Rio Grande Silvery Minnow v. Bureau of Reclamation

that the Commissioners based their deci- parte on ex communications [was]

sion GRANDE MINNOW RIO SILVERY ”). pure speculation ... (Hybognathus amarus); Southwestern Flycatcher (Empidonax Willow trailii case, single parte In this ex extimus); Wildlife; Defenders of For promptly contact that occurred was dis Guardians; est National Audubon So Furthermore, despite closed to Silvern. ciety; Council; New Mexico Audubon the district court’s conclusion that the con harmless, Club; tact was nevertheless awarded Sierra and Southwest Environ Silvern reasonable fees because of it. Center, Plaintiffs-Appellees, mental Thus, there is no basis for Silvern’s claim investigation

that further disclosure or of necessary. that communication is RECLAMATION, OF an BUREAU Moreover, claim that other Silvern’s agency States; of the United Robert similar or even more ominous contacts Antwerp, Gen., Engi L. Lt. Van Chief may pure speculation. have occurred is Army neer, Corps Engineers; of Unit Indeed, sanctions, in its motion for Silvern Army Engineers, Corps ed States identify any did not other contact it feared agency States; of the United Unit may place, suggesting only have taken America; Salazar, ed Ken States possibility improper of one communica- Secretary, Department Interior; required tion to order full-blown Connor, Commissioner, L. Michael discovery to determine whether other Reclamation; Larry Bureau of Wal parte ex communications had occurred. koviak, Regional Director, Bureau of record, say On such a we cannot Reclamation; Kimberly M. Collo refusing district court erred in to order Eng ton, Col., Albuquerque Lt. District investigation such an possibility into the ineer,* Defendants-Appellants, parte other ex contacts. III. CONCLUSION Conservancy The Middle Rio Grande District; Mexico, State of New De reasons, For foregoing we AFFIRM fendants-Intervenors-Appellants, the decision of the district court. Albuquerque-Bernalillo County Water Utility Authority,** Defendant- Intervenor-Appellee, * 43(c), tion; (5) Colloton, Col., R.App. Pursuant to Fed. Kimberly P. we have M. Lt. Defendants-Appellants substituted as the Albuquerque Engineer, District for Tom Fal- (1) Antwerp, Iin, this action: L. Van Col., Robert Lt. Albuquerque Engineer. Lt. District Gen., Engineer, Army Corps Chief Engi- **Albuquerque-Bernalillo County Utility Water neers, Ballard, General, Joseph Chief En- Authority Defendant-Intervenor-Appellee gineer, (2) Army Corps Engineers; Ken City Albuquerque jointly moved to substi- Salazar, Secretary, Department of the Interi- Authority, tute the as the successor in interest or, Norton, Secretary, Department for Gale City’s rights utility water Interior; (3) Connor, and water the sioner, Michael L. Commis- functions, Case, Reclamation, City for the and 06-2021. Bureau of for Eluid L. Director, Martinez, Reclamation; grant Albuquer- We the motion and substitute Bureau of (4) Walkoviak, Director, Larry que-Bernalillo County Utility Authority Regional Water Bu- Reclamation, Defendant-Intervenor-Appellee pursuant reau of for Michael R. Gabal- don, Director, 43(b). Regional R.App. Bureau of Reclama- to Fed. P. Association,*** Acequia De Rio Chama

Defendant-Intervenor,

City Fe, Intervenor.**** of Santa Arizona; Arizona Wa Central

State District; Imperial Ir

ter Conservation District; Metropolitan

rigation Water California;

District of Southern Authority, Amici Curi

Arizona Power

ae. 05-2399, 06-2020,

Nos. 06-2021. Appeals,

United States Court

Tenth Circuit.

April *** **** Aceq- City Rio de Chama Intervenor of Santa Fe entered an Defendant-Intervenor appearance uia Association entered an before appearance appeal did otherwise but participate the district court but did not in the participate. appeal.

HOI Lundman, Department Robert J. U.S. Justice, Environment & Natural Re- (Andrew HENRY, Mergen Judge, Before Chief sources Division C. Durkee, HOLMES, Department

Ellen J. U.S. Jus- BALDOCK and Circuit tice, Environment & Natural Resources Judges. Division; Wooldridge, Ellen Assistant Sue HOLMES, Judge. Circuit General,

Attorney with him on the brief(s)), D.C., for Defen- Washington, pro- This case involves one battle dants-Appellants. longed war over finite and elemental resource —Rio Grande water. The needs Bassett, Attorney

Frances C. Assistant plants depend and animals that (Patricia General, A. State of New Mexico upon this water for survival are in tension Madrid, General, Attorney State of New with the needs of the human inhabitants Mexico; Stephen R. Farris and Karen L. (the of the Middle Rio Valley Grande Reed, General, Attorneys Assistant State “Valley”) Mexico; depend upon who the water for Tanya Trujillo, Amy of New Haas, Mann, daily living agricul- and commercial and Special Assistant and Josh General, Alleging En- tural activities. Attorneys Office of the State the Bureau (“Reclamation”) gineer and the New Mexico Interstate of Reclamation failed to Commission, with her on the properly Stream maintain the delicate balance be- brief(s)), Fe, NM, Santa for the Defen- counterpoised tween these needs to the danG-Intervenor-Appellant State of New endangered species, detriment of several Mexico. Wildlife, Guardians, Defenders of Forest Society, National Audubon New Mexico (Christina Bruff, Charles T. DuMars J. Council, Club, Audubon Sierra and the Seeley, Stephen David Curtice with (the Environmental Southwest Center brief(s)), him on the Law & Resource Groups”) “Environmental sought relief Associates, P.C., Planning Albuquerque, pursuant Endangered federal court NM, DefendanNIntervenor-Appellant for (“ESA”). Species Act Conservancy Middle Rio Grande District. Belin, Directly at issue is Reclamation Sugarman,

Alletta Belin & Santa whether (“Laird”) (Laurence Fe, Lucas, ag- NM J. Ad- discretion to reallocate water from has West, Boise, ID, municipal vocates for the with her ricultural and contract users to brief), Plaintiffs-Appellees. on the maintain stream flows the benefit of (“Min- Silvery the Rio Grande Minnow (Adam Maria O’Brien H. Greenwood now”). Groups The Environmental claim brief), Albuquerque-Ber- with her on the that Reclamation does and that its failure County Utility Authority, nalillo Water Al- weigh that discretion in its consultations NM, for buquerque, Defendant-Interve- with the Fish and Wildlife Service nor-Appellee Albuquerque-Bernalillo (the “FWS”) § 7 violated of the ESA. Authority. County Utility Water outset, At we commend Virginia S. Albrecht and Karma B. court. When confronted with extended

Brown, Williams, LLP, Hunton & Wash- dispute and sometimes acrimonious be- D.C.; Robb, ington, Kathy Hunton & bitterly Williams, LLP, York, NY; opposed firmly tween and en- New W. Pat- interests, Schiffer, Counsel, impartially, trenched it acted rick Chief Arizona De- Resources, thoughtfully, thoroughly. and We are con- partment Gregg of Water and strained, however, Houtz, Counsel, disagree with Deputy A. Arizona De- Resources, Phoenix, district court and conclude that interven- partment of Water AZ, ing Amici in events have mooted the Environmental support Appel- as Curiae scope-of-consultation claim under Groups’ lants. Endangered Species The Act and the dis- B. also conclude that the ESA.1 We the Minnow denying appellants’ in trict court erred For the reasons stat- motions for vacatur. in this case is Primarily issue below, and re- appeal we dismiss the ed 7(a)(2) ESA, at 16 § codified U.S.C. to vacate its mand to the district court 1536(a)(2). Listing species § as endan- opinions April and orders of memorandum threatened under 16 U.S.C. gered or 23, 2002, 19, 2002, and Novem- September triggers provisions. § the ESA’s 22, 2005, the Environ- and to dismiss ber Babbitt, 199 Bureau Fed’n v. Wyo. Farm complaint regard with Groups’ mental (10th Cir.2000). Thus, the F.3d claim under scope-of-consultation their to the Minnow protections extended ESA’s ESA. in listed it beginning 1994 when FWS endangered. occupies The Minnow now as

I. BACKGROUND portion range, pri- of its historic small Valley marily existing in in the San Acacia Reach—a A. Federal Involvement sixty-mile of river south of Albu- stretch Valley The human inhabitants of Mexico, north of Ele- querque, New and have, centuries, used the Rio Grande for Spring Butte Reservoir. run-off phant Rio irrigation. the Middle triggers spawning. During Minnow (the Conservancy District Grande years, allegedly drought the Minnow is “MRGCD”) was formed to consolidate wa- run-off, by spring both low jeopardized irrigation systems, and to rights ter and and, as the summer spawning, which limits systems existing irrigation rehabilitate the increases, progresses irrigation riv- Valley. subsequent MRGCD’s Reach, drying er in the San Acacia which aggrada- financial with coupled difficulties mortality. adult Minnow increases develop- river channel led to tion of the 7(a)(2) Project provides, ment of the Middle Rio Grande Section ESA “[ejach (the shall, in “Project”), major agency one of two Federal consulta- Valley. Ap- tion and with the assistance of the projects impacting water Secretary, any action author- proved by the Flood Control Acts of 1948 insure ized, funded, federally agency Project consists of or carried out such likely jeopardize water- ... is not the contin- rehabilitated constructed and/or canals, facilities, dams, storage endangered species diversion ued existence of drains, major species.” levees. The other water threatened U.S.C. 1536(a)(2). § Valley, applies Section 7 to “actions project the San Juan-Chama (the Juan-Chama”), discretionary Project imports “San which there is Federal water from the River Basin to involvement or control.” 50 C.F.R. Colorado added); (emphasis § Rio 402.03 see also Nat’l the Rio Grande Basin. See Grande (Minnow II), Silvery Keys Minnow v. 333 Ass’n Home Builders Defenders of (10th Cir.2003), 644, 665-66, 669, 1109, 1122-23 Wildlife, vacated (2007) (deter- (10th Cir.2004). moot, 2518, 168 L.Ed.2d 467 355 F.3d 1215 S.Ct. Conservancy appeals argument, of-consultation it ad- 1. The Middle Rio Grande Dis sepa- separate appeal challenging briefed trict filed a dresses distinct issues rately. viability quiet-title dismissal of cross-claims The of this cross- district court's its appeal. against government quiet cer claim is not at issue in this We have to title to Silvery quiet-title appeal properties. cross-claim tain Rio Grande Minnow addressed Reclamation, (10th Silvery separate opinion. No. a Rio Grande Min- v. Bureau o 05-2293 f Reclamation, 9, 2005). Although quiet- Sept. now v. Bureau 599 F.3d 1165 Cir. filed Cir.2010). (10th scope- appeal title was consolidated with

H05 and the National suits with the mining FWS’s FWS to determine the ef interpreta- Service’s fects of its action on endangered species Marine Fisheries “ 7(a)(2)’s no-jeopardy duty § and their critical Key tion—that habitat. Fla. Deer v. Paulison, (11th 1133, only discretionary agency actions 522 covers F.3d 1138 Cir. 2008). ... not attach to actions that an To meet procedural obligation, and does agency statute to undertake the action agency required must first determine specified triggering events proposed discretionary once certain whether its action reasonable). may species occurred”—was 50 affect a listed or a critical 402.02, turn, 402.14(a). agency § § so, C.F.R. defines habitat. 50 C.F.R. If “all or programs agency “action” as activities must consult with the FWS.2 Id. (c). authorized, funded, 402.14(a), any consultation, § or During kind carried out, in part, agen- whole or Federal FWS “evaluates the pro effects of the posed cies.” action on the survival spe of [the] any potential cies and destruction or ad 7(a)(2) a imposes Section both and, verse modification of critical habitat” obligation a procedural and substantive “based on ‘the best scientific and commer agencies. Nat’l Ass’n Home ” available,’ cial data biologi formulates a Builders, 667, 2518; 551 127 S.Ct. (also cal opinion referred to here as New Mexico rel. Richardson v. Bureau ex “B.O.”). Nat’l Fed’n v. Nat’l Ma Wildlife (10th 683, Mgmt., Land F.3d 700 565 Serv., (9th 917, rine Fisheries 524 F.3d 924 Cir.2009). agency’s “An decision whether Cir.2008) 1536(a)(2)). (quoting § 16 U.S.C. discretionary a that may take action jeopardize endangered spe or threatened The prepared by B.O. is strictly governed by cies is ESA-mandated FWS the conclusion of consultation. It is inter-agency procedures.” consultation a written determining statement whether Johanns, proposed Forest Guardians v. 450 F.3d the likely jeopardize action “is (9th Cir.2006). procedural the continued species.”3 existence listed obligation agency propos § ensures 50 C.F.R. 402.14(g)(4). biological “If the (the ing agency”) opinion the action “action con- jeopardy concludes that is not like- (9th Wildlife, Cir.2001) 2. The FWS and the National Marine Fisheries 273 F.3d 704). Service administer the ESA. C.F.R. (citing § 5 U.S.C. 402.01(b). § jurisdiction The "FWS has over challenge agency’s To failure to under species freshwater terrestrial while the instance, take consultation in the first howev responsi- National Marine Fisheries Service is er, plaintiff may utilize the ESA's citizen- species.” ble for anadromous and marine Jo- provision, 1540(g)(1)(A). § suit 16 U.S.C. Un hanns, (citing 450 F.3d at 457 n. 1 50 C.F.R. provision, "any person may der this com 402.01(b)). § enjoin any mence a person, civil suit ... including the United States and other consultation "[F]ormal culminates in governmental instrumentality agency or ... biological opin [FWS's] issuance of [a] alleged any provi who is to be in violation of Keeper Dep’t ion[ ]...." Water Alliance v. U.S. regulation [the sion of (1st Cir.2001); ESA] issued under of Def., 271 F.3d see ” ESA];.... authority ("Formal 402.14(1)(1) [of Id. The APA § also 50 C.F.R. con governs judicial agency review of action chal sultation is terminated with the issuance of lenged through provision. the ESA citizen-suit biological opinion.”). "The issuance of a Coal, 706; Res., § See 5 U.S.C. biological Sustainable opinion agency is considered a final Serv., action, Inc. v. U.S. Forest subject judicial ... review.” Nat'l Found, (10th Serv., Cir.2001); Biodiversity Legal Fed'n v. Nat’l Marine Fisheries Wildlife Babbitt, 1998). (9th Cir.2005) (per Cir. cu Therefore, case, therefore, riam). scope In this to attack the of a Environmental biological Groups’ prayer consultation that has resulted in a that the district court direct opinion, plaintiff may bring pursuant pursu suit Reclamation to with the consult FWS ("APA”). 7(a)(2) § request Administrative Procedure Act ant to constitutes a for man datory injunctive See Cattle Growers' Ass’n v. U.S. Fish & relief and falls within the Ariz. pursuant fully modi to consult with the FWS to will not be adverse ly and that there 7(a)(2) habitat, prior issuing § that there is a of the ESA an of critical or fication prudent biological alternative[ ]’ and assessment. The ‘reasonable October jeopardy that avoids and agency Groups action contended that Environmental and that the inciden adverse modification Corps possessed “sig- Reclamation and the or threatened taking endangered tal of virtually aspects over all nificant discretion 7(a)(2), violate section species will not ... funding operation and of their can issue an ‘Incidental consulting agency they Project, and therefore must consult Nat’l Take Statement’.4 with the on all of these actions.” FWS Wildlife Fed’n, An 524 F.3d at 924. Incidental prompted at 277. The suit several J.A. (“ITS”) per Take Statement “constitutes users, including contract water take authorizing agency mit the action Mexico, and the of New MRGCD State species or threatened so endangered intervene. long respects as it terms [FWS’s] 29, 2001, On June the FWS issued a Spear, Bennett v. 520 U.S. conditions.” B.O.”). (“2001 biological opinion As re- 154, 170, 117 S.Ct. 137 L.Ed.2d 281 sult, Groups Environmental filed a sec- omitted). (1997) (internal quotation marks complaint contesting the va- ond amended agency jeopardy If an action receives a lidity again raising of the 2001 B.O. and opinion, agency comply the action can Corps’ alleged and the fail- Reclamation’s 7(a)(2) obligation § its substantive under ure to consult with the FWS to the fullest “ action, only imple if it ‘terminate[s] discretionary authority. of their extent alternative, or proposed ment[s] 19, 2002, April the district court af- On exemption an from the seek[s] Cabinet- firmed the 2001 B.O. on substantive Endangered Species pur level Committee ” grounds, leaving En- the remainder 1536(e).’ § Key suant to 16 U.S.C. Fla. Group’s vironmental claims for later reso- Deer, (quoting at 1139 Nat’l front, however, procedural lution. On the Builders, 127 Ass’n Home S.Ct. at 2526). the district court concluded that “[Recla- retains sufficient discretion over mation] History Procedural C. management operations its river in the Grande, middle Rio de- specifically water 15,1999, On November the Environmen- Project ... liveries under the and under tal citizen Groups filed ESA suit seek- ..., relief, to require [Rec- San Juan-Chama ing injunctive declaratory both to consult over those un- part, Army lamation] for Reclamation’s and the actions (the 7(a)(2) Corps Engineers’ “Corps”) failure der Section of the ESA.”5 Id. at sheltering.” § purview provision feeding 50 C.F.R. 17.3. of the citizen-suit or Coal, Inc., Res., However, ESA. protection endangered § See Sustainable 9’s F.3d at 1249-50. species threatened is not as broad as that § provided by § 7 en- because 9 cannot be prohibits 4. the ESA a “take'' of Section actually forced "until an animal has been any endangered. species See 16 listed injured.” killed or Babbitt v. Sweet Home 1538(a)(1)(B). § U.S.C. The term “take” is Or., Chapter Cmtys. a Great "harass, harm, broadly pur- defined to mean 115 S.Ct. 132 L.Ed.2d 597 sue, hunt, shoot, wound, kill, trap, capture, or (1995). collect, attempt engage or to such 1532(19). § conduct.” Id. The term "harm” Corps did The district court found any "significant includes habitat modification operation not have discretion in the degradation actually in- where it kills or Project and San Juan-Chama reservoirs suffi- jures by significantly impairing wildlife essen- breeding, require pursuant patterns, including cient to consultation tial behavioral

HQ7 subsequently dismissed the in- requiring agencies 173. We the federal to complete appeal April 19 order for full through tervenors’ consultation issuance aof le- standing gally lack of and dismissed the federal adequate biological opinion, and an agencies’ appeal because the order was not requiring agencies order the federal review. Rio “take all steps within their discretionary subject interlocutory (Minnow Silvery Keys Minnow v. Grande authority necessary to conserve” the Min- I), 929, 933-34, now. Id. at 527. Fed.Appx.

