                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                             SEP 11 2002
                        FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk

RIO GRANDE SILVERY MINNOW,
(Hybognathus amarus);
SOUTHWESTERN WILLOW
FLYCATCHER, (Empidonax trailii
extimus); DEFENDERS OF                   Nos. 02-2130, 02-2135,
WILDLIFE; FOREST GUARDIANS;                   02-2151, 02-2152,
NATIONAL AUDUBON SOCIETY;                     02-2160, 02-2186
NEW MEXICO AUDUBON
COUNCIL; SIERRA CLUB;                 (D.C. No. CIV-99-1320-JP/RLP)
SOUTHWEST ENVIRONMENTAL                      (D. New Mexico)
CENTER,

           Plaintiffs-Appellees,

JOHN W. KEYS, III, Commissioner,
Bureau of Reclamation; STEVE
HANSON, Regional Director, Bureau
of Reclamation; BUREAU OF
RECLAMATION, an agency of the
United States; JOSEPH BALLARD,
General, Chief Engineer, Army Corps
of Engineers; RAYMOND MIDKIFF,
Lt. Col., Albuquerque District
Engineer; UNITED STATES ARMY
CORP OF ENGINEERS, an agency
of the United States; UNITED
STATES OF AMERICA; GALE
NORTON, Secretary, Department of
Interior; U.S. FISH AND WILDLIFE
SERVICE,

           Defendants-Appellants,

THE MIDDLE RIO GRANDE
CONSERVANCY DISTRICT;
STATE OF NEW MEXICO; RIO
CHAMA ACEQUIA ASSOCIATION,
CITY OF ALBUQUERQUE,

             Defendants-Intervenors-
             Appellants,


DOUBLE M RANCH;
CITY OF SANTA FE,

             Intervenors.


                            ORDER AND JUDGMENT *


Before EBEL, HENRY, and BRISCOE, Circuit Judges.



      These matters come before us on plaintiffs-appellees’ motions to dismiss

all appeals for lack of jurisdiction, and intervenors-appellants’ motion for a stay

pending appeal. We hold that intervenors-appellants lack standing to appeal and

that the district court’s interlocutory ruling is not subject to immediate review by

the remaining appellants. The stay motion is, accordingly, moot.

      These appeals arise out of an ongoing action in the district of New Mexico

reviewing efforts by the Fish and Wildlife Service (FWS) to save the endangered



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         -2-
Rio Grande Silvery Minnow, 1 in accordance with its duties toward listed species

under the Endangered Species Act (ESA). When this action was commenced by

the plaintiff conservation groups, FWS was still in the process of consulting with

federal agencies active in river water storage and diversion, including the Bureau

of Reclamation (BOR) and Army Corps of Engineers (Corps), about reasonable

and prudent alternatives for avoiding jeopardy to the minnow. Thus, the

pleadings focused on expanding the scope of that consultation–specifically to

consider alternatives involving the use of water otherwise earmarked for the

Middle Rio Grande Conservancy District (MRGCD) and Rio Chama Acequia

Association (RCAA) and, through them, local users. That prompted the latter

entities to intervene, along with the State of New Mexico and the City of

Albuquerque. These intervenors supported the position taken by BOR and the

Corps that they lacked discretion to redirect water already obligated to other

users. In addition, MRGCD asserted a cross-claim against the United States to

quiet title to certain dam and diversion facilities.

      In June 2001, FWS issued a final Biological Opinion (BO) setting forth

a plan for protection of the minnow that did not impact MRGCD or RCAA water

and an associated Incidental Take Statement (ITS) specifying the conditions under


1
      Initially, the Southwestern Willow Flycatcher was also involved, but as its
range is not restricted to the Rio Grande and its numbers have increased, this bird
species has not played a part in the proceedings under review.

                                          -3-
which incidental taking of the minnow would not be deemed a violation of the

ESA. In response, plaintiffs amended their pleadings to add claims challenging

the BO and ITS. Still, their claims turned largely on the refusal of the federal

agencies to consider using MRGCD and RCAA water in the consultation leading

to preparation of the BO. In this regard, BOR and the Corps insisted, and FWS

accepted, that pre-existing obligations precluded them from reducing water

deliveries to MRGCD and RCAA to assist in the protection of the minnow.

