RIO GRANDE SILVERY MINNOW (Hybognathus amarus); SOUTHWESTERN WILLOW FLYCATCHER (Empidonax trailii extimus); DEFENDERS OF WILDLIFE; FOREST GUARDIANS; NATIONAL AUDUBON SOCIETY; NEW MEXICO AUDUBON COUNCIL; SIERRA CLUB; and SOUTHWEST ENVIRONMENTAL CENTER v. BUREAU OF RECLAMATION, an agency of the United States; ROBERT L. VAN ANTWERP, Lt. Gen., Chief Engineer, Army Corps of Engineers; UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; UNITED STATES OF AMERICA; KEN SALAZAR, Secretary, Department of the Interior; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation; LARRY WALKOVIAK, Regional Director, Bureau of Reclamation; and KIMBERLY M. COLLOTON, Lt. Col., Albuquerque District Engineer; THE MIDDLE RIO GRANDE CONSERVANCY DISTRICT; STATE OF NEW MEXICO; ALBUQUERQUE-BERNALILLO COUNTY WATER UTILITY AUTHORITY; RIO DE CHAMA ACEQUIA ASSOCIATION; CITY OF SANTA FE
No. 05-2399, No. 06-2020, No. 06-2021
United States Court of Appeals, Tenth Circuit
April 21, 2010
PUBLISH Elisabeth A. Shumaker, Clerk of Court
Plaintiffs-Appellees,
v.
BUREAU OF RECLAMATION, an agency of the United States; ROBERT L. VAN ANTWERP, Lt. Gen., Chief Engineer, Army Corps of Engineers; UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; UNITED STATES OF AMERICA; KEN SALAZAR, Secretary, Department of the Interior; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation; LARRY WALKOVIAK, Regional Director, Bureau of Reclamation; and KIMBERLY M. COLLOTON, Lt. Col., Albuquerque District Engineer,*
Defendants-Appellants,
THE MIDDLE RIO GRANDE CONSERVANCY DISTRICT; STATE OF NEW MEXICO,
Defendants-Intervenors-Appellants,
ALBUQUERQUE-BERNALILLO COUNTY WATER UTILITY AUTHORITY,**
Defendant-Intervenor-Appellee,
Defendant-Intervenor,
CITY OF SANTA FE,
Intervenor.****
STATE OF ARIZONA; CENTRAL ARIZONA WATER CONSERVATION DISTRICT; IMPERIAL IRRIGATION DISTRICT; METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA; and ARIZONA POWER AUTHORITY,
Amici Curiae.
Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-99-1320-JP)
Robert J. Lundman, U.S. Department of Justice, Environment & Natural Resources Division (Andrew C. Mergen and Ellen J. Durkee, U.S. Department of Justice, Environment & Natural Resources Division; Sue Ellen Wooldridge, Assistant Attorney General, with him on the brief(s)), Washington, D.C., for Defendants-Appellants.
Frances C. Bassett, Assistant Attorney General, State of New Mexico (Patricia A. Madrid, Attorney General, State of New Mexico; Stephen R. Farris and Karen L. Reed, Assistant Attorneys General, State of New Mexico; Tanya Trujillo, Amy Haas, and Josh Mann, Special Assistant Attorneys General, Office of the State Engineer and the New Mexico Interstate Stream Commission, with her on the brief(s)), Santa Fe, New Mexico, for the Defendant-Intervenor-Appellant State of New Mexico.
Charles T. DuMars (Christina J. Bruff, David Seeley, and Stephen Curtice with him on the brief(s)), Law & Resource Planning Associates, P.C., Albuquerque, New Mexico, for Defendant-Intervenor-Appellant Middle Rio Grande Conservancy District.
Alletta Belin, Belin & Sugarman, Santa Fe, New Mexico (Laurence (Laird) J. Lucas, Advocates for the West, Boise, Idaho, with her on the brief), for Plaintiffs-Appellees.
Maria O‘Brien (Adam H. Greenwood with her on the brief), Albuquerque-Bernalillo County Water Utility Authority, Albuquerque, New Mexico, for Defendant-Intervenor-Appellee Albuquerque-Bernalillo County Water Utility Authority.
Virginia S. Albrecht and Karma B. Brown, Hunton & Williams, LLP, Washington, D.C.; Kathy Robb, Hunton & Williams, LLP, New York, New York; W. Patrick Schiffer, Chief Counsel, Arizona Department of Water Resources, and Gregg A. Houtz, Deputy Counsel, Arizona Department of Water Resources, Phoenix, Arizona, as Amici Curiae in support of Appellants.
* Pursuant to
** Albuquerque-Bernalillo County Water Utility Authority and Defendant-Intervenor-Appellee City of Albuquerque jointly moved to substitute the Authority, as the successor in interest to the City‘s water rights and water utility functions, for the City in Case Nos. 05-2399, 06-2020, and 06-2021. We grant the motion and substitute Albuquerque-Bernalillo County Water Utility Authority as Defendant-Intervenor-Appellee pursuant to
**** Intervenor City of Santa Fe entered an appearance on appeal but did not otherwise participate.
Before HENRY, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Directly at issue is whether Reclamation has discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow (“Minnow“). The Environmental Groups claim that Reclamation does and that its failure to weigh that discretion in its consultations with the U.S. Fish and Wildlife Service (the “FWS“) violated § 7 of the ESA.
At the outset, we commend the district court. When confronted with an extended and sometimes acrimonious dispute between bitterly opposed and firmly entrenched interests, it acted impartially, thoughtfully, and thoroughly. We are constrained, however, to disagree with the district court and conclude that intervening events have mooted the Environmental Groups’ scope-of-consultation
I. BACKGROUND
A. Federal Involvement in the Valley
The human inhabitants of the Valley have, for centuries, used the Rio Grande for irrigation. In 1925, the Middle Rio Grande Conservancy District (the “MRGCD“) was formed to consolidate water rights and irrigation systems, and to rehabilitate the existing irrigation systems in the Valley. The MRGCD‘s subsequent financial difficulties coupled with aggradation of the river channel led to development of the Middle Rio Grande Project (the “Project“), one of two major federal water projects impacting the Valley. Approved by the Flood
B. The Endangered Species Act and the Minnow
Primarily at issue in this case is § 7(a)(2) of the ESA, codified at
Section 7(a)(2) of the ESA provides, “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action
Section 7(a)(2) imposes both a procedural and a substantive obligation on federal agencies. Nat‘l Ass‘n of Home Builders, 551 U.S. at 667; New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 700 (10th Cir. 2009). “An agency‘s decision whether to take a discretionary action that may jeopardize endangered or threatened species is strictly governed by ESA-mandated inter-agency consultation procedures.” Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). The procedural obligation ensures that the agency proposing the action (the “action agency“) consults with the FWS to determine the effects of its action on endangered species and their critical habitat. Deer v. Paulison” cite=“522 F.3d 1133” pinpoint=“1138” court=“11th Cir.” date=“2008“>Fla. Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir. 2008). To meet its procedural obligation, the action agency must first determine whether its proposed discretionary action may affect a listed species or a critical habitat.
The B.O. is prepared by the FWS at the conclusion of consultation. It is a written statement determining whether the proposed action “is likely to jeopardize the continued existence of listed species.”3
C. Procedural History
On November 15, 1999, the Environmental Groups filed an ESA citizen suit seeking both injunctive and declaratory relief, in part, for Reclamation‘s and the Army Corps of Engineers’ (the “Corps“) failure to fully consult with the FWS pursuant to § 7(a)(2) of the ESA prior to issuing an October 1999 biological assessment. The Environmental Groups contended that Reclamation and the Corps possessed “significant discretion over virtually all aspects of their funding and operation of the . . . Project, and therefore they must consult with the FWS on all of these actions.” J.A. at 277. The suit prompted several contract water users,
On June 29, 2001, the FWS issued a biological opinion (“2001 B.O.“). As a result, the Environmental Groups filed a second amended complaint contesting the validity of the 2001 B.O. and again raising Reclamation‘s and the Corps’ alleged failure to consult with the FWS to the fullest extent of their discretionary authority.
On April 19, 2002, the district court affirmed the 2001 B.O. on substantive grounds, leaving the remainder of the Environmental Group‘s claims for later resolution. On the procedural front, however, the district court concluded that “[Reclamation] retains sufficient discretion over its river management and operations in the middle Rio Grande, specifically water deliveries under the . . . Project and under the San Juan-Chama . . . , to require [Reclamation] to consult over those actions under Section 7(a)(2) of the ESA.”5 Id. at 173. We subsequently dismissed the intervenors’ appeal of the April 19 order for lack of standing and dismissed the federal agencies’ appeal because the order was not subject to interlocutory review. Rio Grande Silvery Minnow v. Keys (Minnow I), 46 F. App‘x 929, 933-34, 935 (10th Cir. 2002) (per curiam).
