc‘y v. Heckler, 464 U.S. 67, 70 (1983) (citing Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976)). Standing and mootness are related Article III doctrines that “keep federal courts within their constitutional bounds.” Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016). “Standing concerns whether a plaintiff‘s action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision.” Id.5 When a plaintiff‘s injury is no longer actual and redressable during litigation, a case becomes moot. Rhodes v. Judiscak, 676 F.3d 931, 933 (10th Cir. 2012) (quoting Iron Arrow, 464 U.S. at 70).6
We evaluate mootness for each claim of relief sought. Smith v. Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022) (quoting Prison Legal News, 944 F.3d at 880). A claim for injunctive relief “becomes moot when the ‘plaintiff‘s continued susceptibility to injury’ is no longer ‘reasonably certain’ or is based on ‘speculation and conjecture.‘” Id. (quoting Jordan, 654 F.3d at 1024). And a claim for declaratory relief becomes moot when “the relief would not affect ‘the behavior of the defendant toward the plaintiff.‘” Id. (quoting Rio Grande, 601 F.3d at 1110). The Service bears the burden of showing that Audubon‘s
For its failure-to-act claim under
C. Audubon‘s § 706(2) Claims of Unlawful Agency Action
If the MOA has expired, then Audubon‘s claims based on
The Service‘s January 2022 statements to Big Bend, its February 2023 statements to the Water Division, and its decision to request its water rights in 2023 reveal that all material terms of the MOA have expired. The Service‘s promise not to secure its water right while Big Bend completes NEPA review of an augmentation wellfield—the MOA‘s central bargain—is no longer in effect. And the Service‘s agreement that “after examining relevant data and hydrologic modeling, the development and implementation of an augmentation wellfield . . . will be the primary mechanism in addressing the [Refuge water right impairment],” id. at 413, has also lapsed. The February 2023 letter shows that given the findings in Big Bend‘s NEPA review, the Service no longer considers augmentation to be viable as the primary means to resolve the impairment. So the Service acted to address the impairment by requesting full administration of its water right in 2023.
Audubon argues that the MOA hasn‘t expired and that, even if it has expired, a mootness exception should apply. The first exception Audubon argues—capable of repetition but evading review—applies when (1) the agency action is too short in duration “to be fully litigated prior to cessation or expiration,” and (2) “there is a reasonable expectation” that the same plaintiff will “be subject to the same action again.” Kingdomware Tech., Inc. v. United States, 579 U.S. 162, 170 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). We limit this exception to “exceptional situations.” Id.
Given the Service‘s letters in January 2022 and February 2023, it is unreasonable to expect that the Service will again enter an agreement with Big Bend substantially identical to the MOA. In 2022, the Service told Big Bend it saw no need for a renewed MOA. And in 2023, the Service ended its bargain with Big Bend to withhold from requesting the Refuge water right while Big
For similar reasons, the second mootness exception Audubon identifies—voluntary cessation of illegal conduct—also doesn‘t apply to the MOA. A defendant bears a heavy burden to show mootness “when the defendant moots the case by voluntarily ceasing its offending conduct.” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1183 (10th Cir. 2012) (citing Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000)). But we have explained that the voluntary-cessation exception doesn‘t apply when “the allegedly wrongful behavior . . . is highly fact-and-context-specific, rather than conduct that is likely to ‘recur’ on similar facts and in the same context.” Unified Sch. Dist. No. 259, 491 F.3d at 1150. Here, the MOA arose out of a highly fact-specific context: Big Bend‘s NEPA review of an augmentation wellfield and the Service‘s agreement to refrain from requesting its water rights while Big Bend completes NEPA review. Now that the Service has concluded that augmentation alone won‘t resolve the impairment of its water right, it is doubtful that an agreement like the MOA will recur under the same facts and in the same context. The voluntary-cessation exception doesn‘t apply.
D. Audubon‘s § 706(1) Claim of Agency Inaction
On appeal, Audubon focused its
As for the Service‘s 2023 request to secure its water right, we agree with Audubon that the Service‘s decision to refrain from requesting its water right is an action that is capable of repetition yet would evade our review. And as for the mootness arguments that the parties raise in their briefs, we also agree with Audubon that the dismissal of its claims against the state defendants doesn‘t render its
We begin by addressing the parties’ most recent mootness arguments about the effect of the Service‘s 2023 request to secure its water right. We then address the parties’ mootness arguments in their briefs.