Cir.2002) curiam). (per September 2002 Memorandum 4, 2002, September the Opinion

On Environmen- addressing the Environmental Groups sought emergency injunctive tal Groups’ injunction, motion for an the dis- relief, alleging drought year that a was trict court chided having Reclamation for endangering asking the Minnow and timely failed reinitiate consultation de- to. court to order spite persistent the federal defendants drought historic requirements guidance meet flow of the 2001 “clear that it had discretion to 12, 2002, September B.O. On the FWS consult with limiting the FWS about (“2002 B.O.”) biological opinion issued a in reducing contract deliveries under that, although which determined Recla- Id. [Project].” [San Juan-Chama] and the Valley operations mation’s were at 208. Because the FWS could formulate Minnow, likely jeopardize there ex- no RPA that jeopardy avoided to the Min- now, no prudent isted reasonable and alterna- the district court determined that the (“RPA”) tive to alleviate the jeopardy. 2002 B.O. was arbitrary capricious. Moreover, it concluded that Reclamation 19, 2002, Consequently, September empowered was to release San Juan-Cha- the Environmental Groups filed a third water,6 ma to restrict future contract deliv- complaint challenging amended the 2002 eries of both San Project Juan-Chama and They press allega- B.O. continued to their water, by and to restrict diversions tion that Reclamation “failed to consult An appeal MRGCD. ensued.7 ... fully aspects over all of their Middle operations Rio water Grande and related While the appeal pending, the FWS activities,” decision-making key ele- biological issued March opinion (“2003 B.O.”). ments of which included their decisions not “deple- The FWS used a approach” reduce water to the MRGCD and not to purposes of de- tion-based use termining San Juan-Chama water for the benefit the scope proposed feder- Id. at 923. That is, of the Minnow. Envi- FWS, J.A. 516-17. The al action. Reclamation, Groups sought ronmental a declaration Corps, and other inter- parties both the 2001 B.O. and the 2002 B.O. ested consulted “on the effects of arbitrary were capricious, an order total depletions species, river on listed Groups ESA. The Although panel Environmental have not 7. a divided of this court af- appealed finding. preliminary injunc- firmed the district court's tion, II, panel Minnow 333 F.3d at partial judgment, In its order and final appeal later concluded that the was moot and that, time, drought district court noted at that opinion. Silvery vacated the Rio Grande Min- conditions created insufficient water to meet (Minnow III), Keys now v. the 2001 B.O. mandated flow rates without (10th Cir.2004). Though noting jeopardizing availability water in future irri- preliminary injunction entered the district Therefore, gation seasons. the court ordered unenforceable, panel court was did not release of water to meet flow than lesser rates partial vacate the district court’s order and required, the 2001 B.O. but ordered flow judgment. final Id. rates to increase to mandated those year. 2001 B.O. later in the vowed to strive to allot short- tribes and aspects identifying particular without all users. ‘discretionary ages non- between as or the overall action concluded discretionary.’” Id. The FWS 2003, Meanwhile, Congress in December likely would proposed actions Energy and a rider to the Water enacted existence of jeopardize the continued 2004, Act, Development Appropriations analyzed the Similarly, the FWS Minnow. 1827, 108-137, 208, § 117 Stat. Pub.L. No. RPAs developed the Minnow and threat to rider”). (2003) (the “2003 minnow 1849-50 species, of the biological needs “based on placed minnow rider San Juan- The 2003 of water and dis- independent of sources beyond water Reclamation’s discre- Chama at 921. cretionary authority.” Id. 208, tionary § 117 Stat. at 1849. reach. conformity Additionally, Congress deemed pri- court’s of the district recognition full with the 2003 B.O.’s RPAs and ITS as appeal, howev- pending and the or orders requirements compliance meas- the ESA’s er, proposed different Reclamation Id. at 1849-50. two-year period. for a jeopardy to avoid ures it could use 2004, Minnow, Congress enacted second rider on the ultimate deter- depending adequacy the ESA discretion. which extended scope mination of the of its through March as- 2003 B.O.’s RPAs and ITS proposal, first Reclamation Under the Appropriations limit 2013. See Consolidated it had no discretion to sumed Act, 2005, 108-447, 205, § Minnow Pub.L. No. deliveries to benefit the contract (2004) (the 2809, minnow “2004 supplemental pro- water Stat. proposed and rider”). 2005, 19, Finally, on November by which it lease water from gram would 2004 minnow rider Congress when amended the willing lessors to enhance river flows and extended its ESA-satisfaction cover- necessary. proposal, the second Under age “any to include amendments” to the assumed that it had discretion Reclamation diversions, Energy Development and storage, limit curtail water 2003 B.O. Water Act, 2006, Pub.L. No. 109- belonging Appropriations to both and release stored water (2005).8 103, 121(b), § and the American Stat. contract users Native amended, pro- amendments thereto combined with efforts 8. As the 2004 minnow rider pursuant Public 106- follows: carried out 377, Law vides as 107-66, and Law Public Law Public (a) Notwithstanding any provision of other fully requirements meet 108-7 all hereafter, Secretary of the Inte- law and rior, (16 Endangered Species Act 1531 et U.S.C. through acting Commissioner seq.) Rio Grande for the conservation of the Reclamation, may not obli- the Bureau of amarus) Silvery (Hybognathus and Minnow funds, discretion, gate may if not use Flycatcher (Empi- the Southwestern Willow restrict, any any, to reduce or reallocate extimus) trailii on the Middle Rio donax deliv- water stored in Heron Reservoir or New Grande in Mexico. Project pursuant ered contracts, to San Juan-Chama (c) applies only Feder- This section to those including con- execution said agencies ad- al and non-Federal actions by facilitated the Middle Rio Grande tracts Biological the March dressed in Project, requirements to meet the Act, Opinion. Endangered Species unless such water (b) (d) will remain in effect un- Subsection acquired otherwise made available til March willing from a seller or lessor and the use is § amended compliance 118 Stat. at as with the laws of the State of to, 121(b), Mexico, Legislative § including 119 Stat. at 2256. histo- New but not limited ry Congress differentiated be- permitting requirements. reveals (b) Project water Complying pru- tween San Juan-Chama with the reasonable the former is not native to the Rio dent alternatives and the incidental take because Basin, Opinion imported from another wa- Biological in the re- Grande but limits defined Cong. (daily ed. tershed. 149 Rec. SI0896 leased the United States Fish and Wild- 1, 2003) (statement Bingaman). Aug. of Sen. dated March 2003 and life Service

H09 B.O., Following the issuance of the 2003 appropriate would not be and in public rider, passage of the 2003 minnow appeal interest. This followed. preliminary injunction dismissal of the our II. DISCUSSION moot,

appeal Groups the Environmental acknowledged that “there is no further Intervening A. Events have Mooted that can at this upon relief be issued time Groups’ Environmental existing claims Plaintiffs’ lawsuit.” Scope-of-Consultation Claim They sought J.A. at 1630. dismissal but 1. Standard of Review requested that the court not district vacate prior Agreeing its orders. case [12,13] subject-matter We no ju moot, appellants urged vacatur. risdiction if a case is moot. Sch. Unified Groups sought The Environmental then to Dist. No. 259 v. Disability Rights Ctr. dismiss, withdraw their motion to claiming Kan., 1143, (10th 491 F.3d 1146-47 Cir. scope-of-consultation that their claim was 2007). questions We review of mootness by intervening not mooted events because de novo. R.M. Inv. Co. v. U.S. Forest likely the violation was to recur. Serv., (10th 1103, Cir.2007). 511 F.3d 1107 22, 2005, although recog- On November “ ‘Mootness is a threshold is nizing congressional action mooted sue because the existence of a live case or Groups’ the Environmental claims as to controversy is a constitutional prerequisite water,9 San Juan-Chama district court ” jurisdiction.’ to federal court Disability rejected the contention that the Environ- Ctr., Law Ctr. v. Millcreek Health 428 Groups’ scope-of-consultation mental claim (10th 992, Cir.2005) F.3d 996 (quoting Project Rather, toas water was moot. City McClendon v. Albuquerque, 100 court determined that the FWS’s issuance “ (10th 863, Cir.1996)). 867 ‘Without B.O., of the 2003 and Reclamation’s adop- live, a concrete controversy, juris we lack it, voluntary tion of constituted a cessation diction to consider claims no matter how with respect to Reclamation’s failure to ” meritorious.’ Habecker v. Town Estes alleged scope consider the full of its discre- Park, (10th 1217, Cir.2008) 518 F.3d tionary authority. Absent Reclamation’s Suthers, (quoting 1244, Mink v. 482 F.3d and the FWS’s assurances that they would (10th Cir.2007)). Declaratory judg operate continue to under the discretion- ment actions must be sustainable under B.O., ary option in the 2003 the district the same mootness that apply criteria they court determined that failed to meet any other lawsuit. See Sch. Dist. their establishing burden of mootness. Unified (“Actions No. 491 F.3d at 1147 seek Additionally, the district court entered ing declaratory judgment comport must declaratory judgment requiring Reclama- with the same principles any as consider, tion and the FWS to in future (internal suit.” consultations, quotation other marks Reclamation’s discretion to omitted)). As we noted in Project Phelps reallocate contract Cox v. Finally, water. assuming Dodge Corp., arguendo that is well “[i]t case was established moot, the court vacating declaratory concluded that what makes a judgment action opinions judicial memorandum and orders a proper resolution aof case or

Therefore, enjoy the Minnow did not granted ben- 9. The district court the Environmen- prior efit of San Juan-Chama water Groups’ City Albuquerque's tal and the diversion, and, consequently, the absence of stipulation joint motion for dismissal of San Juan-Chama water was not deemed to regarding all claims the San Juan-Chama and contribute to the decline of the Minnow. Id. prejudice. dismissed the claims with at S10896-97. added) 2005) Citizens (emphasis (quoting advisory opin than an controversy rather Ac State Political Responsible Gov’t dispute which settling of some ion is the Davidson, 236 F.3d tion Comm. the defendant to behavior of affects the (10th Cir.2000)). 1345, 1348 plaintiff.” ward the Cir.1994) dash, (10th (brackets, and in en Challenges and 2002 omitted), supersed quotation marks ternal Opinions Biological are Moot grounds, other Civil by statute on ed 102-166, challenge the appellants No. Act of Pub.L. Rights (codified at 42 court’s determination § 105 Stat. 1981a), recognized in Walker issuance of the 2003 B.O. did § FWS’s U.S.C. Inc., Groups’ claims.10 the Environmental moot v. UPS “ Cir.2001). remains question crucial whether claim ‘The To determine review, type what of present determination for we must ascertain granting whether seek, Groups Environmental and will have some effect relief the of the issues offered ” can, juncture, at afford Dep’t whether we this Wyoming world.’ v. U.S. in the real (10th meaningful relief.11 See S. Utah 1212 them Agric., 414 F.3d Cir. rulings court's prospec- of action survived the district court identified three 10. The district analysis. (1) to our immaterial Count I—a violation of tive ESA claims: 7(a)(2); (2) § II—a violation of Count appeal, Groups 11. On the Environmental (3) 7(a)(1); § Count violation of and IV—a sought supplement record with leave to the only agencies imply § 9. The federal court, by the district documents not reviewed 7(a)(2) § determination. claim remains for claiming they are relevant to demonstrate indicates that is unclear The MRGCD the case is moot. "This court will 7(a)(1) § whether the district court found be not consider material outside the record Concluding that § claims to be moot. and 9 v. Ken the district court.” United States fore ruling by district court would be such a Cir.2000). (10th nedy, 225 F.3d 1191 an- "perplexing,” the MRGCD nonetheless And, although authority we have inherent to operate its intention to under nounces record, supplementation of the this is a allow ruling” "challenges only "apparent 10(e). exception R.App. to Fed. P. Id. at rare " 7(a)(2) holding § to the district court's as 10(e) supple party 'Rule allows a to 1192. However, Aplt. at MRGCD Br. claim.” grant appeal but does not ment the record on ” Groups appear reject the Environmental Shooting a new record.' a license to build justiciability only the notion that Ranch, States, LLC v. United 230 F.3d Star See, 7(a)(2) Aplees. e.g., § claim is issue. (10th Cir.2000) (quoting 2 Kenn 1177 n. ("In opinion 2005 Br. 33 his November 1191). edy, 225 F.3d at judgment, Judge and final Parker concluded motion, support their the Environ moot, because relief was still this case is not appel Groups rely in which mental on cases remedy adjudicated needed to these violations supple post-judgment late courts allowed [referring back to the three claims of the ESA that actions mentation of record show above].”); ("Plaintiffs at 27 n. ... noted id. occurring subsequent judgment mooted always See, that the case as a whole asserted e.g., Corp., Clark v. K-Mart case. moot.”). ap- banc); And the district court (3d 1992) (en was not Cedar F.2d Cir. scope- Am., peared expressly conclude that the v. Mine Coal Co. United Workers of underlay prospec- However, (4th Cir.1977). all three of-discretion issue ("The tive claims. See J.A. at 239 issue Groups’ ESA reliance on these the Environmental because, agency discretion underlies each of misplaced of federal cases is as conclude Thus, claims.”). reasoning, infra, under that prior these to the district the case moot together entry judgment. would stand or fall all three claims See Child Evan court's Md., analysis Montgomery gelism Fellowship of this case. Ul- Inc. v. under however, Sch., timately, given holding County n. 1 our Pub. Cir.2006) scope-of- (affirming regard the ESA district court's determi is moot with case moot, claim, among dispute that several claims were nation consultation denying plaintiff's supplement motion to regarding specific causes parties which ESA HH Smith, Wilderness Alliance anything case, remains of NMA’s we need (10th Cir.1997). 724, 727 to identify regulations which NMA chal- lenged and whether the new rules altered Groups essentially The Environmental regulations.”). those only And the 2001 that, listing contend since the Minnow’s B.O. and 2002 targets B.O. were extant endangered, continuing date allegations. their filing complaint, of the third amended problem fully Reclamation has failed to the Environmental consult. however, Groups, They is that prayed for a declaration12 that neither the 2001 7(a)(2) B.O. nor 2002 § B.O. still exists. agencies violating federal are After the Groups Environmental failing to all filed their discretionary consult on third as- complaint, amended action, pects of the FWS issued the and for an B.O., which superseded injunction both of them. ordering full consultation. Be- The 2003 B.O. regulato- establishes a new only cause the 2001 B.O. B.O. ry framework under which the propriety of had been issued when the Environmental Reclamation’s judged. actions must be Groups filed their third amended com- The Environmental Groups have not ar- plaint, we must interpret therefore then gued that the 2003 B.O. is a mirror image pleadings as directed at the 2001 B.O. and biological the two opinions that it sup- 2002 B.O. The Environmental Groups’ alle- planted, nor they. could they Nor have gations legal wrongdoing must be asserted that the changes are “only super- grounded in a particularized concrete and Found, ].” Conservation Law v. Ev- context; ficial factual they are not subject to ans, (1st Cir.2004). 360 F.3d review as free-floating, griev- ethereal ances. See Nat’l Mining Ass’n v. U.S. We must conclude that the FWS’s issu- Interior, Dep’t the 251 F.3d 1010 ance of the 2003 B.O. mooted the Environ- (D.C.Cir.2001) (“To determine whether mental Groups’ prayer for injunctive both appeal record on on issue of mootness be- cause we resolve the case on mootness Thus, cause district court did grounds, not have the evidence we do not reach the merits. judgment); before it when it entered Groups' Cedar the Environmental motion is itself Co., (agreeing Coal 560 F.2d at 1166 to con- moot. appeal sider new only information on "[D]eclaratory judgment regard actions often re the to issue of mootness "because 12. quire courts to face the difficult task of distin question there was no mootness before the guishing court”). 'between actual controversies and consequently deny We the attempts advisory opinions to obtain on the supplement. motion to hypothetical basis of controversies.’” Coal. requests The State of New Mexico that we Indus., Gov’t Procurement v. Fed. Prison portions strike those of the Environmental for Inc., (6th Cir.2004) (quot Groups’ response supple- brief that cite to the Columbus, ing City Kardules v. appendix. deny mental Because we the Envi- (6th Cir.1996)). "Thus, 1343-44 Groups’ supplement ronmental record, the motion to the Supreme grant Court has held that when the State New consider Mexico's ing potential request the to the extent mootness of a claim that the Environmental relief, declaratory Groups question now-prohibited supple- relied on the is whether the circumstances, appendix alleged, briefing. mental facts under in their all the Finally, Groups controversy, show that there is a Environmental move to substantial or, portions reply parties having legal strike of the MRGCD's between brief adverse inter alternative, ests, surreply. in immediacy reality to file a of sufficient The arguments reply the MRGCD declaratory judg addressed in its warrant the issuance aof allegedly scope (internal