      On April 19, 2002, the district court issued a memorandum opinion and

order specifically addressing the validity of the BO (the court made it clear that

other claims asserted by the plaintiffs, as well as MRGCD’s cross-claim, were

reserved for disposition at a later date). Although the court agreed with plaintiffs

that BOR had discretion to divert MRGCD and RCAA water for protection of the

minnow and that such diversion should therefore have been considered during

BOR’s consultation with FWS,    2
                                    the court upheld the BO under the deferential

standard of administrative review in 5 U.S.C. § 706(2)(A). The court concluded

that “[e]ven though FWS accepted BOR’s erroneous view that it lacked discretion

. . . to alter water deliveries to contractors [such as MRGCD and RCAA], FWS

came up with an interim solution to avoid jeopardy [to the minnow] in



2
      In contrast, the court held the Corps did not have such discretion over the
water within its purview, and the Corps plays no role in the proceedings here.

                                           -4-
coordination with all the major players in the Middle Rio Grande basin.”

Mem. Op. at 44; see also id. at 17-19 (describing protective elements of BO).

       The character of the BO as an “interim solution” was important to the

district court, which emphasized that “[t]he BO lasts for only a limited period

[expiring Dec. 31, 2003], and is subject to reinitiation of consultation” before that

should conditions threaten the minnow’s viability.         Id. at 44 ; see id. at 19

(describing consultation as “a dynamic, ever-evolving process” and noting “the

[June 2001] BO is not intended to be the final solution to protecting the minnow

from extinction”). Nevertheless, the court made it clear that the extant BO–under

which intervenors’ interests remain unaffected–was approved; consequently, any

effect of its contrary finding of agency discretion to divert MRGCD and RCAA

water was only prospective and contingent. In short, “[t]he overall effect of [the

court’s] decision will be that     when the parties go back to the table   , either in

informal negotiations or in reinitiation of formal consultation, the annual water

deliveries [to MRGCD and RCAA] that [the court] identified as discretionary              will

be available to be considered      for use in protecting the endangered silvery minnow

from extinction.”     Id. at 44-45 (emphasis added);    see id. at 20 (court’s “ruling on

the scope of discretion . . .    will guide the agencies and should help expedite the

process when further consultation occurs       ” (emphasis added)).




                                              -5-
      Intervenors, evidently concerned that subsequent consultation might lead to

a decision to use their water to protect the silvery minnow, immediately appealed.

Plaintiffs-appellees moved to dismiss these interlocutory appeals for lack of

jurisdiction. When the BOR and related parties (“federal defendants”) added their

own appeal, plaintiffs-appellees moved to dismiss it as well. After the district

court issued a clarification order, to restate and confirm a point already made in

its opinion, MRGCD filed another, substantively redundant appeal, prompting

a last motion to dismiss.

      In the meantime, some intervenors jointly moved for a stay pending appeal.

The district court denied the motion, largely because of “serious questions about

the finality and appealability of the [ruling] . . . which [intervenors] intend to

appeal.” Order Denying Stay, at 1. The court reiterated the inherently remote and

contingent nature of any implications its order had for intervenors: “When further

consultation between BOR and FWS takes place, the scope of the consultation

will be broader . . . because BOR will discuss with FWS possible use of [MRGCD

and RCAA] water. This does not mean, however, that BOR and FWS . . . must

decide to use some [MRGCD or RCAA] project water to preserve the endangered

silver minnow. BOR and FWS may, once again, find a way to avoid jeopardy to

the silvery minnow without the use of project water.”     Id. at 2. Intervenors have

since renewed their stay request with us, which plaintiffs-appellees oppose.


                                           -6-
                                  Intervenors’ Appeals

       Plaintiffs-appellees’ motions to dismiss focus on whether the challenged

ruling is an immediately appealable order, but their arguments also suggest that

intervenors lack standing to appeal, which is a fundamental jurisdictional

deficiency we notice even when the parties do not.          PeTA v. Rasmussen , 298 F.3d

1198, 1202 (10 th Cir. 2002). “To have standing, one must be aggrieved by the

order from which appeal is taken.”        Uselton v. Commercial Lovelace Motor

Freight, Inc. , 9 F.3d 849, 854 (10th Cir. 1993). “The law is well-settled that

a party is generally not aggrieved by, and thus lacks standing to appeal from,

a judgment rendered against a co-party.”         Penda Corp. v. United States        , 44 F.3d

967, 971 (Fed. Cir. 1994). The district court’s order declared the statutory

consultative duties of the federal defendants, not those of intervenors.         3
                                                                                      Even if

that order carries present injunctive force with respect to the federal defendants’

execution of those duties, it “does not directly or indirectly restrain [       intervenors ]

from the performance of any act as a third-party defendant.”            McLaughlin v.