On September 4, 2002, the Environmental Groups sought emergency
Consequently, on September 19, 2002, the Environmental Groups filed a third amended complaint challenging the 2002 B.O. They continued to press their allegation that Reclamation “failed to consult fully . . . over all aspects of their Middle Rio Grande water operations and related decision-making activities,” the key elements of which included their decisions not to reduce water to the MRGCD and not to use San Juan-Chama water for the benefit of the Minnow. J.A. at 516-17. The Environmental Groups sought a declaration that both the 2001 B.O. and the 2002 B.O. were arbitrary and capricious, an order requiring the federal agencies to complete full consultation through issuance of a legally adequate biological opinion, and an order requiring the federal agencies to “take all steps within their discretionary authority necessary to conserve” the Minnow. Id. at 527.
In a September 23, 2002 Memorandum Opinion addressing the Environmental Groups’ motion for an injunction, the district court chided Reclamation for having failed to timely reinitiate consultation despite the
While the appeal was pending, the FWS issued a March 16, 2003 biological opinion (“2003 B.O.“). The FWS used a “depletion-based approach” for purposes of determining the scope of the proposed federal action. Id. at 923. That is, the FWS, Reclamation, the Corps, and other interested parties consulted “on the effects of total river depletions on listed species, without identifying particular aspects of the overall action as ‘discretionary or non-discretionary.‘” Id. The
In recognition of the district court‘s prior orders and the pending appeal, however, Reclamation proposed different measures it could use to avoid jeopardy to the Minnow, depending on the ultimate determination of the scope of its discretion. Under the first proposal, Reclamation assumed that it had no discretion to limit contract deliveries to benefit the Minnow and proposed a supplemental water program by which it would lease water from willing lessors to enhance river flows when necessary. Under the second proposal, Reclamation assumed that it had discretion to limit diversions, curtail water storage, and release stored water belonging to both contract users and the Native American tribes and vowed to strive to allot shortages between all users.
Meanwhile, in December 2003, Congress enacted a rider to the Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, § 208, 117 Stat. 1827, 1849-50 (2003) (the “2003 minnow rider“). The 2003 minnow rider placed San Juan-Chama water beyond Reclamation‘s discretionary reach. § 208, 117 Stat. at 1849. Additionally, Congress deemed conformity with the 2003 B.O.‘s RPAs and ITS as full compliance with the ESA‘s requirements for a two-year period. Id. at 1849-50. Congress enacted a second rider in 2004, which
On November 22, 2005, although recognizing that congressional action mooted the Environmental Groups’ claims as to San Juan-Chama water,9 the
II. DISCUSSION
A. Intervening Events have Mooted the Environmental Groups’ Scope-of-Consultation Claim
1. Standard of Review
We have no subject-matter jurisdiction if a case is moot. Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir. 2007). We review questions of mootness de novo. R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1107 (10th Cir. 2007).
“‘Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.‘” Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005) (quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)). “‘Without a live, concrete controversy, we lack jurisdiction to consider claims no matter how meritorious.‘” Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir. 2008) (quoting Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007)). Declaratory judgment actions must be sustainable under the same mootness criteria that apply to any other lawsuit. See Unified Sch. Dist. No. 259, 491 F.3d at 1147 (“Actions seeking a declaratory judgment must comport with the same mootness principles as any other suit.” (internal quotation marks omitted)). As we noted in Cox v. Phelps Dodge Corp., 43 F.3d 1345 (10th Cir. 1994), “[i]t is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.”
2. Challenges to the 2001 and 2002 Biological Opinions are Moot
The appellants challenge the district court‘s determination that the FWS‘s issuance of the 2003 B.O. did not moot the Environmental Groups’ claims.10 To determine whether any claim remains for review, we must ascertain what type of
The Environmental Groups essentially contend that, since the Minnow‘s listing as endangered, and continuing to the date of the filing of the third amended complaint, Reclamation has failed to fully consult. They prayed for a declaration12 that the federal agencies are violating
The problem for the Environmental Groups, however, is that neither the 2001 B.O. nor 2002 B.O. still exists. After the Environmental Groups filed their third amended complaint, the FWS issued the 2003 B.O., which superseded both of them. The 2003 B.O. establishes a new regulatory framework under which the propriety of Reclamation‘s actions must be judged. The Environmental Groups have not argued that the 2003 B.O. is a mirror image of the two biological opinions that it supplanted, nor could they. Nor have they asserted that the changes are “only superficial[].” Conservation Law Found. v. Evans, 360 F.3d 21, 26 (1st Cir. 2004).
We must conclude that the FWS‘s issuance of the 2003 B.O. mooted the Environmental Groups’ prayer for both injunctive and declaratory relief. If we issued an injunction directing Reclamation to consult concerning the biological opinions at issue in this litigation, it would have no effect in the real world because those biological opinions have been superseded. Indeed, even as to the 2003 B.O., a consultation injunction would be meaningless because the federal agencies already have consulted. “An injunction ordering consultation [using an
Furthermore, any declaration that the 2001 B.O. and 2002 B.O. were insufficient due to Reclamation‘s failure to fully consult would be wholly without effect in the real world. The Environmental Groups insist that we are situated to provide some relief, especially declaratory relief regarding the scope of Reclamation‘s discretion in consultation. However, the Environmental Groups have not been able to point to some concrete ongoing injury. See Cox, 43 F.3d at 1348 (“[T]his court has explained that a plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured [by the defendant] in the future.” (alteration in original) (internal quotation marks omitted)). As the regulations governing formal consultation,
The Environmental Groups’ concerns about whether Reclamation will appropriately consult with the FWS in response to changing water-demand conditions are far too speculative to support a claim for declaratory relief. Any such relief would amount to an advisory opinion regarding the scope of Reclamation‘s discretion and such an opinion would clearly be improper. See S. Utah Wilderness Alliance, 110 F.3d at 730 (“SUWA has not shown that the defendants are likely to violate section 7(a)(2) in the near future.“); see also Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007) (concluding that a claim for declaratory relief regarding allegedly improper regulatory policy was mooted by governmental agency‘s listing of killer whale species as endangered, which was “ultimate objective” of environmental advocacy
We addressed an analogous situation in Wyoming. There the State of Wyoming successfully brought a NEPA challenge before the district court against a rule of the U.S. Forest Service, “commonly known as the ‘Roadless Rule,’ that generally prohibited road construction in inventoried roadless areas on National Forest System lands.” 414 F.3d at 1210. During the pendency of the appeal by certain environmental group defendant-intervenors, the Forest Service issued a final rule that replaced the Roadless Rule, and we concluded that “the new rule has mooted the issues in th[e] case” and dismissed the appeal. Id. In particular, we noted that “[t]he portions of the Roadless Rule that were substantively challenged by Wyoming no longer exist.” Id. at 1212. Furthermore, we reasoned
On these facts, cases of our sister circuits also are instructive. For
The plaintiffs alleged that the 1994-1998 Biological Opinion [issued by the National Marine Fisheries Service] violated
§ 7(a)(2) of the ESA . Specifically, American Rivers contended that the federal defendants violated the ESA by relying on the transportation of Snake River smolts to conclude that the 1994-1998 operations of the River Power System are unlikely to jeopardize the continued existence of the listed salmon.
126 F.3d 1118, 1122 (9th Cir. 1997) (footnote omitted). However, during the course of the litigation, the National Marine Fisheries Service “issued a new biological opinion (“1995 Biological Opinion“) which superseded the [challenged] 1994-1998 Biological Opinion.” Id. at 1123. With little difficulty, the Ninth Circuit concluded that plaintiffs’ action was moot. Id. at 1124 (“[T]he biological opinion in the present case has been superseded by the 1995 Biological Opinion. Therefore, any challenge to the 1994-1998 Biological Opinion is moot.“).
