## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 98-1332

________________ St ate of Missouri, ex rel., Jeremiah * W. "Jay" Nixon; Mel Carnahan , * Governor of the State of Missouri, *

Appellants, * Mo-Ark Association, *

Plaintiff, *

v. * Appeal from the United States Ric hard W. Craig; H. Marti n * Western District of Missouri. Lancaster; Togo P. West; Rober t * Griffin, Brigadier General; an d * Mike Meleuners, Colonel, *

Appellees. *

____________________________ * Montana; North Dakota; South * Dakota, *

Amicus Curiae. * *

*

*

*

* District Court for the

*

*

*

________________ Submitted: September 22, 1998 Filed: December 16, 1998

________________2

Befo re HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges

.

________________ HANSEN, Circuit Judge.
M i ssouri filed this suit pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1994). Missouri alleges that the United States Army Corps o f Engine ers' (the Corps) Annual Operating Plans (AOPs) for 1995-96 and 1996-9 7 violate the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321- 4370d (1994). Missouri contends that the AOPs "drastically changed" the way th e Corps manages the Mi ssouri River without first taking certain regulatory actions such as, for example, preparing an environmental i mpact statement. Because the navigation seasons covered by the 1995-96 and 1996-97 AOPs are o ver, and this case does not fit within the exception for cases capable of repetition, yet evading review, we hold that the case is now moot.
I.
Th e Corps built and now operates six dams on the Missouri River for floo d co ntrol, navigation, and other statutorily defined purposes. Prior to the dam system , th e Missouri River experienced large fluctuations in stream flow. According t o Mis souri, "before the dams were built, maximum and minimum average flows at Ka nsas City [were] 301,000 cubic feet per second (cfs) in June and only 5,000 cfs in January ." (Appellant Br. at 4.) The six dams comprise a main stem reservoir system that modulates the Missouri River's stream flow. In a typical year, the reservoir levels rise in the spring and early summer, and then fall during the late summer through the winter. When operated as an integrated system, the six dams have a comb ined capacity to store in the neighborhood of 75 million acre-feet (MAF) of water.3

The Corps uses the Missouri River Master Water Control Manual (the Master Manual) as its guide for determining objectives and managing the main stem reservoir system. In particular, the Master Manual sets out navigation support objectives for the Missouri River system. The first manual was published in 196 0, and the current Master Manual was published in 1979.
The co mmercial navigation season on the Missouri River runs fro m approximately April 1 through approximately December 1—an eight-month season

. Th e season varies depending upon the amount of water available in the reservoi r system. When the water supply is adequate, the season is extended several days into December. In drought years, however, the season may be shortened by several weeks. The Maste r Manual states that if system storage falls below 39 MAF on July 1, th e navigati onseason should be shortened by two weeks. This 39 MAF level is the so

called "trigger point."
In addition

to the Master Manual, the Corps prepares AOPs. According to the Corps, "AOPs do not establish the objectives for management of the Main Ste m system; rather, they set forth the manner in which those objectives will be achieve d under the particular circumstances of that year." (Appellee Br. at 4.) The AOPs fo r 1995-96 and 1996-97 lie at the heart of this dispute. The 1995-96 and 1996-97 AOPs chang ed the July 1 trigger point from 39 MAF to 52 MAF. In other words, for the two years involved, a much larger amount of water had to be in storage on July 1 in order to avoid a two-week reduction in the navigation season. This increased

the likelihood of a shortened season. According to Missouri's evidence, the

adverse economic effects of a shortened navigation season downstream fr om the dams are not the only risks associated with the 52 MAF trigger point

. M i ssouri contends, for example, that the resultant change in total system storage will adversely affect wetlands an d reduce habitat for a species of federally protected shore birds between the dams. (Appellant Br. at 17.)Mo-Ark is a nonprofit association organized to promote various activities 1 and objectives associated with the water resources within the Missouri River basin. Mo-Ark is not directly involved in this appeal. The district court denied the plaintiffs' motion as to the 1995-96 AOP as 2 being moot in view of the 1996-97 AOP. Missouri v. Craig , No. 96-4086-CV-C-9 at 4 (W.D. Mo. Aug. 29, 1997) (order granting summary judgment). 4 On March 12, 1996, the State of Missouri and the Mo-Ark Asso ciation filed the 1 presen t suit claiming that the Corps issued the 1995-96 AOP without a detaile d environmental statement as required by the NEPA. They later amended the complaint to include the 1996-97 AOP. On the parties' cross -motions for summary judgment, the district court ruled in favor of the Corps. Missouri appeals from this order. 2
II. "Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp. , 494 U.S. 472, 477 (1990) (citing Deakins v. Monaghan , 484 U.S. 193, 199 (1988); Preiser v. Newkirk , 422 U.S. 395, 401 (1975)); see also South Dakota v. Hazen , 914 F.2d 147, 150 (8th Cir. 1990). "It is of no consequence that the controversy was live at earlier stages in this case; it must be live when we decide the issues." Hazen , 914 F.2d at 150 (citing Lewis , 494 U.S. at 477-78). "Mootness has been de scribed as the doctrine of standing set in a time frame: The requisite personal interest that must exist at th e commen cement