3
      Of course, the court also affirmed the BO, but this aspect of its decision
does not further any appellant’s cause for appellate review. Affirmance of the
BO, which upheld the interim federal plan leaving MRGCD and RCAA water
untouched, was in itself a ruling clearly in favor of the federal defendants and
intervenors and, thus, appealable, if at all, not by them but by plaintiffs.
See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001).

                                              -7-
Pernsley , 876 F.2d 308, 313 (3d Cir. 1989) (holding third-party defendant lacked

standing to appeal injunction entered against defendant).

       The only basis intervenors can invoke in support of their standing to appeal

from the district court’s declaration of the federal defendants’ consultative duties

is that it necessarily had demonstrable adverse consequences for their interests

in Rio Grande water. Under the basic standing principles set forth in    Lujan v.

Defenders of Wildlife , 504 U.S. 555, 560-61 (1992), they would have to show an

“injury in fact” to their interests, a causal connection between the order under

review and that injury, and a likelihood that the injury would be redressed by

a favorable decision by this court.     See In re Grand Jury , 111 F.3d 1066, 1071

(3d Cir. 1997) (“The same constitutional minima for standing to sue [i.e., injury

in fact, causation, and redressibility] are also required for standing to appeal.”).

The injury-in-fact element precludes intervenors’ attempt to appeal.

       Injury-in-fact requires “an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical.”   Keyes v. School Dist. No. 1 , 119 F.3d 1437, 1445 (10 th Cir. 1997)

(quoting Lujan , with citations and quotations omitted). In light of the latter

requirement, “[t]his court’s focus is on past and present injury; possible future

injury is insufficient to create standing.”     Id. While unrealized but imminent

harm can satisfy the injury-in-fact element, the Supreme Court has cautioned


                                              -8-
that the concept of imminence “cannot be stretched beyond its purpose, which

is to ensure that the alleged injury is not too speculative for Article III

purposes–that the injury is   certainly impending.” Lujan , 504 U.S. at 564 n.2

(quotation omitted).

       The district court’s ruling requires only that the federal defendants   consider

use of intervenor’s water when they consult about protecting the silvery minnow.

Intervenors note that reinitiation of consultation is imminent, if not already begun

(and, in any event, will certainly occur by December 2003). But consultation

per se causes them no concrete injury; unless and until consultation actually

results in a decision to use their water–which may never happen–any “injury in

fact” to their interests attributable to the district court’s order involves just the

kind of conjecture Lujan dismisses as inadequate to confer standing. Indeed,

Lujan explains that the reason a “high degree of immediacy” is required in cases

involving unrealized harm is “to reduce the possibility of deciding a case in which

no injury would have occurred at all,”     id. (quotation omitted), which remains

a possibility here.

       The federal defendants have not taken or threatened to take intervenors’

water pursuant to their discretionary authority, and attendant duty, to consider

such action recognized by the district court. Thus, intervenors cannot carry their

burden of demonstrating standing to challenge the district court’s order.


                                             -9-
Cf., e.g., Essence, Inc. v. City of Fed. Heights   , 285 F.3d 1272, 1282 (10 th Cir.)

(licensee lacked standing to challenge statute granting city discretion to

suspend/revoke licenses when city had not sought or threatened such action),

petition for cert. filed , 71 U.S.L.W. 3094 (U.S. July 5, 2002) (No. 02-66);     Keyes ,

119 F.3d at 1445-46 (parties lacked standing to challenge district court’s approval

of state “Busing Clause” because they “failed to demonstrate that the[ir] School

District or any school has withdrawn policies, instituted policies, or refrained

from withdrawing or instituting policies as a result of the Busing Clause”);

Sierra Club v. Babbitt , 995 F.2d 571, 575 (5th Cir. 1993) (appellants lacked

standing to challenge court order requiring FWS to develop and disseminate

water-flow information which related to their water interests but which, in itself,

“ha[d] no legal consequence” for those interests). Intervenors’ appeals must

therefore be dismissed.


                             Federal Defendants’ Appeal

       The federal defendants do not similarly lack standing, as the district court’s

order includes a binding specification of at least one aspect of their consultative

duties under the ESA. We therefore proceed directly to the question of appellate

jurisdiction raised by plaintiffs-appellees’ motion to dismiss.