The D.C. Circuit reached a similar conclusion in National Mining Ass‘n. At issue there was “the validity of several federal regulatory requirements imposed on permit applicants, and the procedures for contesting the accuracy of information used to determine permit eligibility.” 251 F.3d at 1009. The permits were issued under the Surface Mining Reclamation and Control Act,
After identifying the regulations that were the subject of appellant‘s challenge, the D.C. Circuit determined that the Interior Department‘s revisions to those regulations rendered appellant‘s attack upon them moot. Id. at 1010-11. In particular, the D.C. Circuit stressed that the revisions effected “substantial changes” to the previously existing regulatory regime, thus altering the real-world conditions and eliminating the possibility of meaningful relief. Id. at 1011. The court noted: “The old set of rules, which are the subject of this lawsuit, cannot be evaluated as if nothing has changed. A new system is now in place.” Id. Accordingly, the D.C. Circuit determined that the revisions mooted appellant‘s challenge. See also Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1096 (9th Cir. 2003) (holding
The relevant case law thus strongly counsels in favor of a conclusion of
The Environmental Groups’ reliance on the Ninth Circuit‘s decision in Forest Guardians v. Johanns is unavailing. In that case, the Forest Service and the FWS engaged in comprehensive management and monitoring of lands used for grazing that ultimately allowed the Forest Service to presume that the FWS concurred each year in a no-jeopardy finding for parcels of land covered by its plan. Johanns, 450 F.3d at 458-59. When the Forest Service did not comply with the management and monitoring requirements, the plaintiff brought suit claiming that consultation should be reinitiated. See Id. at 459-60. The Forest Service then reinitiated consultation and subsequently received the FWS‘s concurrence in its no-jeopardy finding. Id. at 461.
In holding that the Forest Service‘s subsequent reinitiation of consultation did not moot the plaintiff‘s claims, the court distinguished our decision in Southern Utah Wilderness Alliance. The court observed that the monitoring requirements were on-going action that would extend through the lease term. Id. at 462. Additionally, the court determined that the Forest Service was likely to continue its “practice of not complying with the monitoring requirements,”
The absence of an on-going ESA violation makes this case distinguishable from Johanns and more akin to Southern Utah Wilderness Alliance. See S. Utah Wilderness Alliance, 110 F.3d at 728-30 (finding plaintiff‘s claim, seeking declaratory judgment for the Bureau of Land Management‘s alleged failure to consult with the FWS as required by
3. Voluntary Cessation
The Environmental Groups argue, and the district court held, that the
“One exception to a claim of mootness is a defendant‘s voluntary cessation of an alleged illegal practice which the defendant is free to resume at any time.” Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008). “The rule that ‘voluntary cessation of a challenged practice rarely moots a federal case . . . traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.‘” Unified Sch. Dist. No. 259, 491 F.3d at 1149 (quoting City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001)). “In other words, this exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.” Chihuahuan Grasslands Alliance, 545 F.3d at 892.
Voluntary actions may, nevertheless, moot litigation if two conditions are satisfied: “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotation marks, elipses, and citations omitted). “[V]oluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed
In practice, however, Laidlaw‘s heavy burden frequently has not prevented governmental officials from discontinuing challenged practices and mooting a case.15 Thus, even when a legislative body has the power to re-enact an ordinance
Likewise, the “[w]ithdrawal or alteration of administrative policies can moot an attack on those policies.” Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir. 1991); see, e.g., Coliseum Square Ass‘n v. Jackson, 465 F.3d 215, 246
Guided by these principles, we proceed to apply the two-part test of County of Los Angeles here. We conclude that the district court erred in applying the voluntary-cessation exception to the mootness doctrine in this case. Our de novo review of the record convinces us that the appellants have met their burden of establishing mootness.
The first part of the test requires us to inquire whether we can say with assurance that “‘there is no reasonable expectation’ that the alleged violation will recur.” County of Los Angeles, 440 U.S. at 631. Our review of the record assures us that, in light of intervening events, there is no reasonable expectation that Reclamation will revert to using the same consulting process which resulted in the 2001 B.O. and 2002 B.O. Although the district court‘s September 23, 2002 order no doubt played a role in the FWS‘s issuance of the 2003 B.O., the absence of evidence here that the federal agencies used the issuance of the new B.O. merely to defeat the district court‘s jurisdiction weakens the implication that they
Moreover, “we are not here presented with a mere informal promise or assurance on the part of the [governmental] defendants that the challenged practice will cease.” Burbank, 520 F.2d at 748; see also 13C Wright, Miller &
We do recognize that Reclamation has not abandoned its narrow view of
Moreover, significantly, the change effected by the 2003 B.O. is likely to be rather lengthy in duration. See Burbank, 520 F.2d at 748 (noting that the court was not “faced with a situation where the order is of brief duration and the
plaintiff may well be again confronted with the challenged conduct when the order terminates“); see also 13C Wright, Miller & Cooper, supra note 15, § 3553.7, at 341 (noting that “[t]emporary compliance with a decree pending appeal, for example, clearly should not moot a case“). As noted, through Congress‘s enactment of the minnow riders, the ESA adequacy of the 2003 B.O.‘s RPAs and ITS has been assured until March 2013. Under these circumstances, it is unlikely that the Reclamation would give up the protective shield constructed by the minnow riders during the ten-year period and revert to substantially the same discretionary approach that it followed in the 2001 B.O. and 2002 B.O. in consulting concerning a new biological opinion.The district court expressly concluded that the minnow riders did not militate against application of the voluntary-cessation exception. Significantly, however, in reaching this conclusion, the district court apparently did not consider the amendment to the 2004 minnow rider that had been enacted only three days before its ruling. Tellingly, the district court stated:
Movants [federal agencies] have failed to establish that it is absolutely clear that they would not return to their wrongful use of an impermissibly narrow and limited scope of discretion in future ESA consultations. The 2004 minnow rider is conditional: it protects the 2003 BO only if the federal agencies comply with the ITS and RPA, and only to the extent that the 2003 BO is not amended. It is virtually a certainty that there will be more ESA consultations in the near future over water operations in the middle Rio Grande. . . . All the considerations that affect water operation decisions on minnow survival such as climate, water availability, the understanding
of minnow biology, and so forth, are subject to change, meaning the issue of the scope of discretion is likely to recur.
J.A. at 240-41 (emphasis added). The district court‘s application of the voluntary-cessation exception therefore appears to have been grounded on a false premise—viz., that the minnow riders would ensure that Reclamation‘s actions pursuant to the 2003 B.O. comported with the ESA only so long as the 2003 B.O. was not amended. In fact, even through a series of amendments to the 2003 B.O. over the ten-year life span of the minnow riders, Reclamation‘s conduct can still remain insulated from ESA attack, so long as it conforms to that B.O. In sum, County of Los Angeles‘s first inquiry does not support a conclusion of voluntary cessation.
The second part of the County of Los Angeles test requires little discussion here. Under that part, we examine whether interim events have “completely and irrevocably eradicated the effects of the alleged violation.” 440 U.S. at 631. After undertaking this inquiry, we can identify no lingering effects from the federal agencies’ alleged violations of the ESA in connection with the issuance of the 2001 and 2002 biological opinions. As discussed at length supra Part II(A)(2), any injury inflicted upon the Environmental Groups by Reclamation‘s purported failure to consult to the full scope of its discretion in connection with the 2001 and 2002 biological opinions cannot be said to have survived the issuance of the 2003 B.O., which superseded and replaced those opinions.
In bolstering its case against mootness, the Environmental Groups contend the scope-of-discretion issue is still significant and has a day-to-day impact on Reclamation‘s ability to effectively comply with the flow requirements of the 2003 B.O. See Aplees. Br. at 35 (“The extent of the Bureau‘s authority to alter operations of El Vado Dam or the MRG Project diversion dams affects the success of its efforts every day to comply with the flow requirements of the 2003 BO. If the Bureau has broad discretion to control water operations, it is also more likely to be able to purchase necessary water, because water rights holders will know that, one way or another, the Bureau will have to obtain enough water to avoid jeopardy.“). However, as the federal agencies correctly note, the Environmental Groups have not filed a claim or sought relief with respect to Reclamation‘s day-to-day activities in complying with the 2003 B.O. And ordinarily it would not be appropriate for a federal court to be in the business of monitoring such day-to-day compliance activities in any event. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 67 (2004) (“The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such [broad] congressional directives is not contemplated by the APA.“); see also Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 21 (D.C. Cir. 2006).