brief that exceed the quotation ment.” Id. at 459 marks omitted) arguments fairly (quoting addressed Super Eng’g Environ- Tire Co. v. McCorkle, Groups 115, 122, response mental in their brief deal 94 S.Ct. exclusively (1974)). with the merits of the case. Be- 40 L.Ed.2d 1 Yeutter, an declaratory challenge. See Sierra Club v. relief. If we issued (5th Cir.1991) (“Once an 439-40 directing to consult F.2d injunction Reclamation a has been agency plan at issue submits concerning biological opinions through in 7 consulta agreed have no effect the section litigation, in this would then, biological applying the court process, those tion the real world because Indeed, arbitrary capricious standard of re been opinions superseded. have it.”). view, B.O., approve disapprove must as to the 2003 a consultation even words, Groups meaningless because other Environmental injunction would be already challenge scope consult- cannot of consultation agencies federal agencies’ from the ef injunction ordering “An consultation untethered ed. The longer develop biological opinion. no forts to [using expanded scope] an is ordering process culminates in the issu point There no consultation warranted. place.” biological opinion.14 Keep already action that has taken ance of Water Alliance, And, Alliance, in this F.3d at 26. Wilderness er S. Utah case, biological opinion has now been B.O.). (i.e., issued the 2003 Furthermore, any declaration Groups’ Environmental concerns B.O. and 2002 were insufficient The B.O. fully appropri- failure to con- whether Reclamation will due Reclamation’s about ately response effect consult with wholly sult would be without the FWS Groups are far changing real world. Environmental water-demand conditions are some a claim for de- provide speculative support insist that we situated to too relief, especially declaratory regard- claratory relief relief. relief would Any such scope regarding discretion to an ing advisory opinion Reclamation’s amount However, Environ- scope in consultation. of Reclamation’s discretion Groups point opinion clearly improper. able to an mental have not been such would Cox, Alliance, ongoing injury. concrete See 110 F.3d to some See S. Utah Wilderness (“[T]his (“SUWA at 1348 has ex- has 43 F.3d court at 730 not shown plaintiff that a maintain a are plained likely cannot defendants to violate section 7(a)(2) injunctive future.”); declaratory or action unless he in the near also Ctr. see Lohn, good Biological Diversity or she can a chance of v. 511 F.3d demonstrate (9th Cir.2007) injured being [by (concluding likewise that a defendant] (alteration (in- declaratory claim original) in the future.” in al- regarding relief omitted)). quotation improper As the legedly regulatory policy ternal marks consultation, by governmental listing regulations governing agency’s formal mooted 402.14, § species of for- whale endangered, 50 C.F.R. and reinitiation of killer consultation, 402.16,13 § “ultimate objective” mal 50 C.F.R. which was of environ- demonstrate, duty advocacy appellants; to consult is not mental the fact that ongoing subject employed an action agency agency allegedly improper itself 402.16, § to 50 reinitia- L.Ed.2d 13. Pursuant C.F.R. S.Ct. required (1997), the ac- tion of consultation is when arguing in that their claims under agency specified tion exceeds the take in provisions the citizen-suit of the ESA should ITS, pre- not new information arises that was moot, irrespective moot- not be deemed considered, modified, viously or the action is claims, "perplex- of their ness status APA species a new or critical habitat is listed. ing.” Aplts. Reply Bennett Fed. Br. at 17. questions did not involve of mootness and is agree agencies We with the federal germane Groups' to the Environmental Groups’ Environmental reliance on the Su- argument. Spear, preme Court's Bennett v. decision in

1H3 in policy effecting listing did not alter we are not present situated to issue a it the mootness calculus because was “too determination with real-world effect be policy that this

speculative” the future regulations longer cause those no oper are adversely affect” “might species listed ational'—-for material purposes, they all no killer species); affect “other” whale Or. And, longer fact, exist. because of that Serv., Natural Desert v. Ass’n U.S. Forest likewise are not any pur situated to cure 04-3096-PA, No. 2007 WL at *5 ported procedural irregularities in Recla 2007) (D.Or. (“Plaintiffs Apr.3, argue also mation’s consultation behavior concerning declaratory helpful relief would be opinions. Thus, those the Environmental BiOp ‘ensure that the complies [new] with Groups’ claims are moot. See also Colo. timely the law and does so in a manner’ Off-Highway Vehicle Coal. v. U.S. Forest declaratory ‘clarify and that relief would Serv., (10th Cir.2004) legal and settle’ I obligations. defendants’ (“Plaintiffs challenge to the 1997 Decision defendants, however, agree jus- such request Notice and its for declaratory and vague tifications are so as to make Article injunctive relief is moot. The 1998 Routt controversy’ Ill’s ‘case or requirement Forest Plan and accompanying [off- meaningless. Courts should not micro- road policy use now governs vehicle] manage agency’s procedures under the Routt National Forest making Plaintiffs review.”). guise judicial attack on the 1997 Decision Notice futile.” analogous addressed an We situation added)); (emphasis City cf. Camfield Wyoming. There the Wyoming State of City, Okla. Cir. successfully brought challenge a NEPA 2001) (“Because parties legally have no against before the rule of cognizable interest in the constitutional va Service, “commonly the U.S. Forest known lidity statute, of an statutory obsolete Rule,’ generally pro- as the ‘Roadless amendment moots a case to the extent that hibited road construction in inventoried challenged removes prior features of the roadless System areas on National Forest (internal quotation law[.]” marks and cita lands.” 414 During F.3d at 1210. omitted)). tions pendency appeal certain environ- defendant-intervenors, mental group facts, On these cases of our sister cir- Forest Service issued a final rule that cuits also are example, instructive. For Rule, replaced the Roadless and we con- American Rivers v. National Marine cluded that “the new rule has mooted the Service, Fisheries the Ninth Circuit sum- issues in case” and dismissed the th[e] marized plaintiffs’ challenge as follows: appeal. particular, Id. In that noted plaintiffs alleged The that the 1994-1998 portions of the “[t]he Roadless Rule that Biological Opinion [issued the Nation- substantively were challenged by Wyo- al Marine Fisheries Service] violated ming longer no exist.” Id. at 1212. Fur- 7(a)(2) § Specifically, of the ESA. Amer- thermore, alleged we reasoned that “the ican Rivers contended that the federal procedural deficiencies of the Roadless defendants violated the by relying ESA Rule are now irrelevant because the re- transportation on the of Snake River placement promulgated rule was in a new smolts to that conclude the 1994-1998 separate rulemaking process.” Id. As operations System of the River Power Wyoming, to the extent that the Envi- unlikely jeopardize are the continued Groups ronmental seek a declaration that existence of the listed salmon. the 2001 legally B.O. and 2002 B.O. are (9th Cir.1997) (foot- infirm due to Reclamation’s failure to con- omitted). using scope discretion, However, sult the full of its note during the Forest challenge. See also pellant’s Ma- litigation, the National course Serv., a new bio- “issued Fisheries Service v. U.S. Forest rine Guardians (“1995 Opinion”) Biological opinion (9th Cir.2003) logical § (holding ESA [challenged] 1994- superseded which per- challenged § moot when 9 claims at 1123. Biological Opinion.” Id. superseded pursuant mits were issued con- difficulty, the Ninth Circuit little With Kantor, 96 opinion); Ramsey v. biological moot. Id. action was plaintiffs’ cluded that Cir.1996) (holding (“[T]he in the biological opinion applies rule of mootness where the same by the superseded has been present case longer relying no on agency an “would Therefore, any Opinion. Biological that was particular biological opinion Biological Opin- challenge to the 1994-1998 rather a new being challenged, upon but moot.”). ion is agency will be and “where opinion,” con- reached a similar The D.C. Circuit criteria or basing ruling its on different At issue Mining in National Ass’n. clusion future”). factors in the validity of several federal there was “the per- on requirements imposed regulatory strongly The relevant case law thus for con- procedures mit and the applicants, in favor of a conclusion of moot- counsels accuracy of information used to testing the to the FWS’s issuance of ness here. Due F.3d at permit eligibility.” 251 determine B.O., provide we can no effective the 2003 permits were issued under Groups did not relief. The Environmental Mining Reclamation and Control Surface B.O., currently and it challenge the 2003 Act, § im- seq., 1201 et and its 30 U.S.C. disposition of the governs Reclamation’s no one could en- plementing regulations; That B.O. has altered the water at issue. mining in surface coal without such gage within which Recla- parameters real-world argument, After oral the Inte- permit. Id. creating regulatory a new operates, mation regulations revised the Department rior compliance with assessing context for challenged reg- governed some obligations. its ESA and, ulatory requirements procedures was “faced consequently, D.C. Circuit Groups’ The Environmental reliance questions concerning the with additional decision in Forest the Ninth Circuit’s is now moot.” Id. extent to which case unavailing. v. Johanns is Guardians identifying regulations that After case, the Forest Service and the FWS subject challenge, appellant’s were the comprehensive management engaged the Inte- determined that D.C. Circuit monitoring grazing of lands used for regu- revisions to those Department’s rior ultimately allowed the Forest Service appellant’s upon attack lations rendered presume that the FWS concurred each particular, at 1010-11. In them moot. Id. year finding parcels no-jeopardy that the revisions the D.C. Circuit stressed Johanns, by 450 plan. land covered its changes” previ- “substantial effected F.3d at 458-59. When Forest Service regime, thus al- ously existing regulatory and comply management did not with the tering the real-world conditions and elimi- monitoring requirements, plaintiff relief. nating possibility meaningful brought claiming suit that consultation “The old set Id. at 1011. The court noted: id. at 459-60. should be reinitiated. See rules, subject which are the of this The then reinitiated consul- Forest Service lawsuit, nothing if cannot be evaluated as subsequently received the tation and now in changed. system A new is has no-jeopardy in its find- FWS’s concurrence place.” Accordingly, Id. the D.C. Circuit ap- ing. Id. at 461. that the revisions mooted determined

H15 Voluntary holding that the Forest Service’s sub 3. Cessation of consultation did not sequent reinitiation Groups argue, Environmental The claims, the court distin plaintiffs moot the held, scope-of- the district that the in Utah guished our decision Southern claim consultation was mooted not The court Alliance. observed Wilderness issuance the 2003 because Recla- B.O. monitoring requirements on that the were voluntarily alleged mation ceased ob- through extend going action that would jectionable disagree. behavior. We Additionally, 462. lease term. Id. at “One to a claim exception court determined Forest Service voluntary is a defendant’s cessa of not likely “practice to continue its alleged illegal practice tion of an which the require complying monitoring with the defendant is free to at resume time.” ments,” especially argued because it Chihuahuan Grasslands Alliance v. compliance required. was not Id. Kempthorne, 545 892 F.3d Cir. court, therefore, “[d]e determined that a 2008). “The rule ‘voluntary cessation claratory in judgment favor of Forest challenged practice rarely of a moots a For Guardians would thus ensure that the ... principle federal case traces to the est Service does continue to fail that a should party not be able to evade monitoring responsibilities meet review, judicial a judgment, by to defeat duty future and that it fulfills its under temporarily altering questionable behav ESA to consult with FWS when neces ” ior.’ Sch. Dist. No. Unified Consequently, sary.” Id. the court con (quoting at City Novelty, News & that, although request plaintiffs cluded Waukesha, City Inc. v. injunction for an was mooted reinitia n. 121 S.Ct. L.Ed.2d consultation, a declaratory judg tion of (2001)). words, “In other exception would, nevertheless, provide ment relief. counteract possibility exists to of a Id. 462-63. ceasing defendant action illegal long render a moot enough to and then lawsuit an on-going The absence of viola- ESA resuming illegal Chihua conduct.” from distinguishable tion makes this case Alliance, huan 545 F.3d at Grasslands akin to Utah Johanns more Southern Wilderness Alliance. See S. Utah Wilder- Alliance, (finding ness 728-30 Voluntary may, never actions claim, seeking declaratory judg- plaintiffs theless, litigation moot if two conditions Manage- ment for the Bureau of Land “(1) it are satisfied: can said with as ment’s alleged failure consult with there expec surance that is no reasonable 7(a)(2), §by when required FWS as moot recur, alleged tation that the will violation informal agencies subsequently completed (2) interim relief or have com events consultation). Unlike the Forest Service pletely irrevocably eradicated the ef Johanns, currently Reclamation is not alleged County fects of the violation.” engaged the same behavior that was the Davis, 625, 631, Angeles Los subject Groups’ (1979) (internal of the Environmental ob- S.Ct. L.Ed.2d 642 Instead, the a su- jections. marks, issued FWS quotation elipses, and citations omitted). which perseding B.O. with Reclamation is “[V]oluntary of offen cessation Thus, we are complying. only litigation constrained will if it sive conduct moot conclude that of B.O. changed the issuance the 2003 clear that the defendant has not scope- simply juris court of Groups’ deprive mooted Environmental course City under Nat’l Adver. v. Mia of-consultation claim the ESA. diction.” Co. of 1116 Cir.2005) (11th from discontinu officials 1329, governmental ed

mi mooting a challenged practices and ing curiam). moot asserting party (per “ Thus, body legislative even when a case.15 per ‘heavy burden of ness bears or to re-enact an ordinance power has challenged that the court suading]’ statute, repeal or ordinarily an amendment reasonably expected cannot conduct challenging the ordi it moots a case of Earth, Friends up again.” start of Camfield, 248 F.3d See nance or statute. (TOC), Inc., Envtl. Servs. Inc. v. Laidlaw 1223; Native Vill. Noatak at see also 693, 167, 189, 120 S.Ct. 528 U.S. (9th 1505, 1510 Cir. Blatchford, 38 F.3d (2000) (alteration original) L.Ed.2d 610 (“A however, 1994) is statutory change, States v. Concentrated (quoting United moot, even enough to render a case usually 199, 203, Ass’n, Exp. Phosphate legislature possesses power if (1968)). 361, 21 L.Ed.2d 344 89 S.Ct. lawsuit is the statute after reenact however, rule, if a chal general Laidlaw's dismissed. As a practice, the case repealed expires, is prevent- lenged not law frequently has heavy burden burden, Indeed, circuits heavy ways”). of our other sister Some despite Laidlaw's govern expressly expressed and even have treated have similar sentiments some courts voluntary "with suggested officials' conduct is not a mental that “when the defendant actor, private actors. than that of government[al] more solicitude” private citizen but a Turnock, 1358, 1365 Ragsdale v. presumption that is a rebuttable there Texas, (7th Cir.1988); Sossamon v. see Troi objectionable behavior will not recur.” Cir.2009) (5th (noting that Supervisor Elections in Palm Beach ano v. treating voluntary justified in a "courts are Cir.2004); County, 382 F.3d wrongful possibly governmental cessation of Indus., City Chicago United Ltd. v. accord solicitude, mooting cases with some conduct (7th Cir.2006). Chicago, 445 F.3d might proceed had have been allowed to agencies New and the State of The federal entity”), peti public a the defendant not been public/private alluded to this Mexico have (U.S. filed, 77 U.S.L.W. 3657 tion cert. for 22, 2009) (No. 08-1438). asserting voluntary-ces distinction in May The Fifth Cir exception preclude a deter sation should not solicitude, opined that this cuit in Sossamon Aplts. Fed. mination of mootness here. See comparatively effectively places a which (distinguishing Reply a case Br. at 14 n. 13 proof governmental offi lighter burden of Groups cited the Environmental because cials, Supreme with the was "reconcilable” voluntary private party's a cessa "addresses language heavy-burden in Laidlaw Court’s conduct; challenged situation tion "government[al] actors in their sov because challenged agency ac ... where a final here ereign capacity the exercise of their and in agen wholly replaced with a new final tion is presumption official duties are accorded (citation omitted)); cy State of New action” servants, they public good are faith because par Reply (noting Mexico Br. at 12 private parties.” 560 F.3d not self-interested governmental agencies act ties here “include 316; Wright, Alan Ar at see also 13C Charles public policies ing pursuant to been Cooper, & H. Federal thur R. Miller Edward state, local, lev approved at the and federal 3533.5, § 238- Practice and Procedure critical”). and that distinction is "[t]his els” ed.2008) (3d (noting that a mootness definitively opine on what We need not here pre analysis undertake to make courts must greater explicit solici measure —if dictions, —of including probability to "the agencies ap in the tude is due administrative recurrence,” predic "process and that exception. plication voluntary-cessation shaped by the character tion also that, general even under the We are confident by pub of discontinuance defendant —claims applying Laidlaw's practice of courts apt to be trusted than lic officials are more heavy-burden governmental standard in the defendants”); by private 13C claims like context, agencies’ do actions here the federal supra Wright, Cooper, & note Miller due to 3533.7, "[cjourts of mootness not bar our conclusion (noting § voluntary-cessation excep application of the likely public defendants to are more to trust changed professed tion. commitment honor

