                                                                 F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 16, 2007
                  UNITED STATES CO URT O F APPEALS
                                                              Elisabeth A. Shumaker
                              TENTH CIRCUIT                       Clerk of Court



PU BLIC SER VIC E C OM PA N Y OF
C OLO RA D O ,

      Plaintiff-Counter-Defendant -
      Appellant/Cross-Appellee,
v.

BO AR D O F COU NTY
C OM M ISSIO N ER S O F SA N
M IGUEL COUNTY, State of
Colorado; ELAINE FISH ER, San
M iguel County Commissioner, in her
official capacity; ART GOODTIM ES,
San M iguel County Commissioner, in
his official capacity; V ER NO N
                                               No. 05-1295 & 05-1321
EBERT, San M iguel County
                                          (D.C. No. 1:04-CV -1828-RB -CB S)
Commissioner, in his official capacity;
                                                      (D . Colo.)
THE SAN M IGU EL COUN TY
PLANNING DEPA RTM ENT, State of
Colorado; M ICHAEL ROZYCKI, San
M iguel County Planning Director, in
his official capacity,

      Defendants - Appellees/Cross-
      Appellants,

PATHFIND ER DEVELO PM ENT,
IN C.,

      Defendant-Counter-Claimant -
      Appellee.
                            OR DER AND JUDGM ENT *


Before BR ISC OE, HOL LOW AY, and LUCERO, Circuit Judges.


      Public Service Company of Colorado (“PSCo”) filed suit seeking to enjoin

Pathfinder Development, Inc. (“Pathfinder”) from interfering with its pipeline

easement and San M iguel County 1 (the “County”) from regulating that easement.

The district court denied PSCo’s motion for a temporary injunction with respect

to Pathfinder, but granted it against the County. PSC o now appeals and the

County cross-appeals. Because we conclude that an intervening order in a

separate state court proceeding has mooted this appeal as well as the underlying

case, we DISM ISS these appeals as moot and REM AND to the district court with

instructions to DISM ISS.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
       “San M iguel County” refers collectively to the Board of County
Commissioners of San M iguel County; individual commissioners Elaine Fischer,
Art Goodtimes, and Vernon Ebert; the San M iguel County Planning Department;
and Planning Director M ichael Rozycki.

                                         -2-
                                         I

      PSCo operates the Tacoma-Ames Hydroelectric project under a license

issued by the Federal Energy Regulatory Commission (“FERC”). 2 The project

diverts water from Trout Lake to the nearby Ames Pow erhouse via a two-and-one-

half mile long, thirty-inch-diameter pipe, commonly referred to as a penstock.

Under the terms of a 1956 easement held by PSC o, a portion of that penstock

crosses under Pathfinder’s land. The easement follows an abandoned railroad bed

and parallels Pathfinder’s access road. It provided:

      [a] perpetual easement and right of way for the erection and
      continued maintenance, repair, alteration and replacement of the steel
      pipe line of Grantee, with the necessary valves, vents, supports,
      anchors and other attachments thereon or affixed thereto, to be
      erected and maintained upon and across the premises of Grantor.

In 1984, PSC o replaced with fiberglass pipe the section of penstock crossing the

land Pathfinder w ould later purchase.

      Pathfinder acquired its parcel in 1993 for the purpose of operating a gravel

mine. Because the access road, which crosses the penstock at several points,

provides the only ingress to certain sections of the mine, Pathfinder must drive

heavy equipment over it. Some time prior to 1996, PSCo began complaining to

Pathfinder that this traffic w as damaging the penstock. In 1996 the two

companies entered into a licensing agreement providing PSCo the right to



      2
        FERC has regulatory authority over all hydroelectric projects under the
Federal Power Act, 16 U.S.C. § 791(a) et seq.

                                         -3-
“require relocation or modification of [Pathfinder’s] facilities” in the event that

Pathfinder’s activity posed a hazard to the penstock. PSCo attempted to exercise

this right in 1998, purporting to suspend Pathfinder’s use of the access road. One

year later, PSCo and Pathfinder entered into a second agreement requiring PSCo

to relocate a portion of the access road using material provided by Pathfinder.

