WildEarth Guardians v. U.S. Army Corps of Engineers ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH January 17, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
WILDEARTH GUARDIANS,
Plaintiff - Appellant,
v. No. 18-2153
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant - Appellee,
and
MIDDLE RIO GRANDE
CONSERVANCY DISTRICT,
Intervenor Defendant -
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:14-CV-00666-RB-SCY)
Samantha Ruscavage-Barz (Steven Sugarman, Cerillos, New Mexico, with her on
the briefs), WildEarth Guardians, Santa Fe, New Mexico, for Appellant.
Michael T. Gray, Attorney (Jeffrey Bossert Clark, Assistant Attorney General,
Eric Grant, Deputy Assistant Attorney General, Robert J. Lundman and Andrew A
Smith, Attorneys, Environment and Natural Resources Division, and Melanie
Casner, M. Leeann Summer and Elizabeth Pitrolo, Attorneys, United States Army
Corps of Engineers, with him on the brief), Environment and Natural Resources
Division, United States Department of Justice, Jacksonville, Florida, for Appellee.
Before TYMKOVICH, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.
TYMKOVICH, Chief Judge.
This is yet another episode in the story over the Rio Grande. In the arid
southwest, the Rio Grande is one of only a handful of rivers that create crucial
habitat for plants, animals, and humans. And it is a fact of life that not enough
water exists to meet the competing needs. Recognizing these multiple uses,
Congress has authorized the Bureau of Reclamation and the Army Corps of
Engineers to maintain a balance between the personal, commercial, and
agricultural needs of the people in New Mexico’s Middle Rio Grande Valley and
the competing needs of the plants and animals.
WildEarth Guardians asserts the Army Corps of Engineers failed to protect
the needs of two endangered species that live along the river: the Southwestern
Willow Flycatcher and the Rio Grande Silvery Minnow. The group brought this
action under the Endangered Species Act, arguing the Army Corps of Engineers
has failed to exercise its discretion and consult with the U.S. Fish and Wildlife
Service (FWS) about alternative water management policies that would help
protect these species.
The district court concluded the Army Corps of Engineers was not
authorized by the statute to allocate additional water to species’ needs and
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therefore was not required to consult with FWS. Finding no error in the district
court’s reasoning, we AFFIRM.
I. Background
The Rio Grande is a large river located in the southwest United States,
flowing from Colorado to the Gulf of Mexico. Because Colorado, New Mexico,
and Texas each rely on the Rio Grande as a critical water source, the states in
1939 entered into the Rio Grande Compact, which apportions water to each state.
Unfortunately, there is not enough water to meet all the competing needs of
vegetation, wildlife, and human inhabitants.
The Middle Rio Grande Valley is located in central New Mexico and is the
focus of this case. The Middle Rio Grande Conservancy District was “formed to
consolidate water rights and irrigation systems, and to rehabilitate the existing
irrigation systems in the Valley.” Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1104 (10th Cir. 2010). But the Conservancy District
struggled without additional dam storage, which led Congress to approve the
Middle Rio Grande Conservancy District Project. This Project allowed the Corps
to rehabilitate, construct, maintain, and operate dams and other devices on the Rio
Grande. The Corps is required to operate within strict parameters because the Rio
Grande Compact between Colorado, New Mexico, and Texas equitably apportions
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waters of the Rio Grande Basin, and the Corps is not to interfere with its
operations.
The Flood Control Acts of 1948 and 1960 authorized construction and
maintenance of the projects in question in this litigation. The 1948 Flood Control
Act proposed construction of the Jemez Canyon Dam and what is now known as
the Abiquiu Dam. The 1948 Act stated that “all reservoirs constructed as part of
the project shall be operated solely for flood control except as otherwise required
by the Rio Grande Compact.” Pub. L. No. 81-858, 62 Stat. 1171, 1179 (1948).
The 1960 Flood Control Act later authorized construction of the Cochiti Dam and
the Galisteo Dam. Again, the 1960 Act stated the Cochiti and Galisteo reservoirs
“will be operated solely for flood control and sediment control.” Pub. L. No.
86-645, 74 Stat. 480, 493 (1960). The 1960 Act specified requirements for water
outflow, water releases, water storage, and general operations.
In 1994, the FWS listed the Rio Grande Silvery Minnow as an endangered
species under the Endangered Species Act of 1973. 59 Fed. Reg. 36,988 (July 20,
1994). The minnow only survives in the Middle Rio Grande starting at the
Cochiti Dam. The following year, FWS listed the Southwestern Willow
Flycatcher as an endangered species under the Endangered Species Act. 60 Fed.
Reg. 10,694 (Feb. 27, 1995). The Southwestern Willow Flycatcher occupies
habitat along the Rio Grande in willow, cottonwood, buttonbush, and other
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deciduous trees. Both parties agree the species’ critical habitat would be
impacted by Corps activity.
