                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                                                         August 12, 2008
                      UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                FOR THE TENTH CIRCUIT                      Clerk of Court



 ELEPHANT BUTTE IRRIGATION
 DISTRICT OF NEW MEXICO, et al.,

       Plaintiffs-Appellants,
                                                             No. 06-2282
 v.                                                  (D.C. No. CIV-90-95-JP/KBM)
                                                           (D. New Mexico)
 UNITED STATES DEPARTMENT OF
 THE INTERIOR, et al.,

       Defendants-Appellees.



                                         ORDER



Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.



       Appellees’ motion to publish the decision issued in this case on July 24, 2008, is

granted. A copy of the published decision is attached to this order.



                                          Entered for the Court,




                                          ELISABETH A. SHUMAKER, Clerk
                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                                                      July 24, 2008
                                    PUBLISH                        Elisabeth A. Shumaker
                                                                       Clerk of Court
                 UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 ELEPHANT BUTTE IRRIGATION
 DISTRICT OF NEW MEXICO, and EL
 PASSO COUNTY WATER
 IMPROVEMENT DISTRICT NO. 1 OF
 TEXAS,

       Plaintiffs-Appellants,

 v.

 UNITED STATES DEPARTMENT OF                              No. 06-2282
 THE INTERIOR; DIRK
 KEMPTHORNE, Secretary of the
 Interior; WILLIAM E. RINNE, Acting
 Commissioner of Reclamation; RICK
 GOLD, Regional Director of the Bureau
 of Reclamation, ANITA LOCKWOOD,
 Secretary of the State of New Mexico; and
 GARREY CARRUTHERS, Governor of
 the State of New Mexico,

       Defendants-Appellees.


                    Appeal from the United States District Court
                          for the District of New Mexico
                          (D.C. No. CIV-90-95-JP/KBM)


Steven Hernandez of Hubert & Hernandez, P.A., Las Cruces, New Mexico, and James M.
Speer, Jr., El Paso, Texas (Joshua A. Myers, Lee E. Peters and Stephen A. Hubert of
Hubert & Hernandez, P.A., Las Cruces, Mexico; and Timothy J. DeYoung of Modrall,
Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, with them on the
briefs), for Plaintiffs-Appellants.

Kathryn E. Kovacs, U.S. Department of Justice, Environmental & Natural Resources
Division, Appellate Section, Washington, D.C. (Matthew J. McKeown, Acting Assistant
Attorney General, U.S. Department of Justice, Washington, D.C.; and Gary K. King,
Attorney General, and Christopher D. Coppin, Assistant Attorney General, State of New
Mexico, Albuquerque, New Mexico, with her on the brief. Chris Rich, U.S. Department
of the Interior, Salt Lake City, Utah; and John W. Zavitz, Assistant United States
Attorney, Albuquerque, New Mexico, of Counsel), for Defendants-Appellees.


Before KELLY, SEYMOUR and MURPHY, Circuit Judges.


SEYMOUR, Circuit Judge.



       Plaintiffs Elephant Butte Irrigation District of New Mexico and El Paso County

Water Improvement District No. 1 of Texas (collectively the Districts) appeal the district

court’s final judgment on the only remaining count in this case, Count II of the complaint.

On a summary judgment motion, the court held in favor of defendants, the United States

Department of the Interior and various federal officials (collectively DOI). For the

reasons explained below, we affirm.



                                              I

       The facts of this case have been set forth thoroughly in both Elephant Butte

Irrigation Dist. v. Dep’t of the Interior, 160 F.3d 602 (10th Cir. 1998) (“EBID I”), and

Elephant Butte Irrigation Dist. v. Dep’t of the Interior, 269 F.3d 1158 (10th Cir. 2001)

(“EBID II”). In particular, EBID II describes the historical and legislative background of

reclamation law and the authorization of the project at issue. We discuss only those facts

relevant to our consideration of Count II.

       The Districts filed a complaint in 1990, challenging, inter alia, DOI’s

distribution of certain revenues from the Rio Grande Reclamation Project (the project).

As relevant here, Count I alleged that the Districts were entitled to the revenues listed in

Section 4-I of the Fact Finder’s Act of 1924, 43 U.S.C. § 501 (Section 4-I). Count II

                                             -2-
challenged DOI’s lease of project lands to the State of New Mexico for recreational

purposes and sought an order reforming the lease to provide the Districts with profits

generated under the lease pursuant to Section 4-I. Count VI similarly alleged that a

Memorandum of Understanding by which DOI leased project lands to the Bureau of Land

Management for grazing was unlawful because it would return no profit to the Districts.