1. The Effect of the Service‘s 2023 Request to Secure Its Water Right
Because the Service requested administration of its water right in February 2023, a court order forcing the Service to do so would have no effect this calendar year. Given the short one-year period of requests to secure water,
The annual nature of requests to secure water rights satisfies the first prong of this mootness exception. Kingdomware Tech., 579 U.S. at 170 (explaining that a two-year period “is too short to complete judicial review” of a contract (citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911))). Requests to fulfill an impaired water right last only one year in Kansas,
We also find a “reasonable expectation” that the Service will decide not to request its water right in a later year. Kingdomware Tech., 579 U.S. at 170 (quoting Spencer, 523 U.S. at 17). The Service recently refrained from requesting its water right for three years in a row, including one year in which it was no longer bound by the MOA. App. vol. 2, at 416; Appellant‘s Suppl. App. at 3. And Audubon alleges that the Service withdrew its request to secure water in 2019 in response to political pressures—right when the Water Division was poised to fully enforce the Refuge water right. Given this history, there is a reasonable expectation in coming years that the Service will either withdraw its request to secure its water right, refrain from requesting its water right, or do both. Cf. Rex v. Owens ex rel. Oklahoma, 585 F.2d 432, 435 (10th Cir. 1978)
We distinguish our analysis of this mootness exception between the MOA, for which the exception doesn‘t apply, and the Service‘s decision not to request its water right, for which the exception does apply. The MOA was a lengthy negotiated agreement with specific terms and set deadlines that arose out of a particular factual context; it is unlikely that the Service and Big Bend would enter this same agreement again. By contrast, the Service makes an ongoing decision whether to request administration of its water right, independent of any agreement with Big Bend.
We hold that the Service‘s 2023 request to secure its water right doesn‘t moot Audubon‘s APA failure-to-act claim because Audubon‘s claim falls under the mootness exception of capable of repetition but evading review.
2. Mootness: Redressability
We also address the parties’ alternative mootness arguments that they raise in their briefs. The Service argues in its response brief that Audubon‘s
Kansas law provides the Water Division discretion about how to respond to a request for administration of water rights. See
The Service insists that the remedy for Audubon‘s failure-to-act claim depends on the discretion of the state defendants, who are no longer before the court. Audubon counters that the Water Division will have to comply with the court order it seeks because the Water Division must “aid in the distribution of . . . water” according to a decree by any court that determines the “rights for the use of waters of the state.”
Though the Water Division may exercise discretion in administering water rights, it still “ha[s] a legal obligation to secure water to senior users.” App. vol. 2, at 383. Under Kansas law, the chief engineer of the Water Division ”shall enforce and administer [Kansas] laws . . . pertaining to the beneficial use of water and shall control, conserve, regulate, allot and aid in the distribution of water resources . . . in accordance with the rights of priority of appropriation.”
The Water Division explained the balance between its discretionary and nondiscretionary powers in its December 2017 letter to Big Bend. In that letter, the Water Division warned Big Bend that, though the Water Division would “not impose strict administration of water rights on January 1, 2018 . . . [or] in the immediate future,” Big Bend needed to work with the Service to solve the impairment of the Refuge water right. App. vol. 2, at 382–83. If Big Bend failed to do so, the Water Division cautioned that the Water Division “ha[s] a legal obligation to secure water to senior users” and that “[i]f a local solution to address impairment is not proposed early in 2018, other actions will need to be considered.” Id. at 383. This letter reflects the Water Division‘s understanding that, without the MOA, the Water Division would have to act to protect the Service‘s water right upon the Service‘s request. And the Water Division‘s past actions support this understanding. Though the Water Division refrained from administering junior water rights in 2017 and 2018 in response to the Service‘s requests, by 2019 the Water Division had prepared a plan to administer junior rights in 2020 through 2022—a plan the Water Division was
The Water Division enjoys limited discretion under Kansas law, but it always must protect senior water rights above junior rights. See