1H7 moot.”); Wright, becomes 13C Miller & does not enliven a controversy. moot Ala. 15, 3533.6, § Cooper, supra note at 259 Hosp. 955, Ass’n v. Beasley, 702 F.2d 961 (“The legislative by (11th Cir.1983). rules established stat- A case a “cease[s] regulation may ute or administrative shift live if controversy possibility of recur an action progresses. Ordinarily courts rence of the challenged conduct only a ” respond in by applying the law force at the ‘speculative contingency.’ Burbank v. may time of decision.... Mootness result (7th 744, Cir.1975) Twomey, 520 F.2d 748 change because the has removed basis Beals, (quoting 45, 49, Hall v. claim, for a or fully has satisfied the 200, (1969)). S.Ct. L.Ed.2d 214 added)); (emphasis claim.” Wright, 13C Guided principles, proceed these we 15, 3533.6, § & Cooper, supra Miller note apply two-part County test of Los ... (“Repeal likewise moots attacks Angeles here. We conclude that the dis- statute.”). Indeed, on a in govern- trict court erred in applying voluntary- context, deny mental cases that “[m]ost exception cessation to the mootness doc- rely on clear showings of reluc- in trine this case. Our de novo review of [by governmental tant submission actors] the record convinces us that the appellants and a desire to ways.” return to the old have met their burden of establishing Wright, 13C Cooper, supra Miller & note mootness. added). 15, 3533.6, § (emphasis part The first requires the test us to specifically, More a legislature when re- inquire say whether we can with assurance peals judi- or amends a statute after it is “ that ‘there is no expectation’ reasonable cially challenged, we have that concluded alleged violation will recur.” voluntary-cessation exception has no County Angeles, Los 440 U.S. at application “where there is no evidence in S.Ct. 1379. Our review of the record as the record to legislature indicate that the that, sures light us of intervening intends to reenact prior version of the events, there is no disputed Camfield, expectation statute.” reasonable 248 F.3d at 1223-24. Camfield, distinguished Reclamation will revert to using the Supreme Court’s in City consulting decision same process which resulted Castle, Inc., Mesquite v. Aladdin’s 455 the 2001 B.O. and 2002 Although B.O. 102 S.Ct. 71 L.Ed.2d 152 September court’s 2002 order (1982), where the Court determined that no played doubt a role in the FWS’s issu moot, the action was not by noting that B.O., ance of the 2003 the absence of evi Aladdin’s “precludfes] Castle a mootness dence here that the federal agencies used determination in cases challenging prior the issuance of merely the new B.O. version only state statute when the defeat jurisdiction the district court’s legislature openly expressed has its intent weakens the implication they manipu to reenact challenged law.” Id. system. lated the See Chihuahuan Grass Alliance, lands 545 F.3d at (“Nothing

Likewise, the “[withdrawal or presented the record to us indicates the alteration of administrative policies can BLM’s termination of the leases at issue moot an attack on those policies.” Bahn ‘voluntary constitutes a cessation’ of Derwinski, illegal miller v. conduct made in an Cir.1991); see, judicial effort to evade e.g., Coliseum Square Jackson, (5th review or avoid judgment by temporarily Ass’n v. Cir.2006) (“Corrective behavior.”); altering questionable action an Sossa agency issue.”). mon, (‘We can moot 560 F.3d at 325 pos require And the “mere will sibility” agency that an might physical logical impossibility some rescind regulations amendments to its actions or challenged policy will be reenacted ab- ordinarily conclusion of mootness does not voluntary the cessation sent that evidence an continuing possibly unlawful “follow announcement of intention to is a for sham Wright, conduct.”); 13C Miller & change plan see also of a to work to- adoption 3533.7, § behavior”). note at 326 Cooper, supra Instead, the lawful FWS ward although governmental defen (noting that issuing the in 2003 of a step took concrete re take action a direct might dants biological This 2003 opinion. new B.O. any rate, self- sponse litigation, “[a]t to rendered obsolete the two superseded and a again provides secure founda correction biological provided the opinions long genu as it tion mootness so seems Groups’ framework the Environmental Lake, ine”); Ferry Inc. v. Save Greers cf. challenge scope of to Reclamation’s discre- Cir.2001) Dep’t Def., 255 F.3d of tion. This 2003 B.O. established a new (“[ prelimi the district court’s W]hile regulatory assessing pro- context for the nary clearly salutary had injunction the of conduct the priety Reclamation’s under Corps the to reevalu prompting effect of Therefore, is no ESA. there reasonable [Finding of the FONSI of ate its issuance expectation that Reclamation’s actions Impact], No withdraw the 2000 Significant give scope-of-discretion the could rise to Plan], Management and SMP [Shoreline (or same) essentially the issue the same an prepare [Environmental to EIS decide manner that rise to the Environmen- gave Statement], injunction Impact the cannot County Groups’ challenge. tal See Los of it in effect insofar as purports continue Angeles, 440 99 S.Ct. 1379 adjudicate present legality or future (concluding that use unvalidated civil the withdrawn SMP to order because, to recur unlikely service exam SMP.”).16 EIS for the following litigation, city commencement Moreover, are not presented “we here screening job instituted new method of promise with informal a mere or assurance increasing minority applicants repre- [governmental] defen- part department). sentation in fire challenged practice will dants recognize that We do Reclamation Burbank, 748; 520 F.2d at see cease.” has not abandoned its narrow view of the Miller & Wright, Cooper, supra also 13C 3553.7, scope of (noting Specifically, § note at 351-52 that a its discretion.17 Rec former, agencies credibly acknowledge impropriety of its the federal noted: As 16. biological challenged certainly opinion of conduct "Adoption of the 2003 course is not Rather, voluntary-cessation attempt an irrelevant factor in the not an to evade review. analysis, Compare dispositive. adopted is not Cam FWS issued and Reclamation field, (distinguishing biological opinion F.3d at 1223 response to March 2003 Supreme in Aladdin’s Court's decision Castle changing court's orders and factu- noting "preclud[es] a conditions, that it mootness de al not in an effort evade sanc- challenging prior a termination in cases ver (em- Aplts. or review.” Fed. Br. at 37 tions only legisla a sion of state statute when added). phasis expressed has openly ture its intent to reenact " support application voluntary- added)), (emphasis challenged law exception, cessation both district court Wright, Cooper, supra 13C Miller & note Groups 3533.6, and the Environmental have relied § (noting "[m]ost at 311 cases upon the federal defendants’ failure to re- deny rely showings on clear position concerning scope of nounce their reluctant and a desire to return to submission (i.e., acknowledge added)), discretion ways” (emphasis Reclamation's the old Conser Found., of the district court’s conclu- (apply correctness vation 360 F.3d at 26-27 Law exception fact ing voluntary-cessation sion that Reclamation in has discretion to defeat concerning agency’s pronouncements the allocation of the at issue water mootness because contracting defending practices away private challenged procedural parties). from Al- heart”), governmental change though agency suggest "d[id] the failure of

1H9 quite for an provided option complained-of lamation achieve different than the ex- that consistent the 2003 B.O.’s RPAs was ceased.”). ample already that has contrary view and to with its narrow the Moreover, significantly, change the ef- rulings concerning district court’s the fected by likely the 2003 B.O. is to be However, even if scope of its discretion. Burbank, rather lengthy in duration. See reservation this Reclamation’s narrow- (noting F.2d at 748 that the was suggests possibility option discretion some not “faced with a situation where the order scope-of- that it revert to would its narrow prece- it the is of plaintiff may discretion view should avoid brief duration and the dential effects the district court’s or- well again be confronted with the chal- a through, example, for lenged when conduct the termi- order ders — possibili- determination and vacatur —that nates”); 'Wright, see also 13C Miller & to ty likely would not be sufficient warrant 3553.7, Cooper, supra § note at 341 application voluntary-cessation the ex- (noting “[tjemporary compliance that Ass’n, 702 ception. Hosp. Ala. F.2d at See a pending appeal, decree example, (noting possibility” that the “mere that case”). clearly should not moot a As not- agency might an rescind amendments to ed, through Congress’s enactment of the regulations not its actions or does enliven riders, minnow the adequacy ESA Moreover, controversy). a moot even if 2003 B.O.’s RPAs and ITS has been as- that possibility persua- we accorded some until sured March 2013. Under these cir- voluntary-cessation ques- sive the force on cumstances, unlikely it is that the Recla- tion, if recognize seope- we would that the mation give up protective would the shield again issue of-discretion does arise it by constructed during minnow riders would in different regulatory be a context ten-year period and revert to substan- than challenged by that the Environmental tially the discretionary same that approach B.O.). (i.e., Groups the 2001 B.O. and 2002 it followed in the 2001 B.O. and 2002 B.O. Consequently, precise that issue consulting concerning in biological a new subject Groups’ of the Environmental extant, opinion. longer action it is no and would not likely be reasonably through to recur Rec- court expressly concluded lamation’s actions. See Sch. Dist. Unified the minnow riders did not militate (“[T]he ‘allegedly No. 491 F.3d at 1150 against application voluntary-cessa-

wrongful highly behavior’ this case is however, exception. Significantly, tion context-specific, fact-and rather than con- conclusion, reaching this the district court likely duct that to ‘recur’ similar is facts apparently did consider the amend- case, the same context. In such a ment to the 2004 minnow rider had ‘voluntary cessation’ doctrine is inap- only days been enacted three before its plicable, because our of future in- review ‘wrongful may stances of ruling. behavior’ be Tellingly, district court stated: supra Wright, Cooper, 13C & regulatory Miller note new framework in B.O. 3533.7, issues, ("It easy (2) § equally deny handling water-allocation changed infra, likely mootness if officials who have their discussed extended dura- practices practices may warn that former tion of this new framework in view of the riders, Although sig- resumed at time.... not as minnow cannot that Rec- conclude nificant, resumption may a failure to disclaim lamation’s failure renounce its narrow view (emphasis denying count in mootness.” add- of its discretion should lead us different ed)). totality concerning inappropriateness Under of the circumstances conclusion case, (1) voluntary-cessation exception applying which include concrete steps agencies adopt taken here. upon Groups Environmental failed to inflicted agencies] have [federal Movants absolutely it is clear failure to con- purported Reclamation’s establish wrongful not return to their they would the full of its discretion in scope sult lim- narrow and impermissibly use of 2002 biologi- with the 2001 and connection future ESA discretion in scope of ited to have opinions cannot be said sur- cal rider is The 2004 minnow consultations. B.O., the issuance of the 2003 which vived only protects the 2003 BO conditional: opinions. replaced and those superseded with the agencies comply if the federal mootness, bolstering against In its case RPA, extent only to the ITS Groups Environmental contend the the It is BO is not amended. the 2003 significant scope-of-discretion issue is still certainty that there will be virtually a day-to-day impact has a on Reclama- fu- in the near consultations more ESA ability effectively comply to with the tion’s in the middle operations water ture over the 2003 B.O. requirements flow of See All the considerations Rio Grande.... (“The Br. at 35 extent of the Aplees. operation decisions that affect water operations authority Bureau’s to alter of climate, such as water minnow survival Project Dam or the MRG diver- El Vado min- understanding the of availability, dams affects the success of efforts sion forth, subject to biology, and so are now scope every day comply require- to with the flow change, meaning the issue of the likely is of discretion to recur. the If the Bureau has ments of 2003 BO. opera- discretion to control water broad added). The dis (emphasis 240-41 J.A. at tions, likely it is also more to be able to voluntary- application trict court’s of the water, appears necessary to because water exception purchase therefore cessation premise— that, on a false grounded have been one rights way holders will know viz., minnow ensure riders would another, have to Bureau will obtain pursuant actions to that Reclamation’s enough jeopardy.”). water avoid How- only so comported B.O. with the ESA ever, agencies correctly as federal In as the 2003 B.O. not amended. long note, Groups the Environmental have not fact, through series of amendments even sought respect a claim or relief with filed ten-year span over life the 2003 B.O. in day-to-day to Reclamation’s activities riders, con of the minnow Reclamation’s with And complying the 2003 B.O. ordi- remain from ESA duct can still insulated narily appropriate it would not be attack, that B.O. long so conforms to of federal court be in the business moni- sum, in County Angeles’s In first Los toring day-to-day compliance such activi- support not a conclusion quiry does any v. S. ties event. Norton Utah See voluntary cessation. Alliance, 55, 67, 124 Wilderness County Los part The second (2004) (“The 159 L.Ed.2d 137 S.Ct. requires here. Angeles test little discussion pervasive prospect oversight we in- part, examine whether Under pace of agency courts over manner and irrevo- “completely terim events have congressional with compliance such [broad] alleged of the cably eradicated effects contemplated is directives at 1379. violation.” U.S. 99 S.Ct. APA.”); Animals, also Inc. see Fund for can undertaking inquiry, this we After Mgmt., Bureau v. U.S. Land F.3d lingering no from the fed- identify effects (D.C.Cir.2006). 13, 21 alleged agencies’ eral violations ESA sum, simply are unable con- the 2001 issuance of connection clude that FWS’s issuance opinions. biological As discussed and 2002 it, 11(A)(2), injury B.O., adoption of pro- Part and Reclamation’s length supra

H21 appli- prudential appropriate only foundation for ness and vide mootness— voluntary-cessation exception cation of the kind of former mootness is issue here. Accordingly, the mootness doctrine. recognize Courts two kinds of regard moot with litigation mootness: constitutional mootness and claim, scope-of-consultation and the dis- See, prudential e.g., mootness. United denying the appellants’ trict court erred Co., v. W.T. States Grant to dismiss action for lack of motions 632-34, (1953); 73 S.Ct. 97 L.Ed. 1303 subject-matter jurisdiction. States, v. Fletcher United (10th Cir.1997); S. Utah Wilderness Objection The Dissent’s Alliance, 727-28; 110 F.3d at Bldg. & Review Standard of Dep’t Constr. Int’l Corp., Rockwell in- The dissent contends that we have (10th Cir.1993); 1491-92 New correctly applied a de novo standard of rel. Highway Mexico ex N.M. State Dep’t voluntary-cessation exception review Goldschmidt, v. 629 F.2d 668-69 the 1134. to mootness doctrine. Dissent at Cir.1980); see also Chamber Commerce of particular, In the dissent asserts that “we Dep’t v. U.S. Energy, 627 F.2d of review the district court’s should determi- (D.C.Cir.1980) curiam) (“The (per doctrine agen- nation as to the effect federal of branches.”); mootness has two distinct voluntary allegedly illegal of cies’ cessation Alan Arthur Wright, 13B Charles R. Mil- more activities under the deferential abuse Cooper, ler & Edward H. Federal Practice (em- discretion standard.” Id. at 1135 of (3d § and Procedure at 725 3533. added). This the phasis standard leads ed.2008). Under the constitutional-moot- regarding to conclude the issue of dissent doctrine, jurisdic- ness a federal court has (i.e., part first Coun- recurrence the test) only tion over “cases” Angeles Los that must and “controversies.” ty “we of Const, Ill, court art. agree § with the district and assume U.S. cl. 1. “[A]n actual agencies may sidestep that federal controversy at stages must be extant all of practices.” their Id. at self-mandated review, merely time the com- Likewise, dissent guided is filed.” plaint is Arizonans En- for Official resolving deferential in this standard Arizona, 43, 67, glish v. 117 S.Ct. of interim question whether events have (internal (1997) 137 L.Ed.2d 170 quo- comprehensively irrevocably and eliminat- omitted). tation marks (i.e., alleged the effects ed of violation Even if a is not case constitu second part County of Los An- of moot, tionally may a court dismiss the test). deference, geles Indicative prudential-mootness case under the doc the dissent that it that states “concluded] trine if the case “is so attenuated that quite reasonably the district court acted prudence comity considerations of for agen- it that when determined the federal coordinate government branches of coun cies cannot that show effects of the hand, stay sel the its and to ESA violation been completely have relief grant.” withhold it has the power (in- irrevocably eradicated.” Id. at 1138 Fletcher, 116 F.3d at (emphasis add omitted). quotation ternal marks Howev- ed) (internal omitted); quotation marks S. er, we must with our disagree thoughtful Alliance, Utah Wilderness F.3d at 727 colleague particular, in re- dissent. we (stating “[p]rudential mootness ad objec- spectfully submit that the dissent’s grant not the power dresses relief but misguid- tion to the of review standard is apparently It the court’s discretion in the ed. overlooks the critical exercise of (internal added) power” (emphasis distinction between constitutional moot- omitted)). mootness, may ing prudential “a court de- marks quotation “[P]rudential general court’s injunctive arises out of the or grant declaratory mootness cline to re- equi- formulating prospective in defendant, discretion appears it a lief where ” Bldg. & Constr. remedies.... table usually government, already has 1492; see Chamber Dep’t, changed process changing or is (“The Commerce, cousin 627 F.2d at 291 appears or policies its where doctrine, Arti- strict of mootness is repeat question actions in other- sense, doctrines melange III cle highly unlikely”). wise in mat- to the court’s discretion relating Although engage similar administra- remedy judicial ters inquiries to factual ascertain constitutional tion.”). generally applies This doctrine mootness, prudential or declara- different stan requests injunctive only Bldg. Dep’t, & tory relief. Constr. apply dards of review to these doctrines. (“All pru- in which at 1492 cases question “The constitutional mootness is a applied concept has been dential inquiry a live case or threshold because request prospective involved controversy prerequisite is a constitutional by declaratory judgment relief equitable jurisdiction. Our review this Fletcher, see 116 F.3d at injunction.”); Fletcher, is de question novo.” F.3d at Alliance, 1321; Utah Wilderness S. (citation omitted); Sample see also at 727. F.3d (9th Johnson, 771 F.2d Cir. 1985) (“We apply a de novo standard for voluntary-cessation A evalua important reviewing on may component be an district court’s decision sub tion analysis respect to both and, the overall with ject jurisdiction, concomitantly matter prudential mootness. constitutional apply reviewing questions that standard in prudential Article both III and “Under (citation omitted)). By of mootness.” con doctrines, inquiry central is mootness trast, “we review the court’s deter essentially the same: have circumstances prudential for mination mootness ” changed beginning litigation since the discretion because this abuse doctrine meaningful that forestall occasion for concerned with the court’s discretion “is to Alliance, 110 Utah relief.” S. Wilderness power provide its exercise to relief.” 727. Under mootness doc F.3d at both Fletcher, (emphasis 116 F.3d at 1321 add trines, must likelihood courts assess the ed). component As a of the mootness will the chal that defendants recommence ineluctably it analysis, naturally and fol allegedly conduct. Com lenged, offensive the voluntary-cessation inquiry lows that Alliance, pare Grasslands Chihuahuan subject will be the same standard of (noting at 892 in the constitution ques mootness overarching review as [voluntary-cessation] “this al context that at tion issue—whether constitutional or possibili exception exists counteract Compare prudential. Sch. Dist. Unified long action ty ceasing illegal of a defendant (tacitly apply No. at 1149-50 render a moot and then enough to lawsuit novo review to ing de standard of conten conduct”), resuming illegal with voluntary tion of in the constitu cessation Fletcher, as to (noting 116 F.3d at 1321 Comm, context), tional-mootness with prudential may mootness that “[a] Campbell, the First Amendment v. relief it grant appears refuse to where Cir.1992) (explic F.2d 1524-25 high renders it change circumstances itly applying abuse-of-discretion standard unlikely question in will ly actions voluntary of review assertion of cessa Dep’t, repeated”), Bldg. & Constr. context). (noting that, prudential-mootness in involv- in the at 1492 cases tion F.3d