In sum, we simply are unable to conclude that the FWS‘s issuance of the 2003 B.O., and Reclamation‘s adoption of it, provide the appropriate foundation
4. The Dissent‘s Objection to the Standard of Review
The dissent contends that we have incorrectly applied a de novo standard of review to the voluntary-cessation exception to the mootness doctrine. Dissent at 2. In particular, the dissent asserts that “we should review the district court‘s determination as to the effect of the federal agencies’ voluntary cessation of allegedly illegal activities under the more deferential abuse of discretion standard.” Id. at 3 (emphasis added). This standard leads the dissent to conclude regarding the issue of recurrence (i.e., the first part of the County of Los Angeles test) that “we must agree with the district court and assume that the federal agencies may sidestep their self-mandated practices.” Id. at 8. Likewise, the dissent is guided by this deferential standard in resolving the question of whether interim events have comprehensively and irrevocably eliminated the effects of the alleged violation (i.e., the second part of the County of Los Angeles test). Indicative of this deference, the dissent states that it “conclude[s] that the district court acted quite reasonably when it determined that the federal agencies cannot show that the effects of the ESA violation have been completely and irrevocably eradicated.” Id. at 10 (internal quotation marks omitted). However, we must
Courts recognize two kinds of mootness: constitutional mootness and prudential mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 632-34 (1953); Fletcher v. United States, 116 F.3d 1315, 1321 (10th Cir. 1997); S. Utah Wilderness Alliance, 110 F.3d at 727-28; Bldg. & Constr. Dep‘t v. Rockwell Int‘l Corp., 7 F.3d 1487, 1491-92 (10th Cir. 1993); New Mexico ex rel. N.M. State Highway Dep‘t v. Goldschmidt, 629 F.2d 665, 668-69 (10th Cir. 1980); see also Chamber of Commerce v. U.S. Dep‘t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980) (per curiam) (“The doctrine of mootness has two distinct branches.“); 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.1, at 725 (3d ed. 2008). Under the constitutional-mootness doctrine, a federal court has jurisdiction over only “cases” and “controversies.”
Even if a case is not constitutionally moot, a court may dismiss the case under the prudential-mootness doctrine if the case “is so attenuated that
A voluntary-cessation evaluation may be an important component of the overall analysis with respect to both constitutional and prudential mootness. “Under both Article III and prudential mootness doctrines, the central inquiry is essentially the same: have circumstances changed since the beginning of litigation that forestall any occasion for meaningful relief.” S. Utah Wilderness Alliance, 110 F.3d at 727. Under both mootness doctrines, courts must assess the likelihood that defendants will recommence the challenged, allegedly offensive conduct. Compare Chihuahuan Grasslands Alliance, 545 F.3d at 892 (noting in the constitutional context that “this [voluntary-cessation] exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct“), with Fletcher, 116 F.3d at 1321 (noting as to prudential mootness that “[a] court may refuse to grant relief where it appears that a change of circumstances renders it highly unlikely that the actions in question will be repeated“), and Bldg. & Constr. Dep‘t, 7 F.3d at 1492 (noting that, in cases involving prudential mootness, “a court may decline to grant declaratory or injunctive relief where it appears that a defendant, usually the government, has already changed or is in the process of changing its policies or where it appears that any repeat of the actions in question is otherwise highly unlikely“).
Although we engage in similar factual inquiries to ascertain constitutional and prudential mootness, different standards of review apply to these doctrines. “The constitutional mootness question is a threshold inquiry because a live case or controversy is a constitutional prerequisite to federal jurisdiction. Our review of this question is de novo.” Fletcher, 116 F.3d at 1321 (citation omitted); see also Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985) (“We apply a de novo standard for reviewing a district court‘s decision on subject matter
In this case, we apply a de novo standard of review because the case presents a question of constitutional mootness. If we had concluded that the Environmental Group‘s ESA claims survived this jurisdictional-mootness inquiry, it might well have been appropriate to conduct a prudential-mootness analysis, given that the Environmental Groups seek only injunctive and declaratory relief. E.g., Bldg. & Constr. Dep‘t, 7 F.3d at 1492. However, we need not reach this issue or definitively opine on it, because we have determined that the Environmental Groups’ ESA claims are constitutionally moot.
The dissent mistakenly applies the abuse-of-discretion standard—that ordinarily is associated with the prudential-mootness doctrine—to the question of constitutional mootness in this case. To support the application of an abuse-of-discretion standard, the dissent primarily relies on (1) the Supreme Court‘s opinion in W.T. Grant Co.; (2) the Tenth Circuit‘s opinion in Committee for the First Amendment v. Campbell; and (3) opinions from other circuits.18 Dissent at
2-3. The dissent‘s reliance is misplaced. Despite its arguments, W.T. Grant Co. and Committee for the First Amendment actually are quite consistent with our opinion. The cases from the other circuits, moreover, are contrary to our precedent and otherwise unpersuasive.
In W.T. Grant Co., the Supreme Court established the dual analysis of constitutional and prudential mootness. 345 U.S. at 632-34. Based upon our analysis below, we must respectfully conclude that the dissent has misguidedly relied upon W.T. Grant Co.‘s analysis related to prudential mootness in arguing for use of an abuse-of-discretion standard in this case—where only constitutional mootness is at issue. Under the constitutional-mootness doctrine, the Court held in W.T. Grant Co. that the defendants had not carried their “heavy” burden of showing that their voluntary cessation of illegal interlocking corporate directorates rendered the case moot. Id. at 633. Although the defendants indicated that the interlocking corporate directorates “no longer existed and disclaimed any intention to revive them,” the Court reviewed the issue de novo and determined that this averment was insufficient to render the case moot. Id.
Once the Court rejected the constitutional-mootness claim, it considered prudential mootness. Id. at 633-34. It was in this context that the Court in W.T. Grant Co. used the language relied upon by the dissent, which noted the obligation of the government, as plaintiff, to “demonstrate that there was no reasonable basis for the District Judge‘s decision.” Id. at 634; see Dissent at 3 (quoting from W.T. Grant Co., 345 U.S. at 633-34). More directly, under the prudential-mootness doctrine, the Court held that the government had not carried its burden of showing that the district court had abused its discretion in dismissing the case. See W.T. Grant Co., 345 U.S. at 633-34; id. at 635-36 (“We conclude that, although the actions were not moot, no abuse of discretion has been demonstrated in the trial court‘s refusal to award injunctive relief.” (emphasis added)).
To be sure, the Court in W.T. Grant Co. did not expressly label the different mootness doctrines. However, the opinion‘s language nonetheless clearly indicates that the Court applied two different mootness doctrines—with
Thus, we need not quarrel with the dissent‘s contention that the Court applied the abuse-of-discretion standard of review in W.T. Grant Co. The problem for the dissent, however, is that the Court applied this standard with respect to a mootness doctrine that is not germane to the resolution of this case—that is, the prudential-mootness doctrine. Therefore, we respectfully submit that the dissent‘s reliance on W.T. Grant in objecting to the application here of the de novo standard of review is misplaced; at issue here is constitutional
For similar reasons, the dissent hardly fares better with its standard-of-review objection by relying on our decision in Committee for the First Amendment. At bottom, that case involves application of the prudential-mootness doctrine; consequently, it was entirely appropriate for the court to apply an abuse-of-discretion standard of review. In Committee for the First Amendment, “Plaintiffs sought declaratory and injunctive (and later monetary) relief against various defendants in response to a decision by the Board of Regents (Regents) of Oklahoma State University (OSU) suspending the showing of The Last Temptation of Christ.” 962 F.2d at 1519 (footnote omitted). The film was shown on the scheduled dates and, during the course of the litigation, the university adopted a new policy concerning use of university facilities for expressive purposes including the showing of movies, which we noted effected “major changes” from the expressive-activity policy that plaintiffs initially challenged. Id. at 1524-25.