The Endangered Species Act instructs federal agencies to avoid
jeopardizing endangered wildlife and flora. Section 7(a)(2) of the Act requires
federal agencies to, “in consultation with and with the assistance of the Secretary
[of Commerce or the Interior], insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). But
this section only applies “to all actions in which there is discretionary Federal
involvement or control.” 50 C.F.R. § 402.03. The National Marine Fisheries
Service (NMFS) and the FWS both administer the Endangered Species Act. 50
C.F.R. § 402.01(b). The NMFS has jurisdiction over specific endangered or
threatened species regulated by the Secretary of Commerce. 50 C.F.R. § 222.101.
FWS has jurisdiction over all other listed species. 50 C.F.R. § 402.01(b).
Once the federal agency consults with FWS or NMFS pursuant to § 7(a)(2),
the Secretary issues a written biological opinion “setting forth the Secretary’s
opinion, and a summary of the information on which the opinion is based,
detailing how the agency action affects the species or its critical habitat.”
16. U.S.C. § 1536(b)(3)(A). The Secretary then suggests “reasonable and prudent
alternatives” for the federal agency to implement. The agency can either
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terminate the planned action, implement the alternative, or seek an exemption.
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652 (2007).
Since the mid-1990s, the Army Corps of Engineers and the Bureau of
Reclamation have engaged in consultations with FWS about endangered species
issues—whether these consultations were voluntary or formal § 7(a)(2)
consultations is in dispute. As a result of these consultations, in 2003, FWS
issued a biological opinion discussing the agencies’ effects on the minnow and
flycatcher in the Middle Rio Grande. The biological opinion included a
reasonable and prudent alternative to protect the minnow and flycatcher. But the
proposed alternative did not distinguish between Reclamation and the Corps—it
analyzed the actions and their effects together. Congress directed compliance
with the biological opinion until the opinion expired in 2013, noting that
compliance satisfied agency obligations with respect to the Endangered Species
Act.
Before the biological opinion expired, the Corps reinitiated consultation
with FWS. The Corps requested an individual biological opinion—one that was
specific to Corps activities. But FWS declined. Thus, the Corps withdrew from
consultation to reevaluate its own statutory obligations and determine whether its
actions were discretionary such that it could implement alternatives to protect the
minnow and flycatcher. The Corps sought to clearly identify what actions the
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Corps—rather than Reclamation—had control over. As a result of this
reevaluation, the Corps determined its actions in the Middle Rio Grande were not
discretionary, and it was bound by the requirements of the 1960 Flood Control
Act.
II. Jurisdiction
We consider first a threshold question of jurisdiction. The district court’s
initial order disposed of all the issues but one. The order stated:
It is unclear whether Corps is consulting over its maintenance
operations, and, if not, whether Corps has verified the effects of such
operations, as the 2014 Reassessment suggested. Thus, on
maintenance operations, the Court will reverse and remand to Corps
for clarification and explanation.
App. 255. The Corps then filed a notification that addressed the issues raised by
the court and requested the district court to reconsider the remanded issue.
The district court subsequently issued an order in response to the Corps’
motion for reconsideration and notice of satisfaction of remand. The district
court stated:
Since Corps obviated the need for a temporary instruction by quickly
responding to the remand order before taking any maintenance
activities at issue, and to prevent later disputes about its intent, the
Court will remove references to reversal from its June 6, 2018
Opinion and add language clarifying that it wanted to withhold final
judgment on the maintenance activities until Corps provided more
information on remand.
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App. 292. The district court held the Corps had provided sufficient explanation
and thus denied WildEarth Guardians’ motion to set aside or reverse the Corps’
decision.
The district court, however, also issued an order amending certain parts of
its previous order but it does not appear those changes or clarifications were ever
made in the opinion. Because the Amended Opinion still stated the district court
was withholding final judgment, we sought supplemental briefing on the question
of jurisdiction.
Although the Amended Opinion reversed and remanded the maintenance
operations question to the Corps, the district court adequately resolved the remand
issue and denied WildEarth’s motion in its entirety. The district court also issued
a Rule 58 Judgment stating the motion was denied. Based on the court’s order
and the Rule 58 Judgment, we can be certain the district court issued a final
judgment despite the Amended Opinion’s language. Thus, we agree with both
parties there has been a final judgment and this court has jurisdiction to decide
the appeal.
III. Analysis
Agencies must formally consult with FWS if an agency action: (1) “may
affect” a listed species, and (2) is one “in which [the agency] has discretion to act
for the benefit of an endangered species[.]” WildEarth Guardians v. Envtl. Prot.
