Rio Grande Silvery Minnow v. Keys

• Citation: 469 F.Supp.2d 1003
• Decision Date: 22 November 2005
• Docket Number: No. CV 99-1320 JPRHSACE.,CV 99-1320 JPRHSACE.
• Parties: RIO GRANDE SILVERY MINNOW, et al., Plaintiffs, v. John W. KEYS III, et al., Federal Defendants, MIDDLE RIO GRANDE CONSERVANCY DISTRICT, et al., Defendant — Intervenors.
• Court: U.S. District Court — District of New Mexico

469 F.Supp.2d 1003

RIO GRANDE SILVERY MINNOW, et al., Plaintiffs, v. John W. KEYS III, et al., Federal Defendants MIDDLE RIO GRANDE CONSERVANCY DISTRICT, et al., Defendant — Intervenors.

No. CV 99-1320 JPRHSACE.

United States District Court, D. New Mexico.

November 22, 2005.

COPYRIGHT MATERIAL OMITTED

Alletta d'Andelot Belin & Sugarman, Steven Sugarman, Belin & Sugarman, Santa Fe, NM, Laurence J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for Plaintiffs.

Andrew A. Smith, U.S. Department of Justice, c/o U.S. Attorneys Office, John W. Zavitz, U.S. Attorneys Office, Albuquerque, NM, Bradley S. Bridgewater, U.S. Department of Justice, Denver, CO, Mark A. Brown, U.S. Department of Justice, Wild Life & Marine Resources Section, Washington, DC, for Federal Defendants.

Charles T. DuMars, Law & Resource Planning Associates, Christina Bruff DuMars, David Seeley, Fred Abramowitz, John E. Stroud, Abramowitz Franks & Stroud, Maria O'Brien, Modrall Sperling Roehl Harris & Sisk PA, Michael I. Garcia, Robert M. White, Albuquerque City Attorney's Office, Albuquerque, NM, Daniel R. Rubin, State of New Mexico, Interstate Stream Commission, Frances C. Bassett, Karen L Reed, NM Attorney General's Office, Water Environment Utility Division, Stephen R. Farris, NM Attorney General's Office, Jay F. Stein, Stein & Brockmann, PA, Faith Kalman Reyes, Frank M Bond, Simons & Slattery, LLP, Thomas A Simons, IV, Simons & Slattery, LLP, Santa Fe, NM, Peggy E. Montano, Trout, Witwer & Freeman, PC, Denver, CO, Fred Waltz, Taos, NM, for Defendant-Intervenors.

MEMORANDUM OPINION

PARKER, Senior District Judge.

On June 24, 2005 Plaintiffs¹ and Defendant-Intervenor City of Albuquerque filed a Stipulation and Joint Motion for Dismissal of Any and All Claims Regarding the San Juan-Chama Project or. San Juan-Chama Water (Doc. No. 659). This joint motion is based upon a settlement of all claims between Plaintiffs and the City of Albuquerque. Defendant-Intervenor State of New Mexico objected to portions of the stipulation and joint motion, and filed motions requesting rulings on its pending motions for dismissal and vacatur (Doc. Nos.661, 662). Federal Defendants² and Defendants-Intervenors³ had previously filed numerous interrelated motions seeking to dismiss the remaining claims in Plaintiffs' Third Amended Complaint as moot,⁴ and to vacate this Court's prior rulings.⁵ On August 16, 2005 the Court held a hearing on all pending motions. At the hearing, counsel for the City of Albuquerque indicated that it was no longer pursuing its motion to dismiss (Doc. No. 604) or its motion to vacate (Doc. No. 587) in light of the settlement the City had reached with Plaintiffs. Having made a careful review of the pleadings, the relevant case law, and the arguments of counsel, the Court will grant in part and deny in part the motions to dismiss, will approve the stipulation and grant the joint motion for (partial) dismissal, in part, and will deny the motions to vacate.

I. Background.

This case concerns the plight of the Rio Grande silvery minnow in its last remaining natural habitat in the middle Rio Grande in New Mexico. Litigation under the Endangered Species Act ("ESA") has been ongoing for many years. On April 19, 2002 this Court entered a Memorandum Opinion and Order affirming the June 29, 2001 Biological Opinion ("BO"), which the Plaintiffs had challenged in an appeal of agency action. Rio Grande Silvery Minnow v. Keys, 2002 WL 32813602 (D.N.M. Apr.19, 2002). Although the Court affirmed the BO, the Court also ruled, among other things, that the United States Bureau of Reclamation ("BOR") had discretion over contract water deliveries under the Middle Rio Grande Project ("MRGP") and under the San Juan-Chama Project ("SJCP"), and that BOR had failed to consult fully with the United States Fish and Wildlife Service ("FWS") regarding the full scope of BOR's discretion to address the crisis facing the endangered Rio Grande silvery minnow. On the other hand, the Court found that the Army Corps of Engineers ("Corps") did not, under applicable law, have sufficient discretion in its water operations to bring its actions within the ambit of the consultation requirements of the ESA. Defendants-Intervenors City of Albuquerque, Middle Rio Grande Conservancy District ("MRGCD"), State of New. Mexico, and Rio Chama Acequia Association, and the Federal Defendants appealed. The Tenth Circuit Court of Appeals dismissed the appeals of the Intervenors for lack of standing, and dismissed the appeal of the Federal Defendants for lack of interlocutory appellate jurisdiction. Rio Grande Silvery Minnow v. Keys, 46 Fed.Appx. 929, 2002 WL 31027874 (10th Cir. Sept.11, 2002) (unpublished).