The district court concluded that plaintiffs’ claim for prospective relief (i.e., declaratory and injunctive relief) was moot. Id. at 1520, 1524. In providing background on the subject of mootness, we did briefly cite to cases associated with the constitutional-mootness doctrine, such as County of Los Angeles, and we
More specifically, in Committee for the First Amendment, we set forth the prudential-mootness test from W.T. Grant Co. and indicated that we would review the district court‘s mootness ruling for an abuse of discretion. Id. at 1524-25. Regarding whether the inquiry was one of prudential mootness, it is telling that we assessed whether the district court could have reasonably concluded in exercising its “general discretion in formulating prospective equitable remedies,”
Thus, the flaw in the dissent‘s reliance on Committee for the First Amendment—a prudential-mootness case predicated on W.T. Grant Co.‘s prudential-mootness analysis—should be readily apparent: this is not a prudential-mootness case. Accordingly, as with W.T. Grant Co., we have no basis to attack the dissent‘s contention that Committee for the First Amendment applied an abuse-of-discretion standard of review. But it did so with regard to a mootness doctrine that is not at issue here—prudential mootness. With respect to the
Finally, the dissent looks to cases from the Seventh and Second Circuits for support. Dissent at 4 (citing Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1992)). These cases, however, are unpersuasive and do not square with our own precedent (such as Fletcher), which recognizes the distinction regarding the applicable standard of review between the doctrines of constitutional and prudential mootness and, more specifically, holds that only in the case of prudential mootness do we apply an abuse-of-discretion standard of review, because in such a case we are “concerned with the [district] court‘s discretion to exercise its power to provide relief.” Fletcher, 116 F.3d at 1321; cf. id. (“The constitutional mootness question is a threshold inquiry because a live case or controversy is a constitutional prerequisite to federal jurisdiction. Our review of this question is de novo.” (citation omitted)). In Kikumura, the Seventh Circuit appears to have fallen victim to the same mistake that we respectfully have attributed to the dissent—mapping the prudential-mootness analysis of W.T. Grant Co. onto a case involving constitutional mootness. For example, in a mootness discussion that cites to W.T. Grant Co., the Seventh Circuit states that “[d]etermining whether an official‘s voluntary cessation from engaging in conduct challenged as unconstitutional renders a case moot calls for an exercise of judicial
Kikumura may be at odds with other Seventh Circuit cases, which appear not to have made the same mistake, but instead have recognized that the constitutional-mootness question—including the subsidiary question of voluntary cessation—implicates the subject-matter jurisdiction of federal courts and is reviewed de novo. In Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924, 928-31 (7th Cir. 1996), for example, the Seventh Circuit reviewed de novo the question of whether to apply the voluntary-cessation exception to a constitutional-mootness issue. In that context, the Seventh Circuit stated: “Whether a case has been rendered moot is a question of law that we review de novo. . . . A question of mootness arises when, as here, a challenged ordinance is repealed during the pendency of litigation, and a plaintiff seeks only prospective relief.” Id. at 929 (citations omitted); see Walsh v. U.S. Dep‘t of Veterans Affairs, 400 F.3d 535, 536-37 (7th Cir. 2005) (noting that “[we] review the district court‘s decision [entering summary judgment on mootness grounds] de novo,” and proceeding to address the specific question of voluntary cessation de novo); cf. Evers v. Astrue, 536 F.3d 651, 656 (7th Cir. 2008) (“This case begins and ends with our determination of subject-matter jurisdiction. . . . [W]e review a district court‘s dismissal on mootness grounds de novo.” (citations omitted)); St. John‘s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (“We review de novo the district court‘s grant
For somewhat similar reasons, the Second Circuit‘s decision in Harrison & Burrowes Bridge Constructors is contrary to our precedent and unpersuasive. There, like the Kikimura court, the Second Circuit mistakenly relied upon the language of W.T. Grant Co. concerning prudential mootness, in announcing the standard of review for a question of constitutional mootness. Harrison & Burrowes Bridge Constructors, 981 F.2d at 59. The plaintiffs sought “declaratory and injunctive relief with respect to the state‘s minority business program.” Id. at 58. The state‘s passage of an emergency regulation that “suspended enforcement of the program‘s goals” presented an issue of voluntary cessation to the district court. Id. at 58-59. The district court ruled that the state‘s action mooted the plaintiffs’ claim for declaratory and injunctive relief. Id. at 59. Citing W.T. Grant Co., the Second Circuit concluded that an abuse-of-discretion standard of review was appropriately applied to the district court‘s ruling, and it determined that “[t]he district court did not abuse its discretion in dismissing [plaintiffs‘] complaints as moot because the emergency regulation suspends application of the
Harrison & Burrowes Bridge Constructors is contrary to our precedent because—in mistaken reliance on the prudential-mootness analysis of W.T. Grant Co.—it applies an abuse-of-discretion standard, rather than a de novo standard, to a question of constitutional mootness. Moreover, even if its application here was not barred by our precedent, we would be wary of adopting the rule of Harrison & Burrowes Bridge Constructors. At least one Second Circuit case has intimated that the abuse-of-discretion standard articulated in Harrison & Burrowes Bridge Constructors is limited to the context of voluntary cessation. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 n.3 (2d Cir. 1998) (“The Defendants here have not voluntarily agreed to cease enforcing Section 10-110 against [plaintiff] or to grant [plaintiff‘s] permit requests in the future. Therefore, the abuse-of-discretion standard does not apply and we review the district court‘s determination of mootness under the customary de novo standard.“). However, the Supreme Court has clearly held that voluntary cessation is part and parcel of the constitutional-mootness analysis and can result in a finding that an action or claim is moot. See City of Los Angeles, 440 U.S. at 631. Accordingly, voluntary cessation implicates the subject-matter jurisdiction of federal courts, and our circuit and also the Second Circuit have recognized that subject-matter-jurisdiction questions—including those involving mootness—are reviewed de novo. Compare Fletcher, 116 F.3d at 1321 (“The constitutional mootness
For the foregoing reasons, we must disagree with our thoughtful colleague in dissent concerning the standard of review that is applicable to the mootness question in this case. We thus proceed to the issue of vacatur.
B. Vacatur
Because the district court was without subject-matter jurisdiction, and thus without the power to enter the November 2005 judgment, that judgment must be
vacated.19 However, the appellants also have challenged the district court‘s denialDefendant-Intervenor-Appellee Albuquerque-Bernalillo County Water Utility Authority (“Authority“) asks us to “uphold the propriety of the 2005 Opinion and Final Judgment solely with respect to the dismissal of the San Juan-Chama claims with prejudice and the approval of the stipulation and joint motion to dismiss, even if, arguendo, the district court generally lacked subject-matter jurisdiction on mootness grounds.” Authority Br. at 5. We are constrained to deny this request, however. As the State of New Mexico argues, see State of New Mexico Reply Br. at 18, the district court‘s dismissal with prejudice of the San Juan-Chama claims pursuant to the parties’ stipulation and dismissal agreement was a judgment on the merits. See Brooks v. Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir. 1986) (“[The dismissal] was a voluntary dismissal with prejudice upon an order of the court, based on the settlement agreement. This dismissal should be considered a judgment on the merits because it was entered pursuant to a settlement that resolved the substance of the disputed claims . . . [A] dismissal with prejudice by order of the court is a judgment on the merits.“); see also Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (10th Cir. 1992) (“[T]he stipulated, voluntary dismissal of Clark‘s first suit, approved by the court with prejudice, was a judgment on the merits.“). Under our precedent, the Authority‘s contrary assertions are simply untenable. In particular, the Authority‘s suggestion that the distinction between dismissals with prejudice and those without is one without a difference is wholly without merit. See Authority Br. at 11 n.5 (noting that “[n]othing in the applicable jurisprudence indicates that dismissal with prejudice should be evaluated differently” than dismissals without prejudice). Not only is the Authority‘s suggestion called into doubt by its own vigorous efforts to characterize the district court‘s dismissal as the latter (i.e., without prejudice), but it also is legally unsupportable. As the Supreme Court has made (continued...)
“Whether any opinion should be vacated on the basis of mootness is an equitable question.” Minnow III, 355 F.3d at 1220 (citing U.S. Bancorp Mortgage Co. v. Bonner Mall P‘ship, 513 U.S. 18, 26 (1994)).20 Thus, we consider “‘the nature and character of the conditions which have caused the case to become moot.‘” U.S. Bancorp Mortgage Co., 513 U.S. at 24 (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 477-78 (1916)). In general, “[w]hen a case becomes moot on appeal, the ordinary course is to vacate the judgment below and remand with directions to dismiss.” Kan.
On the other hand, if the party seeking vacatur has caused mootness, generally we do not order vacatur. Minnow III, 355 F.3d at 1220; see also Amoco Oil Co., 231 F.3d at 699 (“We have . . . recognized that granting vacatur to a party who both causes mootness and pursues dismissal based on mootness serves only the interests of that party.“); 19 Solid Waste Dep‘t Mechs. v. City of Albuquerque, 76 F.3d 1142, 1145 (10th Cir. 1996) (“The City both caused mootness and sought dismissal on the basis of mootness, and now requests a de facto reversal on the claim that it has abandoned. This one-sided use of the mootness doctrine does not appear to serve any interest other than the City‘s own.“).
However, in McClendon, where we ordered vacatur, we stressed that the appropriateness of vacatur must be determined “on the basis of the particular circumstances.” 100 F.3d at 868 (internal quotation marks omitted); see also
We determined that, not only did the defendants’ compliance with the settlement agreement moot the appeal, but that portions of the district court‘s orders relating to the inspections should be vacated. Id. at 868. Compliance with the settlement agreement did not constitute manipulation of the judicial process “by deliberately aborting appellate review to avoid a decision on the issues. Rather, defendants’ conduct in complying with the settlement agreement constitutes responsible governmental conduct to be commended.” Id.