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Agency, 759 F.3d 1196, 1200 (10th Cir. 2014). Both parties agree the Corps’
operations will affect the minnow and flycatcher. The sole question here is
whether the agency has discretion to act such that it must formally consult with
FWS under § 7(a)(2).
When considering questions of statutory interpretation, we first look to the
plain language of the statute. In this case, we consider whether the Corps has the
discretion to operate its projects in the Middle Rio Grande such that the
consultation requirements of the ESA are triggered. The 1948 Flood Control Act
states:
At all times when New Mexico shall have accrued debits as defined by
the Rio Grande Compact all reservoirs constructed as a part of the
project shall be operated solely for flood control except as otherwise
required by the Rio Grande Compact, and at all times all project works
shall be operated in conformity with the Rio Grande Compact as it is
administered by the Rio Grande Compact Commission.
62 Stat. at 1179 (emphasis added).
Likewise, the 1960 Flood Control Act provides further instructions for the
operation and maintenance of the Middle Rio Grande projects:
[T]he storage of water in and the release of water from all reservoirs
constructed by the Corp of Engineers as part of the Middle Rio Grande
project will be done as the interests of flood and sediment control may
dictate ... [Projects] will be operated at all times in the matter described
above in conformity with the Rio Grande Compact, and no departure
from the foregoing operation schedule will be made except with the
advice and consent of the Rio Grande Compact Commission; provided,
that whenever the Corps of Engineers determines that an emergency
exists affecting the safety of major structures or endangering life and
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shall so advise the Rio Grande Compact Commission in writing. These
rules of operation may be suspended during the period of and to the
extent required by such emergency.
74 Stat. at 493 (emphasis added). Put more simply, the Corps must operate the
projects in accordance with the instructions in the Flood Control Acts of 1948 and
1960 and the Rio Grande Compact. 1
Neither Act provides agency discretion. First, the 1948 Act categorically
states that the projects will be “operated solely for flood control” purposes.
Similarly, the 1960 Act makes clear the Corps lacks discretion to operate the
projects. It specifically instructs that the outflow from Cochiti Reservoir will be
“at the maximum rate of flow” and that during the summer and fall, the Corps
must store over 212,000 acre-feet of water and restrict the inflow to 1,500 cubic
feet per second. It also instructs that the releases of water from the Galisteo
Reservoir and the Jemez Canyon Reservoir will be limited to the amount
necessary to control summer floods. The Corps is not able to operate the Middle
Rio Grande projects as it pleases—rather, it is given explicit instructions from
Congress and told to follow the instructions except in two very limited
1
WildEarth argues we must look at each of the Corps’ activities in the
aggregate and that it impermissibly assessed dam operations (and therefore its
discretion) in a piecemeal fashion. This distinction is meritless. If the Corps has
no discretion over its actions individually, then the Corps has no discretion over
its actions in the aggregate. Thus, we consider the Corps’ activities as a whole.
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circumstances. 2 Because the Corps does not have discretion in the way it operates
these projects, the Corps does not have to formally consult with FWS. See
WildEarth Guardians, 759 F.3d at 1200 (holding the Endangered Species Act only
requires consultation if the agency has discretion over its operations).
One Supreme Court case is particularly instructive, National Association of
Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). In Home Builders,
Defenders of Wildlife asserted the EPA was required to consult under § 7(a)(2)
before transferring authority to Arizona under the Clean Water Act to issue
discharge permits. The EPA was specifically instructed under the Act to transfer
this authority upon completion of nine statutory criteria. According to the
Supreme Court, the nine criteria acted as both a ceiling and a floor—exactly each
of the nine criteria needed to be met before the EPA would transfer authority to
Arizona. By requiring the EPA to consult under Section 7(a)(2), Defenders of
Wildlife was effectively asking to make an additional requirement under the
Clean Water Act. The Supreme Court held the transfer of authority was not
discretionary because of the nine statutory criteria. In those circumstances, the
EPA lacked discretion to pursue endangered species objectives, and it did not
have to engage in consultations.
2
The Flood Control Act of 1960 allows for two exceptions for river
operations: (1) if the Corps seeks “advice and consent of the Rio Grande
Compact Commission”; or (2) if “an emergency exists affecting the safety of
major structures or endangering life.” Id.
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In this case, the Corps is similarly tasked with operating the reservoirs for
flood and sediment control in a specific manner provided by the Flood Control
Acts. The only time the Corps may deviate is if it seeks advice and consent from
the Rio Grande Compact Commission or if there is a specific emergency. 3 And
the fact that the Compact Commission can authorize deviations from some
operational requirements does not create discretion on the part of the Corps to
consult with FWS. Because the Corps lacks discretion to operate the projects
outside of flood control purposes, requiring consultation under these
circumstances would effectively add another statutory requirement.
