Rio Grande Silvery Minnow v. Bureau of Reclamation , 599 F.3d 1165 ( 2010 )


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  •                                                               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
    
    HENRY, J., dissenting.
    
          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-
    

Document Info

DocketNumber: 05-2293

Citation Numbers: 599 F.3d 1165

Filed Date: 4/21/2010

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (110)

Goldin v. Bartholow , 166 F.3d 710 ( 1999 )

Houston Chronicle Co v. City of League City , 488 F.3d 613 ( 2007 )

Coral Springs Street Systems v. City of Sunrise , 371 F.3d 1320 ( 2004 )

Richard Troiano v. Supervisor of Elections , 382 F.3d 1276 ( 2004 )

National Advertising Co. v. City of Miami , 402 F.3d 1329 ( 2005 )

Sheely v. MRI RADIOLOGY NETWORK, PA , 505 F.3d 1173 ( 2007 )

Deer v. Paulison , 522 F.3d 1133 ( 2008 )

United States v. Hamburg-Amerikanische Packetfahrt-Actien ... , 239 U.S. 466 ( 1916 )

United States v. Munsingwear, Inc. , 340 U.S. 36 ( 1950 )

United States v. Oregon State Medical Soc. , 343 U.S. 326 ( 1952 )

United States v. WT Grant Co. , 345 U.S. 629 ( 1953 )

Fay v. Noia , 372 U.S. 391 ( 1963 )

Sanders v. United States , 373 U.S. 1 ( 1963 )

United States v. Concentrated Phosphate Export Assn., Inc. , 393 U.S. 199 ( 1968 )

Hall v. Beals , 396 U.S. 45 ( 1969 )

Super Tire Engineering Co. v. McCorkle , 416 U.S. 115 ( 1974 )

TVA v. Hill , 437 U.S. 153 ( 1978 )

County of Los Angeles v. Davis , 440 U.S. 625 ( 1979 )

City of Mesquite v. Aladdin's Castle, Inc. , 455 U.S. 283 ( 1982 )

Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp. , 510 U.S. 27 ( 1993 )

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