As to this last point, we strongly reject any suggestion that the esteemed and able district court judge in this case has discharged his responsibilities with anything other than the highest levels of integrity and impartiality and are especially troubled insofar as such suggestions have emanated from the ranks of New Mexico governmental officials who should be aware of the weight their words tend to carry in the public‘s mind. However, we are ultimately constrained to conclude that the district court abused its discretion in declining to vacate its earlier orders.
To begin, our resolution of the mootness issue necessarily impacts our examination of “where the equities . . . lie” in this case. Minnow III, 355 F.3d at 1221. We have already determined that the record did not support the view that the FWS‘s issuance of the 2003 B.O. and Reclamation‘s adoption of that B.O. and its RPAs stemmed from an objective to “manipulate[] the judicial process” by depriving the district court of jurisdiction. McClendon, 100 F.3d at 868. And we reached that conclusion even after acknowledging that the federal agencies’ actions were in part in direct response to the district court‘s rulings, rather than the product of a self-initiated decision to change regulatory direction. Therefore, we would not consider it to be reasonable to conclude—as the district court
Indeed, with reference to McClendon, the district court here described the issuance of the 2003 B.O. as “commendable governmental conduct” but was concerned by what it called the “hedge“—that is, Reclamation‘s reservation of the option of complying with the 2003 B.O.‘s RPAs under its narrow view of its discretion—a view that the district court had rejected. J.A. at 249. However, as we have discussed in addressing voluntary cessation, Reclamation‘s reservation of the option of employing its narrow view of its discretion does not, under the unique circumstances of this case, make it significantly likely that it will revert to the precise approach toward the exercise of its discretion that the Environmental Groups challenged in the 2001 B.O. and 2002 B.O. and that the district court rejected. Therefore, we would not consider it to be reasonable to impute to the federal agencies, by virtue of their issuance and adoption of the 2003 B.O., a manipulative intent to divest the district court of jurisdiction and to rid themselves of the district court‘s rulings regarding the scope-of-discretion issue—rulings that were rendered in the context of the superseded biological opinions. Consequently, to the extent that the district court‘s vacatur decision was predicated on an imputation of such manipulative intent, we conclude that its decision amounted to an abuse of discretion.
Passage of legislation that moots a case is a voluntary act which could, conceivably, weigh against vacatur. See Nat‘l Black Police Ass‘n, 108 F.3d at 351. But at issue here is not whether Congress should be denied vacatur of the district court‘s prior orders because it enacted the minnow riders. The federal agencies and other appellants were before the district court seeking that equitable relief, not Congress. However, the district court essentially imputed congressional action to the appellants. Yet the acts of the legislature are not the acts of executive branch agencies, states, or private parties. See id. at 353. Only Congress controls the enactment of federal legislation. See Minnow III, 355 F.3d at 1221 (“The actions of the Congressional delegation[] are not acts of the parties in this case, however. Thus, we cannot agree that the Government and the Congressional delegation from New Mexico are guilty of acts that should give rise to equitable rights for the Appellees.“).
Therefore, we conclude that the district court erred in attributing the conduct of a third party—Congress—to the appellants in determining whether equitable considerations militated in favor of vacatur. Such error in significantly
Additionally, vacatur is appropriate to prevent “a judgment, unreviewable because of mootness, from spawning any legal consequences.” United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950). By its terms, Munsingwear applies to final judgments. Nonetheless, we have applied its rationale to vacate
At bottom, however, we conclude that, under the facts of this case, it would be unreasonable for the district court to have concluded that Reclamation has operated in a manner that should require it to labor in the future under any legal consequences that might be spawned by the district court‘s (non-precedential) 2002 orders. Vacatur of the district court‘s 2002 orders “clears the path for future relitigation of the issues between the parties” and diminishes the chances that the prior orders can be used for their persuasive value against any of the parties in subsequent proceedings. McClendon, 100 F.3d at 868 (quoting Marc Dev., Inc. v. FDIC, 12 F.3d 948, 949 (10th Cir. 1993) (en banc) (per curiam)).
Thus, under the particular circumstances presented by this case, we determine that the district court abused its discretion when it denied appellants’ vacatur request and, for the reasons noted above, we conclude that the court‘s decision is reversible error.22 See also id. (“In this context, absent additional evidence of an illegitimate motive, we believe the general rule in favor of vacatur still applies. Needless to say, this does not mean that vacatur should be granted in all cases of this kind.“). We are cognizant that both the district court and the parties have expended enormous amounts of time and resources in this litigation. Furthermore, in our view, the district court‘s 2002 orders were entered with the highest integrity and only after careful and informed deliberation. And, as noted, we condemn any suggestion by public officials to the contrary. However, we are constrained to conclude that the district court abused its discretion in refusing to vacate its 2002 orders.
For the foregoing reasons, we DISMISS the appeal and REMAND to the district court with directions to VACATE its (1) April 19, 2002 memorandum opinion and order; (2) September 23, 2002 memorandum opinion and findings of fact and conclusions of law; (3) September 23, 2002 order and partial final judgment; (4) November 22, 2005 memorandum opinion; and (5) November 22, 2005 order and final judgment; and to DISMISS the Environmental Groups’ Third Amended Complaint relating to their scope-of-consultation claim under the Endangered Species Act.23
HENRY, J., dissenting.
I appreciate my colleagues’ thorough and thoughtful examination of the issues in this complicated decade-long case. Although arguably “agua es vida” (water is life), especially in the West, I believe this case is more than a simple battle about allocating resources between the silvery minnow (and analogously situated plants and animals) and humans. There are a variety of options available, and the Supreme Court and Congress recognize that “the value of endangered species [is] incalculable.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 187 (1978) (internal quotation marks and citations omitted). The Rio Grande, the “Big River,” occupies a pivotal role in agriculture, water supply, fishing, and ceremonial uses; and as Congress has clearly realized, the silvery minnow and other species are important parts of that ecosystem.
I write separately because (1) I see differently the standard of review for the district court‘s determination of the Environmental Groups’ request for injunctive relief; (2) even under de novo review, I am not convinced that the claim is moot; (3) as to the merits, I agree with the district court that the Bureau of Reclamation (“Reclamation“) must consult with the Fish and Wildlife Service (“FWS“) over the full scope of Reclamation‘s discretion concerning Middle Rio Grande Project operations; and finally (4) I believe the district court acted within its discretion when it denied the federal agencies’ motion for vacatur.
A. Standard of review
To start, I disagree with the majority that we must engage in de novo review of the district court‘s application of the voluntary cessation exception to mootness. I have no quarrel with the distinction between constitutional and prudential mootness, which the majority thoroughly explains. Nevertheless, in my view, our precedent does not require the bifurcated voluntary cessation inquiry that the majority suggests (i.e., a de novo examination if the district court held the case to be constitutionally moot and an abuse of discretion review if it held the case to be prudentially moot). Many of the voluntary cessation decisions invoked by the majority do not distinguish between the two doctrines, and lacking explicit guidance from controlling precedent, I think that we should review district courts’ voluntary cessation decisions, whether involving constitutional or prudential mootness, for an abuse of discretion.
As the district court noted, “[w]hen a defendant has voluntarily ceased challenged conduct, in order to prove mootness the defendant has the burden to establish both (1) that it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur, and (2) that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”
This fact-based, case-specific, multi-part inquiry plays to the strengths of the district court, particularly when, as here, that court had a first-hand opportunity to assess these factors over years of litigation. We should give due regard to the district court‘s “feel for the case that we could not match without an inordinate expenditure of time.” Cook v. City of Chicago, 192 F.3d 693, 697 (7th Cir. 1999).
Thus, as the Environmental Groups argue, and the Supreme Court recognizes, we should review the district court‘s determination as to the effect of the federal agencies’ voluntary cessation of allegedly illegal activities under the
Other circuits agree: “Determining whether an official‘s voluntary cessation from engaging in conduct challenged as unconstitutional renders a case moot calls for an exercise of judicial discretion.” Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994). “Although defendant bears a heavy burden when it seeks to have a case dismissed as moot, whether it should be dismissed or not lies within the sound discretion of the district court, and ‘a strong showing of abuse must be made to reverse it.‘” Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1992) (quoting W.T. Grant, 345 U.S. at 633) (citation omitted).
B. The voluntary cessation exception to mootness
As the district court noted, “[w]hen a defendant has voluntarily ceased challenged conduct, in order to prove mootness the defendant has the burden to establish both (1) that it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur, and (2) that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” 469 F. Supp. 2d. at 1008 (citing County of Los Angeles, 440 U.S. at 631; W.T. Grant, 345 U.S. at 632-34). Under both prongs of the inquiry, I am not convinced that the defendants have carried their heavy burden.