H23 (1) case, novo stan- on in apply Supreme opinion In this a de Court’s W.T. Co.; (2) presents a Grant the Tenth opinion dard of review because the case Circuit’s in If we Committee question of constitutional mootness. First Amendment v. (3) Campbell; opinions Environmental had concluded from other cir- jurisdic- claims this cuits.18 Group’s ESA survived Dissent 1134-35. The dissent’s inquiry, might misplaced. well have reliance is Despite argu- tional-mootness ments, a prudential- appropriate been conduct W.T. Grant Co. and Committee for analysis, given actually quite Environ- First Amendment are injunctive only mental seek consistent our Groups opinion. with The cases moreover, circuits, declaratory E.g., Bldg. relief. & Constr. from the other are con- However, Dep’t, trary at 1492. we need to our precedent and otherwise un- definitively opine persuasive. not reach this issue

it, have determined that because we Co., Supreme W.T. Grant Court Groups’ Environmental ESA claims are analysis established the dual of constitu- constitutionally moot. tional and prudential mootness. 632-34, applies mistakenly upon

The dissent 894. S.Ct. Based our analysis below, we respectfully abuse-of-discretion standard —that ordi- must con- narily prudential- clude that misguidedly associated the dissent has re- upon question analysis mootness doctrine —to the con- lied W.T. Grant Co.’s related prudential To sup- stitutional mootness this case. mootness in arguing for use port application of an of an abuse-of-discre- abuse-of-discretion standard standard, only tion the dissent primarily relies case —where constitutional mootness relies, part, necessary. also The dissent on the This is a matter for the trial added) (citation Supreme opinion judge.” omitted)). (emphasis Court's in United States v. Ass’n, Inc., Thus, Phosphate Export Concentrated quotes language the dissent from the 199, 203-04, 393 prudential-mootness analysis 89 S.Ct. 21 of Concentrated (1968). (citing at Phosphate. L.Ed.2d 344 Dissent 3-4 Phosphate proposition Concentrated for the agree Courts and commentators that Con- that, context[,] "in the mootness ... whether incorporates centrated Phosphate pruden- 'the of is likelihood further violations suffi- See, analysis. e.g., Sheely tial-mootness ciently injunctive to make remote relief un- Network, P.A., ” Radiology MRI 505 necessary judge' ... is a matter the trial 1182-89, (11th Cir.2007) (holding 1182 n. 10 (quoting Phosphate, Concentrated 393 U.S. at constitutionally that the was not case moot 203-04, 361)). 89 S.Ct. This reliance is mis- relying and Phosphate on Concentrated to note however, guided, because Concentrated Phos- "nothing opinion that in this be read should phate neatly analysis within fits our dual of remand, preclude to the district court on prudential constitutional mootness. review, appropriate after deciding from that Phosphate, initially Concentrated the Court warranted”); equitable is relief not 13B employed a de novo review determine that to 3533.1, Wright, § Cooper, supra, &Miller at constitutionally the case not moot. 393 ("The 744 & n. to 33 discretion withhold U.S. at 89 S.Ct. 361. Court subse- injunctive technically in a relief case not moot quently appellees attempt noted the could (citing is well established.” Concentrated prudential to show on remand— mootness 202-04, 361)); Phosphate, U.S. at S.Ct. whether, where the focus would be on in an Wright, Cooper, supra 13C &Miller note discretion, may exercise of the court its con- 3533.5, 252-53, ("Even § at 253 n. 33 if dis- possible truly provide clude it to mean- relief, dispute, continuance has not mooted the the ingful injunctive whether the on may court power exercise remedial discretion to provide has the such relief. 203-04, ("Of deny any present remedy. Id. at Remedial discre- S.Ct. 361 course it is show, remand, open appellees open-ended tion still is often described in terms." (citing Phosphate, of likelihood further violations is suf- Concentrated U.S. at 202-04, 361)). ficiently injunctive to make remote relief un- 89 S.Ct. sure, in To be the Co. constitutional-moot Court W.T. Grant the is at issue. Under expressly label the moot- doctrine, in W.T. did not different the Court held ness However, opinion’s the had not ness doctrines. Co. that the defendants Grant clearly indicates that showing language nonetheless “heavy” their burden carried two illegal applied in the Court different voluntary cessation of that their different of re- rendered doctrines —with standards terlocking directorates corporate undertaking voluntary-cessa- 894. view—in Id. at 73 S.Ct. the case moot. inquiry. explicit- indicated that tion Commentators have Although the defendants ly “no noted interlocking directorates the distinct constitutional corporate components inten of W.T. Co.’s prudential disclaimed Grant longer existed and them,” analysis. Wright, See 13B Mil- the Court reviewed mootness tion to revive (dis- 3533.1, Cooper, § supra, that this ler & at issue de novo and determined con- cussing render resolution of the was insufficient to Court’s averment (“Such noting question profession [as moot. stitutional-mootness case Id. impor- “[t]he does not suffice that W.T. Grant Co. is most defendants] offered although single tant remedial doc- make a case moot it is one illustration trines,” i.e., determining prudential in moot- principles to be factors considered ness). injunction recognized expressly And granting appropriateness acts.”); against prudential-mootness id. dimension W.T. now-discontinued J., dissenting) analysis. (Douglas, Bldg. 73 S.Ct. Grant Co.’s See & Constr. Dep’t, (noting Supreme the constitutional-moot F.3d at 1492 “the (suggesting original ruling ness of the district court was “now Court’s formulation of the test Co.); [by majority] prudential conceded to be errone mootness” W.T. Grant (cit- ous”). Goldschmidt, see also 629 F.2d at 669 ing discussing approv- Grant Co. W.T. rejected Once the the constitu- Court if ingly proposition “even some claim, pru- tional-mootness considered original controversy remnant of be still 633-34, 73 S.Ct. dential mootness. Id. courts, alive, this is an instance where 894. It was in this context that the Court matter prudence as a and sound discre- used the relied language W.T. Grant Co. tion, stay should their withhold hand and dissent, by the which the obli- upon noted relief’). injunctive drastic gation government, plaintiff, Thus, quarrel there reasonable we not the dis “demonstrate that was no need with for that the Judge’s applied basis the District decision.” sent’s contention Court 894; at at Id. 73 S.Ct. see Dissent the abuse-of-discretion standard of review Co., problem in The the (quoting from W.T. Grant W.T. Grant Co. for 894). 633-34, dissent, however, applied at direct- is that 73 S.Ct. More the Court doctrine, ly, prudential-mootness respect under the with to a mootness standard government germane the Court that the had doctrine that is not to the resolu held is, showing prudential not carried of tion of this case—that the its burden Therefore, respect in district court had abused its discretion mootness doctrine. we Co., dismissing fully W.T. submit that the dissent’s the case. See Grant reliance 633-34, 894; objecting application at id. at T. in 73 S.Ct. W. Grant the (“We that, 635-36, 73 conclude of the novo standard of review is S.Ct. 894 here de moot, although misplaced; the actions were no at issue here is constitutional not is abuse of has been mootness and that standard of review discretion demonstrated See, injunc- e.g., trial appropriate. in the court’s refusal to award Chihuahuan Grass added)). Alliance, 891-94; 545 F.3d at Uni (emphasis tive relief.” lands

H25 ing paragraph opinion No. 491 F.3d at in the Sch. Dist. 1148 fied first prudential-moot- 50. from W.T. Grant Co.’s ness which analysis, quan- notes that the reasons, hardly For similar dissent tum of expected contrition that should its ob- fares better with standard-of-review challenged from an ceasing offender activi- jection by on our decision Com- relying “ ty is ‘a question better addressed to the At First Amendment. bot- mittee for ” discretion of trial court’ (quoting tom, application that involves case Co., W.T. Grant 345 U.S. at 73 S.Ct. doctrine; consequent- prudential-mootness (in 894)), at 1525 final para- with id. ly, entirely it for the court appropriate was graphs analysis, quoting of its mootness apply standard of abuse-of-discretion from prudential-moot- W.T. Co.’s Grant review. In Committee the First for discussion, noting ness that “Plaintiffs ... Amendment, sought declaratory “Plaintiffs simply not have met their burden with (and monetary) injunctive later relief respect cognizable danger to ‘some of re- response against various defendants to a current W.T. (quoting violations.’” Grant (Re- Regents decision the Board of Co., 894)). 345 U.S. at 73 S.Ct. gents) University of Oklahoma State (OSU) of The suspending showing Last More specifically, Committee F.2d at Temptation Christ.” 962 Amendment, First we pru- set forth the (footnote omitted). film The was shown on dential-mootness test from W.T. Grant Co. and, during the scheduled dates the course that we indicated would review the university litigation, adopted district ruling court’s mootness for an policy concerning university new use abuse of discretion. Id. at 1524-25. Re- expressive purposes including facilities for garding inquiry whether the was one of movies, showing which we noted mootness, prudential telling “major changes” expres- effected from the assessed whether the court district could sive-activity policy plaintiffs initially reasonably concluded in exercising challenged. Id. 1524-25. “general in formulating pro- discretion spective remedies,” equitable Bldg. & plain concluded Dep’t, provid- Constr. 7 F.3d at (i.e., prospective tiffs’ claim for relief de relief) ing prospective relief here injunctive appro- claratory and was moot. priate, by actually examining ourselves Id. back providing specific contours of the mootness, sought by relief ground subject on the we did Comm, plaintiffs. See First briefly cases cite to associated (“What Amendment, 962 F.2d at doctrine, 1525-26 constitutional-mootness such as injunction is an Plaintiffs seek framed no County Angeles, Los and we noted their more than narrowly requiring the Defen- However, holdings. id. at See 1524-25. dants to follow First Amendment con- assessing when viability plaintiffs’ cerning on-campus future activities of specific relief, ev- prospective claim for we ery specific sort. No facts anchor such a clearly pru were focused on the issue of rendering proble- command enforcement This is in our dential-mootness. evident university matic in a environment heavy where reliance from the outset end concerning hundreds of decisions extracur- analysis of our “[t]he mootness on most illustration,” every ricular use of facilities are made important single Wright, 13B 3533.1, words, year.”). academic In other our supra, § Miller & at fo- Cooper, cus prudential-mootness was on the district exercise of doctrine—-that court’s is, Compare fashioning equitable W.T. Co. discretion in Grant Comm. remedies for Amendment, First (quot- 962 F.2d at 1519 not on whether there actual “[a]n controversy prerequisite En is a constitutional

controversy.” Arizonans for Official (inter jurisdiction. review this at 117 S.Ct. 1055 to federal Our of glish, 520 U.S. omitted). (citation omitted)). con quotation question nal marks We is de novo.” Kikumura, not appears court did In the Seventh cluded that Circuit insofar it deter “abuse its discretion as to have fallen victim to the same mistake request injunctive for plaintiffs’ mined that respectfully that we have attributed to First moot.” relief was Comm. mapping prudential-mootness for dissent — Amendment, 1524; id. at 962 F.2d at see onto analysis of W.T. Grant Co. a case 1526. involving mootness. For ex- constitutional ample, a mootness discussion that cites Thus, flaw in the reliance dissent’s Co., to W.T. Grant the Seventh Circuit on Committee the First Amendment— for “[d]etermining states that whether an offi- predicated on prudential-mootness a case voluntary cial’s from engaging cessation prudential-mootness W.T. Co.’s Grant challenged as unconstitutional ren- conduct readily analysis apparent: —should a ders case moot calls for an exercise of Ac- prudential-mootness is not a case. Kikumura, judicial discretion.” F.3d Co., have as with T. we cordingly, W. Grant attack no basis to the dissent’s contention

that Committee the First Amendment may be with Kikumura at odds other of applied an abuse-of-discretion standard cases, appear Circuit not to Seventh which regard review. But it with to a did so mistake, have made the same but instead issue mootness doctrine that is not recognized the constitutional- respect prudential mootness. With question including here— mootness the subsid- — issue, mootness doctrine is at iary question voluntary of cessation—im- constitutional-mootness, our law is case plicates subject-matter jurisdiction of clear—the standard of review is de novo. and is de federal courts reviewed novo. Fletcher, E.g., 116 F.3d at 1321. Industry Advertising Repre- Federation of sentatives, City Chicago, Inc. v. ex-

Finally, the looks to from dissent cases ample, the Seventh de Circuit reviewed sup the Seventh and Circuits for Second question apply novo whether port. at - (citing Dissent Kikumura (7th voluntary-cessation to a Cir.1994); exception constitu- Turner, F.3d tional-mootness issue. 326 F.3d 928- Bridge Harrison & Burrowes Construc (7th Cir.1996). context, (2d tors, In that Cuomo, Inc. v. Cir.1992)). Seventh Circuit stated: a case cases, however, “Whether un These are question has been rendered moot is persuasive square and do own with our (such law that de A question we review novo.... Fletcher), precedent recog as which when, here, of mootness arises a chal- nizes regarding applica the distinction lenged repealed during ordinance is ble standard review between the doc pendency litigation, plaintiff and a seeks trines and prudential of constitutional (cita- only prospective relief.” Id. at and, specifically, mootness more holds omitted); tions see v. U.S. Dep’t Walsh only in the case of mootness do prudential Affairs, Veterans 536-37 apply abuse-of-discretion standard Cir.2005) (noting that review the dis- review, “[w]e are because such case we [entering summary trict court’s decision dis “concerned court’s [district] novo,” judgment de grounds] power provide cretion to exercise its Fletcher, 1321; proceeding specific id. and address relief.” cf. (“The novo); voluntary question mootness is a of cessation de question constitutional Astrue, a inquiry case or Evers v. threshold because live cf.

