Rio Grande Silvery Minnow v. Bureau of Reclamation ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 21, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
______________________________________
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,
Plaintiffs-Appellees,
v. No. 05-2399
No. 06-2020
BUREAU OF RECLAMATION, an No. 06-2021
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,
*
Pursuant to Fed. R. App. P. 43(c), we have substituted as the
Defendants-Appellants in this action: (1) Robert L. Van Antwerp, Lt. Gen., Chief
Engineer, Army Corps of Engineers, for Joseph Ballard, General, Chief Engineer,
Army Corps of Engineers; (2) Ken Salazar, Secretary, Department of the Interior,
for Gale Norton, Secretary, Department of the Interior; (3) Michael L. Connor,
Commissioner, Bureau of Reclamation, for Eluid L. Martinez, Director, Bureau of
Reclamation; (4) Larry Walkoviak, Regional Director, Bureau of Reclamation, for
Michael R. Gabaldon, Regional Director, Bureau of Reclamation; and (5)
Kimberly M. Colloton, Lt. Col., Albuquerque District Engineer, for Tom Fallin,
Lt. Col., Albuquerque District Engineer.
**
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 Fed. R. App. P. 43(b).
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RIO DE CHAMA ACEQUIA
ASSOCIATION, ***
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.
***
Defendant-Intervenor Rio de Chama Acequia Association entered an
appearance before the district court but did not participate in the appeal.
****
Intervenor City of Santa Fe entered an appearance on appeal but did
not otherwise participate.
-3-
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.
Before HENRY, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
This case involves one battle in a prolonged war over a finite and elemental
resource—Rio Grande water. The needs of the plants and animals that depend
upon this water for survival are in tension with the needs of the human inhabitants
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of the Middle Rio Grande Valley (the “Valley”) who depend upon the water for
daily living and commercial and agricultural activities. Alleging that the Bureau
of Reclamation (“Reclamation”) failed to properly maintain the delicate balance
between these counterpoised needs to the detriment of several endangered
species, Defenders of Wildlife, Forest Guardians, National Audubon Society, New
Mexico Audubon Council, Sierra Club, and the Southwest Environmental Center
(the “Environmental Groups”) sought relief in federal court pursuant to the
Endangered Species Act (“ESA”).
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
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claim under the ESA. 1 We also conclude that the district court erred in denying
the appellants’ motions for vacatur. For the reasons stated below, we dismiss the
appeal and remand to the district court to vacate its memorandum opinions and
orders of April 19, 2002, September 23, 2002, and November 22, 2005, and to
dismiss the Environmental Groups’ complaint with regard to their scope-of-
consultation claim under the ESA.
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
1
The Middle Rio Grande Conservancy District filed a separate appeal
challenging the district court’s dismissal of its cross-claims against the
government to quiet title to certain properties. Rio Grande Silvery Minnow v.
Bureau of Reclamation, No. 05-2293 (10th Cir. filed Sept. 9, 2005). Although
this quiet-title appeal was consolidated with the scope-of-consultation appeals for
argument, it addresses distinct issues and was briefed separately. The viability of
this quiet-title cross-claim is not at issue in this appeal. We have addressed the
quiet-title cross-claim appeal in a separate opinion. Rio Grande Silvery Minnow
v. Bureau of Reclamation, No. 05-2293, 2010 WL 1135978 (10th Cir. Mar. 26,
2010).
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Control Acts of 1948 and 1950, the Project consists of federally rehabilitated
and/or constructed water-storage facilities, diversion dams, canals, drains, and
levees. The other major water project in the Valley, the San Juan-Chama Project
(the “San Juan-Chama”), imports water from the Colorado River Basin to the Rio
Grande Basin. See Rio Grande Silvery Minnow v. Keys (Minnow II), 333 F.3d
1109, 1122–23 (10th Cir. 2003), vacated as moot, 355 F.3d 1215 (10th Cir. 2004).
B. The Endangered Species Act and the Minnow
Primarily at issue in this case is § 7(a)(2) of the ESA, codified at 16 U.S.C.
§ 1536(a)(2). Listing a species as endangered or threatened under 16 U.S.C. §
1533 triggers the ESA’s provisions. Wyo. Farm Bureau Fed’n v. Babbitt, 199
F.3d 1224, 1231 (10th Cir. 2000). Thus, the ESA’s protections extended to the
Minnow beginning in 1994 when the FWS listed it as endangered. The Minnow
now occupies a small portion of its historic range, primarily existing in the San
Acacia Reach—a sixty-mile stretch of river south of Albuquerque, New Mexico,
and north of Elephant Butte Reservoir. Spring run-off triggers Minnow spawning.
During drought years, the Minnow is allegedly jeopardized both by low spring
run-off, which limits spawning, and, as the summer progresses and irrigation
increases, by river drying in the San Acacia Reach, which increases adult Minnow
mortality.
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
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authorized, funded, or carried out by such agency . . . is not likely to jeopardize
the continued existence of any endangered species or threatened species.” 16
U.S.C. § 1536(a)(2). Section 7 applies to “actions in which there is discretionary
Federal involvement or control.” 50 C.F.R. § 402.03 (emphasis added); see also
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665–66, 669
(2007) (determining that the FWS’s and the National Marine Fisheries Service’s
interpretation—that “§ 7(a)(2)’s no-jeopardy duty covers only discretionary
agency actions and does not attach to actions . . . that an agency is required by
statute to undertake once certain specified triggering events have occurred”—was
reasonable). 50 C.F.R. § 402.02, in turn, defines agency “action” as “all activities
or programs of any kind authorized, funded, or carried out, in whole or in part, by
Federal agencies.”
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. Fla. Key
-8-
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. 50 C.F.R. §
402.14(a). If so, the agency must consult with the FWS. 2 Id. § 402.14(a), (c).
During consultation, the FWS “evaluates the effects of the proposed action on the
survival of [the] species and any potential destruction or adverse modification of
critical habitat” and, “based on ‘the best scientific and commercial data
available,’” formulates a biological opinion (also referred to here as “B.O.”).
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.
2008) (quoting 16 U.S.C. § 1536(a)(2)).
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 50 C.F.R. § 402.14(g)(4). “If the
2
The FWS and the National Marine Fisheries Service administer the
ESA. 50 C.F.R. § 402.01(b). The “FWS has jurisdiction over freshwater and
terrestrial species while the National Marine Fisheries Service is responsible for
anadromous and marine species.” Johanns, 450 F.3d at 457 n.1 (citing 50 C.F.R.
§ 402.01(b)).
3
“[F]ormal consultation culminates in the [FWS’s] issuance of [a]
biological opinion[] . . . .” Water Keeper Alliance v. U.S. Dep’t of Def., 271 F.3d
21, 26 (1st Cir. 2001); see also 50 C.F.R. § 402.14(l)(1) (“Formal consultation is
terminated with the issuance of the biological opinion.”). “The issuance of a
biological opinion is considered a final agency action, . . . subject to judicial
review.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 790
(9th Cir. 2005) (per curiam). Therefore, to attack the scope of a consultation that
has resulted in a biological opinion, a plaintiff may bring suit pursuant to the
(continued...)
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biological opinion concludes that jeopardy is not likely and that there will not be
adverse modification of critical habitat, or that there is a ‘reasonable and prudent
alternative[ ]’ to the agency action that avoids jeopardy and adverse modification
and that the incidental taking of endangered or threatened species will not violate
section 7(a)(2), the consulting agency can issue an ‘Incidental Take Statement’ . .
. .” 4 Nat’l Wildlife Fed’n, 524 F.3d at 924. An Incidental Take Statement (“ITS”)
3
(...continued)
Administrative Procedure Act (“APA”). See Ariz. Cattle Growers’ Ass’n v. U.S.
Fish & Wildlife, 273 F.3d 1229, 1235 (9th Cir. 2001) (citing 5 U.S.C. § 704).
To challenge the agency’s failure to undertake consultation in the first
instance, however, a plaintiff may utilize the ESA’s citizen-suit provision, 16
U.S.C. § 1540(g)(1)(A). Under this provision, “any person may commence a civil
suit . . . to enjoin any person, including the United States and any other
governmental instrumentality or agency . . . who is alleged to be in violation of
any provision of [the ESA] or regulation issued under the authority [of the ESA];
. . . .” Id. The APA governs judicial review of agency action challenged through
the ESA citizen-suit provision. See 5 U.S.C. § 706; Coal. for Sustainable Res.,
Inc. v. U.S. Forest Serv., 259 F.3d 1244, 1249 (10th Cir. 2001); Biodiversity
Legal Found. v. Babbitt, 146 F.3d 1249, 1252 (10th Cir. 1998). In this case,
therefore, the Environmental Groups’ prayer that the district court direct
Reclamation to consult with the FWS pursuant to § 7(a)(2) constitutes a request
for mandatory injunctive relief and falls within the purview of the citizen-suit
provision of the ESA. See Coal. for Sustainable Res., Inc., 259 F.3d at 1249–50.