The June 29, 2001 BO, which the Court had upheld, was superseded by a September 12, 2002 BO. On. September 23, 2002, after further proceedings, this Court ruled in favor of Plaintiffs' challenge to the new 2002 BO. Rio Grande Silvery Minnow v. Keys, 356 F.Supp.2d 1222 (D.N.M.2002). The September 12, 2002 BO resulted from reinitiation of consultation between BOR and FWS under Section 7 of the ESA in response to a worsening drought. The Court concluded that the 2002 BO was arbitrary and capricious, finding that BOR did not adequately consult on water sources that the Court had previously held were available to help protect the silvery minnow, and that the BO improperly stated that there was no reasonable and prudent alternative ("RPA") to avoid jeopardy to the species. In an Order and Partial Final Judgment filed September 23, 2002, the Court ordered BOR to use its legal authority under the MRGP and the SJCP, as determined in the Court's previous ruling of April 19, 2002, to reduce contract water deliveries, if necessary, to meet flow requirements for the protection of the silvery minnow during 2003.⁶ Defendants-Intervenors State of New Mexico, MRGCD, City of Albuquerque, and Rio Chama Acequia Association, and the Federal Defendants appealed the Court's September 23, 2002 findings and conclusions and injunctive orders to the Court of Appeals for the Tenth Circuit.

On March 16, 2003, while the appeals were pending, FWS issued a new BO in compliance with the Court's rulings. Among other things, the 2003 BO contains two alternative proposals that were developed to anticipate the decision of the Court of Appeals on discretion, one proposal limiting BOR's discretion, and the other expanding it. 2003 BO § I at 5.

On June 12, 2003 the Tenth Circuit affirmed this Court's ruling regarding BOR's discretion in a 2-1 opinion. Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (2003). Several parties petitioned for rehearing by the en banc appellate court. On January 5, 2004, while the petitions for rehearing were pending, the Tenth Circuit dismissed the appeal as moot and vacated its June 12, 2003 opinion. Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215 (10th Cir.2004).

In the meantime, the Tenth Circuit's June 12, 2003 panel decision had instigated a legislative response. In December 2003, Congress enacted the first so-called "minnow rider." Energy and Water Development Appropriations Act, 2004, Pub.L. No. 108-137 § 208, 117 Stat: 1827 (Dec. 1, 2003). The 2003 minnow rider removed BOR's discretion to use SJCP water to meet ESA requirements by prohibiting use of agency funds for that purpose, and provided a legislative declaration of adequacy of the 2003 BO for a period of two years, as long as the federal agencies complied with the RPA and the incidental take statement ("ITS") provisions of the 2003 BO. A second minnow rider was enacted in December 2004. Energy and Water Development Appropriations Act, 2005, Pub.L. No. 108-447 § 205, 118 Stat. 2809 (Dec. 8, 2004). The 2004 minnow rider made permanent the removal of BOR's discretion regarding SJCP water and the prohibition against use of agency funds for minnow purposes, and extended to March 16, 2013 the conditional legislative protection for the 2003 BO.

In this Memorandum Opinion, the Court first addresses the motions to dismiss based on mootness and decides that only the issues involving the SJCP are moot, whereas those related to the MRGP are not moot. The Court then proceeds to approve the stipulation and joint motion for partial dismissal, except insofar as it seeks vacatur of the SJCP portions of the prior decisions. Finally the Court concludes that, even if the entire case were moot, the Court's prior decisions should not be vacated.

II. Motions To Dismiss — Mootness.

The movants bring their motions for dismissal under Rule 12(b)(1), asserting the case is moot because there is no remaining justiciable case or controversy. The Tenth Circuit dismissed the appeal from this Court's September 2003 rulings as moot because the injunction issued by this Court was no longer in effect after the end of 2003. Rio Grande Silvery Minnow, 355 F.3d at 1220-21. Further, the Tenth Circuit noted that, although the legal issue of BOR's discretion may arise again, it was not clear that the issue would "evade judicial review." Id. at 1220. The Tenth Circuit recognized that the mootness of the appeal did not mandate a conclusion that the entire underlying case was moot; rather, it stated that if this Court's "conclusion that the Bureau of Reclamation has discretion under the contracts is embodied in a final order, that analysis will once again be subject to review, and sufficient time for the appellate process to run will be available." Id. at 1220. "The district court must be allowed to enter a judgment it determines appropriate." Id. at 1222.

"[T]he case and controversy must be extant at all stages of review, not merely at the time the complaint is filed." Schutz v. Thorne, 415 F.3d 1128, 1138 (10th Cir.2005) (internal quotations omitted). Defendants have a "heavy burden" of demonstrating mootness. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). "A case will be rendered moot if the issues presented are no...