H27 .2008) (“This begins emergency regulation suspends Cir case ends application subject-matter juris our determination of minority enterprise goals on state- a district [W]e diction .... review court’s Id. funded contracts.” grounds dismissal on mootness de novo.” Harrison & Burrowes Bridge Construc (citations omitted)); John’s St. United contrary tors precedent is to our because- City Chicago, Christ v. Church of of in mistaken reliance on the prudential (7th Cir.2007) (“We F.3d review analysis mootness W.T. of Grant Co.—it district a grant de novo the court’s of standard, an applies abuse-of-discretion subject of motion to dismiss for lack mat standard, than rather a de a ques novo jurisdiction ter under Federal Rule of Civil Moreover, tion of constitutional mootness. 12(b)(1), Procedure which includes a dis application if its even here not barred grounds.”). missal on mootness Irrespec precedent, our wary would be of tive of whether Kikumura is inconsistent adopting the rule of Harrison & Burrowes however, precedent, with Seventh Circuit Bridge At Constructors. least one Second insofar as Kikumura calls for the applica case Circuit has intimated that the abuse- tion of an abuse-of-discretion of standard of-discretion standard articulated Har question of review to constitutional rison Bridge & Burrowes Constructors is it is with our prece inconsistent to the voluntary limited context of cessa dent, accordingly decline and we to follow tion. See Irish Lesbian & Gay Org. v. it. Giuliani, (2d n. 3 Cir. reasons, For somewhat similar the Sec- 1998) (“The Defendants here not vol ond decision in Harrison Bur- Circuit’s & untarily agreed to cease enforcing Section rowes is Bridge contrary Constructors against [plaintiff] 10-110 grant [plain- There, precedent our and unpersuasive. permit requests tiffs] the future. court, like the Kikumura Second Cir- Therefore, the abuse-of-discretion stan mistakenly cuit relied of upon language dard not apply does and we review concerning prudential W.T. Co. Grant district court’s determination of mootness mootness, in announcing standard of standard.”). the customary under de novo question of review for constitutional However, the Supreme clearly Court has Bridge mootness. Harrison & Burrowes voluntary held that cessation part is Constructors, 981 F.2d at 59. plain- parcel anal constitutional-mootness injunctive sought “declaratory tiffs re- ysis and can in a finding result that an respect minority lief with to the state’s County or claim action is moot. See Los program.” business Id. at 58. The state’s Angeles, 440 99 S.Ct. 1379. passage regulation an emergency Accordingly, voluntary implicates cessation “suspended program’s enforcement subject-matter jurisdiction of federal goals” an presented voluntary issue ces- courts, and our circuit and also Second sation district to the court. Id. at 58-59. have recognized subject-mat Circuit The district court ruled the state’s ter-jurisdiction questions including those action — plaintiffs’ mooted the claim de- involving mootness—are de novo. reviewed injunctive claratory and relief. Id. at (“The Fletcher, Compare 116 F.3d at 1321 Co., Citing Grant W.T. Second Circuit question constitutional mootness is a concluded that abuse-of-discretion stan- inquiry threshold because a live case or appropriately dard of applied review was controversy prerequisite is constitutional ruling, court’s deter- jurisdiction. Our review this mined that “[t]he district did (citation omitted)), question de novo.” dismissing [plain- abuse its discretion Penn, as moot complaints tiffs’] because with Lamar Adver. LLC Town 1128 Park, tors is contrary The case is 365, misplaced. n. F.3d 16 Orchard 356 377 unpersuasive. otherwise precedent our and Cir.2004) (“[T]he (2d condition of mootness by [a that could be waived

is not a defense reasons, we dis- foregoing For the must defendant], a that but rather is condition colleague thoughtful in dis- agree with our subject juris- matter deprives the court of the standard review concerning sent (alterations original inter- and diction.” question the applicable that is omitted)); and United quotation nal marks proceed thus the issue this case. We Auth., 97 City Transit States v. New York of vacatur. Cir.1996) (“A (2d 672, that ruling

F.3d 676 B. Vacatur de novo. moot is a case is not reviewed unless reasonable This is not moot no case the district court was Because the be policy jurisdiction, that will expectation subject-matter remains without reinstituted.”). sum, we respectfully power In thus to enter the No without that judgment, judgment on vember that the dissent’s reliance 2005 conclude However, Bridge Burrowes Construc- appel- must be vacated.19 Harrison & be a jurisdiction, should considered court lacked ment. This dismissal 19. "If the district appeal, judgment because en- jurisdiction on of the on the merits it was we have not purpose merely pursuant a settlement for the of correct- tered that resolved merits but ing disputed of the lower court in entertain- [A] the error substance of claims.... ing prejudice Harshman v. Jackson order court the suit.” Estate with of the dismissal 1161, merits.”); Corp., F.3d judgment Hole Mountain Resort a see Clark is also Cir.2004) (internal Inc., quotation Group, Haas v. omitted). ("[T]he (10th Cir.1992) a case stipulated, voluntary When becomes moot marks adjudication, suit, prior the district court approved to final by the dismissal of Clark's first jurisdiction judg- was without to enter the judgment a prejudice, court with was on the ment, judg- [of and "vacatur dismissal merits.”). precedent, Under our the Authori- Bartholow, automatic.” Goldin v. simply ment] ty’s contrary are assertions untenable. (5th Cir.1999). Similarly, Authority’s suggestion particular, that juris- was because the district court without preju- dismissals with distinction between at the time it issued the November diction dice and without is one without a differ- those opinion, vacate we also memorandum Authority wholly ence is without merit. See opinion. (noting "[n]othing in the Br. 11 n. 5 applicable jurisprudence indicates that dis- Defendant-Intervenor-Appellee Albuquer prejudice dif- que-Bernalillo County Utility Authority missal with should evaluated Water ferently" "uphold propriety prejudice). than dismissals without ("Authority”) asks us to Authority's suggestion Opinion Judgment only called and Final sole Not is the the 2005 vigorous ly respect into own to char- to the dismissal of the San doubt efforts with prejudice court's claims with and the acterize the district dismissal as Juan-Chama (i.e., joint prejudice), approval stipulation latter without but it also is of the motion to dismiss, if, Supreme legally arguendo, unsupportable. court As Court even clear, subject-matter jurisdiction precisely it is "the generally lacked has made when judgment grounds.” Authority proposes at 5. to issue on the on mootness Br. deny "jurisdiction merits” is vital.” request, We constrained to how Sinochem are Malay. Shipping Corp., argues, Int’l Co. v. Int’l ever. As the State of New Mexico see 422, 431, Reply S.Ct. 167 L.Ed.2d 15 Stale New Mexico Br. at (2007) (alteration prejudice quotation and internal dismissal with district court's Therefore, omitted). par pursuant marks because the dis- San Juan-Chama claims subject-matter jurisdiction, trict stipulation agreement ties' and dismissal court lacked empowered judgment pur- judgment it was to enter on the merits. See Brooks concerning parties' stipulations Energy Corp., 804 suant to the Barbour (10th Cir.1986) ("[The the San Juan-Chama claims was a volun dismissal of dismissal] judgment prejudice, cannot tary prejudice upon an order dismissal with court, agree- on the stand. based settlement

H29 hand, challenged party have the district On the other if the lants also mootness, seeking gen vacatur has caused of their motions to vacate court’s denial we Thus, erally do not order vacatur. Minnow court’s 2002 orders. 1220; III, F.3d at see 355 also Amoco Oil. consider whether the circum- must also (“We Co., 231 F.3d at ... recog 699 under which case became stances that granting nized vacatur to a party who moot us to vacate those orders require pursues both causes mootness and dismiss court. review the district the district We al based on mootness serves only inter of a to vacate for court’s denial motion that party.”); Dep’t ests of 19 Solid Waste Amoco v. abuse of discretion. See Oil Co. City v. 76 Albuquerque, Mechs. F.3d 694, Prot. 231 Agency, U.S. Envtl. F.3d (10th Cir.1996) (“The City 1145 both (10th Cir.2000). 697 sought mootness and caused dismissal on any opinion ‘Whether should mootness, requests the basis of and now a on the is an be vacated basis mootness de reversal on the claim it has facto III, question.” Minnow 355 equitable abandoned. This one-sided use (citing Bancorp F.3d at 1220 Mort U.S. mootness doctrine does not appear gage P’ship, v. Bonner Mall Co. City’s serve interest other than the 18, 26, 386, 130 115 S.Ct. L.Ed.2d 233 own.”). “ (1994)).20 Thus, we consider ‘the nature However, McClendon, where we or and character of the conditions which have vacatur, dered we stressed the ap ” caused case to become moot.’ U.S. propriateness of vacatur must be deter Co., Bancorp Mortgage 513 U.S. at 115 “on the particular mined basis Hamburg-Amerikanische (quoting States v. S.Ct. 386 United (inter circumstances.” 100 F.3d at 868 Packetfa rt-Actien omitted); nal quotation marks see also 466, 477-78, Gesellschaft, 239 U.S. 36 S.Ct. Black Nat’l Police Ass’n v. District of (1916)). L.Ed. In general, 387 (D.C.Cir. Columbia, 108 F.3d case appeal, a becomes moot on “[w]hen 1997) (noting emphasis this McClendon ordinary judg course is to vacate the particular circumstances and conclud ment below remand directions ing that “suggest[s] Tenth [the Stout, dismiss.” Kan. Review v. Judicial in] Circuit’s decision 19 Solid Waste De (10th Cir.2009). This F.3d partment Mechanics should be viewed party seeks “[a] because who review simply a specific instance where re ruling, of an merits adverse but is fusing public vacatur served the interest circumstance, by the vagaries frustrated and not as establishing general rule ought ac fairness forced to vacatur against where mootness results quiesce judgment.” Bancorp in the U.S. action.”). voluntary from governmental Co., at Mortgage U.S. 115 S.Ct. McClendon, parties entered “Consequently, frequently ap 386. it is court-superintended agree settlement propriate appellate court to vacate designed ment to reduce inmate crowd the judgment below when mootness results ing in a city/county-run detention center. happenstance from or the actions of the Approximately 865-66. six prevailing party.” Wyoming, later, months the defendants informed population caps 1213. the court 60(b). Although Bancorp Mortgage Corp. ad to Fed.R.Civ.P. Valero Co. Terrestrial vacatur, 112, 118, appellate Paige, dresses its rationale Cir. governs also the district court's decision 2000). judgment pursuant vacate its own whether to debate, though even this Court’s decisions had exceed- agreement been settlement hearings, binding precedent not for other After are Id. several ed. 866. Lastly, Id. court also portions courts.” at 250. the appealed defendants certain the that additional for de- regarding noted reason “[a]n the district court’s orders the motions to make clear temporary housing. nying vacatur inspection of court public nothing the moti- improper the case was to that at 866-67. Id. While fully [district in the deci- court’s] the succeeded vated discretion appeal, defendants agree- regard, Id. at n. 9. In that the complying the settlement sion.” with expressed regarding concerns criti- Id. at court ment. local cal comments of certain state and that, the only determined not did We officials, Mexico which governmental New compliance with the settlement defendants’ in the reported had been media. appeal, por- that agreement moot the but might feared that the lead court comments relating the court’s tions of district orders that had public the to believe the court inspections the should be vacated. Id. to in in its engaged performing misconduct with Compliance at 868. the settlement judicial rulings and that the court’s duties manipulation not agreement did constitute concerning scope-of-discretion issue the deliberately judicial “by the process ju- principled were “other than something aborting appellate review to avoid a deci- interpretations the dicial law on difficult Rather, the sion on issues. defendants’ Id. issues.” in complying conduct with the settlement responsible reject this agreement govern- point, strongly As to last constitutes suggestion able mental conduct to be commended.” Id. that the esteemed and in judge district court this case has dis- Turning rul- now to district court’s charged responsibilities anything his ruling its ing, predicated the court vacatur highest integrity than other levels of on the that case was moot. assumption impartiality especially and are trou- proceeded analyze The court then to suggestions bled insofar as such have ema- vacating ap- whether its orders from gov- nated the ranks of Mexico New public in the propriate and interest ernmental officials who aware of should be that ruled vacatur relief should not be weight tend in the carry their words district court granted. The determined However, public’s ultimately mind. we are neither nor that issuance 2003 B.O. constrained conclude that the district minnow legislative enactment of the 2004 declining court abused discretion in “fairly could happen- rider be described as vacate its earlier orders. at 249. further stance.” J.A. The court appellants begin, intended to To resolution of mootness observed our judicial process by lobby- manipulate necessarily impacts issue our examination ing Congress passage equities minnow of “where ... in case. lie” this III, Moreover, Id. 249-50. in F.3d at riders. Minnow 1221. We sup- already weighing public whether interest determined the record did vacatur, possi- court ported support noted the view issuance FWS's guidance provide adop- that its the 2003 ble orders could B.O. and Reclamation’s in ESA “If the tion of that and its stemmed addressing similar issues: B.O. RPAs litigation objective ju- in again “manipulate! issue arises connec- from ] species process” by depriving tion with or other dicial the district endangered this McClendon, jurisdiction. system in the middle Rio Grande or else- where, legal analy- factual F.3d at 868. And we reached that conclu- Court’s may provide acknowledging a baseline to inform the sion even after sis H31 decision, part actions were court’s vacatur but rather agencies’ it rul- Congress’s direct court’s turned on response enactment And, basis, self- ings, product rather than the of a minnow riders. regarding change regulatory di- we must conclude that initiated decision the district court’s Therefore, reasoning we would not consider is even more problematic rection. reasonable to conclude—as the us even strongly to be moves more to conclude apparently did—that the fed- that the ruling district court court’s vacatur amounted to voluntary eral actions in an of agencies’ particular, connec- abuse discretion. the weigh tion the 2003 B.O. should court district endorsed the view that the against against them and militate vacatur. appellants’ alleged lobbying Congress of weigh the minnow riders should McClendon, Indeed, with to reference equitable them in against the balance. We court the district here described the issu- disagree. ance of the 2003 B.O. “commendable but governmental Passage legislation conduct” was concerned of that moots a case is, by “hedge” voluntary could, what called the is a act conceivably, which —that of option against Reclamation’s reservation the of weigh vacatur. See Nat’l Black Ass’n, with the 2003 B.O.’s RPAs un- complying Police 108 F.3d at 351. atBut issue der narrow its Congress its view of discretion—a here is not whether should be rejected. view that the district court had vacatur prior denied of the district court’s However, J.A. at as we have discussed orders because it enacted the minnow rid- cessation, in addressing voluntary Recla- agencies appel- ers. federal and other option reservation of the em- mation’s of lants were before the district seeking court relief, of ploying equitable its narrow view its discretion that not Congress. How- not, unique ever, does under the the imputed circumstances district court essentially case, significantly likely of this make it congressional action to the appellants. precise approach legislature that it will revert to the Yet the acts of the are not the its states, toward the exercise of discretion acts agencies, of executive branch Groups in challenged private parties. the Environmental See Only id. at 353. the 2001 B.O. and 2002 B.O. and that the of Congress controls the enactment federal Therefore, III, rejected. district court we legislation. See Minnow F.3d at (“The consider it to would not reasonable actions of the Congressional by the federal of impute agencies, delegation! virtue are not acts of parties ] the case, adoption Thus, their issuance and agree the however. we cannot B.O., manipulative intent Congression- divest that the Government and the jurisdiction delegation district guilty court and to rid al from New are Mexico rulings give of the equitable themselves district court’s of acts should rise to scope-of-discretion regarding rights Appellees.”). issue— rulings that were rendered the context assuming appellants Even that the ac- superseded biological opinions. tively congres- lobbied New Mexico Consequently, to the extent that dis- they delegation, certainly sional were not trict vacatur predicat- court’s decision was of a particular assured outcome. To the imputation such manipulative ed an extent the minnow riders contributed intent, conclude that we decision case, case be- to an amounted abuse of discretion. consequence moot as a came of the actions Significantly, agree party, Congress. Passage with the third agencies simply beyond B.O. riders the ap- issuance minnow major pellants’ was not a factor the district control.21 See Valero Terrestrial adoption tary Biological Opinion 21. The dissent states that "without the volun- were,” alia, (concluding, of discretion if it inter at 121 when abuse Corp., by legislature’s grounded caused state such impermissible mootness was “on basis and not acts Congress amendment of statute as ... considerations that could court, (in executive branch officials before intended make relevant” to vacate its omitted)). district court was correct quotation ternal marks Under Temmer, judgment); Jones here, that, presented facts we conclude Cir.1995) (vacating judg- by relying significantly on the enactment against Colorado plaintiffs ment when suit support of minnow riders to its vacatur was mooted Public Commission Utilities ruling, the abused its discretion. amendment of chal- legislature’s Colorado Additionally, appropri vacatur is regulations). lenged taxicab “a judgment, ate to unreviewable prevent Therefore, we conclude mootness, from spawning because of in the conduct of a attributing court erred legal v. consequences.” United States appellants third party Congress—to — Inc., 41, 36, Munsingwear, in whether consider determining equitable (1950). 104, By S.Ct. 95 L.Ed. 36 its in vacatur. ations militated favor of Such terms, Munsingwear judg to applies final significantly basing error in its denial of Nonetheless, ments. we have applied improper vacatur on this and irrelevant interlocutory vacate rationale to decisions action) (i.e., Congress’ factor in legislative that preclusive have no collateral or effect. eluctably provides strong a indication that See Ute Citizens the State of Affiliated of the district court abused its discretion. Utah v. Indian & Ute Tribe Uintah Brown’s, Corp. Hairy See Gen. Motors v. 254, (10th Reservation, 22 Ouray F.3d LLC, (8th Cir.2009) (“An Cir.1994). Although the district court has abuse of discretion occurs where the dis rulings concerning scope- fashioned its important trict court fails to an consider thoughtfully of-discretion issue and with factor, gives significant weight to an irrel skill, contrary considerable to the court’s factor, evant or or improper commits analysis, that we conclude this factor judgment weighing clear in error of those in a necessarily should not result denial added)); (emphasis factors.” Kern v. TXO vacatur, and under the circumstances (8th Prod. Corp., 738 F.2d Cir. this it was to case unreasonable for court 1984) say that (noting “when we that a deny scope-of-discre vacatur. Should the decision ... we not discretionary is do tion in respect issue arise the future with may mean that the district do what locales, Valley it other will almost pleases ever it” and that an abuse of dis invariably present array a whole of new alia, occur,” cretion “can inter “when an factual for litigation and scientific issues improper irrelevant or factor is considered by federal agencies, Reclamation and other given significant and weight”); Wong (2d by any private INS, par as well as concerned Wing Hang v. Cir.1966) Accordingly, ties. it (noting open that denial least “the of sus pension eligible question to an alien would the extent to which be the district it,” certainly give there be riders to it to a could no and rise reasonable inference—that the acknowledging agencies Congress's faults that us for not the 2003 controlled action Therefore, precedent enacting B.O. was "the condition in riders. the district Congressional reasonably action.” Dissent court could attribute Con- However, logically, patent gress's concerning it be action riders should minnow

just Congress responded agencies equitable may have to the federal in the vaca- because simply enacting tur issuance 2003 B.O. calculus virtue their issuance riders, adoption does minnow not establish —or even and 2003 B.O.