4
Section 9 of the ESA prohibits a “take” of any species listed as
endangered. See 16 U.S.C. § 1538(a)(1)(B). The term “take” is defined broadly
to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct.” Id. § 1532(19). The term “harm”
includes any “significant habitat modification or degradation where it actually
kills or injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. However, § 9’s
protection of endangered and threatened species is not as broad as that provided
by § 7 because § 9 cannot be enforced “until an animal has actually been killed or
(continued...)
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“constitutes a permit authorizing the action agency to take the endangered or
threatened species so long as it respects the [FWS’s] terms and conditions.”
Bennett v. Spear, 520 U.S. 154, 170 (1997) (internal quotation marks omitted). If
an action agency receives a jeopardy opinion, the action agency can comply with
its substantive obligation under § 7(a)(2) only if it “‘terminate[s] the action,
implement[s] the proposed alternative, or seek[s] an exemption from the Cabinet-
level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).’” Fla. Key
Deer, 522 F.3d at 1139 (quoting Nat’l Ass’n of Home Builders, 127 S. Ct. at
2526).
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,
4
(...continued)
injured.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.
687, 703 (1995).
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including the MRGCD and the State of New Mexico, to intervene.
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
5
The district court found that the Corps did not have discretion in the
operation of the Project and San Juan-Chama reservoirs sufficient to require
consultation pursuant to the ESA. The Environmental Groups have not appealed
this finding.
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injunctive relief, alleging that a drought year was endangering the Minnow and
asking the court to order the federal defendants to meet the flow requirements of
the 2001 B.O. On September 12, 2002, the FWS issued a biological opinion
(“2002 B.O.”) in which it determined that, although Reclamation’s operations in
the Valley were likely to jeopardize the Minnow, there existed no reasonable and
prudent alternative (“RPA”) to alleviate the jeopardy.
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
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persistent historic drought and “clear guidance that it had discretion to consult
with the FWS about limiting or reducing contract deliveries under the [San Juan-
Chama] and the [Project].” Id. at 208. Because the FWS could formulate no RPA
that avoided jeopardy to the Minnow, the district court determined that the 2002
B.O. was arbitrary and capricious. Moreover, it concluded that Reclamation was
empowered to release San Juan-Chama water, 6 to restrict future contract
deliveries of both San Juan-Chama and Project water, and to restrict diversions by
the MRGCD. An appeal ensued. 7
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
6
In its order and partial final judgment, the district court noted that, at
that time, drought conditions created insufficient water to meet the 2001 B.O.-
mandated flow rates without jeopardizing water availability in future irrigation
seasons. Therefore, the court ordered release of water to meet lesser flow rates
than the 2001 B.O. required, but ordered flow rates to increase to those mandated
by the 2001 B.O. later in the year.
7
Although a divided panel of this court affirmed the district court’s
preliminary injunction, Minnow II, 333 F.3d at 1138, the panel later concluded
that the appeal was moot and vacated the opinion. Rio Grande Silvery Minnow v.
Keys (Minnow III), 355 F.3d 1215, 1222 (10th Cir. 2004). Though noting that the
preliminary injunction entered by the district court was unenforceable, the panel
did not vacate the district court’s order and partial final judgment. Id.-14-
FWS concluded that the proposed actions would likely jeopardize the continued
existence of the Minnow. Similarly, the FWS analyzed the threat to the Minnow
and developed RPAs “based on biological needs of the species, independent of
sources of water and discretionary authority.” Id. at 921.
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
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extended the ESA adequacy of the 2003 B.O.’s RPAs and ITS through March
2013. See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 205,
118 Stat. 2809, 2949 (2004) (the “2004 minnow rider”). Finally, on November
19, 2005, Congress amended the 2004 minnow rider and extended its ESA-
satisfaction coverage to include “any amendments” to the 2003 B.O. Energy and
Water Development Appropriations Act, 2006, Pub. L. No. 109-103, § 121(b),
119 Stat. 2247, 2256 (2005). 8
8
As amended, the 2004 minnow rider provides as follows:
(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 (16 U.S.C. 1531 et seq.) for the
conservation of the Rio Grande Silvery Minnow (Hybognathus
amarus) and the Southwestern Willow Flycatcher (Empidonax
trailii extimus) on the Middle Rio Grande in New Mexico.
(continued...)
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Following the issuance of the 2003 B.O., the passage of the 2003 minnow
rider, and our dismissal of the preliminary injunction appeal as moot, the
Environmental Groups acknowledged that “there is no further relief that can be
issued at this time upon the existing claims in Plaintiffs’ lawsuit.” J.A. at 1630.
They sought dismissal but requested that the district court not vacate its prior
orders. Agreeing that the case was moot, the appellants urged vacatur. The
Environmental Groups then sought to withdraw their motion to dismiss, claiming
that their scope-of-consultation claim was not mooted by intervening events
because the violation was likely to recur.
On November 22, 2005, although recognizing that congressional action
mooted the Environmental Groups’ claims as to San Juan-Chama water, 9 the
8
(...continued)
(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. Id. at
S10896–97.
9
The district court granted the Environmental Groups’ and the City of
Albuquerque’s stipulation and joint motion for dismissal of all claims regarding
(continued...)
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district court rejected the contention that the Environmental Groups’ scope-of-
consultation claim as to Project water was moot. Rather, the court determined
that the FWS’s issuance of the 2003 B.O., and Reclamation’s adoption of it,
constituted a voluntary cessation with respect to Reclamation’s failure to consider
the alleged full scope of its discretionary authority. Absent Reclamation’s and
the FWS’s assurances that they would continue to operate under the discretionary
option in the 2003 B.O., the district court determined that they failed to meet their
burden of establishing mootness. Additionally, the district court entered a
declaratory judgment requiring Reclamation and the FWS to consider, in future
consultations, Reclamation’s discretion to reallocate Project contract water.
Finally, assuming arguendo that the case was moot, the court concluded that
vacating its 2002 memorandum opinions and orders would not be appropriate and
in the public interest. This appeal followed.
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.
9
(...continued)
the San Juan-Chama and dismissed the claims with prejudice.
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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., “[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.” 43 F.3d 1345, 1348 (10th Cir.
1994) (brackets, en dash, and internal quotation marks omitted), superseded by
statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, § 102,
105 Stat. 1071, 1072 (codified at 42 U.S.C. § 1981a), as recognized in Walker v.
UPS Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). “‘The crucial question is
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whether granting a present determination of the issues offered will have some
effect in the real world.’” Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212
(10th Cir. 2005) (emphasis added) (quoting Citizens for Responsible Gov’t State
Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)).
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
10
The district court identified three prospective ESA claims: (1)
Count I—a violation of § 7(a)(2); (2) Count II—a violation of § 7(a)(1); and (3)
Count IV—a violation of § 9. The federal agencies imply that only the § 7(a)(2)
claim remains for determination. The MRGCD indicates that it is unclear whether
the district court found the § 7(a)(1) and § 9 claims to be moot. Concluding that
such a ruling by the district court would be “perplexing,” the MRGCD
nonetheless announces its intention to operate under that “apparent ruling” and
“challenges only the district court’s holding as to the § 7(a)(2) claim.” Aplt.
MRGCD Br. at 18. However, the Environmental Groups appear to reject the
notion that the justiciability of only the § 7(a)(2) claim is at issue. See, e.g.,
Aplees. Br. at 33 (“In his November 2005 opinion and final judgment, Judge
Parker concluded this case is not moot, because relief was still needed to remedy
these adjudicated violations of the ESA [referring back to the three claims noted
above].”); id. at 27 n.8 (“Plaintiffs . . . have always asserted that the case as a
whole was not moot.”). And the district court appeared to expressly conclude that
the scope-of-discretion issue underlay all three prospective ESA claims. See J.A.
at 239 (“The issue of federal agency discretion underlies each of these claims.”).
Thus, under that reasoning, all three claims would stand or fall together under the
mootness analysis of this case. Ultimately, however, given our holding that the
case is moot with regard to the ESA scope-of-consultation claim, this dispute
among the parties regarding which specific ESA causes of action survived the
district court’s rulings is immaterial to our analysis.
