Rio Grande Silvery Minnow v. Keys
| Decision Date | 05 January 2004 |
| Docket Number | No. 02-2267.,No. 02-2255.,No. 02-2254.,No. 02-2295.,No. 02-2304.,02-2254.,02-2295.,02-2255.,02-2304.,02-2267. |
| Citation | 355 F.3d 1215 |
| Parties | 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; Southwest Environmental Center, Plaintiffs-Appellees, v. John W. KEYS, III, Commissioner, Bureau of Reclamation; Steve Hanson, Regional Director, Bureau of Reclamation; Bureau of Reclamation, an agency of the United States; Joseph Ballard, General, Chief Engineer, Army Corps of Engineers; Raymond Midkiff, Lt. Col., Albuquerque District Engineer; United States Army Corps of Engineers, an agency of the United States; United States of America; Gale Norton, Secretary, Department of Interior; United States Fish and Wildlife Service, Defendants-Appellants, State of New Mexico; The Middle Rio Grande Conservancy District; City of Albuquerque; Rio De Chama Acequia Association, Defendants-Intervenors-Appellants, Double M. Ranch; City of Santa Fe, Intervenors, Las Campanas Limited Partnership; Pacific Legal Foundation; San Juan Water Commission; National Water Resources Association; Klamath Water Users Association; City and County of Santa Fe; State of Colorado; State of Idaho; State of Nebraska; State of Oklahoma; State of South Dakota; State of Wyoming; Trout Unlimited; National Wildlife Federation; Desert Fishes Council; New Mexico Council of Churches, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stephen R. Farris, Assistant Attorney General, State of New Mexico, (Patricia A. Madrid, Attorney General, Tracy M. Hughes, Assistant Attorney General, State of New Mexico, John E. Stroud, Special Assistant Attorney General, Karen L. Fisher, Special Assistant Attorney General, Office of the State Engineer and the New Mexico Interstate Stream Commission, Santa Fe, NM; Peggy E. Montaño, Special Assistant Attorney General of Trout, Witwer & Freeman, P.C., Denver, CO; Fred Abramowitz, Special Assistant Attorney General of Abramowitz & Franks, Albuquerque, NM, with him on the briefs) for Defendant-Intervenor-Appellant State of New Mexico.
Lynn H. Slade of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, (Maria O'Brien of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, Charles W. Kolberg and Robert M. White, City of Albuquerque, Legal Department, Albuquerque, NM, with him on the briefs) for Defendant-Intervenor-Appellant City of Albuquerque.
Charles T. DuMars, of Law & Resource Planning Associates, P.C., Albuquerque, NM (Christina Bruff DuMars and David Seeley, of Law & Resource Planning Associates, P.C., Albuquerque, NM, with him on the briefs) for Defendant-Intervenor-Appellant Middle Rio Grande Conservancy District.
Frank M. Bond of The Simons Firm, LLP, Santa Fe, NM, (Thomas A. Simons, IV, and Faith Kalman Reyes of The Simons Firm, LLP, Santa Fe, NM; Fred J. Waltz, Attorney, Taos, New Mexico with him on the briefs) for Defendant-Intervenor-Appellant Rio Chama Acequia Association.
Andrew C. Mergen, Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, (Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert Clark, Deputy Assistant Attorney
General; Susan L. Pacholski, Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, with him on the briefs) for the Defendants-Appellants.
Alletta Belin, of Belin & Sugarman, Santa Fe, NM, (Steven C. Sugarman of Belin & Sugarman, Santa Fe, NM; Laurence J. Lucas, Attorney, Boise, Idaho with her on the brief) for Plaintiffs-Appellees.
James B. Dougherty, Washington, DC, National Wildlife Federation, Desert Fishes Council, and New Mexico Council of Churches filed an amicus curiae brief for the Plaintiff-Appellees.
Elizabeth Newlin Taylor, Esq., and Jolene L. McCaleb, Esq., of Wolf, Taylor & McCaleb, P.A., Albuquerque, NM, filed an amicus curiae brief on behalf of San Juan Water Commission for the Appellants.
Steven L. Hernandez of Hubert & Hernandez, P.A., Las Cruces, NM, filed an amicus curiae brief on behalf of National Water Resources Association for the Defendants-Intervenors-Appellants.
Paul S. Simmons of Somach, Simmons, & Dunn, Sacramento, CA, filed an amicus curiae brief on behalf of Klamath Water Users Association for the Appellants.
M. Reed Hopper and Anne M. Hayes of Pacific Legal Foundation, Sacramento, CA, filed an amicus curiae brief for the Defendants-Intervenors-Appellants.