Although PSC o applied for wetlands permits in 1999, it has not conducted any

further relocation activities.

      In 2002 a local property owner living down-mountain from the penstock,

W illard Janke, filed a complaint with FERC challenging PSC o’s management of

the penstock. As a result of Janke’s complaint, FERC issued an order on April

16, 2003, requiring PSCo to submit proposed penstock crossing designs to FERC

for approval. FERC instructed PSCo to “continue to prohibit, by legal action if

necessary, any heavy equipment or commercial traffic over the penstock within

the project boundary” until its crossing designs were approved. If PSCo were

unable to prevent such traffic for any reason, FERC required PSCo to “cease

project operation and dewater the penstock.”

      PSC o determined that four-and-one-half to five feet of embankment

coverage would be required to adequately protect the penstock. Because several

areas of the penstock did not have the necessary coverage, PSC o requested that

Pathfinder submit design proposals for a new crossing. Although Pathfinder




                                          -4-
claims that it submitted such drawings, PSC o asserts that they were not

sufficiently detailed and did not forward them to FERC.

      Throughout this dispute Pathfinder was embroiled in a separate set of

law suits with the County regarding land use permits. Seeking to protect its

easement rights, PSC o intervened in these proceedings in 2000. Pathfinder and

the County reached a M aster Settlement Agreement in 2002, under which

Pathfinder was permitted to relocate a segment of its access road. After receiving

final approval of its development permits from the County, Pathfinder began

construction.

      Shortly thereafter, PSCo brought this contentious and tangled dispute to

federal district court. In a verified complaint filed on September 2, 2004, PSCo

requested an injunction barring the County and Pathfinder from “authorizing,

approving or conducting any activities in the project boundary of the Tacoma-

Ames Hydroelectric Project that are the subject of FERC’s April 16, 2003 Order.”

PSCo also sought a declaratory judgment that FERC’s order preempts the County

development permits.

     On M ay 25, 2005, the court granted PSCo’s request for a preliminary

injunction against the County. It determined that Congress intended the Federal

Power Act to preempt any land use regulation affecting the penstock. W ith

respect to Pathfinder, however, the court found that the scope of the easement

defined the limits of FERC authority. Because PSCo was attempting to expand

                                         -5-
the scope of the easement by using weaker, fiberglass pipe rather than steel pipe,

the court denied PSCo’s request for an injunction limiting Pathfinder’s activities.

       PSCo filed a notice of appeal on June 21, 2005. The County followed with

a notice of cross-appeal on July 6, 2005. Several months later, while this appeal

was pending, PSCo filed a petition to condemn an expanded pipeline easement in

Colorado state court, Public Serv. Co. of Colo. v. Pathfinder Dev., Inc., No.

05CV59 (Colo. Dist. Ct. Aug. 23, 2005), under its eminent domain authority as a

FERC licensee. See 16 U.S.C. § 814. The parties have since settled the

condemnation issue, 3 with PSCo obtaining an expanded easement in exchange for,

inter alia, $95,000. On January 24, 2007, the San M iguel County District Court

entered a Rule and Order memorializing this agreement upon stipulation of the

parties. 4

       Pursuant to the agreement, PSCo acknowledged that Pathfinder “shall

utilize the roadway contained within the Easement Property for the operation of

heavy equipment for mining and construction activities on the adjacent property.”

Pathfinder also reserved “the right of access over, through, under and across the

easement for purposes of any form of access, including but not limited to all


       3
       The state case also includes an inverse condemnation claim that remains
pending, but is unrelated to the federal case.
       4
        On February 15, 2007, this court entered an order granting Pathfinder’s
motion to supplement the record on appeal to include the Rule and Order, along
with the exhibits thereto. Pub. Serv. Co. of C olo. v. Bd. of C ounty Comm’rs,
Nos. 05-1295 & 05-1321 (10th Cir. Feb. 15, 2007).