1. Recurrence
As to the first prong of recurrence, in determining that the Environmental Groups’ challenges are moot, the majority fails to sufficiently consider the formidable burden that rests upon the federal agencies to satisfy this “stringent”
The majority accurately recounts the increased “solicitude” we may afford the voluntary actions by governmental actors, Maj. Op. at 33-34 n.15, and it notes Wright, Miller & Cooper‘s suggestion that the “process of prediction also is
However, whether or not public defendants are more trustworthy than private defendants, here we have no “claim of discontinuance” or “a professed commitment to changed ways.” Reviewing for an abuse of discretion or de novo, the record is clear that the federal agencies have made no similar commitment here (indeed, their refusal has been described as “dogged“), likely because it is a commitment the federal agencies are unwilling to make. 469 F. Supp. 2d at 1009. The federal agencies’ only argument in support of mootness is that the Environmental Groups have not challenged the 2003 Biological Opinion. Cf. Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003) (“In the present case, as the promulgation of work rules appears to be solely within the discretion of the MDOC, there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action terminates.“).
Furthermore, I am uncertain how we could conclude there was no “reasonable basis” for the district court‘s decision, W.T. Grant, 345 U.S. at 634, while also recognizing that the district court‘s 2002 order “played a role in the FWS‘s issuance of the 2003 [Biological Opinion].” Maj. Op. at 36. As the
Here, the 2003 Biological Opinion, together with the 2003 and 2004 minnow riders, demonstrate that “Congress deliberately left the issue of discretion over [Middle Rio Grande Project] water for decision by the federal agencies and the courts.” 469 F. Supp. 2d at 1009. And Reclamation, perhaps somewhat uncharacteristically, appears to shrug its shoulders at the suggestion it has full discretion. If history serves as any lesson, given the (1) federal agencies’ grudging resistance (described by the district court as their “dogged refusal“) and (2) the equivocal nature of the 2003 Biological Opinion, I believe we must agree with the district court and assume that the federal agencies may sidestep their self-mandated practices. See 469 F. Supp. 2d at 1009 (“[The federal agencies]
2. Eradication of the effects of the alleged violation
The second prong of the Supreme Court‘s voluntary cessation calculus is “[that] interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631. The majority concludes, I believe correctly, that the 2001 and 2002 Biological Opinions have been superseded, but the majority seems to draw the incorrect conclusion that the effects of these Biological Opinions have been eradicated. The district court acted reasonably in expanding its inquiry beyond the four corners of the Biological Opinions to the actual effects of the agencies’ conduct on the minnow‘s habitat: “[E]ven though an unusually wet spring in 2005 resulted in a dramatic increase in minnow spawning, it may never be known how the agencies’
II. Reclamation must consult with FWS.
Having determined that the case is not moot, I will briefly touch upon the merits. I agree with the district court that final resolution of the legal issue concerning Reclamation‘s discretionary authority over the Middle Rio Grande Project will greatly serve the public interest, and I would similarly conclude that
The ESA obligates federal agencies “to afford first priority to the declared national policy of saving endangered species.” Tenn. Valley Auth., 437 U.S. at 185. The Tennessee Valley Authority Court noted statements from legislative proceedings preceding the ESA, which tellingly remain valid over three decades later: “As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their—and our own—genetic heritage. . . . The value of this genetic heritage is, quite literally, incalculable. . . . From the most narrow possible point of view, it is in the best interests of mankind to minimize
As the Court explained, Section 7 of the ESA imposes requirements upon heads of all federal departments and agencies to use their authorities to facilitate programs for the protection of endangered species. Id. at 182-83. At the same time, those agencies must ensure their actions will not “jeopardize the continued existence of any endangered species or threatened species.”
Even if the district court had no reasonable basis to find that the case was not rendered moot by the federal agencies’ voluntary cessation of the allegedly illegal activities, I continue to see the district court‘s decision denying vacatur as one well within its discretion, and would affirm. 469 F. Supp. 2d at 1014 (concluding that “[m]ovants have failed to demonstrate their entitlement to the extraordinary remedy of vacatur of this Court‘s prior decisions“).
A. Standard of review
Vacatur is an equitable remedy, indeed, an “extraordinary” one, and the decision whether to grant vacatur is entrusted to the district court‘s discretion. See U.S. Bancorp Mortg. Co. v. Bonner Mall P‘ship, 513 U.S. 18, 26 (1994). Again, the district court is better equipped than we are to fashion equitable relief, and we afford it considerable discretion in doing so. See Boutwell v. Keating, 399 F.3d 1203, 1207 (10th Cir. 2005) (noting the district court‘s “‘considerable discretion’ in fashioning equitable remedies” (quoting Stichting Mayflower Recreational Fonds v. Newpark Res., Inc., 917 F.2d 1239, 1245 (10th Cir. 1990))); Downie v. Indep. Drivers Ass‘n Pension Plan, 934 F.2d 1168, 1170 (10th Cir. 1991) (“We review the application of the district court‘s equitable remedy for abuse of discretion.“). The burden is on “the party seeking relief from the status quo” to demonstrate “equitable entitlement to the extraordinary remedy of
B. Voluntary action of the party seeking relief from the judgment below
The principal factor we consider in determining how to dispose of moot cases is “whether the party seeking relief from the judgment below caused the mootness by voluntary action.” 19 Solid Waste Dep‘t Mechs. v. City of Albuquerque, 76 F.3d 1142, 1144 (10th Cir. 1996) (quoting U.S. Bancorp, 513 U.S. at 24). Vacatur is ordinarily appropriate unless the losing party appealing the judgment was somehow responsible for making the case unreviewable. U.S. Bancorp, 513 U.S. at 24-25; Stewart v. Blackwell, 473 F.3d 692, 693 (6th Cir. 2007) (stating that “vacatur is generally appropriate to avoid entrenching a decision rendered unreviewable through no fault of the losing party“). Thus, we have ordered vacatur “when mootness occurs through happenstance—circumstances not attributable to the parties—or . . . the unilateral action of the party who prevailed in the lower court.” Kempthorne” cite=“545 F.3d 884” pinpoint=“891” court=“10th Cir.” date=“2008“>Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72 (1997) (internal quotation marks and citation omitted)).
In contrast, “[v]acatur is generally not appropriate when mootness is a result of a voluntary act of a nonprevailing party.” Wyoming v. U.S. Dep‘t of Agric., 414 F.3d 1207, 1213 (10th Cir. 2005). To permit a party “to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would—quite apart from any considerations of fairness to the parties—disturb the orderly operation of the federal judicial system.” U.S. Bancorp, 513 U.S. at 27; Houston Chronicle Pub. Co. v. City of League City, 488 F.3d 613, 616, 620 (5th Cir. 2007) (where city “voluntarily” and “selectively” repealed ordinance, and where city did not “show[] its repealing the Ordinance provisions was not in response to the district court judgment,” “the equitable factors . . . weigh[ed] against vacating the district court‘s injunction“).
Here, FWS issued the 2003 Biological Opinion, and Reclamation adopted it. This case is similar to Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), a case that exhibits courts’ reluctance to vacate opinions and orders. In Tandy, the Wichita transit system rescinded its earlier policy that had given discretion to bus drivers to deny wheelchair-bound passengers entry to an accessible bus on certain routes. Id. at 1280. We held that the challenges to
Given the mootness determination here, as in Tandy, there is no question that FWS‘s and Reclamation‘s voluntary actions contributed to mooting the case. See Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (denying vacatur where “the agency itself has voluntarily withdrawn the regulations and thus set the stage for a declaration of mootness“). The majority should disentangle what it considers the district court‘s incorrect analysis of the mootness issue from the vacatur issue. That the district court reached a different mootness finding is legally irrelevant to the present analysis because the district court separately and neutrally considered the vacatur issue assuming mootness. The reasons for deferring to the district court‘s feeling for the case remain.
I am not persuaded by the majority‘s comparison of the acts of the federal agencies here with those of the defendant officials in Albuquerque” cite=“100 F.3d 863” court=“10th Cir.” date=“1996“>McClendon v. City of Albuquerque, 100 F.3d 863 (10th Cir. 1996). In McClendon, we echoed the concerns of the Supreme Court when we stated that we determine the appropriateness of vacatur “on the basis of the particular circumstances.” Id. at 868; U.S. Bancorp, 513 U.S. at 24 (In deciding whether to vacate a district court decision, we must consider “the nature and character of the conditions which have caused the case to become moot.“) (internal quotation marks and citations omitted). Although the majority suggests that we “stressed” the particular circumstances inquiry in McClendon, Maj. Op. at 63, we also heeded the “principle condition” as to “whether the party seeking relief from the judgment below caused the mootness by voluntary action.” U.S. Bancorp, 513 U.S. at 24.