H33 rulings provide meaningful litigation. and in court’s would resources Further- litigants. more, guidance view, future our the district court’s 2002 were highest orders entered with the in- bottom, however, that, At we conclude tegrity only after careful and informed case, under the facts of this be would And, noted, deliberation. we condemn unreasonable for the district court to have any suggestion by public officials to the operated concluded that Reclamation has However, contrary. we are constrained to require in manner that should it to labor any legal conclude the district court consequences future under abused its might spawned by be in refusing discretion to vacate its 2002 (non-precedential) court’s 2002 orders. orders.

Vacatur the district court’s 2002 orders path “clears the for future relitigation III. CONCLUSION parties” the issues between the dimin- reasons, For the foregoing we DISMISS prior the chances that the can ishes orders appeal REMAND to the district persuasive against used for their value (1) court with directions to VACATE its any of parties subsequent proceed April opinion memorandum McClendon, ings. (quot 100 F.3d at 868 (2) order; September 2002 memoran- Dev., FDIC, ing Marc Inc. dum opinion and of fact findings and con- (en Cir.1993) banc) curiam)). (per 949 law; (3) 23, clusions September 2002 “[m]oreover, Ultimately, since the district (4) partial order and judgment; final No- opinion[s] court’s will remain ‘on books’ 22, vember 2005 opinion; memorandum vacated, if any preclu even albeit without (5) 22, and November 2005 order and final effect, sive future courts will litigants] [and judgment; and to DISMISS the Environ- reasoning.” be able to consult [their] Groups’ mental Complaint Third Amended Ass’n, Nat’l Black Police relating scope-of-consultation their Thus, particular under circum- claim Species under the Endangered Act.23 case, presented stances this deter- we mine that the district court abused HENRY, Circuit Judge, dissenting. appellants’ discretion when it denied vaca- my colleagues’ I appreciate thorough and, request tur for the reasons noted thoughtful and of the examination issues in above, we conclude that deci- court’s complicated decade-long this ease. Al- sion is error.22 reversible See also id. (water though arguably vida” “agua es (“In is context, this absent additional evi- life), West, especially in I believe this motive, illegitimate dence of an we believe simple case is more than a battle about general rule in favor of still vacatur allocating silvery resources between the applies. say, not Needless this does (and minnow analogously plants mean that vacatur should be in all situated granted kind.”). animals) cases of and and cognizant this We are humans. There are a available, that both variety options the district court and parties and the Su- expended preme enormous amounts of time Congress recognize Court and any 22. We need not decide practices appellees' whether one ment motion to judgment district court's manifest errors of reassign appeal prior panel to a merits would, alone, standing discussed above con- phase parties’ involved an earlier grounds deny- stitute for reversal of its order litigation relating Project. to the We decline ing vacatur. and, event, to reconsider that decision deny would the motion as moot. provisionally 23. Our clerk’s office denied as panel-assign- our inconsistent with court’s 1134 moot). voluntary dentially Many of the species incalculable.” endangered [is]

“the value of Hill, majori- 437 Valley Auth. v. invoked Ten n. cessation decisions 2279, L.Ed.2d 98 S.Ct. two doc- ty distinguish U.S. do not between the (1978) (internal and quotation marks trines, from lacking explicit guidance and omitted). Grande, the The Rio citations I controlling think that precedent, River,” agri occupies pivotal role “Big voluntary courts’ should review district culture, and ceremo supply, fishing, water decisions, involving con- whether cessation uses; clearly Congress as has nial and mootness, prudential stitutional or realized, spe silvery minnow other abuse discretion. ecosystem. important parts of that cies are noted, “[w]hen As district court (1) I see dif- separately I write because voluntarily chal- ceased defendant has for the ferently of review standard conduct, prove lenged in order the Envi- court’s determination of district the defendant has the burden to establish request injunctive Groups’ ronmental (1) absolutely that it clear that both (2) review, I relief; de am under novo even not rea- alleged wrongful behavior could (3) moot; claim is convinced (2) recur, sonably expected merits, agree I with the completely relief or interim events have the Bureau of Reclamation irrevocably effects of eradicated the (“Reclamation”) must consult alleged F.Supp.2d. violation.” 469 (“FWS”) over Fish and Service Wildlife (D.N.M.2005) County (citing the full of Reclamation’s discretion scope Davis, 625, 631, Angeles Los Project op- concerning Rio Grande Middle (1979); S.Ct. 59 L.Ed.2d United (4) erations; I finally the dis- believe Co., v. W.T. States Grant trict court within its when acted discretion (1953)). 632-34, S.Ct. L.Ed. 1303 agencies’ motion for it denied the federal questions, the an- “As most mootness vacatur. depends large part uniquely swer prediction of cen- process individualized I. The district court did not abuse parties case. tered on facts and of each when determined discretion proba- made Predictions must be as to not the fed- case was mooted recurrence, agencies’ bility any of of voluntary magnitude of eral cessation illegal result, feasibility allegedly injury that their activities. would injury by preventing any of a future suit. A. Standard of review judgment made The that is on the basis start, majority disagree To I with the predictions may shaped by be these in de engage that we novo review must plaintiff character ... [and] application the district of the volun- court’s character of the defendant.” 13A Charles I tary exception cessation to mootness. Wright, Alan Arthur R. & Edward Miller quarrel have no with the distinction be- Cooper, H. Federal Practice and Proce- prudential moot- tween constitutional (3d ed.2008). 3533.5, § at 236 dure ness, majority ex- thoroughly which the fact-based, case-specific, multi-part This view, Nevertheless, our plains. my plays strengths the dis- inquiry require the bifurcated precedent does court, here, particularly when, trict as major- voluntary inquiry cessation opportunity court had a first-hand to as- (i.e., a if ity suggests de novo examination years litigation. sess these factors over con- the district court held case to be give regard due to the district stitutionally We should abuse of discre- moot pru- “feel could not review if it held the to be court’s for the case that we tion case

H35 match without an inordinate expenditure We define abuse of discretion as “an City of time.” Cook v. Chicago, arbitrary, whimsical, 192 capricious, or mani- (7th Cir.1999). festly unreasonable judgment.” Brown v. Presbyterian Servs., Healthcare Thus, Groups as the Environmental ar- Cir.1996) (internal quota- gue, Supreme recognizes, and the Court omitted). tion marks and citation I see no we should review the district court’s deter- abuse of certainly discretion and no strong mination as to the effect of the federal such, showing of nor do I view the district agencies’ voluntary allegedly cessation of court’s careful consideration of this case as illegal activities under the more deferential Further, whimsical or unreasonable. Grant, abuse of discretion standard. W.T. below, explained I would reach the same 633, 634, (“The U.S. 73 S.Ct. conclusion under de novo review. necessary determination is that there ex- cognizable ists some danger of recurrent B. voluntary cessation exception violation,” based on standard of whether to mootness there was “reasonable basis for the decision”); District Court’s Comm. noted, As the district court “[w]hen a First Campbell, Amendment v. defendant has voluntarily ceased chal- (10th Cir.1992) conduct, (reviewing lenged in order prove whether the “district court abused its dis the defendant has the burden to establish (1) cretion” the determination that the vol both that it absolutely clear that the untary cessation of unlawful conduct made allegedly wrongful behavior could not rea- moot); the case see also United sonably recur, (2) States v. expected Ass’n, Phosphate Export Concentrated 393 interim relief or events have completely 199, 203-04, U.S. 89 S.Ct. 21 L.Ed.2d and irrevocably eradicated the effects of (1968) (finding in the mootness context the alleged violation.” 469 F.Supp.2d. at that whether “the likelihood of further vio (citing County Angeles, Los sufficiently lations is remote to 1379; make in Grant, 99 S.Ct. W.T. junctive unnecessary relief ... 632-34, 894). is a matter 345 U.S. at 73 S.Ct. Under ”) added). judge the trial (emphasis prongs both of the inquiry, I am not con- vinced the defendants have carried Other agree: circuits “Determining heavy their burden. an voluntary whether official’s cessation engaging from in challenged conduct as 1. Recurrence unconstitutional renders a case moot calls judicial for an exercise of discretion.” Ki As to the prong recurrence, first of Turner, 592, (7th kumura v. 28 F.3d 597 determining that the Environmental Cir.1994). “Although defendant bears a Groups’ challenges moot, are the majority heavy burden when it seeks to have a case sufficiently fails to consider the formidable moot, dismissed as it whether should upon be burden that rests the federal agen- dismissed or not lies within the sound dis satisfy cies to this “stringent” test. Con- court, cretion of the district ‘a strong Ass’n, Phosphate Export centrated 393 showing (“The of 203, abuse must be made to reverse U.S. at 89 S.Ct. 361 test for ” it.’ Harrison & Bridge Burrowes Con mootness cases such as this is a strin- structors, Cuomo, 50, Inc. v. 981 F.2d gent 59 one. voluntary Mere cessation of al- (2d Cir.1992) Grant, (quoting legedly W.T. 345 illegal conduct does not moot a 894) (citation U.S. at case; did, 73 S.Ct. omit if it the courts would be com- ted). pelled to leave ... ‘[t]he defendant free to

1136 However, (quoting public W.T. whether or not defen- ways.’”) to his old return 894) (em trustworthy private are more than Grant, dants at 345 U.S. 73 S.Ct. defendants, here “claim we have no of added); Angeles, Los 440 phasis County of professed discontinuance” “a commit- 1379; City Tandy at 99 S.Ct. v. U.S. changed ways.” Reviewing ment an (10th Wichita, 1277, 1291 Cir. of novo, abuse of discretion or de the record 2004). acknowl Although majority that agencies is clear have burden,” “heavy edges the existence of this (indeed, made no similar commitment here (citations omitted), it Maj. Op. at 1116 their refusal described has been as ‘absolutely “it is apparently concludes that likely a “dogged”), because it is commit- allegedly wrongful behavior could clear ” unwilling the federal agencies ment are reasonably be to recur.’ expected not F.Supp.2d make. 469 at 1009. The federal at Tandy, (quoting F.3d 1291 Friends only agencies’ argument support v. Envtl. the Earth Laidlaw Servs. the Environmental Inc., (TOC), 167, 190, 120 S.Ct. not Groups challenged the 2003 Bio- (2000)). 693, 145 L.Ed.2d 610 But the McGinnis, logical Opinion. Akers Cf. court, which “feel” for has better (6th Cir.2003) (“In litigation, other- epochal concluded case, present as the of work promulgation Cook, (“The at wise. See F.3d appears solely rules within dis- judge acquire[s] feel for the case MDOC, no guaran- cretion there is not match ex- could without inordinate that MDOC will change tee back to its time.”). Indeed, Supreme penditure older, stricter Rule as soon as this action has stated that the Court determination terminates.”). in the the likelihood further violations agencies’ unwillingness The federal mootness context “is a matter for the trial change claim a commitment their ways judge.” Phosphate Export Concentrated majority. does not discomfit The ma- Ass’n, 203-04, 89 S.Ct. 361. jority by agencies’ is reassured the federal majority the in accurately recounts step” in issuing Biologi- “concrete the 2003 may the vol creased “solicitude” we afford Opinion, step cal views such a actors, untary actions governmental something more than a “mere informal Maj. Wright, at 1116 n. Op. and notes promise or part assurance on the Cooper’s & suggestion Miller [governmental] defendants chal- “process prediction shaped by also is practice Maj. will lenged Op. cease.” dis character defendant —claims of (quoting Twomey, Burbank v. by public continuance officials are more Cir.1975)). But, in my apt pri to be trusted than like claims view, the 2003 seems Biological Opinion far (quoting vate defendants.” Id. 13C from the “secure foundation” mootness 3533.5, Wright, § Miller & Cooper, supra a genuine may provide. that self-correction 238-39). 236, courts, may at “trust Some (quoting Wright, Id. at 1117-18 Miller & public professed (“[S]elf- defendants to honor a 3533.7, § Cooper, supra at 326 ways.” to at changed commitment Id. again provides correction a secure founda- (quoting 1116 n. Wright, 15 Miller & Coo long genu- tion for mootness so as it seems 3533.7, 319, 321); § per, supra ine.”)). Moreover, see at also litigation, earlier 1320, 1333 Sys., Springs Coral St. agencies explained the federal even (11th Cir.2004) (in case, a moot defendant adopting Biological Opinion, after the 2003 “expressly legal question disavowed intention de “the of Reclamation’s discre- conduct). fending” Project endangered the ceased tion to use water for

1137 refusal”) (2) recur,” may noting “dogged well and species equivocal suffi- might be unable to obtain nature of the 2003 I Biological Opinion, “Bureau comply [Biological to agree cient water believe must with the district requirements.” flow See Fed. Opinion’s] court and assume the federal agencies Mootness, 10th Nos. 02- Br. Cir. Supp. may sidestep their prac- self-mandated al., p. (“[The 5. 2254 et 469 F.Supp.2d tices. See at 1009 agencies] have failed to establish Furthermore, I am how we uncertain absolutely that it is clear they would there was no “reasonable could conclude not return to their wrongful of an use decision, the district basis” for court’s W.T. impermissibly scope narrow and limited 894, Grant, 345 U.S. at 73 while S.Ct. consultations.”); discretion in future ESA recognizing that the district court’s also United v. Or. Soc’y, States State Med. 343 “played a 2002 order role in the FWS’s 326, 333, S.Ct. 96 L.Ed. 978 Opinion].” of the [Biological issuance (1952) (“It duty is the of the courts Maj. majority at 1117. As the ac- Op. injunctive beware of efforts to defeat relief knowledges, the issuance of the 2003 Bio- reform, protestations repentance logical Opinion part was at least “in response especially to the district court’s rul- when abandonment direct seems timed And, if, suit, Id. at 1131. the court ings.” anticipate probability there is observes, “Reclamation has not abandoned of resumption.”). The district court’s well- scope conclusion, view of the its discre- its narrow “together pub- reasoned with a tion,” absolutely at it is far id. from in having lic legality interest agencies the federal have com- settled, clear that practices militates moot- against a discontinued or that pletely practice Grant, ness conclusion.” W.T. at 345 U.S. allegedly wrongful behavior could not 632, 73 S.Ct. reasonably expected See recur. id. 2. Eradication of the al- effects of the 1119; Tandy, (quoting 380 F.3d at 1291 leged violation Earth,