⁎ ⁎ ⁎
The Service‘s 2023 request to secure its water right doesn‘t moot Audubon‘s
II. Is Audubon‘s § 706(1) claim justiciable under the APA?
Now that we have confirmed our Article III jurisdiction to consider Audubon‘s
We review de novo “the dismissal of a complaint on its face under Rule 12(b)(1) or 12(b)(6),” applying “the same standard as the district court.” Id. at 1222. To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court has subject-matter jurisdiction. And to survive a 12(b)(6) motion to dismiss, a plaintiff must state a plausible claim for relief on the face of a well-pleaded complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff must go beyond “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” and plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 55–56). A plaintiff‘s complaint must “nudge the claim across the line from conceivable or speculative to plausible.” Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021) (citing Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011)).
When applying the Twombly–Iqbal standard, “we take [a] Plaintiff‘s well-pleaded facts as true, view them in the light most favorable to [the] Plaintiff[], and draw all reasonable inferences from the facts in favor of [the] Plaintiff[].” Id. (citing Brown, 662 F.3d at 1162). In considering a motion to dismiss, we may look to attached documents if they “are central to the plaintiff‘s claim and the parties do not dispute the documents’ authenticity.”
B. Is Audubon‘s failure-to-act claim actionable under § 706(1) ?
In limited circumstances, the APA allows for judicial review of an agency‘s failure to act. Section 706(1) allows courts to “compel agency action unlawfully withheld or unreasonably delayed.”
Audubon‘s failure-to-act claim concerns “the Service‘s chronic neglect toward the Refuge Water Right.” Opening Br. 42. For its claim, Audubon relies on NWRSIA, which creates a “National Wildlife Refuge System” and imposes duties on the Secretary of the Interior and the Service to preserve and maintain these wildlife refuges across the country.
Audubon contends that “filing a request to secure water under Kansas law is the only means by which the Service can comply with its substantive duties”
Statutory schemes that instruct agencies to perform delicate balancing acts between competing policy goals rarely provide the kind of discrete, legally required action that can ground an APA failure-to-act claim. In SUWA, the Supreme Court considered whether the non-impairment mandate of the Federal Land Policy and Management Act (FLPMA) imposed a discrete, legally required action on the Bureau of Land Management (BLM) that was reviewable under
Following the Supreme Court‘s lead in SUWA, we have held that a regulation didn‘t create a discrete, legally required action for judicial review under APA
Section 668dd(a)(4) imposes fourteen duties on the Service to balance competing priorities, including conservation, collaboration with state agencies, cooperation with landowners, and family-friendly recreation. All these duties begin with “shall,” reflecting that they are mandatory—but no provision prescribes the action Audubon seeks to enforce. True,
We can‘t read
Reading
Nothing in NWRSIA requires the Service to enforce its water right every year. An agency‘s discretionary decision to temporarily refrain from enforcing its water right is hardly the kind of defiant bureaucratic delay that
CONCLUSION
Audubon‘s NEPA and NWRSIA claims of unlawful agency action under
EID, J., concurring in part and concurring in the judgment.
I agree with the majority that the claims under
Accordingly, I concur in part and concur in the judgment.
“The crux of the mootness inquiry in an action for prospective relief is whether the court can afford meaningful relief that ‘will have some effect in the real world.‘” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012) (cleaned up) (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010)). Here, Audubon asks us to tell the federal government to ask the state government to do something that it has asked the state to do before without success. The state defendants are no longer parties to this suit; consequently, we cannot tell them directly to act, even if we wanted to do so. Mootness deals with the practical realities of the real world, not a minute theoretical possibility under state law that something could come to fruition if we ordered someone to ask for it.
The majority suggests that “Audubon‘s claims for injunctive and mandamus relief remain redressable because it is likely, not merely speculative, that the relief it seeks would lead to enforcement of the Refuge water right.” Id. at 29 (citing Smith v. Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022)). As noted above, however, the majority would have this court order the Service to request that Kansas exercise its discretion to enforce a water right. This proposed chain of events is the very definition of speculative relief. The majority also suggests that “Audubon‘s claim for declaratory relief remains redressable because a declaration would affect the Service‘s behavior by forcing the