In McClendon‘s specific circumstances, “the parties entered a court-superintended settlement agreement designed to reduce inmate crowding in a city/county-run detention center.” Maj. Op. at 64. During the course of the appeal, the defendants complied with the settlement agreement, and we held the appeal to be moot. We noted the circumstances to be “certainly unusual” and noted that it was “defendants’ actions in complying with the settlement agreement by creating adequate temporary space and opening a new facility that have rendered this appeal moot.” McClendon, 100 F.3d at 868. We were convinced that the defendants’ repeated efforts to comply with the agreement warranted vacatur: “defendants, who had undisputedly violated the settlement agreement . .
Here, as the majority notes, we also have “unique circumstances.” Maj. Op. at 67. The federal agencies voluntarily adopted the 2003 Biological Opinion, which contains one proposal where Reclamation assumed it had “no discretion to limit contract deliveries to benefit the Minnow” and a second proposal where Reclamation assumed “discretion to limit diversions, curtail water storage, and release stored water.” Id. at 15. Unlike the enumerated and discrete acts that the government defendants presented in McClendon, here we have only the federal agencies’ either/or “voluntary actions,” id. at 66-67, which included adopting the non-position taking 2003 Biological Opinion. There is little assurance of follow through given the 2003 Biological Opinion‘s options. The district court was correct to engage in a U.S. Bancorp analysis as to whether the federal agencies’ governmental action warranted the exceptional remedy of vacatur.
Also, I am at a loss as to why the majority “agree[s] with the federal agencies that the issuance of the 2003 [Biological Opinion] was not a major factor
The district court quite clearly stated that “[t]he mootness of the discretion rulings in this Court‘s April 19, 2002 decision resulted in part from voluntary action by FWS, a federal agency, i.e., adoption of the 2003 [Biological Opinion], and in part from legislative action in the form of the minnow riders.” 469 F. Supp. 2d at 1014. In light of this language, it seems difficult to dispute that the 2003 Biological Opinion was “a major factor in the district court‘s vacatur decision.” Maj. Op. at 68.
Without the agencies’ adoption of the 2003 Biological Opinion, there would most likely be no mootness of this case. 469 F. Supp. 2d at 1010. And without the voluntary adoption of the 2003 Biological Opinion there could certainly be no riders to it. The federal agencies’ actions may have mooted the case, but we must recognize that their voluntary conduct also “may disentitle [them] to the relief [they] seek[].” Sanders v. United States, 373 U.S. 1, 17 (1963) (citing Fay v. Noia, 372 U.S. 391, 438 (1963)). While the district court attributes the voluntary action to first, the issuance of the 2003 Biological
Furthermore, we must not undertake de novo review of this decision not to vacate, rather we must afford it considerable discretion. Boutwell, 399 F.3d at 1207. The court concludes that “under the facts of this case, it would be unreasonable for the district court to have concluded that Reclamation has operated in a manner that should require it to labor in the future under any legal consequences that might be spawned by the district court‘s (non-precedential) 2002 orders.” Maj. Op. at 71. It continues to note that “[v]acatur of the district court‘s 2002 orders ‘clears the path for future relitigation of the issues between the parties’ and diminishes the chances that the prior orders can be used for their persuasive value against any of the parties in subsequent proceedings.” Id. (quoting McClendon, 100 F.3d at 868). The majority seems to find implicit error in the district court‘s reasoning. I see no “arbitrary, capricious, whimsical, or manifestly unreasonable judgment,” Brown, 101 F.3d at 1331, in the district court‘s sound fashioning of equitable relief when it denied the “extraordinary remedy of vacatur.” U.S. Bancorp, 513 U.S. at 26.
Finally, because vacatur is an equitable remedy, we, like the district court, must also consider the public interest. U.S. Bancorp, 513 U.S. at 26-27 (“Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.“) (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)); Amoco Oil Co. v. EPA, 231 F.3d 694, 699 (10th Cir. 2000). Focusing its analysis on the responsible government conduct of the agencies, the majority seems to have neglected the gravity of this inquiry.
“Congress has prescribed a primary route, by appeal as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would—quite apart from any considerations of fairness to the parties—disturb the orderly operation of the federal judicial system.” U.S. Bancorp, 513 U.S. at 27; cf. Wyoming, 414 F.3d at 1213 (holding that vacatur of the district court‘s order was appropriate “because the party seeking appellate relief [wa]s not the party responsible for mooting the case, [and] the orderly operation of the appellate system is not being frustrated“) (emphasis added).
Simply put, the public interest would not be served by erasing a decade of well-thought out jurisprudence that “may be helpful to other courts to the extent that it is persuasive.” Okla. Radio Assocs. v. FDIC, 3 F.3d 1436, 1444 (10th Cir. 1993) (quoting Clark Equip. Co. v. Lift Parts Mfg. Co., Inc., 972 F.2d 817, 820 (7th Cir. 1992)). As the district court aptly noted, “[t]he benefit of keeping the prior decisions intact weighs heavily because doing so prevents the uncertainty that prevailed in the past.” 469 F. Supp. 2d at 1015. The majority‘s approach infringes upon the district court‘s discretion, which was exercised “in the manner most consonant to justice.” U.S. Bancorp, 513 U.S. at 24 (internal quotation marks and citations omitted). This multi-year litigation clearly shows why our
Notes
To challenge the agency‘s failure to undertake consultation in the first instance, however, a plaintiff may utilize the ESA‘s citizen-suit provision,
(a) Notwithstanding any other provision of law and hereafter, the Secretary of the Interior, acting through the Commissioner of the Bureau of Reclamation, may not obligate funds, and may not use discretion, if any, to restrict, reduce or reallocate any water stored in Heron Reservoir or delivered pursuant to San Juan-Chama Project contracts, including execution of said contracts facilitated by the Middle Rio Grande Project, to meet the requirements of the Endangered Species Act, unless such water is acquired or otherwise made available from a willing seller or lessor and the use is in compliance with the laws of the State of New Mexico, including but not limited to, permitting requirements.
(b) Complying with the reasonable and prudent alternatives and the incidental take limits defined in the Biological Opinion released by the United States Fish and Wildlife Service dated March 17, 2003 and any amendments thereto combined with efforts carried out pursuant to Public Law 106-377, Public Law 107-66, and Public Law 108-7 fully meet all requirements of the Endangered Species Act (
(c) This section applies only to those Federal agencies and non-Federal actions addressed in the March 17, 2003 Biological Opinion.
(d) Subsection (b) will remain in effect until March 16, 2013.
§ 205, 118 Stat. at 2949, as amended by § 121(b), 119 Stat. at 2256. Legislative history reveals that Congress differentiated between San Juan-Chama and Project water because the former is not native to the Rio Grande Basin, but imported from another watershed. 149 Cong. Rec. S10896 (daily ed. Aug. 1, 2003) (statement of Sen. Bingaman). Therefore, the Minnow did not enjoy the benefit of San Juan-Chama water prior to the diversion and, consequently, the absence of San Juan-Chama water was not deemed to contribute to the decline of the Minnow.
The dissent also relies, in part, on the Supreme Court‘s opinion in United States v. Concentrated Phosphate Export Ass‘n, Inc., 393 U.S. 199, 203-04 (1968). Dissent at 3-4 (citing Concentrated Phosphate for the proposition that, “in the mootness context[,] . . . whether ‘the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary . . . is a matter for the trial judge‘” (quoting Concentrated Phosphate, 393 U.S. at 203-04)). This reliance is misguided, however, because Concentrated Phosphate fits neatly within our dual analysis of constitutional and prudential mootness. In Concentrated Phosphate, the Court initially employed a de novo review to determine that the case was not constitutionally moot. 393 U.S. at 203. The Court subsequently noted that the appellees could attempt to show prudential mootness on remand—where the focus would be on whether, in an exercise of its discretion, the court may conclude that it is possible to provide truly meaningful injunctive relief, not on whether the court has the power to provide such relief. Id. at 203-04 (“Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for the trial judge.” (emphasis added) (citation omitted)). Thus, the dissent quotes language from the prudential-mootness analysis of Concentrated Phosphate.
Courts and commentators agree that Concentrated Phosphate incorporates a prudential-mootness analysis. See, e.g., Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182-89, 1182 n.10 (11th Cir. 2007) (holding that the case was not constitutionally moot and relying on Concentrated Phosphate to note that “nothing in this opinion should be read to preclude the district court on remand, and after appropriate review, from deciding that equitable relief is not warranted“); 13B Wright, Miller & Cooper, supra, § 3533.1, at 744 & n.33 (“The (continued...)