JOHN C. PORFILIO, Senior Circuit Judge.
This matter arises upon the court's own initiative. Papers filed in response to the petition for rehearing en banc have suggested this appeal has been mooted by events occurring after the entry of the opinion. We have obtained the viewpoints of Appellants and Appellees on this issue and have concluded the appeal is moot. Although the petition for en banc rehearing is still pending, we further conclude the appeal should be dismissed, and the panel opinion should be vacated.
As of today, the parties agree all provisions of the injunction have either been met or were never invoked. Most importantly, we are informed that between the entry of the injunctive order and December 31, 2003, the Bureau of Reclamation has not had to comply with paragraph 14 of the district court's order by reducing delivery of allocated water to any contract user.
Thus, for all practical purposes, none of the provisions of the injunction remain. This court then faces the question of what relief we can afford by either affirming or reversing the preliminary injunction on en banc review, if granted. The answer is none.
The climatological circumstances that occurred during the appeal and the passage of time have rendered the injunction superfluous. No water has been diverted,
The Government further concedes "[t]he limited exception to the mootness doctrine for disputes capable of repetition, yet evading review does not apply in this case." It states although the legal issue of the discretionary authority of the Bureau of Reclamation may arise again, "it is not clear that the question whether Reclamation has discretion to use Project water for endangered species purposes" will evade judicial review, citing Beattie v. United States, 949 F.2d 1092, 1094 n. 2 (10th Cir.1991). The Government correctly points out if the district court's conclusion that the Bureau of Reclamation has discretion under the contracts is embodied in a final order, that analysis will once again be subject to review, and sufficient time for the appellate process to run will be available.
Having concluded the appeal is moot, we must next decide whether the panel opinion should be vacated. The parties do not agree upon an answer.
While the Government asserts the panel opinion must be vacated, it also urges us to order the district court to vacate its order and dismiss the entire case. Appellees, however, argue against vacating the panel opinion and strongly contest vacating the injunctive order and dismissal of the case. We shall examine these positions separately.
Whether any opinion should be vacated on the basis of mootness is an equitable question. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Following this concept, we have held that when the party seeking relief is the cause of the mootness, vacatur will not be granted. 19 Solid Waste Dept. Mechanics v. City of Albuquerque, 76 F.3d 1142, 1144-45 (10th Cir.1996); Oklahoma Radio Associates v. F.D.I.C., 3 F.3d 1436 (10th Cir.1993); Martinez v. Winner, 800 F.2d 230 (10th Cir.1986). We have also held when appellants voluntarily contribute to the cause of mootness, vacatur will be denied. In re Western Pac. Airlines, Inc., 181 F.3d 1191, 1197-98 (10th Cir. 1999). Nonetheless, when the government undertakes remedial measures that do not result in manipulation of the judicial process and eliminate the underlying cause of an injunction, vacatur will be granted. McClendon v. City of Albuquerque, 100 F.3d 863, 868 (10th Cir.1996).
Appellees contend we should not vacate the panel opinion because the Government rendered the appeal moot. They argue the adoption of a new Biological Opinion as well as the actions of the New Mexico Congressional delegation in introducing legislation to void the panel opinion have resulted in the mootness of this appeal.
First of all, the most significant factor causing the mootness of this appeal is the favorable climatic conditions which worked to preserve the habitat of the silvery minnow. Indeed, the subsequent acts of Congress were merely incidental to the issue of mootness.
Moreover, the adoption of the new Biological Opinion was in part, at least, the consequence of remedies ordered by the district court. 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.
Helpful in considering where the equities do lie is Jones v. Temmer, 57 F.3d at 923. In that case, Plaintiff taxi owners filed a § 1983 complaint against members of the Colorado Public Utilities Commission asserting a Colorado statute providing for a restrictive monopoly of taxicab licenses resulted in a denial of Plaintiffs' 14th Amendment rights. The district court denied relief, and Plaintiffs appealed. While the appeal was pending, the Colorado General Assembly passed amendatory legislation eliminating the barriers to licensing which had formed the basis of the constitutional claims Plaintiffs raised. Over Defendants' objection, this court granted Plaintiffs' motion to dismiss the appeal as moot invoking the case and controversy provisions of Article III.
The court then turned to the issue of vacatur. Discussing generally the holdings in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), and U.S. Bancorp, 513 U.S. at 18, 115 S.Ct. 386, the court reminded that the basis for vacatur of judgments is the equitable principle a party should not have to bear the consequences of an adverse ruling when "frustrated by the vagaries of the circumstances." 57 F.3d at 923. Because the court recognized the mootness of the case was not the result of any act of the appellants, it stated they should not have to bear the burden of the district court's adverse order.
Id. (citations omitted).
Although there are similarities between our case and Jones, there is also a very important distinction. In both cases, no party actually caused or was responsible for the mootness of the appeal. In Jones, it was legislative action. In our case, Congressional action has achieved the same result. However, we have an additional factor not present in Jones: the simple passage of time.
Neither party is responsible for that factor. Even absent Congressional action, the district court's injunction has lapsed, leaving nothing to either enforce or vacate as part of this appeal. What are the equities that arise out of that consequence?
At this juncture, the litigation will proceed on the complaint in the district court. At the same time, the habitat of the silvery minnow was not harmed in 2002 or 2003. As the case now stands, Appellees' purpose in seeking the preliminary judgment effectively has been achieved, but the Appellants may face further litigation, depending upon the ultimate determinations made by the district court. Under those circumstances, the equities tip in favor of the Appellants.
We conclude Plaintiffs have nothing to gain from perpetuation of the panel opinion. While they may have the satisfaction of having "won" the argument, that is a matter of their private interest. It does not affect the public. We therefore conclude, the remaining equities favor the Government.
The State confuses the potential for the resurgence of the issue of governmental discretion in the district court with whether the appeal is moot. Those are separate inquiries. The State reasons the new Biological Opinion and the amendatory legislation do not change the issue of whether the Bureau of Reclamation has discretionary authority to alter delivery of water under the contracts. Contrary to the Government's position, the State argues the fact the preliminary injunction ends December 31, 2003, does not make the appeal moot. That argument simply refuses to accept the finite nature of the preliminary injunction and the loss of a live controversy before us.
That leads us to consider whether we should order the district court to vacate its injunctive order as well, as the Government suggests. We are persuaded that because the complaint has not been dismissed and because the injunction was temporally limited and preliminary, the district court should determine whether there are unresolved issues that remain to be tried. Therefore, the equities lie with the Plaintiffs when considering whether to vacate the district court's order.
The Second Circuit reached the same conclusion in a similar case, Housing Works, Inc. v. City of New York, 203 F.3d 176, 176 (2nd Cir.2000). Noting an absence of definitive circuit authority declaring when a moot preliminary injunction should be vacated, it held dismissal of the appeal is sufficient without ordering vacatur of the trial court's order. Id. That principle is sound, and we shall follow it.
The district court must be allowed to enter a judgment it determines appropriate. Because the injunction is unenforceable, it is of no controlling consequence to the case. If the district court enters a final order with which the parties disagree, they may appeal once again.
We therefore order that the panel opinion is