-20-
relief the Environmental Groups seek, and whether we can, at this juncture, afford
them meaningful relief. 11 See S. Utah Wilderness Alliance v. Smith, 110 F.3d 724,
11
On appeal, the Environmental Groups sought leave to supplement the
record with documents not reviewed by the district court, claiming that they are
relevant to demonstrate that the case is not moot. “This court will not consider
material outside the record before the district court.” United States v. Kennedy,
225 F.3d 1187, 1191 (10th Cir. 2000). And, although we have inherent authority
to allow supplementation of the record, this is a rare exception to Fed. R. App. P.
10(e). Id. at 1192. “‘Rule 10(e) allows a party to supplement the record on
appeal but does not grant a license to build a new record.’” Shooting Star Ranch,
LLC v. United States, 230 F.3d 1176, 1177 n.2 (10th Cir. 2000) (quoting Kennedy,
225 F.3d at 1191).
In support of their motion, the Environmental Groups rely on cases in
which appellate courts allowed post-judgment supplementation of the record to
show that actions occurring subsequent to judgment mooted the case. See, e.g.,
Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir. 1992) (en banc); Cedar Coal
Co. v. United Mine Workers of Am., 560 F.2d 1153, 1166 (4th Cir. 1977).
However, the Environmental Groups’ reliance on these cases is misplaced
because, as we conclude infra, the case was moot prior to the district court’s
entry of judgment. See Child Evangelism Fellowship of Md., Inc. v. Montgomery
County Pub. Sch., 457 F.3d 376, 380 n.1 (4th Cir. 2006) (affirming district court’s
determination that several claims were moot, and denying plaintiff’s motion to
supplement the record on appeal on issue of mootness because district court did
not have the evidence before it when it entered judgment); Cedar Coal Co., 560
F.2d at 1166 (agreeing to consider new information on appeal only with regard to
the issue of mootness “because there was no mootness question before the district
court”). We consequently deny the motion to supplement.
The State of New Mexico requests that we strike those portions of the
Environmental Groups’ response brief that cite to the supplemental appendix.
Because we deny the Environmental Groups’ motion to supplement the record, we
grant the State of New Mexico’s request to the extent that the Environmental
Groups relied on the now-prohibited supplemental appendix in their briefing.
Finally, the Environmental Groups move to strike portions of the
MRGCD’s reply brief or, in the alternative, to file a surreply. The arguments the
(continued...)
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727 (10th Cir. 1997).
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
declaration 12 that the federal agencies are violating § 7(a)(2) by failing to consult
on all discretionary aspects of the federal action, and for an injunction ordering
full consultation. Because only the 2001 B.O. and 2002 B.O. had been issued
when the Environmental Groups filed their third amended complaint, we must
therefore interpret their pleadings as directed at the 2001 B.O. and 2002 B.O.
The Environmental Groups’ allegations of legal wrongdoing must be grounded in
a concrete and particularized factual context; they are not subject to review as
11
(...continued)
MRGCD addressed in its reply brief that allegedly exceed the scope of the
arguments fairly addressed by the Environmental Groups in their response brief
deal exclusively with the merits of the case. Because we resolve the case on
mootness grounds, we do not reach the merits. Thus, the Environmental Groups’
motion is itself moot.
12
“[D]eclaratory judgment actions often require courts to face the
difficult task of distinguishing ‘between actual controversies and attempts to
obtain advisory opinions on the basis of hypothetical controversies.’” Coal. for
Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004)
(quoting Kardules v. City of Columbus, 95 F.3d 1335, 1343–44 (6th Cir. 1996)).
“Thus, the Supreme Court has held that when considering the potential mootness
of a claim for declaratory relief, the question is whether the facts alleged, under
all the circumstances, show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Id. at 459 (internal quotation marks
omitted) (quoting Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974)).
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free-floating, ethereal grievances. See Nat’l Mining Ass’n v. U.S. Dep’t of the
Interior, 251 F.3d 1007, 1010 (D.C. Cir. 2001) (“To determine whether anything
remains of NMA’s case, we need to identify which regulations NMA challenged
and whether the new rules altered those regulations.”). And only the 2001 B.O.
and 2002 B.O. were extant targets for their allegations.
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
-23-
expanded scope] is no longer warranted. There is no point in ordering an action
that has already taken place.” S. Utah Wilderness Alliance, 110 F.3d at 728.
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, 50
C.F.R. § 402.14, and reinitiation of formal consultation, 50 C.F.R. § 402.16, 13
demonstrate, the duty to consult is not itself an ongoing agency action subject to
challenge. See Sierra Club v. Yeutter, 926 F.2d 429, 439–40 (5th Cir. 1991)
(“Once an agency submits a plan that has been agreed to through the section 7
consultation process, the court then, applying the arbitrary and capricious
standard of review, must approve or disapprove it.”). In other words, the
13
Pursuant to 50 C.F.R. § 402.16, reinitiation of consultation is
required when the action agency exceeds the take specified in the ITS, new
information arises that was not previously considered, the action is modified, or a
new species or critical habitat is listed.
-24-
Environmental Groups cannot challenge the scope of consultation untethered from
the federal agencies’ efforts to develop a biological opinion. The consultation
process culminates in the issuance of a biological opinion. 14 Water Keeper
Alliance, 271 F.3d at 26. And, in this case, that biological opinion has now been
issued (i.e., the 2003 B.O.).
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
14
We agree with the federal agencies that the Environmental Groups’
reliance on the Supreme Court’s decision in Bennett v. Spear, 520 U.S. 154(1997), in arguing that their claims under the citizen-suit provisions of the ESA
should not be deemed moot, irrespective of the mootness status of their APA
claims, is “perplexing.” Fed. Aplts. Reply Br. at 17. Bennett did not involve
questions of mootness and is not germane to the Environmental Groups’
argument.
-25-
appellants; the fact that agency employed the allegedly improper policy in
effecting the listing did not alter the mootness calculus because it was “too
speculative” that this policy in the future “might adversely affect” listed species
or affect “other” killer whale species); Or. Natural Desert Ass’n v. U.S. Forest
Serv., No. 04-3096-PA, 2007 WL 1072112, at *5 (D. Or. Apr. 3, 2007)
(“Plaintiffs also argue that declaratory relief would be helpful to ‘ensure that the
[new] BiOp complies with the law and does so in a timely manner’ and that
declaratory relief would ‘clarify and settle’ defendants’ legal obligations. I agree
with defendants, however, such justifications are so vague as to make Article III’s
‘case or controversy’ requirement meaningless. Courts should not micromanage
an agency’s procedures under the guise of judicial review.”).
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
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that “the alleged procedural deficiencies of the Roadless Rule are now irrelevant
because the replacement rule was promulgated in a new and separate rulemaking
process.” Id. As in Wyoming, to the extent that the Environmental Groups seek a
declaration that the 2001 B.O. and 2002 B.O. are legally infirm due to
Reclamation’s failure to consult using the full scope of its discretion, we are not
situated to issue a present determination with real-world effect because those
regulations no longer are operational—for all material purposes, they no longer
exist. And, because of that fact, we likewise are not situated to cure any
purported procedural irregularities in Reclamation’s consultation behavior
concerning those opinions. Thus, the Environmental Groups’ claims are moot.
See also Colo. Off-Highway Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130,
1135 (10th Cir. 2004) (“Plaintiff’s challenge to the 1997 Decision Notice and its
request for declaratory and injunctive relief is moot. The 1998 Routt Forest Plan
and its accompanying [off-road vehicle] use policy now governs the Routt
National Forest making Plaintiff’s attack on the 1997 Decision Notice futile.”
(emphasis added)); cf. Camfield v. City of Okla. City, 248 F.3d 1214, 1223 (10th
Cir. 2001) (“Because parties have no legally cognizable interest in the
constitutional validity of an obsolete statute, a statutory amendment moots a case
to the extent that it removes challenged features of the prior law[.]” (internal
quotation marks and citations omitted)).
On these facts, cases of our sister circuits also are instructive. For
-27-
example, in American Rivers v. National Marine Fisheries Service, the Ninth
Circuit summarized plaintiffs’ challenge as follows:
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, 30 U.S.C. §
1201 et seq., and its implementing regulations; no one could engage in surface
coal mining without such a permit. Id. After oral argument, the Interior
-28-
Department revised the regulations that governed some of the challenged
regulatory requirements and procedures and, consequently, the D.C. Circuit was
“faced with additional questions concerning the extent to which the case is now
moot.” Id.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 ESA § 7 and § 9 claims moot when challenged permits
were issued pursuant to superseded biological opinion); Ramsey v. Kantor, 96
F.3d 434, 446 (9th Cir. 1996) (holding that the same rule of mootness applies
where an agency “would no longer be relying on the particular biological opinion
that was being challenged, but rather upon a new opinion,” and “where an agency
will be basing its ruling on different criteria or factors in the future”).