Bruce Thompson, City Attorney, Robert D. Kidd, Jr., Assistant City Attorney, Galen Buller and Germaine R. Chappelle of Montgomery & Andrews, P.A., City of Santa Fe, and Steven Kopelman, County Attorney, Santa Fe, NM; John W. Utton and J. Brian Smith of Sheehan, Sheehan & Stelzner, P.A., Albuquerque, NM, County of Santa Fe filed an amici curiae brief for the Defendants-Intervenors-Appellants.
Andrew Peternell, Project Attorney, Boulder, CO, filed an amicus curiae brief on behalf of Trout Unlimited for Appellees.
Ken Salazar, Attorney General, Alan Gilbert, Solicitor General, Peter J. Ampe, Assistant Attorney General, Colorado State Attorney General's Office, State of Colorado filed an amicus brief on behalf of Defendants-Intervenors-Appellants.
Alan G. Lance, Attorney General, Clive J. Strong, Deputy Attorney General, Clay R. Smith, Deputy Attorney General, Natural Resources Division, Boise, ID; Don Stenberg, Attorney General, State of Nebraska; W.A. Drew Edmondson, Attorney General, State of Oklahoma; Mark Barnett, Attorney General, State of South Dakota; Hoke MacMillan, Attorney General, State of Wyoming, filed an amici curiae brief for the Appellants.
Michael D. Baird, Esq. of Las Campanas Limited Partnership, Santa Fe, NM; James W. Johnson, Michael J. Pearce and Thomas R. Wilmoth of Fennemore Craig, P.C., Phoenix, AR, Las Campanas Limited Partnership filed an amicus curiae brief for Appellants.
Michael E. Wall, Attorney, San Francisco, CA, Natural Resources Defense Council, filed an amicus curiae brief.
Before SEYMOUR, PORFILIO and KELLY, Circuit Judges.
This matter arises upon the court's own initiative. Papers filed in response to the petition for rehearing en banc have suggested this appeal has been mooted by events occurring after the entry of the opinion. We have obtained the viewpoints of Appellants and Appellees on this issue and have concluded the appeal is moot. Although the petition for en banc rehearing is still pending, we further conclude the appeal should be dismissed, and the panel opinion should be vacated.
We must begin our analysis by recalling the limited issue present in this appeal. The panel reviewed a preliminary injunction certified to us by the district court under Fed.R.Civ.P. 54(b). The injunctive provisions of the court's order mandated:
7. The Bureau of Reclamation must provide sufficient flows of water for the remainder of 2002 to maintain a flow of 50 cfs at San Acacia Diversion Dam, and to maintain a flow in the Albuquerque Reach from Angostura Diversion Dam to Isleta Diversion Dam, but is not required to pass flows through the Isleta Reach.
8. If necessary to meet these flow requirements for the remainder of 2002, the Bureau of Reclamation must release water from Heron Reservoir in 2002.
9. The Federal Government must compensate those, if any, whose contractual rights to water are reduced in order to meet the aforementioned flow requirements.
10. The Bureau of Reclamation and Fish and Wildlife Service must keep in place all other (non-flow) elements of the Reasonable and Prudent Alternative stated in the Fish and Wildlife Service June 29, 2001 Biological Opinion.
11. In order to help protect the survival and recovery of the silvery minnow, the Bureau of Reclamation and the Fish and Wildlife Service must, to the extent reasonably possible, comply with the actions that are identified in the June 29, 2001 Biological Opinion and in the September 12, 2002 Biological Opinion under the headings of "Reasonable and Prudent Measures" and "Conservation Recommendations."
12. The Bureau of Reclamation and Fish and Wildlife Service must reinitiate consultation immediately to plan for the various contingencies that may arise during the rest of 2002 and during 2003 based on the different amounts of water that may be available in the Rio Grande Basin.
13. Beginning January 2003, the Bureau of Reclamation must comply with the flow requirements of the June 29, 2001 Biological Opinion until a new Biological Opinion is issued that contains a Reasonable and Prudent Alternative that avoids jeopardy, if possible.
14. If necessary to meet flow requirements in 2003 either under the June 29, 2001 Biological Opinion or under a new Biological Opinion resulting from reinitiation of consultation, the Bureau of Reclamation must reduce contract deliveries under the San Juan-Chama Project and/or the Middle Rio Grande Project, and /or must restrict diversions by the Middle Rio Grande Conservancy District under the Middle Rio Grande Project, consistent with the Bureau of Reclamation's legal authority as determined in the Court's April 19, 2002 Memorandum Opinion and Order.
As of today, the parties agree all provisions of the injunction have either been met or were never invoked. Most importantly, we are informed that between the entry of the injunctive order and December 31, 2003, the Bureau of Reclamation has not had to comply with paragraph 14 of the district court's order by reducing delivery of allocated water to any contract user.
Thus, for all practical purposes, none of the provisions of the injunction remain. This court then faces the question of what relief we can afford by either affirming or reversing the preliminary injunction on en banc review, if granted. The answer is none.
The climatological circumstances that occurred during the appeal and the...
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