                                         -6-
forms of vehicular traffic.” PSC o explicitly waived the assertion of any

restriction on vehicular traffic “except as specifically expressed in [the] Easement

and the Embankment Easement.” The parties also agreed with regard to the

penstock crossings. PSCo conceded that such crossings are “necessary,

anticipated, and consistent with the terms of this Agreement” and Pathfinder

consented to providing PSCo with engineering plans before constructing future

crossings. Finally, Pathfinder is specifically barred under the agreement from

using the embankment for vehicular traffic.

      Follow ing our consideration of this agreement, we entered a show cause

order directing the parties to brief whether the appeal and cross-appeal should be

dismissed as moot. Pub. Serv. Co. of Colo. v. Bd. of County Comm’rs, Nos. 05-

1295 & 05-1321 (10th Cir. Feb. 15, 2007). Although Pathfinder and the County

agree that the case is now moot, PSCo argues against dismissal.

                                          II

      A case is moot when there is no longer a live controversy between the

parties such that the court cannot grant relief to the prevailing party as a practical

matter. See Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir. 2001); Kennecott Utah

Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999). A claim for

injunctive relief is no longer live when “the explicit objective of the proposed

injunction has been met.” F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995).

“The voluntary cessation of allegedly unlawful conduct does not necessarily make

                                          -7-
a case moot;” however, a claim becomes moot “when no reasonable expectation

exists that the alleged violation will recur and interim . . . events have eliminated

the effects of the alleged violation.” Comm. for First A mendment v. Campbell,

962 F.2d 1517, 1524 (10th Cir. 1992).

                                           A

      PSCo sought a preliminary injunction “restraining each and every

defendant from relocating the road and crossings or moving heavy construction

equipment over or near the penstock or in any way acting in any manner adverse

to the April 16, 2003 Order of [FER C].” As noted above, each of these issues has

been resolved by the parties in the agreement. PSC o is entitled to review the

plans for all future penstock crossings, and Pathfinder may move heavy

equipment near the penstock. Pathfinder had intended to relocate its access road

to the embankment area, but that is no longer possible due to the agreement’s

prohibition of vehicular traffic on the embankment. Finally, FERC’s directives

have been satisfied; both Pathfinder and PSCo note that the penstock has been

rewatered.

      Every objective of PSCo’s injunction claim has been attained and thus the

claim is moot. See Valdez, 58 F.3d at 1533. This is not an instance in which the

defendant has informally or temporarily agreed to cease the disputed activity.

Pathfinder has entered into a legally binding settlement agreement, memorialized

by the state district court, granting PSC o the rights necessary to restrict the

                                          -8-
disputed activity. As such, there is “no reasonable expectation of the w rong’s

recurrence.” Comm. for First Amendment, 962 F.2d at 1524.



                                         B

      PSCo also sought a declaratory judgment that the FERC order “pre-empts

the July 2003 development permit and the final approval.” The development

permit w as premised on the property rights of Pathfinder at the time of approval.

It allowed Pathfinder to relocate its access road, and engage in concrete

production activities. As discussed in Section II.A, supra, the relocation issue is

clearly moot because Pathfinder is now legally barred from using the embankment

(to which the road was to be relocated) for vehicular traffic. As to the second

issue, PSC o acknowledges in the settlement agreement that Pathfinder will engage

in “mining and construction activities” on its parcel. W e reemphasize that the

parties are in compliance with the FERC order and that PSC o has resumed

operation of the penstock. By altering the easement, PSC o and Pathfinder have

put to rest any potential conflict between FERC and County authority. There is

no longer “a substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” Preiser v. Newkirk, 422 U.S. 395, 402 (1975) (quoting

M d. Cas. Co. v. Pacific Co., 312 U.S. 270, 273 (1941)). Thus PSC o’s claim for

declaratory relief is also moot.

                                         -9-
                                       III

      Because subsequent facts have overtaken each of PSCo’s claims, this

appeal, as well as the underlying district court case are now moot. See S. Utah

W ilderness Alliance v. Smith, 110 F.3d 724, 729 (10th Cir. 1997). Accordingly,

we DISM ISS these appeals and REM AND to the district court with instructions

to DISM ISS.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




                                       -10-