       The district court granted summary judgment in favor of the Districts on Count I,

and in favor of DOI on Count VI. The district court also granted the Districts’ motion for

partial summary judgment on Count II, but held that disputed issues of fact remained to

be decided. It then entered final judgment on Counts I and VI under FED. R. CIV. P.

54(b). This Court affirmed on both Counts I and VI, holding that the Districts were

entitled under Section 4-I to profits from the leasing of project grazing and farm land, but

that the Bureau of Reclamation (BOR) had no duty “to administer and manage the water

project lands in such a way that profits are generated.” EBID II, 269 F.3d at 1166.

       After the decision in EBID II and the death of the presiding district judge, the

district court invited DOI to renew its motion for summary judgment on Count II.

Thereafter, the court granted in part and denied in part DOI’s renewed motion for

summary judgment on Count II, holding that the Districts are entitled under Section 4-I to

any profits arising from the recreation lease, but that the recreation lease had yielded no

profits. The court further concluded that under the holding of EBID II, DOI has no

obligation to generate such profits. The court issued an order reforming the recreation

lease with the State of New Mexico to provide the Districts with any profits generated by

the lease. After an accounting, the court entered a final judgment for the Districts in the

amount of $9,009.19, representing the net profit it determined they were owed.

       The Districts filed a motion for reconsideration, asking the district court to review

                                             -3-
Count II under their theory that the recreation lease violated the United States’ covenants

of good faith and fair dealing in the contracts it had entered into with the Districts in 1937

(1937 Contracts). The court declined to address the contract theory, concluding the

Districts had failed to timely raise the issue. The court denied a further attempt to raise

the contract argument in the Districts’ follow-up motion for clarification of the court’s

order denying reconsideration.

       On appeal, the Districts’ contend the district court erred in refusing to consider

their contract theory of recovery for Count II and in holding that DOI has no duty to

generate profits from the recreation lease. They also maintain that disputes of fact and the

law of the case doctrine precluded the district court from deciding the merits of Count II

on summary judgment.



                                              II

       We review the district court’s denial of the motion to reconsider for abuse of

discretion.1 See Geddes v. United Staffing Alliance Employee Med. Plan, 469 F.3d 919,

928 (10th Cir. 2006) (“Whether to allow supplemental briefing on a newly-raised issue is

a ‘supervision of litigation’ question we review for abuse of discretion.”); Price v.

Philpot, 420 F.3d 1158, 1167, 1167 n.9 (10th Cir. 2005) (reviewing denial of motion for

reconsideration for abuse of discretion). “A district court abuses its discretion where it

commits a legal error or relies on clearly erroneous factual findings, or where there is no

       1
         The Districts contend our review is de novo, analogizing to a dismissal based on a
failure to state a claim. See United Steelworkers v. Or. Steel Mills, Inc., 322 F.3d 1222,
1228 (10th Cir. 2003). That is clearly not the posture of the appeal with respect to the
contract claim. Instead, the Districts directly challenge the district court’s order on
reconsideration, in which the court refused to hear argument on the Districts’ contract
theory of recovery, not because they failed to state a claim but because they failed to do
so in a timely fashion.
                                             -4-
rational basis in the evidence for its ruling.” Nova Health Sys. v. Edmondson, 460 F.3d

1295, 1299 (10th Cir. 2006) (internal quotations omitted). We review de novo both the

district court’s statutory interpretation, Paper, Allied-Industrial, Chemical & Energy

Workers v. Continental Carbon Co., 428 F.3d 1285, 1293 (10th Cir. 2005), and its grant

of summary judgment, Occusafe, Inc. v. EG&G Rocky Flats, Inc., 54 F.3d 618, 621 (10th

Cir. 1995).
Contract Claim

       We explained the genesis of the 1937 contracts in EBID II:

       In 1937, Congress enacted a law authorizing the Secretary of the Interior to
       contract with the water districts for the purpose of terminating their leases
       of power privilege. See Interior Department Appropriations Act of 1938,
       ch. 570, Pub.L. No. 75-249, 50 Stat. 564, 593. Leases of power privilege
       had previously been granted by the Secretary to the water districts pursuant
       to an earlier Act of Congress. In these leases, the federal government gave
       the water districts the right to build power facilities and to use the proceeds
       from those facilities to repay their construction obligations. However, the
       water districts never executed their rights to build power facilities on water
       project lands. The 1937 Act was designed to return to the federal
       government the right to build power facilities while giving the water
       districts a distinct benefit: relief from the obligation to repay their
       outstanding construction costs. Both El Paso and the Elephant Butte
       Irrigation District entered into contracts with the Secretary of the Interior in
       accordance with the 1937 Act.