The relevant case law thus strongly counsels in favor of a conclusion of
-29-
mootness here. Due to the FWS’s issuance of the 2003 B.O., we can provide no
effective relief. The Environmental Groups did not challenge the 2003 B.O., and
it currently governs Reclamation’s disposition of the water at issue. That B.O.
has altered the real-world parameters within which Reclamation operates, creating
a new regulatory context for assessing its compliance with its ESA obligations.
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,”
-30-
especially because it argued that compliance was not required. Id. The court,
therefore, determined that a “[d]eclaratory judgment in favor of Forest Guardians
would thus ensure that the Forest Service does not continue to fail to meet its
monitoring responsibilities in the future and that it fulfills its duty under the ESA
to consult with FWS when necessary.” Id. Consequently, the court concluded
that, although the plaintiff’s request for an injunction was mooted by reinitiation
of consultation, a declaratory judgment would, nevertheless, provide relief. Id. at
462–63.
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 § 7(a)(2), moot when agencies subsequently
completed informal consultation). Unlike the Forest Service in Johanns,
Reclamation is not currently engaged in the same behavior that was the subject of
the Environmental Groups’ objections. Instead, the FWS issued a superseding
B.O. with which Reclamation is complying. Thus, we are constrained to conclude
that the issuance of the 2003 B.O. mooted the Environmental Groups’ scope-of-
consultation claim under the ESA.
3. Voluntary Cessation
The Environmental Groups argue, and the district court held, that the
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scope-of-consultation claim was not mooted by the issuance of the 2003 B.O.
because Reclamation voluntarily ceased the alleged objectionable behavior. We
disagree.
“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
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course simply to deprive the court of jurisdiction.” Nat’l Adver. Co. v. City of
Miami, 402 F.3d 1329, 1333 (11th Cir. 2005) (per curiam). The party asserting
mootness bears the “‘heavy burden of persua[ding]’ the court that the challenged
conduct cannot reasonably be expected to start up again.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (alteration in
original) (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S.
199, 203 (1968)).
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
15
Indeed, despite Laidlaw’s heavy burden, some courts have expressly
treated governmental officials’ voluntary conduct “with more solicitude” than that
of private actors. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988); see
Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009) (noting that “courts are
justified in treating a voluntary governmental cessation of possibly wrongful
conduct with some solicitude, mooting cases that might have been allowed to
proceed had the defendant not been a public entity”), petition for cert. filed, 77
U.S.L.W. 3657 (U.S. May 22, 2009) (No. 08-1438). The Fifth Circuit in
Sossamon opined that this solicitude, which effectively places a comparatively
lighter burden of proof on governmental officials, was “reconcilable” with the
Supreme Court’s heavy-burden language in Laidlaw because “government[al]
actors in their sovereign capacity and in the exercise of their official duties are
accorded a presumption of good faith because they are public servants, not self-
interested private parties.” 560 F.3d at 316; see also 13C Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.5,
at 236, 238–39 (3d ed. 2008) (noting that in a mootness analysis courts must
undertake to make predictions, including as to “the probability of recurrence,”
and that the “process of prediction also is shaped by the character of the
defendant—claims of discontinuance by public officials are more apt to be trusted
(continued...)
-33-
or statute, ordinarily an amendment or repeal of it moots a case challenging the
ordinance or statute. See Camfield, 248 F.3d at 1223; see also Native Vill. of
Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (“A statutory change,
however, is usually enough to render a case moot, even if the legislature
possesses the power to reenact the statute after the lawsuit is dismissed. As a
general rule, if a challenged law is repealed or expires, the case becomes moot.”);
13C Wright, Miller & Cooper, supra note 15, § 3533.6, at 259 (“The legislative
15
(...continued)
than like claims by private defendants”); 13C Wright, Miller & Cooper, supra
note 15, § 3533.7, at 319, 321 (noting that “[c]ourts are more likely to trust public
defendants to honor a professed commitment to changed ways”). Some of our
other sister circuits have expressed similar sentiments and even suggested that
“when the defendant is not a private citizen but a government[al] actor, there is a
rebuttable presumption that the objectionable behavior will not recur.” Troiano v.
Supervisor of Elections in Palm Beach County, 382 F.3d 1276, 1283 (11th Cir.
2004); accord Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 947
(7th Cir. 2006). The federal agencies and the State of New Mexico have alluded
to this public/private distinction in asserting that the voluntary-cessation
exception should not preclude a determination of mootness here. See Fed. Aplts.
Reply Br. at 14 n.13 (distinguishing a case cited by the Environmental Groups
because it “addresses a private party’s voluntary cessation of challenged conduct;
not the situation here . . . where a challenged final agency action is wholly
replaced with a new final agency action” (citation omitted)); State of New Mexico
Reply Br. at 12 (noting that the parties here “include governmental agencies
acting pursuant to public policies that have been approved at the local, state, and
federal levels” and that “[t]his distinction is critical”). We need not definitively
opine here on what explicit measure—if any—of greater solicitude is due
administrative agencies in the application of the voluntary-cessation exception.
We are confident that, even under the general practice of courts in applying
Laidlaw’s heavy-burden standard in the governmental context, the federal
agencies’ actions here do not bar our conclusion of mootness due to application of
the voluntary-cessation exception.
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rules established by statute or administrative regulation may shift as an action
progresses. Ordinarily courts respond by applying the law in force at the time of
decision . . . . Mootness may result because the change has removed any basis for
a claim, or has fully satisfied the claim.”(emphasis added)); 13C Wright, Miller &
Cooper, supra note 15, § 3533.6, at 277 (“Repeal . . . likewise moots attacks on a
statute.”). Indeed, in this governmental context, “[m]ost cases that deny mootness
rely on clear showings of reluctant submission [by governmental actors] and a
desire to return to the old ways.” 13C Wright, Miller & Cooper, supra note 15, §
3533.6, at 311 (emphasis added). More specifically, when a legislature repeals or
amends a statute after it is judicially challenged, we have concluded that the
voluntary-cessation exception has no application “where there is no evidence in
the record to indicate that the legislature intends to reenact the prior version of
the disputed statute.” Camfield, 248 F.3d at 1223–24. In Camfield, we
distinguished the Supreme Court’s decision in City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283 (1982), where the Court determined that the action was
not moot, by noting that Aladdin’s Castle “preclud[es] a mootness determination
in cases challenging a prior version of a state statute only when the legislature has
openly expressed its intent to reenact the challenged law.” Id.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
-35-
(5th Cir. 2006) (“Corrective action by an agency can moot an issue.”). And the
“mere possibility” that an agency might rescind amendments to its actions or
regulations does not enliven a moot controversy. Ala. Hosp. Ass’n v. Beasley,
702 F.2d 955, 961 (11th Cir. 1983). A case “cease[s] to be a live controversy if
the possibility of recurrence of the challenged conduct is only a ‘speculative
contingency.’” Burbank v. Twomey, 520 F.2d 744, 748 (7th Cir. 1975) (quoting
Hall v. Beals, 396 U.S. 45, 49 (1969)).
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
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manipulated the system. See Chihuahuan Grasslands Alliance, 545 F.3d at 893(“Nothing in the record presented to us indicates the BLM’s termination of the
leases at issue constitutes a ‘voluntary cessation’ of illegal conduct made in an
effort to evade judicial review or avoid judgment by temporarily altering
questionable behavior.”); Sossamon, 560 F.3d at 325 (“We will not require some
physical or logical impossibility that the challenged policy will be reenacted
absent evidence that the voluntary cessation is a sham for continuing possibly
unlawful conduct.”); see also 13C Wright, Miller & Cooper, supra note 15, §
3533.7, at 326 (noting that although governmental defendants might take action as
a direct response to litigation, “[a]t any rate, self-correction again provides a
secure foundation for mootness so long as it seems genuine”); cf. Save Greers
Ferry Lake, Inc. v. Dep’t of Def., 255 F.3d 498, 501 (8th Cir. 2001) (“[W]hile the
district court’s preliminary injunction clearly had the salutary effect of prompting
the Corps to reevaluate its issuance of the FONSI [Finding of No Significant
Impact], withdraw the 2000 SMP [Shoreline Management Plan], and decide to
prepare an EIS [Environmental Impact Statement], the injunction cannot continue
in effect insofar as it purports to adjudicate the present or future legality of the
withdrawn 2000 SMP and to order an EIS for the 2000 SMP.”). 16
16
As the federal agencies credibly noted: “Adoption of the 2003
biological opinion was not an attempt to evade review. Rather, the FWS issued
and Reclamation adopted the March 2003 biological opinion in response to the
(continued...)