Friends 528 U.S. at 693); Grant, S.Ct. W.T. prong second Supreme (noting that S.Ct. 894 district court consid- voluntary Court’s cessation calculus ers bona fides of the intent expressed “the interim relief or com- “[that] events have discon- comply, effectiveness of the pletely irrevocably the ef- eradicated and, cases, in some tinuance the character Davis, alleged fects of violation.” past determining violations” when majority U.S. at 99 S.Ct. 1379. The recurrence). risk concludes, correctly, I believe 2002 Biological Opinions have Here, Biological Opinion, to- superseded, majority been but the seems gether with the 2003 and 2004 minnow to draw incorrect conclusion that the riders, demonstrate that “Congress delib- Biological effects of these Opinions erately left the issue of discretion over been eradicated. The district court acted Project] Rio Grande [Middle water de- reasonably beyond expanding inquiry agencies cision the federal and the Biological the four corners of the F.Supp.2d Opinions courts.” at 1009. And Reclamation, to the actual effects of con- perhaps agencies’ somewhat uncharac- teristically, duct on the appears shrug minnow’s habitat: “[E]ven its shoulders suggestion though unusually spring at the it has full If wet in 2005 discretion. (1) lesson, history any serves as resulted in a dramatic in minnow given increase (de- agencies’ grudging may federal spawning, resistance never be known how the dogged the district as their agencies’ using scribed refusal to consider Judg- Final 445), and Partial and its Order prevent to past years water project 446)). (Doc. 7 of the has affected No. Section unnecessary drying river ment minnow.” silvery to spiral process downward consultation ESA establishes recently funded, at 1010. As F.Supp.2d authorized, “any that action insure Silvery Minnow Re Rio Grande released ... agency federal] carried out [a observes, sil [the “Threats covery Plan exis- jeopardize the continued likely indicate[] its habitat very minnow] or threat- any endangered species tence of extinct expected to become that it could be in the destruction or species or result ened future.” Rio Grande in the foreseeable habi- [critical] modification adverse Plan, Recovery First Revi Silvery Minnow 1536(a)(2). § tat....” 16 U.S.C. FWS, sion, Ap Region, U.S. Southwest agencies “to obligates The ESA Ange County Los proved 01/15/10. Cf. to the declared nation- priority afford first (holding les, at 99 S.Ct. 440 U.S. saving endangered species.” policy al of mootness condition the “second Auth., Valley Tenn. petitioners’ compli because met] been [has Author- Valley 2279. The Tennessee S.Ct. any dis completely cured ance ... has legislative noted statements from ity Court proposal”) the ... criminatory effects of ESA, preceding the which proceedings added). I Thus conclude (emphasis three decades tellingly remain valid over reasonably quite court acted homogenize the habitats later: “As we agen that the federal when it determined evolved, plants these and animals which “that the effects of the cannot show cies pressure prod- and as we increase completely and ESA violation have been they position supply are in a ucts irrevocably F.Supp.2d eradicated.” Furthermore, their-and reviewing (usually unwillingly) even we threaten novo, I conclude that the record de would The value of own-genetic heritage.... our complete cannot show a federal defendants is, in- heritage quite literally, genetic cure of the ESA violation. pos- .... From the most narrow calculable view, inter- point of it is the best sible with II. Reclamation must consult to minimize the losses of of mankind ests FWS. simple: The reason is genetic variations. that the case is not Having determined They potential resources. are they are moot, upon the merits. briefly I will touch solve, and keys puzzles which we cannot final I the district court that agree questions answers to which may provide concerning issue legal resolution of the yet learned to ask.” Id. at we have not discretionary authority over Reclamation’s (internal 178-79, quotation 98 S.Ct. Project greatly will the Middle Rio Grande omitted). and citations marks interest, I simi- and would public serve explained, Section 7 of the As the Court any future consul- larly conclude “[i]n requirements upon heads of imposes ESA Act, Species Endangered under the tations departments agencies all federal consult Bureau of Reclamation must programs their authorities to facilitate use Service over the with the Fish Wildlife protection endangered species. discretion con- scope full of the Bureau’s 182-83, 98 S.Ct. 2279. At the same Id. at Project opera- cerning Rio Grande Middle time, ac- agencies those must ensure their (citing April tions.” Id. at the continued “jeopardize will not tions and Order Opinion 2002 Memorandum endangered species or existence (Doc. 371), 23, 2002 September No. and its U.S.C. species.” threatened Findings of Opinion and Memorandum 1536(a)(2). (Doc. plain § “The intent of Con- Law No. Fact and Conclusions

H39 Cir.2005) (10th this statute to halt gress enacting (noting was the district court’s “ ex- species the trend toward and reverse in fashioning ‘considerable discretion’ eq tinction, Valley remedies”) whatever the cost.” Tenn. (quoting uitable Stichting May Auth., 184, 437 U.S. at 98 S.Ct. Recreational v. Newpark Fonds flower considering the fully implications When Inc., Res., 1239, (10th 917 F.2d 1245 Cir. responsibilities against Reclamation’s 1990)); Indep. Downie v. Drivers Ass’n cast unambiguous backdrop, rather than Plan, 1168, Pension 1170 the facts as a showdown between man Cir.1991) (“We application review the nature, by Congress’s we must abide view the court’s equitable remedy district for endangered species that “the value of [is] discretion.”). abuse of The burden is on 187, incalculable.” Id. 98 2279 S.Ct. party seeking “the relief from the status (internal quotation marks citation quo” “equitable to demonstrate entitle omitted). options Man has that nature the extraordinary remedy ment to of vaca no hardship exemp- does not. There are tur.” Bancorp, U.S. 513 U.S. at 115 for agencies, tions under the ESA said, Judge S.Ct. 386. As Porfilio writing none is for here. district called The for court in our previous decision requires reasoning, modestly court’s which Silvery Rio Keys, Grande Minnow v. 355 FWS, merely Reclamation to consult with (10th Cir.2004) (“Minnow F.3d by language ESA. plain abides III”), when examining moving party’s vacatur, motion “the district court The III. district court did not its abuse should determine whether there are unre discretion it denied fed- when solved issues that remain to be tried.” agencies’ eral motion for vacatur. The district court here has made that de if Even the district court had no reason- termination, and thoughtfully has consid able basis to find the case agencies’ ered and denied the federal mo moot the federal agencies’ rendered tion for vacatur. voluntary allegedly illegal cessation activities, I continue see the Voluntary B. the party action of seek- denying court’s decision vacatur as one ing judgment relief from the below discretion, within well and would affirm. factor consider in principal we de- (concluding F.Supp.2d termining dispose how to of moot cases is have failed to demonstrate “[m]ovants party seeking relief “whether from the extraordinary their entitlement to the rem- judgment below caused the mootness edy prior of vacatur of this Court’s deci- voluntary action.” 19 Waste Dep’t Solid sions”). City v. Albuquerque, Mechs. (10th Cir.1996) 1142, 1144 (quoting

A. Standard of review U.S. 386). Bancorp, 513 U.S. at 115 S.Ct. indeed, remedy, Vacatur is an equitable ordinarily Vacatur is appropriate unless one, “extraordinary” and the decision losing party appealing the judgment vacatur grant whether to is entrusted to responsible making was somehow the district court’s discretion. See Bancorp, case unreviewable. U.S. Bancorp Co. v. Mall Mortg. Bonner 24-25, 386; U.S. at 115 S.Ct. Stewart v. 18, 26, P’ship, 513 U.S. 115 S.Ct. Blackwell, (6th Cir.2007) F.3d (1994). Again, L.Ed.2d 233 the district generally that “vacatur (stating appro- are equipped court is better than we entrenching a priate to avoid decision ren- relief, equitable afford it fashion through unreviewable no fault See dered doing considerable discretion so. Thus, Keating, 1207 losing party”). Boutwell we have ordered routes, and Transit through occurs bus because Wichita “when naootness vacatur lifts deploy attribut had its drivers to at happenstance instructed —circumstances the parties' ... unilateral to the all for all riders. Id. at stops able bus disabled —or in the party prevailed of the who action Reasoning that did “not 1290-91. Wichita Grasslands Al lower court.” Chihuahuan present[ any equitable consideration ] 884, Kempthorne, 545 F.3d liance v. justify despite which vacatur the would Cir.2008) (quoting Arizonans for Offi fact about brought that mootness was Arizona, 71-72, 43, v. 520 U.S. English cial voluntary system’s] compli- transit [the (1997) 1055, 117 S.Ct. 137 L.Ed.2d 170 ance,” to the we declined vacate district (internal quotation marks and citation injunction against the court’s driver-discre- omitted)). at policy. tion Id. contrast, generally not In is “[v]acatur here, the mootness determination Given when is a of a appropriate mootness result in Tandy, question there no voluntary nonprevailing party.” act of a voluntary and Reclamation’s ac FWS’s Dep’t Agric., v. U.S. Wyoming of mooting tions to the case. contributed See (10th Cir.2005). permit To a (Fed. Kappos, v. Tafas secondary party employ remedy “to the of Cir.2009) (denying where vacatur “the a at vacatur as refined form collateral agency voluntarily itself has withdrawn the judgment quite apart tack on the would— regulations stage and thus set the for a any considerations of from fairness mootness”). The majority declaration parties orderly operation of —disturb disentangle it considers should what judicial system.” Ban U.S. analysis district court’s incorrect 386; at corp, 513 U.S. 115 S.Ct. Hous issue from the vacatur mootness issue. City League v. ton Chronicle Pub. Co. That court a the district reached different (5th Cir.2007) City, 488 F.3d finding is irrelevant to legally (where city “voluntarily” “selectively” present analysis because the district ordinance, city repealed and where did not neutrally court separately considered repealing provi “show[ ] Ordinance assuming vacatur issue mootness. The response sions was not to district deferring reasons for to the district court’s judgment,” equitable court “the factors for the case feeling remain. against ... weigh[ed] vacating district I persuaded by majority’s am not injunction”). court’s comparison acts agen- of the federal Here, 2003 Biological FWS issued the cies with those of offi- here the defendant Opinion, adopted and Reclamation it. This cials v. City Albuquerque, in McClendon Wichita, City Tandy case is similar (10th Cir.1996). 100 F.3d 863 In McClen- (10th Cir.2004), F.3d 1277 case don, we echoed the concerns of the Su- opin- exhibits courts’ reluctance vacate preme when we that we Court stated de- Tandy, and orders. ions Wichita appropriateness of vacatur termine the “on system policy transit rescinded its earlier particular the basis of the circumstances.” given that had discretion to bus drivers to 868; Bancorp, Id. deny passengers entry wheelchair-bound (In deciding S.Ct. 386 whether va- to an accessible bus on certain routes. Id. decision, cate we must con- challenges at 1280. We held that sider “the nature and character were policy Wichita’s driver-discretion the case conditions which caused City’s all had moot because buses moot.”) (internal lift-accessible, quotation become marks been retrofitted to be be- omitted). remaining Although cause there were no inaccessible and citations ma-

H41 diversions, jority suggests par that we “stressed” the sumed “discretion to limit cur- inquiry in ticular circumstances McClen tail water storage, and release stored wa- don, Maj. we also Op. at heeded the ter.” Id. at 1108. Unlike enumerated “principle condition” as to “whether the government discrete acts that de- from party seeking judgment relief McClendon, presented fendants here we by voluntary below caused the mootness only agencies’ the federal either/or Bancorp, 24, 115 action.” U.S. at U.S. actions,” 1130-31, “voluntary at id. which S.Ct. 386. adopting non-position included taking Biological Opinion. There is little circumstances, specific McClendon’s through given assurance of follow the 2003 parties court-superin- “the entered Biological Opinion’s options. The district agreement designed tended settlement to court engage was correct in a crowding in a city/county- reduce inmate Maj. Bancorp analysis run Op. detention center.” at as to whether the 1129. federal During appeal, agencies’ governmental course of de- action warranted with complied fendants the settlement the exceptional remedy of vacatur. agreement, appeal and we held the to be Also, I am at a as to why loss moot. We noted the circumstances to be majority “agreefs] agen- federal “certainly noted that it unusual” and cies that the issuance of 2003 [Biologi- in complying “defendants’ actions with the Opinion] major cal was not a factor in the agreement creating settlement ade- decision, district court’s vacatur but rather quate temporary space opening a new Congress’s [the decision] turned on enact- facility appeal that have rendered this ment of the Maj. Op. minnow riders.” at McClendon, moot.” 100 F.3d at 868. We “And, 1131. majority continues: re- were convinced that defendants’ re- basis, garding that we must conclude that peated comply agree- with the efforts reasoning the district court’s is even more “defendants, ment warranted vacatur: problematic and moves us even more who violated undisputedly had the settle- strongly to conclude that the court’s vaca- agreement ment ... have since voluntari- tur ruling amounted an abuse of discre- ly permitted inspections,” opened a new tion.” Id. facility, presented detention evidence The district quite clearly stated planned population there were reduc- “[t]he mootness of discretion rul- facility tions and expansions scheduled to ings in this Court’s April decision preclude emergency another overcrowding part voluntary resulted in from action situation. at We Id. 867. concluded that FWS, i.e., adoption a federal agency, “responsible such government conduct” [Biological Opinion], part and in from did not warrant the defendants from legislative action in the form of the min- bearing consequences, untoward and we now F.Supp.2d riders.” 469 at 1014. In certain ordered the vacatur of orders. Id. light of this language, seems difficult to at 868. dispute Biological Opinion the 2003 Here, notes, majority as the we also major was “a in the factor district court’s Maj. have “unique Op. circumstances.” at Op. vacatur Maj. decision.” agencies 1131. The voluntarily agencies’ adoption Without adopted Biological Opinion, the 2003 which Biological Opinion, there would most contains one where proposal Reclamation likely be no of this assumed it case. 469 had “no discretion limit con- F.Supp.2d. tract deliveries to the Minnow” at 1010. And without with the benefit proposal voluntary adoption Biological second where Reclamation as- of the 2003 interest certainly no riders C. Public Opinion there could agencies’ may it. actions The federal Finally, vacatur is an equitable because case, recog- but we have mooted the must remedy, we, court, like the district must “may voluntary conduct also nize that their public also consider interest. U.S. [they] disentitle relief [them] 26-27, Bancorp, S.Ct. 386 States, 373 Sanders v. United seek[].” (“Judicial are precedents presumptively 1068, 1, 17, 10 L.Ed.2d 148 U.S. 83 S.Ct. legal correct valuable to the communi (1963) Noia, 391, Fay v. 372 U.S. (citing ty They merely as a are not the whole. (1963)). 822, 9 L.Ed.2d 83 S.Ct. 837 property private litigants of and should the vol- While the district court attributes stand a court concludes that the unless first, untary the the action to issuance of public would be served a vaca interest second, 2003 Biological Opinion, tur.”) (quoting Kogyo Izumi Seimitsu Ka riders, majority legislative the subsequent Philips v. Corp., bushiki Kaisha U.S. 510 in- Congressional on action as an focuses 27, 40, U.S. 114 S.Ct. 126 L.Ed.2d 396 cause without the tervening explaining (1993) (Stevens, J., dissenting)); Amoco the Biological Opinion, prec- 2003 condition Oil Co. v. EPA Congressional edent to that action. Cir.2000). Focusing analysis its responsible government conduct of the Furthermore, not we must undertake de majority agencies, the seems to have ne- vacate, novo of this decision review glected inquiry. of this gravity “Con rather it we must afford considerable dis- route, gress prescribed primary has Boutwell, F.3d The cretion. at 1207. certiorari, appeal right through of that “under facts of concludes parties may which seek relief from the case, it would be unreasonable for the legal judicial consequences judgments. of district court to have concluded that Recla- steps To allow off party who the statuto in a operated mation has manner that ry path secondary employ remedy of require should to labor in the future form of vacatur as a refined collateral at consequences under any legal might quite tack on judgment apart would— (non- spawned be by the district court’s any from considerations fairness to the precedential) Maj. 2002 orders.” atOp. parties orderly operation —disturb 1133. It continues to note that “[v]acatur judicial system.” the federal U.S. Ban of the district court’s 2002 orders ‘clears corp, 386; at 115 S.Ct. U.S. cf. path relitigation for future of the is- Wyoming, 414 at (holding F.3d sues parties’ between the and diminishes vacatur of the district court’s order was prior can chances orders appropriate party “because the seeking ap persuasive used their value against pellate party not the responsi relief [wa]s subsequent in parties proceedings.” case, mooting ble for orderly [and] the McClendon, 868). Id. (quoting F.3d at operation appellate system is not majority seems to find error implicit added). frustrated”) being (emphasis reasoning. the district court’s I see no whimsical, “arbitrary, capricious, or mani- The district court acted well within its Brown, festly judgment,” unreasonable 101 wide when it discretion determined in the “exceptional at district court’s sound circumstances” did not in equitable relief fashioning “disposing ] when it de- clude whose mer cases[ consider, “extraordinary judicial nied are remedy beyond power of vaca- tur.” Bancorp, judicial 115 on the estimates regarding U.S. at basis of Bancorp, S.Ct. 386. their merits.” U.S. U.S.

H43 28-29, 115 S.Ct. 386. The district court “ MID-CONTINENT emphasized public interest and ‘or CASUALTY COMPANY, derly operation judicial sys of the federal Plaintiff-Counter- ” Defendant-Appellee, Supreme tem’ and followed the Court’s “rejection the notion that in of] there is herently relitigation more value in the AMERICAN PRIDE BUILDING COM- disposed judgments issues that have PANY, LLC, a Florida limited liabili- become moot than ‘benefits flow ty company, Building American Pride litigants public and the from the resolu Co., LLC, a liability Florida limited ” legal questions.’ F.Supp.2d tion of company, Builder, American Pride (quoting Bancorp, 513 U.S. at LLC, liability a Florida limited com- 386). 27, 115 S.Ct. pany, Construction, Inc., Groff a Flor-

Simply put, public interest would not corporation, ida Defendants-Counter- by erasing be served a decade of well- Claimants-Appellants.

thought jurisprudence “may out No. 09-11238. helpful to other courts to the extent that it United States Court Appeals, persuasive.” Okla. Radio Assocs. v. Eleventh Circuit. (10th FDIC, Cir.1993) (quoting Equip. Clark Co. v. Parts Lift March Co., Inc., Mfg. Cir.

1992)). noted, As aptly the district court keeping prior

“[t]he benefit of deci weighs heavily

sions intact doing because prevents

so uncertainty prevailed past.”

in the F.Supp.2d at 1015. The

majority’s approach infringes upon the dis discretion,

trict court’s which was exer “in

cised the manner most consonant to

justice.” Bancorp, 513 U.S. at (internal

115 S.Ct. 386 quotation marks omitted).

and citations multi-year This lit

igation clearly why precedents shows our

have come to vest discretion in the trial

judge who has so carefully painstak

ingly attempted to resolve this case.

Case Details

Case Name: Rio Grande Silvery Minnow v. Bureau of Reclamation

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 21, 2010

Citation: 601 F.3d 1096

Docket Number: 05-2399, 06-2020, 06-2021

Court Abbreviation: 10th Cir.