ELR Citation: ELR 20128
No(s). s. 05-2399 et al (10th Cir. Apr 21, 2010)

The Tenth Circuit reversed a lower court decision to find that environmental groups’ claim—that the failure of the Bureau of Reclamation to weigh its discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of an endangered minnow in its consultations with the FWS violated ESA §7—was moot. Specifically, the court held that the FWS’s issuance of a new biological opinion (BO) mooted the groups’ prayer for both injunctive and declaratory relief. The new BO, which superseded the two BOs at issue, established a new regulatory framework under which the propriety of Reclamation’s actions must be judged. The groups have not argued that the new BO is a mirror image of the two BOs at issue, nor could they. Nor have they asserted that the changes are only superficial. In addition, a review of the record shows that the voluntary-cessation exception to the mootness doctrine does not apply. Finally, the lower court abused its discretion in declining to vacate its orders because, among other things, it relied on an improper and irrelevant factor (Congress’ legislative action) in denying vacatur.

[Prior decisions in this can be found at 33 ELR 20060 and 20224.]