-37-
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 &
Cooper, supra note 15, § 3553.7, at 351–52 (noting that a conclusion of mootness
ordinarily does not “follow announcement of an intention to change or adoption
of a plan to work toward lawful behavior”). Instead, the FWS took the concrete
step in 2003 of issuing a new biological opinion. This 2003 B.O. superseded and
rendered obsolete the two biological opinions that provided the framework for the
Environmental Groups’ challenge to Reclamation’s scope of discretion. This
2003 B.O. established a new regulatory context for assessing the propriety of
Reclamation’s conduct under the ESA. Therefore, there is no reasonable
expectation that Reclamation’s actions could give rise to the scope-of-discretion
issue in the same (or essentially the same) manner that gave rise to the
Environmental Groups’ challenge. See County of Los Angeles, 440 U.S. at 632(concluding that use of unvalidated civil service exam unlikely to recur because,
following commencement of litigation, city instituted new method of screening
job applicants and increasing minority representation in fire department).
We do recognize that Reclamation has not abandoned its narrow view of
16
(...continued)
district court’s orders and changing factual conditions, not in an effort to evade
sanctions or review.” Fed. Aplts. Br. at 37 (emphasis added).
-38-
the scope of its discretion. 17 Specifically, Reclamation provided for an option to
achieve the 2003 B.O.’s RPAs that was consistent with its narrow view and
contrary to the district court’s rulings concerning the scope of its discretion.
However, even if Reclamation’s reservation of this narrow-discretion option
suggests some possibility that it would revert to its narrow scope-of-discretion
17
In support of application of the voluntary-cessation exception, both
the district court and the Environmental Groups have relied upon the federal
defendants’ failure to renounce their position concerning the scope of
Reclamation’s discretion (i.e., to acknowledge the correctness of the district
court’s conclusion that Reclamation in fact has discretion concerning the
allocation of the water at issue away from private contracting parties). Although
the failure of a governmental agency to acknowledge the impropriety of its
former, challenged course of conduct certainly is not an irrelevant factor in the
voluntary-cessation analysis, it is not dispositive. Compare Camfield, 248 F.3d at
1223 (distinguishing the Supreme Court’s decision in Aladdin’s Castle by noting
that it “preclud[es] a mootness determination in cases challenging a prior version
of a state statute only when the legislature has openly expressed its intent to
reenact the challenged law” (emphasis added)), and 13C Wright, Miller &
Cooper, supra note 15, § 3533.6, at 311 (noting that “[m]ost cases that deny
mootness rely on clear showings of reluctant submission and a desire to return to
the old ways” (emphasis added)), with Conservation Law Found., 360 F.3d at26–27 (applying voluntary-cessation exception to defeat mootness because
agency’s pronouncements defending its challenged procedural practices “d[id] not
suggest a change of heart”), and 13C Wright, Miller & Cooper, supra note 15, §
3533.7, at 345 (“It is equally easy to deny mootness if officials who have changed
their practices warn that former practices may be resumed at any time. . . .
Although not as significant, a failure to disclaim resumption may count in
denying mootness.” (emphasis added)). Under the totality of the circumstances of
this case, which include (1) the concrete steps taken by the federal agencies to
adopt a new regulatory framework in the 2003 B.O. for handling water-allocation
issues, and (2) as discussed infra, the likely extended duration of this new
framework in view of the minnow riders, we cannot conclude that Reclamation’s
failure to renounce its narrow view of its discretion should lead us to a different
conclusion concerning the inappropriateness of applying the voluntary-cessation
exception here.
-39-
view should it avoid the precedential effects of the district court’s
orders—through, for example, a mootness determination and vacatur—that
possibility likely would not be sufficient to warrant application of the voluntary-
cessation exception. See Ala. Hosp. Ass’n, 702 F.2d at 961 (noting that the “mere
possibility” that an agency might rescind amendments to its actions or regulations
does not enliven a moot controversy). Moreover, even if we accorded that
possibility some persuasive force on the voluntary-cessation question, we would
recognize that if the scope-of-discretion issue does arise again it would be in a
different regulatory context than that challenged by the Environmental Groups
(i.e., the 2001 B.O. and 2002 B.O.). Consequently, the precise issue that was the
subject of the Environmental Groups’ action is no longer extant, and it would not
be reasonably likely to recur through Reclamation’s actions. See Unified Sch.
Dist. No. 259, 491 F.3d at 1150 (“[T]he ‘allegedly wrongful behavior’ in this case
is highly fact- and context-specific, rather than conduct that is likely to ‘recur’ on
similar facts and in the same context. In such a case, the ‘voluntary cessation’
doctrine is inapplicable, because our review of future instances of ‘wrongful
behavior’ may be quite different than the complained-of example that already has
ceased.”).
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
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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
-41-
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.
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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
-43-
for application of the voluntary-cessation exception of the mootness doctrine.
Accordingly, this litigation is moot with regard to the scope-of-consultation
claim, and the district court erred in denying the appellants’ motions to dismiss
the action for lack of subject-matter jurisdiction.
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
-44-
disagree with our thoughtful colleague in dissent. In particular, we respectfully
submit that the dissent’s objection to the standard of review is misguided. It
apparently overlooks the critical distinction between constitutional mootness and
prudential mootness—only the former kind of mootness is at issue here.
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.” U.S. Const. art. III, § 2, cl. 1. “[A]n actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (internal quotation marks omitted).
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
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considerations of prudence and comity for coordinate branches of government
counsel the court to stay its hand, and to withhold relief it has the power to
grant.” Fletcher, 116 F.3d at 1321 (emphasis added) (internal quotation marks
omitted); S. Utah Wilderness Alliance, 110 F.3d at 727 (stating that “[p]rudential
mootness addresses not the power to grant relief but the court’s discretion in the
exercise of that power” (emphasis added) (internal quotation marks omitted)).
“[P]rudential mootness arises out of the court’s general discretion in formulating
prospective equitable remedies . . . .” Bldg. & Constr. Dep’t, 7 F.3d at 1492; see
Chamber of Commerce, 627 F.2d at 291 (“The cousin of the mootness doctrine, in
its strict Article III sense, is a melange of doctrines relating to the court’s
discretion in matters of remedy and judicial administration.”). This doctrine
generally applies only to requests for injunctive or declaratory relief. Bldg. &
Constr. Dep’t, 7 F.3d at 1492 (“All the cases in which the prudential mootness
concept has been applied have involved a request for prospective equitable relief
by declaratory judgment or injunction.”); see Fletcher, 116 F.3d at 1321; S. Utah
Wilderness Alliance, 110 F.3d at 727.
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
-46-
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
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jurisdiction, and, concomitantly apply that standard in reviewing questions of
mootness.” (citation omitted)). By contrast, “we review the district court’s
determination of prudential mootness for an abuse of discretion” because this
doctrine “is concerned with the court’s discretion to exercise its power to provide
relief.” Fletcher, 116 F.3d at 1321 (emphasis added). As a component of the
mootness analysis, it naturally and ineluctably follows that the voluntary-
cessation inquiry will be subject to the same standard of review as the
overarching mootness question at issue—whether constitutional or prudential.
Compare Unified Sch. Dist. No. 259, 491 F.3d at 1149-50 (tacitly applying de
novo standard of review to contention of voluntary cessation in the constitutional-
mootness context), with Comm. for the First Amendment v. Campbell, 962 F.2d
1517, 1524–25 (10th Cir. 1992) (explicitly applying abuse-of-discretion standard
of review to assertion of voluntary cessation in the prudential-mootness context).
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.
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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
18
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. at203–04)). 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...)
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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.
18
(...continued)
discretion to withhold injunctive relief in a case not technically moot is well
established.” (citing Concentrated Phosphate, 393 U.S. at 202–04)); 13C Wright,
Miller & Cooper, supra note 15, § 3533.5, at 252–53, 253 n.33 (“Even if
discontinuance has not mooted the dispute, the court may exercise its remedial
discretion to deny any present remedy. Remedial discretion is often described in
open-ended terms.” (citing Concentrated Phosphate, 393 U.S. at 202–04)).
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(“Such a profession [as offered by defendants] does not suffice to make a case
moot although it is one of the factors to be considered in determining the
appropriateness of granting an injunction against the now-discontinued acts.”); id.
at 638 (Douglas, J., dissenting) (suggesting that the constitutional-mootness
ruling of the district court was “now conceded [by the majority] to be
erroneous”).
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
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different standards of review—in undertaking the voluntary-cessation inquiry.