of litigation (standing) must continue throughout its existenc e (mootne ss)." Arizonans for Official English v. Arizona , 117 S. Ct. 1055, 1069 n.2 2 (1997) (quotations and citations omitted).
A moot ca se calls into question Article III's case or controversy requirement ; ther efore, we must first "consider and rule upon the mootness question this cas e presents." Hazen , 914 F.2d at 149; cf. Steel Co. v. Citizens for a Better Env't , 118 S.The mootness doctrine is of such importance that "[i]t is the duty of counsel 3 to bring to the federal tribunal's attention, ' without delay ,' facts that may raise a question of mootness." Arizonans for Official English , 117 S. Ct. at 1069 n.23 (citing Board of License Comm'rs of Tiverton v. Pastore , 469 U.S. 238, 240 (1985)). 5 Ct. 1003, 1012 (1998) (discussing the requirement that jurisdiction be established as a thr eshold matter). Further, if this case is indeed moot, we must refrain fro m 3 re aching the merits because any opinion issued would be merely "advisory" and res t on hypot hetical underpinnings. Hazen , 914 F.2d at 150 (citing Lewis , 494 U.S. a t 477). With the foregoing principles in mind, we look to see which, if any, o f Missouri's claims remain alive.
Each of Miss ouri's claims challenges Corps decisions, reflected in the 1995-96 and 19 96-97 AOPs, that would shorten the navigation season by two weeks if th e amount of water in the system's storag e fell below 52 MAF on July 1. It is undisputed that the navigation seasons covered by the 1995-96 and 1996-97 AOPs are over

. M o reover, it is undisputed that the Corps has adopted a 1997-98 AOP that no longer includes t he 52 MAF trigger point. Rather than directing a two-week adjustment o f the navigation season, the 1997-98 plan provides for a flexible approach with "many possible combinations of potential adjustments that would result in the attainment o f the current Master Manual operational objectives." (1997-98 AOP at 116; see Amicus Ad d. at 1.) In other words, whatever wrong, if any, there may have been, change d circumsta nces have deprived us of the ability to provide the requested remedy

. Therefore, it appears to us that the case is moot. See Hazen , 914 F.2d at 150.
Our conclusion that this case is moot does not end o ur inquiry. "We are mindful of the excep tion to the mootness doctrine for cases 'capable of repetition, yet evading review.'" Id. (citing Southern Pac. Terminal Co. v. ICC , 219 U.S. 498, 515 (1911)). This exception applies only when the two so-call ed " Weinstein factors" exist. In order to qualify under the first factor, "the Corps' action must be 'in its duration too short to6

be fully litigated prior to its cessation or expiration.'" Id . (quoting Weinstein v

. Bradford , 423 U.S. 147, 149 (1975)). Under the second factor, "there must be a 're asonable expectation' that [Missouri] will be 'subjected to the same action again.' " Id. Additio nally, the Supreme Court has stated that the exception applies only i n "exceptional situations," and only when both factors are "simultaneously present. " Spenc er v. Kemna , 118 S. Ct. 978, 988 (1998) (quoting Los Angeles v. Lyons , 46 1 U.S. 9 5, 109 (1983); Lewis , 494 U.S. at 481). For the reasons stated below, we find neither of these factors satisfied in this case.
As to the first Weinstein factor, we view our prior Hazen decision as bein g particu larly instructive. In Hazen , several states in the upper Missouri River basi n challenged a Cor

ps decision to discharge water from Lake Oahe at a rate greater than inflow. Th e challengers argued that this change would harm the spawning season for several species of lake fish. See 914 F.2d at 148. Our court declared the case moot because the spawning season had ended before we could consider the merits of th e contro versy. Id. at 150. As to the first Weinstein factor, we found that "[t]here is no apparent reason why similar future action by the Corps could not be fully litigate d before [the case became moot]." Id. at 150. Our court referred to the availability of judi cial processes such as preliminary injunctions, emergency stays, and expedite d appeals in reaching this decision. Id. We see no reason why these same processes wo uld not be available to Missouri if the need a rises in the future. Moreover, in this case, Missouri chose not to see k expedited review and relief. Therefore, the fact that we could not reach the merits of Missouri's claims before this case became moot does not change our conclusion tha t the first Weinstein factor is inapplicable.
Even if there were doubts as to whether the wheels of justice turn as fast a s Haz en suggests, those doubts would not alter our decision. We find the secon d Weinstein factor lacking in this case d ue to the changes reflected in the 1997-98 AOP.7

"[A]lthough [Missouri] and the Corps may be parties tothe same sort of dispute in [the future], 'a mere physical or theoretical possibility,' is insufficient to meet th e Weinstein test." Id. at 151 (quoting Murphy v. Hunt , 455 U.S. 478, 482 (1982)). We ta ke particular note of the fact that the 1997-98 AOP no longer requires a two-wee k reduction in the navigation season based on the 52 MAF trigger point. Thus, whil e Miss ouri may have an interest in future Corps actions that adversely affect the length of the navigation season, "our opinion . . . in such a situation must wait for the da y when such actions are challenged." Id. at 150. An issue lurking, but not directly involved in this appeal, is whether the Master Ma nual constitutes a binding rule or regulation. Missouri states that the criteria in § 9 of the Master Manual are "at the heart of this dispute," yet it rests its substantiv e arguments on the NEPA. ( SeeAppellant Br. at 7, 10-12.) The Corps takes a contrary view as to the binding nature of the Master Manual. (Appellee Br. at 2.) We have not yet resolved this issue. See Hazen , 914 F.2d at 149. Because we conclude that thi s case is moot, we have no occasion to comment on whether the Master Manual i s binding.
III. In sum, we hold that this case is moot and does not fall within the exception to the mootness doctrine for cases "capable of repetition, yet evading review." We vacate the district court's j udgment and remand the case to the district court with instructions that it dismiss the case. See United States v. Munsingwear , 340 U.S. 36, 39 (1950 ) ("The established practice . . . in dealing with a civil case . . . which has become moot while on its way her

e or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.").8

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT