601 F.3d 1096 (10th Cir. 2010), 05-2399, Rio Grande Silvery Minnow v. Bureau of Reclamation

Docket Nº:05-2399, 06-2020, 06-2021.
Citation:601 F.3d 1096
Opinion Judge:HOLMES, Circuit Judge.
Party Name: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. BUREAU OF RECLAMATION, an agency of the United States; Robert L. Van Antw
Attorney: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 D...
Judge Panel:Before HENRY, Chief Judge, BALDOCK and HOLMES, Circuit Judges. HENRY, J., dissenting.
Case Date:April 21, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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601 F.3d 1096 (10th Cir. 2010)

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.

BUREAU OF RECLAMATION, an agency of the United States; Robert L. Van Antwerp, Lt. Gen., Chief Engineer, Army Corps of Engineers; United States Army Corps of Engineers, an agency of the United States; United States of America; Ken Salazar, Secretary, Department of the Interior; Michael L. Connor, Commissioner, Bureau of Reclamation; Larry Walkoviak, Regional Director, Bureau of Reclamation; and Kimberly M. Colloton, Lt. Col., Albuquerque District Engineer, [*] Defendants-Appellants,

The Middle Rio Grande Conservancy District; State of New Mexico, Defendants-Intervenors-Appellants,

Albuquerque-Bernalillo County Water Utility Authority, [**] Defendant-Intervenor-Appellee,

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.

Nos. 05-2399, 06-2020, 06-2021.

United States Court of Appeals, Tenth Circuit.

April 21, 2010

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Robert J. Lundman, U.S. Department of Justice, Environment & Natural Resources

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Division (Andrew C. Mergen and Ellen J. Durkee, U.S. Department of Justice, Environment & Natural Resources Division; Sue Ellen Wooldridge, Assistant Attorney General, with him on the brief(s)), Washington, D.C., for Defendants-Appellants.

Frances C. Bassett, Assistant Attorney General, State of New Mexico (Patricia A. Madrid, Attorney General, State of New Mexico; Stephen R. Farris and Karen L. Reed, Assistant Attorneys General, State of New Mexico; Tanya Trujillo, Amy Haas, and Josh Mann, Special Assistant Attorneys General, Office of the State Engineer and the New Mexico Interstate Stream Commission, with her on the brief(s)), Santa Fe, NM, 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, NM, for Defendant-Intervenor-Appellant Middle Rio Grande Conservancy District.

Alletta Belin, Belin & Sugarman, Santa Fe, NM (Laurence (" Laird" ) J. Lucas, Advocates for the West, Boise, ID, 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, NM, 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, NY; W. Patrick Schiffer, Chief Counsel, Arizona Department of Water Resources, and Gregg A. Houtz, Deputy Counsel, Arizona Department of Water Resources, Phoenix, AZ, 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 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 claim under

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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 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 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, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (determining

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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, 127 S.Ct. 2518; 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 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...

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