Commentators have explicitly noted the distinct constitutional and prudential
components of W.T. Grant Co.’s mootness analysis. See 13B Wright, Miller &
Cooper, supra, § 3533.1, at 744 (discussing the Court’s resolution of the
constitutional-mootness question and noting that W.T. Grant Co. is “[t]he most
important single illustration of the remedial doctrines,” i.e., principles of
prudential mootness). And we have recognized expressly the prudential-mootness
dimension of W.T. Grant Co.’s analysis. See Bldg. & Constr. Dep’t, 7 F.3d at
1492 (noting “the Supreme Court’s original formulation of the test for prudential
mootness” in W.T. Grant Co.); see also Goldschmidt, 629 F.2d at 669 (citing W.T.
Grant Co. in discussing approvingly the proposition that “even if some remnant
of the original controversy be still alive, this is an instance where the courts, as a
matter of prudence and sound discretion, should stay their hand and withhold
drastic injunctive relief”).
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
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mootness and that standard of review is appropriate. See, e.g., Chihuahuan
Grasslands Alliance, 545 F.3d at 891–94; Unified Sch. Dist. No. 259, 491 F.3d at1148–50.
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
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noted their holdings. See id. at 1524–25. However, when assessing the viability
of plaintiffs’ specific claim for prospective relief, we clearly were focused on the
issue of prudential-mootness. This is evident in our heavy reliance from the
outset to the end of our mootness analysis on “[t]he most important single
illustration,” 13B Wright, Miller & Cooper, supra, § 3533.1, at 744, of the
prudential-mootness doctrine—that is, W.T. Grant Co. Compare Comm. for the
First Amendment, 962 F.2d at 1519 (quoting in the first paragraph of the opinion
from W.T. Grant Co.’s prudential-mootness analysis, which notes that the
quantum of contrition that should be expected from an offender ceasing
challenged activity is “‘a question better addressed to the discretion of the trial
court’” (quoting W.T. Grant Co., 345 U.S. at 634)), with id. at 1525 (in the final
paragraphs of its mootness analysis, quoting from W.T. Grant Co.’s prudential-
mootness discussion, noting that “Plaintiffs . . . simply have not met their burden
with respect to ‘some cognizable danger of recurrent violations.’” (quoting W.T.
Grant Co., 345 U.S. at 632)).
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,”
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Bldg. & Constr. Dep’t, 7 F.3d at 1492, that providing prospective relief here was
not appropriate, by actually examining ourselves the contours of the specific
relief sought by plaintiffs. See Comm. for the First Amendment, 962 F.2d at
1525–26 (“What Plaintiffs seek is an injunction framed no more narrowly than
requiring the Defendants to follow the First Amendment concerning future on-
campus activities of every sort. No specific facts anchor such a command
rendering enforcement problematic in a university environment where hundreds of
decisions concerning extracurricular use of facilities are made every academic
year.”). In other words, our focus was on the district court’s exercise of
discretion in fashioning equitable remedies and not on whether there was “[a]n
actual controversy.” Arizonans for Official English, 520 U.S. at 67 (internal
quotation marks omitted). We concluded that the district court did not “abuse its
discretion insofar as it determined that plaintiffs’ request for injunctive relief was
moot.” Comm. for the First Amendment, 962 F.3d at 1524; see id. at 1526.
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
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mootness doctrine that is at issue, constitutional-mootness, our case law is
clear—the standard of review is de novo. E.g., Fletcher, 116 F.3d at 1321.
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
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discretion.” Kikumura, 28 F.3d at 598.
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, for example, the Seventh Circuit reviewed de novo the question
of whether to apply the voluntary-cessation exception to a constitutional-
mootness issue. 326 F.3d 924, 928–31 (7th Cir. 1996). 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
“[w]e 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
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of a motion to dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), which includes a dismissal on mootness grounds.”).
Irrespective of whether Kikumura is inconsistent with Seventh Circuit precedent,
however, insofar as Kikumura calls for the application of an abuse-of-discretion
standard of review to the question of constitutional mootness it is inconsistent
with our precedent, and we accordingly decline to follow it.
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
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minority enterprise goals on state-funded contracts.” Id.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
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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)), with Lamar Adver. of Penn, LLC v. Town of
Orchard Park, 356 F.3d 365, 377 n.16 (2d Cir. 2004) (“[T]he condition of
mootness is not a defense that could be waived by [a defendant], but rather is a
condition that deprives the court of subject matter jurisdiction.” (alterations in
original and internal quotation marks omitted)); and United States v. New York
City Transit Auth., 97 F.3d 672, 676 (2d Cir. 1996) (“A ruling that a case is not
moot is reviewed de novo. This case is not moot unless no reasonable expectation
remains that the policy will be reinstituted.”). In sum, we respectfully conclude
that the dissent’s reliance on Harrison & Burrowes Bridge Constructors is
misplaced. The case is contrary to our precedent and otherwise unpersuasive.
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
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vacated. 19 However, the appellants also have challenged the district court’s denial
19
“If the district court lacked jurisdiction, we have jurisdiction on
appeal, not of the merits but merely for the purpose of correcting the error of the
lower court in entertaining the suit.” Estate of Harshman v. Jackson Hole
Mountain Resort Corp., 379 F.3d 1161, 1163 (10th Cir. 2004) (internal quotation
marks omitted). When a case becomes moot prior to final adjudication, the
district court was without jurisdiction to enter the judgment, and “vacatur and
dismissal [of the judgment] is automatic.” Goldin v. Bartholow, 166 F.3d 710,
718 (5th Cir. 1999). Similarly, because the district court was without jurisdiction
at the time it issued the November 22, 2005 memorandum opinion, we also vacate
that opinion.
Defendant-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...)
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of their motions to vacate the district court’s 2002 orders. Thus, we must also
consider whether the circumstances under which this case became moot require us
to vacate those orders of the district court. We review the district court’s denial
of a motion to vacate for abuse of discretion. See Amoco Oil Co. v. U.S. Envtl.
Prot. Agency, 231 F.3d 694, 697 (10th Cir. 2000).
“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.
19
(...continued)
clear, it is precisely when “the court proposes to issue a judgment on the merits”
that “jurisdiction is vital.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549
U.S. 422, 431 (2007) (alteration and internal quotation marks omitted).
Therefore, because the district court lacked subject-matter jurisdiction, it was not
empowered to enter judgment pursuant to the parties’ stipulations concerning the
dismissal of the San Juan-Chama claims with prejudice, and that judgment cannot
stand.
20
Although U.S. Bancorp Mortgage Co. addresses appellate court
vacatur, its rationale also governs the district court’s decision whether to vacate
its own judgment pursuant to Fed. R. Civ. P. 60(b). Valero Terrestrial Corp. v.
Paige, 211 F.3d 112, 118, 121 (4th Cir. 2000).
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Judicial Review v. Stout, 562 F.3d 1240, 1248 (10th Cir. 2009). This is because
“[a] party who seeks review of the merits of an adverse ruling, but is frustrated by
the vagaries of circumstance, ought not in fairness be forced to acquiesce in the
judgment.” U.S. Bancorp Mortgage Co., 513 U.S. at 25. “Consequently, it is
frequently appropriate for an appellate court to vacate the judgment below when
mootness results from happenstance or the actions of the prevailing party.”
Wyoming, 414 F.3d at 1213.
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
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Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir.
1997) (noting this McClendon emphasis on particular circumstances and
concluding that it “suggest[s] that [the Tenth Circuit’s decision in] 19 Solid Waste
Department Mechanics should be viewed as simply a specific instance where
refusing vacatur served the public interest and not as establishing a general rule
against vacatur where mootness results from voluntary governmental action.”). In
McClendon, the parties entered a court-superintended settlement agreement
designed to reduce inmate crowding in a city/county-run detention center. 100
F.3d at 865–66. Approximately six months later, the defendants informed the
court that population caps in the settlement agreement had been exceeded. Id. at
866. After several hearings, the defendants appealed certain portions of the
district court’s orders regarding court inspection of temporary housing. Id. at
866–67. While the case was on appeal, the defendants succeeded in fully
complying with the settlement agreement. Id. at 867.
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.-64-
Turning now to the district court’s ruling, the court predicated its vacatur
ruling on the assumption that the case was moot. The court then proceeded to
analyze whether vacating its 2002 orders was appropriate and in the public
interest and ruled that vacatur relief should not be granted. The district court
determined that neither issuance of the 2003 B.O. nor legislative enactment of the
2004 minnow rider could “fairly be described as happenstance.” J.A. at 249. The
court further observed that the appellants intended to manipulate the judicial
process by lobbying Congress for passage of the minnow riders. Id. at 249–50.
Moreover, in weighing whether the public interest supported vacatur, the court
noted the possible guidance that its orders could provide in addressing similar
ESA issues: “If the issue arises again in litigation in connection with this or other
endangered species in the middle Rio Grande system or elsewhere, this Court’s
factual and legal analysis may provide a baseline to inform the debate, even
though this Court’s decisions are not binding precedent for other courts.” Id. at
250. Lastly, the court also noted that “[a]n additional reason for denying the
vacatur motions is to make clear to the public that nothing improper motivated the
[district court’s] discretion decision.” Id. at 251 n.9. In that regard, the court
expressed concerns regarding critical comments of certain state and local New
Mexico governmental officials, which had been reported in the media. The court
feared that the comments might lead the public to believe that the court had
engaged in misconduct in performing its judicial duties and that the court’s
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rulings concerning the scope-of-discretion issue were something “other than
principled judicial interpretations of the law on difficult issues.” 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
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apparently did—that the federal agencies’ voluntary actions in connection with
the 2003 B.O. should weigh against them and militate against vacatur.
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.
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Significantly, we agree with the federal agencies that the issuance of the
2003 B.O. was not a major factor in the district court’s vacatur decision, but
rather it turned on Congress’s enactment of the minnow riders. And, regarding
that basis, we must conclude that the district court’s reasoning is even more
problematic and moves us even more strongly to conclude that the court’s vacatur
ruling amounted to an abuse of discretion. In particular, the district court
endorsed the view that the appellants’ alleged lobbying of Congress for the
minnow riders should weigh against them in the equitable balance. We disagree.
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.”).
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Even assuming that the appellants actively lobbied the New Mexico
congressional delegation, they were certainly not assured of a particular outcome.
To the extent that the minnow riders contributed to the mootness of the case, the
case became moot as a consequence of the actions of a third party, Congress.
Passage of the minnow riders was simply beyond the appellants’ control. 21 See
Valero Terrestrial Corp., 211 F.3d at 121 (concluding, when mootness was
caused by state legislature’s amendment of statute and not acts by executive
branch officials before the court, district court was correct to vacate its
judgment); Jones v. Temmer, 57 F.3d 921, 922, 923 (10th Cir. 1995) (vacating
judgment when plaintiff’s suit against Colorado Public Utilities Commission was
mooted by Colorado legislature’s amendment of challenged taxicab regulations).
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
21
The dissent states that “without the voluntary adoption of the 2003
Biological Opinion there could certainly be no riders to it,” and it faults us for not
acknowledging that the 2003 B.O. was “the condition precedent to that
Congressional action.” Dissent at 18. However, logically, it should be patent that
just because Congress may have responded to the issuance of the 2003 B.O. by
enacting the minnow riders, does not establish—or even give rise to a reasonable
inference—that the federal agencies controlled Congress’s action in enacting the
riders. Therefore, the district court could not reasonably attribute Congress’s
action concerning the minnow riders to the federal agencies in the equitable
vacatur calculus simply by virtue of their issuance and adoption of the 2003 B.O.
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basing its denial of vacatur on this improper and irrelevant factor (i.e., Congress’
legislative action) ineluctably provides a strong indication that the district court
abused its discretion. See Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d
312, 316 (8th Cir. 2009) (“An abuse of discretion occurs where the district court
fails to consider an important factor, gives significant weight to an irrelevant or
improper factor, or commits a clear error of judgment in weighing those factors.”
(emphasis added)); Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)
(noting that “when we say that a decision is discretionary . . . we do not mean that
the district court may do whatever pleases it” and that an abuse of discretion “can
occur,” inter alia, “when an irrelevant or improper factor is considered and given
significant weight”); Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966)
(noting that “the denial of suspension to an eligible alien would be an abuse of
discretion if it were,” inter alia, grounded “on an impermissible basis such as . . .
considerations that Congress could not have intended to make relevant” (internal
quotation marks omitted)). Under the facts presented here, we conclude that, by
relying significantly on the enactment of the minnow riders to support its vacatur
ruling, the court abused its discretion.
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
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interlocutory decisions that have no collateral or preclusive effect. See Affiliated
Ute Citizens of the State of Utah v. Ute Indian Tribe of the Uintah & Ouray
Reservation, 22 F.3d 254, 256 (10th Cir. 1994). Although the district court has
fashioned its rulings concerning the scope-of-discretion issue thoughtfully and
with considerable skill, contrary to the court’s analysis, we conclude that this
factor should not necessarily result in a denial of vacatur, and under the
circumstances of this case it was unreasonable for court to deny vacatur. Should
the scope-of-discretion issue arise in the future with respect to the Valley or other
locales, it will almost invariably present a whole array of new factual and
scientific issues for litigation by Reclamation and other federal agencies, as well
as by any concerned private parties. Accordingly, it is at least open to question
the extent to which the district court’s rulings would provide meaningful guidance
to future litigants.
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.
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FDIC, 12 F.3d 948, 949 (10th Cir. 1993) (en banc) (per curiam)). Ultimately,
“[m]oreover, since the district court’s opinion[s] will remain ‘on the books’ even
if vacated, albeit without any preclusive effect, future courts [and litigants] will
be able to consult [their] reasoning.” Nat’l Black Police Ass’n, 108 F.3d at 354.
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.
22
We need not decide whether any one of the district court’s manifest
errors of judgment discussed above would, standing alone, constitute grounds for
reversal of its order denying vacatur.
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III. CONCLUSION
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
23
Our clerk’s office provisionally denied as inconsistent with our
court’s panel-assignment practices federal appellees’ motion to reassign this
appeal to a prior merits panel involved in an earlier phase of the parties’ litigation
relating to the Project. We decline to reconsider that decision and, in any event,
would deny the motion as moot.
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Rio Grande Silvery Minnow v. Bureau of Reclamation, Nos. 05-2399, 06-2020, 06-2021
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.
I. The district court did not abuse its discretion when it determined that
the case was not mooted by the federal agencies’ voluntary cessation of their
allegedly illegal activities.
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.”
-2-
469 F. Supp. 2d. 1003, 1008 (D.N.M. 2005) (citing County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979); United States v. W.T. Grant Co., 345 U.S. 629,
632-34 (1953)). “As with most mootness questions, the answer depends in large
part on a uniquely individualized process of prediction centered on the facts and
parties of each case. Predictions must be made as to the probability of
recurrence, the magnitude of any injury that would result, and the feasibility of
preventing any injury by a future suit. The judgment that is made on the basis of
these predictions may be shaped by the character of the plaintiff . . . [and] by the
character of the defendant.” 13A Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3533.5, at 236 (3d ed.
2008).
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
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more deferential abuse of discretion standard. W.T. Grant, 345 U.S. at 633, 634(“The necessary determination is that there exists some cognizable danger of
recurrent violation,” based on a standard of whether there was any “reasonable
basis for the District Court’s decision”); Comm. for the First Amendment v.
Campbell, 962 F.2d 1517, 1534 (10th Cir. 1992) (reviewing whether the “district
court abused its discretion” in the determination that the voluntary cessation of
unlawful conduct made the case moot); see also United States v. Concentrated
Phosphate Export Ass’n, 393 U.S. 199, 203-04 (1968) (finding in the mootness
context that whether “the likelihood of further violations is sufficiently remote to
make injunctive relief unnecessary . . . is a matter for the trial judge”) (emphasis
added).
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).
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We define abuse of discretion as “an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.” Brown v. Presbyterian Healthcare Servs.,
101 F.3d 1324, 1331 (10th Cir. 1996) (internal quotation marks and citation
omitted). I see no abuse of discretion and certainly no strong showing of such,
nor do I view the district court’s careful consideration of this case as whimsical or
unreasonable. Further, as explained below, I would reach the same conclusion
under de novo review.
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 allegedly 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”
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test. Concentrated Phosphate Export Ass’n, 393 U.S. at 203 (“The test for
mootness in cases such as this is a stringent one. Mere voluntary cessation of
allegedly illegal conduct does not moot a case; if it did, the courts would be
compelled to leave ‘[t]he defendant . . . free to return to his old ways.’”) (quoting
W.T. Grant, 345 U.S. at 632) (emphasis added); County of Los Angeles, 440 U.S.
at 631; Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004). Although
the majority acknowledges the existence of this “heavy burden,” Maj. Op. at 33
(citations omitted), it apparently concludes that “it is ‘absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.’” Tandy,
380 F.3d at 1291 (quoting Friends of the Earth v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 190 (2000)). But the district court, which has a better “feel”
for this epochal litigation, concluded otherwise. See Cook, 192 F.3d at 697 (“The
judge acquire[s] a feel for the case that we could not match without an inordinate
expenditure of time.”). Indeed, the Supreme Court has stated that the
determination of the likelihood of further violations in the mootness context “is a
matter for the trial judge.” Concentrated Phosphate Export Ass’n, 393 U.S. at
203-04.
