Rio Grande Silvery Minnow v. Bureau of Reclamation

599 F.3d 1165

Opinion

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).

-2- 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

-4- 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

-5- 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).

-6- 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

-7- 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...)

-9- 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...)

-10- “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).

-11- 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.

-12- 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

-13- 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

-15- 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...)

-16- 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...)

-17- 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.

-18- 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

-19- 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...)

-21- 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)).

-22- 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

-26- 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

-31- 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

-32- 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.

-34- 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

-36- 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 at 26–27 (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

-40- 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.

-42- 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

-45- 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

-47- 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.

-48- 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. at 203–04)). This reliance is misguided, however, because Concentrated Phosphate fits neatly within our dual analysis of constitutional and prudential mootness. In Concentrated Phosphate, the Court initially employed a de novo review to determine that the case was not constitutionally moot. 393 U.S. at 203. The Court subsequently noted that the appellees could attempt to show prudential mootness on remand—where the focus would be on whether, in an exercise of its discretion, the court may conclude that it is possible to provide truly meaningful injunctive relief, not on whether the court has the power to provide such relief. Id. at 203–04 (“Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for the trial judge.” (emphasis added) (citation omitted)). Thus, the dissent quotes language from the prudential-mootness analysis of Concentrated Phosphate.

Courts and commentators agree that Concentrated Phosphate incorporates a prudential-mootness analysis. See, e.g., Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182–89, 1182 n.10 (11th Cir. 2007) (holding that the case was not constitutionally moot and relying on Concentrated Phosphate to note that “nothing in this opinion should be read to preclude the district court on remand, and after appropriate review, from deciding that equitable relief is not warranted”); 13B Wright, Miller & Cooper, supra, § 3533.1, at 744 & n.33 (“The (continued...)

-49- 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)).

-50- (“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

-51- 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

-52- 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 at

1148–50.

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

-53- 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,”

-54- 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

-55- 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

-56- 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

-57- 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

-58- 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

-59- 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

-60- 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...)

-61- 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).

-62- 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

-63- 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

-65- 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

-66- 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.

-67- 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.”).

-68- 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.

-69- 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

-70- 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.

-71- 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.

-72- 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.

-73- Rio Grande Silvery Minnow v. Bureau of Reclamation, Nos. 05-2399, 06-2020, 06-2021

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

-3- 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).

-4- 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”

-5- 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

-6- 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.”).

-7- 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

-8- 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]

-9- 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’

-10- 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

-11- “[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.

-13- 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

-14- 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.

-15- 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

-16- 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

-17- 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 . .

-18- . 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

-19- 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

-20- 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.

-21- 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).

-22- 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

-23- precedents have come to vest discretion in the trial judge who has so carefully

and painstakingly attempted to resolve this case.

-24-