EBID II, 269 F.3d at 1162. On appeal, the Districts claim “[t]he terms of the 1937

Contracts created duties that prevent the Secretary [of DOI] from arbitrarily destroying

the Districts’ right to credits under Subsection I. The Subsection I benefits were an

essential element of the consideration running to the Districts[,] and the Contracts cannot

now be interpreted as if the Subsection I rights do not exist. . . .” Aplt. Br. at 25. To

support their contention that their contract claim is not new, the Districts cite to a number

of pleadings in which the 1937 Contracts were referenced. However, a close review of

each of those pleadings, other than the complaint, clearly shows that the arguments

                                             -5-
relating to the contracts were statutory and not contractual in nature. As for the

complaint, the District failed to pursue any contract claim they may have asserted there.

       In the pretrial order, for example, the Districts contended that the recreation lease

violated the government’s fiduciary duty to them, exceeded DOI’s statutory mandate,

failed to confer any benefit to the project’s beneficiaries, and that they had standing to

challenge the lease because they had vested rights to revenues. While they made some

general assertions of breach of contract, they made no claim that the lease constituted a

breach of the covenants of good faith and fair dealing in the 1937 contracts. The Districts

were obliged to spell out any breach of contract claim “with specificity and clarity” in the

pretrial order. See Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir. 2002). This is so

because “‘the pretrial order is treated as superceding the pleadings and establishing the

issues to be considered at trial.’” Id. at 1215 (quoting 6A FEDERAL PRACTICE &

PROCEDURE § 1522); FED. R. CIV. P. 16(e) (the pretrial order “controls the course of the

action unless the court modifies it”).

       The Districts passed up additional opportunities to expressly raise a contract theory

during the extensive summary judgment briefing. While the Districts are correct that they

mentioned the 1937 contracts in the first round of summary judgment briefing on Count II

in 1994, their only theory of recovery was that the DOI did not have statutory authority to

give revenues to the State under the recreation lease. Aplt. App., vol. IV at 996-97. Their

opening brief argued, “[i]n Count II, Plaintiffs contend that the Federal Defendants acted

beyond the statutory authority granted to them” and that the 1962 Act authorizing

construction and leasing to the State of recreational facilities at Elephant Butte and

Caballo Reservoirs “did not authorize the Federal Defendants to assign these revenues to

the State Defendants.” Id. at 1000-01. This was so, they contended, because “[p]laintiffs

                                             -6-
are entitled to Subsection I revenue credits from all Project lands including those

surrounding the reservoirs.” Id. at 1003. For relief, they sought only a declaration that

the recreation lease is ultra vires or, in the alternative, that the recreation lease be

reformed to give them Section 4-I revenues. Id. at 1001. In their brief in response to

DOI’s motion for summary judgment on Count II, the Districts reiterated that “[t]he issue

is whether there was actual statutory authority for the provisions in the lease agreement

concerning Project revenues.” Id. 1077-78.

       Even if the various references to the 1937 contracts in the Districts’ 1994 summary

judgment briefs could be read as implying a breach of contract theory of some kind, those

references were not sufficient to put DOI or the court on notice that the Districts intended

to assert such a theory. In its discussion of Count II in its 1997 opinion, the district court

did not mention the 1937 contracts. When the Districts filed a motion for clarification of

that opinion in 1999, they did not present a breach of contract theory. Nor did the district

court mention the 1937 contracts in its order granting that motion in part. Aplt. App.

1156-58; cf. Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (“The

district court’s opinion does not discuss the issue at all, from which we must conclude

that it did not regard the issue as properly before it.”).

       In the second round of summary judgment briefing on Count II, the Districts again

mentioned the 1937 contracts, but they did not present a breach of contract theory. To the

contrary, they affirmatively asserted the contracts were not relevant because Section 4-I is

a statutory right that did not have to be granted in a contract. Aplt. App., vol. V at 1390

(“Whether Subsection I Benefits Are Based On Statute Or Contract Is Irrelevant”); id. at

1391 (“Subsection I rights are statutory”); id. at 1404 (“The Subsection I rights of the

Irrigation Districts are secured by statute and there is no requirement to ‘secure’ or

                                               -7-
‘bargain’ for them by contract.”); see also id. at 1379 n.2 (asserting that the district court

had held their right to Section 4-I revenues was “statutorily based,” not contractual). Not

surprisingly, then, the district court did not mention the 1937 contracts in its 2003 opinion

on Count II. Aplt. App., vol. VI at 1531-44. In their motion for reconsideration of that

opinion, filed thirteen years after the complaint, the Districts argued for the first time that

the court “ignores the covenant of good faith and fair dealing” and “emasculates a great

part of the consideration bargained for by the Districts in the [1937] Contracts.” Id. at

1590.

        A district court does not abuse its discretion in refusing to consider a theory raised

for the first time at an advanced stage of litigation. In Geddes, 496 F.3d at 928, for

example, the defendant raised an issue for the first time at oral argument on the plaintiff’s

summary judgment motion. The defendant had mentioned related points earlier, but

“failed to argue the . . .issue explicitly.” Id. We held the district court did not abuse its

discretion in refusing to consider the new issue “at the late juncture when it was raised.”

Id. Like the defendant in Geddes, the Districts here did not explicitly raise their contract

theory in a timely manner, but instead belatedly sought to “bootstrap” their new argument

onto a broader theory of statutory interpretation. See id. Indeed, the Districts were

considerably tardier here than the defendant in Geddes because they failed to explicitly

raise their contract theory until their motion for reconsideration of the district court’s

second summary judgment ruling on Count II. The district court did not abuse its

discretion in holding that the contract theory of recovery was waived.2


        2
        Because we agree with the district court that the Districts waived any contract
claim, we need not address the DOI’s contention that the United States did not waive its
sovereign immunity with respect to the contract claims, or its alternative contention that
any contract claim would be barred by the relevant statute of limitations.
                                              -8-
Statutory Interpretation

       In their continued effort to gain profits from the recreation leases, the Districts

contend the applicable statutes impose a business standard on the Secretary in managing

project lands, even if they don’t impose a fiduciary duty. They assert the district court

erred in holding to the contrary. Given our opinion in EBID II, we disagree.

       A brief history of Count VI and the rulings thereon are necessary to explain why

the district court appropriately extended the analysis of Count VI to Count II. Count VI

challenged the validity of the lease agreement between DOI agencies for management of

grazing lands within the Districts. The Districts asserted the recreation lease was not in

the best interest of the project beneficiaries because it resulted in no consideration to

them. Prior to the DOI lease agreement, the Districts had received credits for the lease of

grazing lands. The Districts based Count VI on the Secretary’s alleged duty to manage

the grazing lands “on a sound operative and business basis” as set out in the Omnibus

Adjustment Act of 1926, 43 U.S.C. §423f (OAA). They contended that this statutory

language, combined with that of Section 4-I, imposed a fiduciary duty upon the

government to generate profits in managing the grazing leases. We held in EBID II that

neither the plain language of the acts nor their legislative history indicated Congressional

intent to impose a fiduciary duty on the DOI. In doing so, we said:

               The plain language of Section 4-I and the OAA simply does not lend
       itself to the interpretation which the water districts argue it should be given.
       First, we do not agree that the DOI is required to administer and manage
       the water project lands in such a way that profits are generated. Although
       Section 4-I does refer to profits from grazing leases, that provision only
       directs how such profits, if any, are to be distributed and does not require
       that profits in fact be made. 43 U.S.C. § 501. Second, we agree with the
       district court that Section 4-I “does not create a fiduciary duty to the
       Districts.” Likewise, the OAA does not create such a duty. Although one
       provision of the OAA states that the purpose of the act is “the rehabilitation
       of the several reclamation projects and the insuring of their future success

                                             -9-
       by placing them upon a sound operative and business basis,” 43 U.S.C. §
       423f (1994), and directs the DOI to administer those sections of the act “to
       those ends,” id., this language, without more, does not create a fiduciary
       duty in the DOI towards the water districts.

               We also observe that the legislative history of the two acts relied
       upon by the water districts further undercuts their argument. As we discuss
       above, these statutes were enacted by Congress in an attempt to rescue and
       rehabilitate the federal irrigation projects, which had fallen on hard times at
       several different junctures during the first half of the Twentieth Century.
       Congress’s concern, stated clearly in the fact finders’ report and various
       statutes, was that the reclamation fund was becoming insolvent because the
       water districts were not repaying their obligations to the federal
       government. We do not believe that Congress was attempting to put the
       water districts under the protective care of the DOI, but rather was simply
       trying to find a way to help the water districts repay the money that they
       owed the federal government so that the reclamation fund would have cash
       in its coffers. Id. To that extent, the water districts are correct in terming
       Section 4-I an “entitlement” given to the water districts by the federal
       government. But the creation of an entitlement is different from the
       creation of a fiduciary duty on the part of the DOI towards the water
       districts. . . .We can discern no congressional intent to create such a duty in
       the statutes or the history surrounding their enactment.

EBID II, 269 F.3d at 1166-67 (internal citations omitted) (emphasis added).

       Contrary to the Districts’ current argument, the factual differences in the Count II

and VI do not affect the outcome. Under both counts, the same two statutes apply to

determine whether the Secretary has a fiduciary duty, or some lesser duty stemming from

a business acumen standard, to manage the project lands so as to generate a profit. This is

a question of pure statutory interpretation. In an attempt to undercut this conclusion, the

Districts argue that the grazing lease scheme in Count VI had no potential for profits

whereas the recreation leases had great potential. The greater potential for profits could

not have been envisioned when the statutes were enacted because no recreation leases

were in play at that time. The DOI either has a duty under the acts to generate profits or it

does not, regardless of the type of lease, and we held in EBID II that it does not. The

district court correctly extended that reasoning to Count II.

                                            -10-
Material Disputes of Fact

       The Districts argue that material disputes of fact precluded the district court from

deciding Count II on summary judgment. Again, we disagree. Many of the facts the

Districts suggest are material go to the contract claim, which we have already determined

cannot be pursued at this late stage of the litigation. More importantly, the Districts failed

to file a statement of disputed issues of material fact or an affidavit demonstrating the

need for further discovery in the district court.

       For example, the Districts claim that the accuracy of the accounting DOI prepared

at the direction of the district court was a disputed issue of fact that precluded summary

judgment and necessitated further discovery. The district court rejected the Districts’

objections to the accounting. In particular, the court was not persuaded by the Districts’

“concerns [about] possible factual disputes,” pointing out that they failed to identify the

parts of the accounting that they could not understand, failed to seek an explanation of

those parts from DOI, declined “informal opportunities to discover the facts that underlay

the accountings,” failed to request additional time to review the accounting, failed to

attach an affidavit documenting the need for additional discovery, App., vol. VI at 1748,

and thus “failed to show a legitimate need for discovery,” id. at 1749.

       Under FED. R. CIV. P. 56, a party opposing a motion for summary judgment “may

not rely merely on allegations or denials in its own pleading; rather, its response must . . .

set out specific facts showing a genuine issue for trial. If the opposing party does not so

respond, summary judgment should, if appropriate, be entered against that party.” FED.

R. CIV. P. 56(e)(2). The rule specifically provides how an opposing party may comply

with the rule if it needs discovery. “If a party opposing the motion shows by affidavit

that, for specified reasons, it cannot present facts essential to justify its opposition, the

                                              -11-
court may: (1) deny the motion; (2) order a continuance to enable . . . discovery to be

undertaken; or (3) issue any other just order.” FED. R. CIV. P. 56(f). As we have made

clear, “the nonmovant must carry its burden in the district court in a timely fashion

pursuant to Rule 56(e) . . . or explain why it cannot pursuant to Rule 56(f). Otherwise,

the nonmovant acts, or fails to act, at its peril.” Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 672 (10th Cir. 1998) (internal citation omitted); see also Hackworth v. Progressive

Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006) (“A nonmoving party wishing to invoke

the protections of Rule 56(f) must attempt to do so by submitting an affidavit in direct

response to a motion for summary judgment, not following the district court’s disposition

of that motion.”). Given the Districts’ failure to comply with Rule 56, the district court’s

determination in favor of DOI was entirely proper.

Law of the Case

       Finally, the Districts contend the district court violated the law of the case doctrine

by deciding Count II on summary judgment after the previous judge had decided it was

necessary to conduct discovery and hold a trial. Until the district court entered its final

judgment on Count II, however, it was free to revisit its earlier rulings. FED. R. CIV. P.

54(b) expressly allows for revision of an interlocutory order before entry of final

judgment.

       [A]ny order or other decision, however designated, that adjudicates fewer
       than all the claims or the rights and liabilities of fewer than all the parties
       does not end the action as to any of the claims or parties and may be revised
       at any time before the entry of a judgment adjudicating all the claims and all
       the parties’ rights and liabilities.

Id. Thus, “every order short of a final decree is subject to reopening at the discretion of

the district judge.” Price, 420 F.3d at 1167 n.9 (internal quotations and citation omitted).

       The district court did not enter a final appealable judgment on Count II until July

                                            -12-
2006. Neither the first opinion on Count II in 1997 nor the 1999 judgment on Counts I, V

and VI entered under Rule 54(b) were final as to Count II. See Aplt. App., vol. IV at

1136, 1159. The district court therefore retained discretion to revisit the 1997 opinion

regarding Count II.

       We AFFIRM.




                                           -13-
