FILED

United States Court of Appeals

Tenth Circuit

January 17, 2020

Christopher M. Wolpert

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

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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