       As noted above, the district court’s ruling regarding the scope of agency

consultation did not conclude the proceedings below, as several other claims

                                            -10-
remain unresolved. Thus, the federal defendants must establish a proper basis for

interlocutory appeal. For this they rely solely on the argument that the challenged

ruling was an express injunction appealable under 28 U.S.C. § 1292(a)(1). Their

position is precluded by the plain terms of the statute, which, in light of federal

policy against piecemeal review, should be strictly construed.      See Ingram Towing

Co. v. ADNAC Inc. , 59 F.3d 513, 515 (5th Cir. 1995);       Sierra Club v. Marsh ,

907 F.2d 210, 214 (1 st Cir. 1990). In the course of reviewing the BO, the district

court simply declared what BOR’s authority, and hence consultative duty, was

with respect to use of intervenors’ water to protect the minnow; the court did

not issue an “order[] . . . granting [an] . . . injunction[].” Section 1292(a)(1).

We have not been presented with, nor have we found, any authority equating such

a declaration with the express grant of an injunction.

       The federal defendants’ argument for § 1292(a)(1) jurisdiction relies almost

exclusively on Forest Guardians v. Babbitt        , 174 F.3d 1178 (10th Cir. 1999),

which permitted an interlocutory appeal from another proceeding involving the

silvery minnow, brought shortly after it was listed as endangered. That listing

required FWS to designate a critical habitat for the minnow. When FWS missed

the deadline for the designation, environmental organizations brought suit seeking

a declaration that FWS was in violation of the ESA and an injunction compelling

prompt FWS compliance with the habitat designation requirement.           See id.


                                           -11-
at 1182. The plaintiffs subsequently filed a motion which “expressly requested

that the court declare the Secretary [of Interior] in violation of his

non-discretionary ESA duties and order him to carry out his duties within

30 days.” Id. In response, FWS moved for a two-year stay of the proceedings,

citing fiscal impracticability. The district court granted the stay and denied the

plaintiffs’ motion. We held the order constituted the denial of an injunction and

therefore was immediately appealable under § 1292(a)(1).

      The crux of Forest Guardians , in the federal defendants’ view, was this

court’s holding that “[e]ven though plaintiffs failed to label their motion as one

for injunction, it is clear from the content of the motion that plaintiffs were

seeking injunctive relief,” and, consequently, “it fits squarely within the plain

language of § 1292(a)(1).”   Id. at 1185 (quotation omitted). This holding is not

applicable here. The district court’s order did not purport to dispose of any

motion for injunctive relief; rather, it was clearly directed at plaintiffs’ request

for legal (APA) review of the extant BO.     The federal defendants’ attempt to fill

this gap in their analogy to Forest Guardians by noting two equitable requests

made in plaintiffs’ pleadings is meritless. The district court’s order did not

address these requests, neither of which had to do with the scope-of-consultation

issue the federal defendants wish to appeal. One sought expedited completion of

the first BO (now moot), and the other was simply a catch-all request for an order


                                           -12-
that the federal defendants take all necessary steps per the ESA to conserve the

silvery minnow.

      We certainly do not deny that the district court’s analysis has significant

consequences for how the federal defendants are to conduct their consultations.

And, while the fact that an order has constraining implications does not make it

an express injunction, it may support immediate appeal through the doctrine of

Carson v. American Brands, Inc.    , 450 U.S. 79, 83-84 (1981), which permits

appeal from orders that (1) have the “practical effect” of granting or denying an

injunction; (2) threaten “serious, perhaps irreparable” consequences; and (3) can

be “effectually challenged” only through immediate appeal.    Forest Guardians ,

174 F.3d at 1185 (quotations omitted);   Hutchinson v. Pfeil , 105 F.3d 566, 569

(10 th Cir. 1997) (same). However, the federal defendants do not asset a right to

appeal under Carson , and the reason is fairly clear. Nothing prevents them from

challenging the district court’s adverse ruling regarding consultation once a final

judgment, or a truly appealable interlocutory order effectuating that ruling, is

entered in the case. Thus, the third and perhaps also the second element of the

Carson test is not satisfied at this time.




                                             -13-
                                    Conclusion

      For the reasons stated above, intervenors’ appeals (Nos. 02-2130, 02-2135,

02-2151, 02-2152, and 02-2186) must be dismissed for lack of standing; federal

defendants’ appeal (No. 02-2160) must be dismissed for lack of interlocutory

appellate jurisdiction; and the motion for stay pending appeal must, accordingly,

be denied as moot. We are aware that further proceedings regarding the possible

release of intervenors’ water are currently underway in the district court. Nothing

we have said here is intended to affect or prejudge any party’s right to seek

immediate review of subsequent orders entered by the district court. We hold

only that the appeals now pending before us must be dismissed.

      These appeals are DISMISSED and the associated motion for stay

is DENIED. All pending procedural motions are denied as moot.


                                      ENTERED FOR THE COURT
                                      PER CURIAM




                                        -14-