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
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shaped by the character of the defendant—claims of discontinuance by public
officials are more apt to be trusted than like claims by private defendants.” Id.(quoting 13C Wright, Miller & Cooper, supra § 3533.5, at 236, 238-39). Some
courts, may “trust public defendants to honor a professed commitment to changed
ways.” Id. at 34 n.15 (quoting Wright, Miller & Cooper, supra § 3533.7, at 319,
321); see also Coral Springs St. Sys., 371 F.3d 1320, 1333 (11th Cir. 2004) (in a
moot case, defendant “expressly disavowed any intention of defending” the
ceased conduct).
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.”).
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The federal agencies’ unwillingness to claim a commitment to change their
ways does not discomfit the majority. The majority is reassured by the federal
agencies’ “concrete step” in issuing the 2003 Biological Opinion, and views such
a step as something more than a “mere informal promise or assurance on the part
of the [governmental] defendants that the challenged practice will cease.” Maj.
Op. at 38 (quoting Burbank v. Twomey, 520 F.2d 744, 748 (7th Cir. 1975)). But,
in my view, the 2003 Biological Opinion seems far from the “secure foundation”
for mootness that a genuine self-correction may provide. Id. at 37 (quoting
Wright, Miller & Cooper, supra § 3533.7, at 326 (“[S]elf-correction again
provides a secure foundation for mootness so long as it seems genuine.”)).
Moreover, earlier in this litigation, the federal agencies explained that even after
adopting the 2003 Biological Opinion, “the legal question of Reclamation’s
discretion to use Project water for endangered species may well recur,” noting
that the “Bureau might be unable to obtain sufficient water to comply with the
[Biological Opinion’s] flow requirements.” See Fed. Supp. Br. on Mootness, 10th
Cir. Nos. 02-2254 et al., p. 5.
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
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majority acknowledges, the issuance of the 2003 Biological Opinion was at least
“in part in direct response to the district court’s rulings.” Id. at 66. And, if, as
the court observes, “Reclamation has not abandoned its narrow view of the scope
of its discretion,” id. at 38-39, it is far from absolutely clear that the federal
agencies have completely discontinued the practice or that the allegedly wrongful
behavior could not reasonably be expected to recur. See id. at 41; Tandy, 380
F.3d at 1291 (quoting Friends of the Earth, 528 U.S. at 190); W.T. Grant, 345
U.S. at 633 (noting that district court considers “the bona fides of the expressed
intent to comply, the effectiveness of the discontinuance and, in some cases, the
character of the past violations” when determining the risk of recurrence).
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]
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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.”); United States v. Or. State Med. Soc’y, 343 U.S. 326,
333 (1952) (“It is the duty of the courts to beware of efforts to defeat injunctive
relief by protestations of repentance and reform, especially when abandonment
seems timed to anticipate suit, and there is probability of resumption.”). The
district court’s well-reasoned conclusion, “together with a public interest in
having the legality of the practices settled, militates against a mootness
conclusion.” W.T. Grant, 345 U.S. at 632.
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’
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dogged refusal to consider using project water in past years to prevent
unnecessary river drying has affected the downward spiral of the silvery
minnow.” 469 F. Supp. 2d at 1010. As the recently released Rio Grande Silvery
Minnow Recovery Plan observes, “Threats to [the silvery minnow] and its habitat
indicate[] that it could be expected to become extinct in the foreseeable future.”
Rio Grande Silvery Minnow Recovery Plan, First Revision, Southwest Region,
U.S. FWS, Approved 01/15/10. Cf. County of Los Angeles, 440 U.S. at 633(holding that the “second condition of mootness [has been met] because
petitioners’ compliance . . . has completely cured any discriminatory effects of the
. . . proposal”) (emphasis added). Thus I conclude 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.” 469 F. Supp. 2d at 1010. Furthermore, even reviewing the record de
novo, I would conclude that the federal defendants cannot show a complete cure
of the ESA violation.
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
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“[i]n any future consultations under the Endangered Species Act, the Bureau of
Reclamation must consult with the Fish and Wildlife Service over the full scope
of the Bureau’s discretion concerning Middle Rio Grande Project operations.” Id.
at 1016 (citing its April 19, 2002 Memorandum Opinion and Order (Doc. No.
371), and its September 23, 2002 Memorandum Opinion and Findings of Fact and
Conclusions of Law (Doc. No. 445), and its Order and Partial Final Judgment
(Doc. No. 446)). Section 7 of the ESA establishes a consultation process to
insure that “any action authorized, funded, or carried out by [a federal] agency . .
. is not likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of [critical]
habitat. . . .” 16 U.S.C. § 1536(a)(2).
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
-12-
the losses of genetic variations. The reason is simple: they are potential
resources. They are keys to puzzles which we cannot solve, and may provide
answers to questions which we have not yet learned to ask.” Id. at 178-79(internal quotation marks and citations omitted).
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.” 16 U.S.C. §
1536(a)(2). “The plain intent of Congress in enacting this statute was to halt and
reverse the trend toward species extinction, whatever the cost.” Tenn. Valley
Auth., 437 U.S. at 184. When fully considering the implications of Reclamation’s
responsibilities against this unambiguous backdrop, rather than cast the facts as a
showdown between man and nature, we must abide by Congress’s view that “the
value of endangered species [is] incalculable.” Id. at 187 (internal quotation
marks and citation omitted). Man has options that nature does not. There are no
hardship exemptions under the ESA for federal agencies, and none is called for
here. The district court’s reasoning, which modestly requires Reclamation to
merely consult with FWS, abides by the plain language of the ESA.
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III. The district court did not abuse its discretion when it denied the
federal agencies’ motion for vacatur.
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
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vacatur.” U.S. Bancorp, 513 U.S. at 26. As Judge Porfilio said, writing for the
court in our previous decision in Rio Grande Silvery Minnow v. Keys, 355 F.3d
1215, 1222 (10th Cir. 2004) (“Minnow III”), when examining the moving party’s
motion for vacatur, “the district court should determine whether there are
unresolved issues that remain to be tried.” The district court here has made that
determination, and has thoughtfully considered and denied the federal agencies’
motion for vacatur.
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.” Chihuahuan Grasslands Alliance v.
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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
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Wichita’s driver-discretion policy were moot because all of the City’s buses had
been retrofitted to be lift-accessible, because there were no remaining
inaccessible bus routes, and because Wichita Transit had instructed its drivers to
deploy lifts at all bus stops for all disabled riders. Id. at 1290-91. Reasoning that
Wichita did “not present[] any equitable consideration which would justify
vacatur despite the fact that mootness was brought about by [the transit system’s]
voluntary compliance,” we declined to vacate the district court’s injunction
against the driver-discretion policy. Id. at 1292.
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 McClendon v. City of
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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 . .
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. have since voluntarily permitted inspections,” opened a new detention facility,
and presented evidence that there were planned population reductions and facility
expansions scheduled to preclude another emergency overcrowding situation. Id.
at 867. We concluded that such “responsible government conduct” did not
warrant the defendants from bearing untoward consequences, and we ordered the
vacatur of certain orders. Id. at 868.
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
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in the district court’s vacatur decision, but rather [the decision] turned on
Congress’s enactment of the minnow riders.” Maj. Op. at 68. The majority
continues: “And, regarding that basis, we must conclude that the district court’s
reasoning is even more problematic and moves us even more strongly to conclude
that the court’s vacatur ruling amounted to an abuse of discretion.” Id.
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 with 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
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Opinion, and second, to the subsequent legislative riders, the majority focuses on
Congressional action as an intervening cause without explaining the 2003
Biological Opinion, the condition precedent to that Congressional action.
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.
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C. Public interest
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).
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The district court acted well within its wide discretion when it determined
that “exceptional circumstances” did not include the “disposing of cases[] whose
merits are beyond judicial power to consider, on the basis of judicial estimates
regarding their merits.” U.S. Bancorp, 513 U.S. at 28-29. The district court
emphasized the public interest and “‘orderly operation of the federal judicial
system’” and followed the Supreme Court’s “reject[ion of] the notion that there is
inherently more value in the relitigation of issues disposed of in judgments that
have become moot than in the ‘benefits that flow to litigants and the public from
the resolution of legal questions.’” 469 F. Supp. 2d at 1013 (quoting U.S.
Bancorp, 513 U.S. at 27).
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
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precedents have come to vest discretion in the trial judge who has so carefully
and painstakingly attempted to resolve this case.
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