As discussed previously, the Corps is only required to engage in
consultations under § 7(a)(2) when it has discretion to pursue objectives under the
Endangered Species Act. Under the Flood Control Acts’ statutory mandates, the
Corps does not have discretion. Because the Acts are silent on any consultation
requirements, we would have to interpret them as including an implicit
consultation requirement. We cannot interpret the Acts this way. Rather, they
clearly define the role of the Corps—to manage the projects “solely for flood
3
No emergency exists that would apply to the endangered species. Under
the Flood Control Act of 1960, an emergency is one that affects “the safety of
major structures or endanger[s] life.” 74 Stat. at 493. If the Corps determines
there is an emergency, it must notify the Rio Grande Compact Commission in
writing. Neither party argues suggests such an emergency exists.
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control [and sediment control.]” If Congress intended to require consultation
with FWS, it would not have deployed such categorical statutory language. 4
It is true the Corps has previously deviated from the Flood Control Acts to
protect the minnow and flycatcher. Starting in 1996, the Compact Commission
approved several different deviations from the normal operating instructions at
the Middle Rio Grande dams. One example of a deviation is the “fill and spill”
deviation where the Corps holds water back in the Cochiti Reservoir for a short
period of time. The Corps then releases the water suddenly, which simulates
flood flow and cues minnow spawning. This type of deviation helps promote
minnow spawning while using very limited water—it is considered a “no cost”
deviation.
4
One example of discretionary agency action is found in Rio Grande Silvery
Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003), vacated, 355 F.3d 1215 (10th Cir.
2004) (appeal was mooted by events occurring after the opinion issued). In Keys, the
question was whether the Bureau of Reclamation had discretion “to reduce deliveries of
available water under its contracts with irrigation districts and cities in New Mexico to
comply with the Endangered Species Act.” Id. at 1113. We determined under the
contracts, the Bureau of Reclamation “retained the discretion to determine the ‘available
water’ from which allocations would be made” to the districts and how much available
water could be allocated to these districts. Id. at 1129. The court concluded that
because there was no contractual provision “specifying absolute amounts of water,” and
“[g]iven the potential for fluctuation in the ‘actual available water,’” Reclamation
retained discretion in managing water deliveries. Id. at 1130–31.
Here, in comparison, the Flood Control Acts specify exactly how much water
must be delivered at specific times of year. Congress has already considered the
“potential for fluctuation” in water supplies and adjusted the statutory language
accordingly. Thus, unlike Reclamation in Keys, the Corps lacks discretion to manage
the water flow in the Middle Rio Grande.
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After the Corps reevaluated its responsibilities, the Corps determined it
lacked the authority to implement “fill and spill” deviations on its own. Relying
on its 2014 Reassessment, the Corps concluded “there is no discretionary Corps
action that requires ESA Section 7 consultation.” App. 371. Based on this
analysis, which is consistent with our own, the Corps’ previous deviations are not
indicative of whether the Corps’ previous operations aimed at the minnow and
flycatcher are actually discretionary. These deviations were authorized by the
Compact Commission—one of the statutorily enumerated exceptions to the Corps’
otherwise strict operating instructions. But this prior practice in no way
undermines our interpretation of the statutory language.
Like the Corps’ 2014 Reassessment, we similarly conclude the agency lacks
discretion to act on behalf of the minnow and flycatcher. The Flood Control Acts
leave no discretion to the Corps on Middle Rio Grande operations involving the
two listed species. Because the Corps lacks discretion, the Corps does not have to
engage in formal § 7(a)(2) consultation with the FWS.
Finally, WildEarth contends the America’s Water Infrastructure Act of
2018 allows the Corps to exercise discretion to further ESA objectives. The Act
instructs the Corps to restart temporary “fill and spill” deviations involving
Cochiti Dam and Jemez Canyon Dam—this gives the Corps some flexibility with
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its water operations in an effort to promote minnow spawning. 5 The Act requires
the Secretary of the Army to obtain permission from the Pueblo de Cochiti, the
Pueblo of Santa Ana, and the Rio Grande Compact Commission before
implementing the temporary deviations. But rather than adding support for an
Endangered Species Act consultation requirement, this language shows the Corps
lacks discretion to engage in a freestanding consultation with FWS. The language
ties the Corps’ hands further—it must seek approval from three different entities
before restarting the temporary deviations, and it is only at the direction of
Congress.
IV. Conclusion
Accordingly, we AFFIRM the district court, finding the Corps lacks
discretion over its operations in the Middle Rio Grande and therefore does not
need to engage in formal § 7(a)(2) consultations.
5
While the Act might accomplish WildEarth Guardian’s ultimate
goal—adjust the water flow to protect the minnows and flycatchers—the Act does
not undermine our analysis. The Act only affects the Corps’ operations involving
Cochiti Dam and Jemez Canyon Dam and does not otherwise touch on the Corps’
other projects in the Middle Rio Grande.
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