Consejo De Desarrollo Economico De Mexicali, A.C. v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CONSEJO DE DESARROLLO 
ECONOMICO DE MEXICALI, A.C.;
CITIZENS UNITED FOR RESOURCES
AND THE ENVIRONMENT,
Plaintiffs-Appellants,
and
DESERT CITIZENS AGAINST
POLLUTION,
Plaintiff,
STATE OF CALIFORNIA; BAND OF
MISSION INDIANS,
Intervenors, No. 06-16345
v.  D.C. No.
CV-05-00870-PMP
UNITED STATES OF AMERICA; DIRK
KEMPTHORNE, Secretary of the
Department of the Interior; ROBERT
W. JOHNSON, Commissioner,
Bureau of Reclamation,
Defendants-Appellees,
IMPERIAL IRRIGATION DISTRICT; SAN
DIEGO COUNTY WATER AUTHORITY;
CENTRAL ARIZONA WATER
CONSERVATION DISTRICT; STATE OF
NEVADA; SOUTHERN NEVADA WATER
AUTHORITY; STATE OF ARIZONA;


4327
4328 CONSEJO DE DESARROLLO v. UNITED STATES

METROPOLITAN WATER DISTRICT OF 
SOUTHERN CALIFORNIA AND THE
WESTERN URBAN WATER COALITION,
Defendants-Intervenors-
Appellees, 
v.
CITY OF CALEXICO,
Plaintiff-Intervenor.


CONSEJO DE DESARROLLO 
ECONOMICO DE MEXICALI, A.C.;
CITIZENS UNITED FOR RESOURCES
AND THE ENVIRONMENT,
Plaintiffs,
STATE OF CALIFORNIA; BAND OF
MISSION INDIANS,
Intervenors,
No. 06-16618

and
D.C. No.
DESERT CITIZENS AGAINST
CV-05-00870-PMP
POLLUTION,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; DIRK
KEMPTHORNE, Secretary of the
Department of the Interior; ROBERT
W. JOHNSON, Commissioner,
Bureau of Reclamation;

 CONSEJO DE DESARROLLO v. UNITED STATES 4329

DIRK KEMPTHORNE, Secretary; 
WILLIAM E. RINNE, Acting
Commissioner,
Defendants-Appellees,
STATE OF ARIZONA; METROPOLITAN
WATER DISTRICT OF SOUTHERN
CALIFORNIA AND THE WESTERN
URBAN WATER COALITION;
COLORADO RIVER COMMISSION OF
NEVADA,
Defendants-Intervenors-
Appellees,
and 
IMPERIAL IRRIGATION DISTRICT; SAN
DIEGO COUNTY WATER AUTHORITY;
CENTRAL ARIZONA WATER
CONSERVATION DISTRICT; STATE OF
NEVADA; SOUTHERN NEVADA WATER
AUTHORITY; COLORADO RIVER
COMMISSION OF NEVADA,
Defendants-Intervenors,
v.
CITY OF CALEXICO,
Plaintiff-Intervenor.

4330 CONSEJO DE DESARROLLO v. UNITED STATES

CONSEJO DE DESARROLLO 
ECONOMICO DE MEXICALI, A.C.;
CITIZENS UNITED FOR RESOURCES
AND THE ENVIRONMENT; DESERT
CITIZENS AGAINST POLLUTION,
Plaintiffs,
STATE OF CALIFORNIA; BAND OF
MISSION INDIANS,
Intervenors,
v.
UNITED STATES OF AMERICA; DIRK
KEMPTHORNE, Secretary of the No. 06-16664
Department of the Interior; ROBERT
W. JOHNSON, Commissioner,
Bureau of Reclamation; DIRK
 D.C. No.
CV-05-00870-PMP
KEMPTHORNE, Secretary; WILLIAM OPINION
E. RINNE, Acting Commissioner,
Defendants-Appellees,
and
IMPERIAL IRRIGATION DISTRICT; SAN
DIEGO COUNTY WATER AUTHORITY;
CENTRAL ARIZONA WATER
CONSERVATION DISTRICT; STATE OF
NEVADA; SOUTHERN NEVADA WATER
AUTHORITY; STATE OF ARIZONA;
METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA AND THE
WESTERN URBAN WATER COALITION;

 CONSEJO DE DESARROLLO v. UNITED STATES 4331

COLORADO RIVER COMMISSION OF 
NEVADA,
Defendants-Intervenors,
v. 
CITY OF CALEXICO,
Plaintiff-Intervenor-
Appellant.

Appeals from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Argued and Submitted December 4, 2006
Reargued February 21, 2007—San Francisco, California1

Filed April 6, 2007

Before: John T. Noonan, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

1
Dirk Kempthorne has replaced Gale A. Norton as Secretary of the Inte-
rior and Robert W. Johnson has replaced John W. Keys, III as the Com-
missioner of the Bureau of Reclamation. Therefore, pursuant to Fed. R.
App. P. 43(c)(2) the new officials are substituted as parties.
 CONSEJO DE DESARROLLO v. UNITED STATES 4335

COUNSEL

R. Gaylord Smith and Sheri Schwartz, Lewis Brisbord, Bis-
gaard & Smith, LLP, San Diego, California, and Jay F. Stein,
Stein & Brockman, PA, Santa Fe, New Mexico, for plaintiff-
appellant Consejo de Desarrollo Economico de Mexicali,
A.C.

William J. Snape, III, Law Office of William J. Snape, III,
Washington, DC, for plaintiff-appellant Citizens United for
Resources and the Environment.

Gideon Kracov, Law Office of Gideon Kracov, Los Angeles,
California, for plaintiff-appellant Desert Citizens Against Pol-
lution.

Steven E. Boehmer, James P. Lough and Jennifer M. Lyon,
McDougal, Love & Eckis, El Cajon, California, for
intervenor-plaintiff-appellant City of Calexico.

Matthew J. McKeown, David C. Shelton and John L.
Smeltzer, United States Department of Justice, Washington,
DC, for defendants-appellees United States of America, Dirk
Kempthorne, Secretary of the Department of the Interior, and
Robert W. Johnson, Commissioner of the Bureau of Reclama-
tion.

John P. Carter and William H. Swan, Horton, Knox, Carter &
Foote, El Centro, California; Anthony Geunther and Andrew
P. Gordon, McDonald, Carano, Wilson, Las Vegas, Nevada;
and David L. Osias and Mark J. Hattam, Allen, Matkins,
4336 CONSEJO DE DESARROLLO v. UNITED STATES
Leck, Gamble, Mallory & Natsis, San Diego, California, for
intervenor-defendant-appellee Imperial Irrigation District.

Daniel S. Hentschke, San Diego County Water Authority, San
Diego, California; James D. Hibbard, Bullivant Houser Bai-
ley, PC, Las Vegas, Nevada; and Steven L. Hoch, Scott S.
Slater and C. Wesley Strickland, Hatch & Parent, Los Ange-
les, California, for intervenor-defendant-appellee San Diego
County Water Authority.

Virginia S. Albrecht, Hunton & Williams, Washington, DC;
Douglas Miller, Central Arizona Project, Phoenix, Arizona;
Kathy Robb, Hunton & Williams LLP, New York, New York;
and Kevin P. Stolworthy, Jones Vargas, Las Vegas, Nevada,
for intervenor-defendant-appellee Central Arizona Water
Conservation District.

Jennifer T. Crandall, Las Vegas, Nevada, and James Taylor
and John J. Entsminger, Southern Nevada Water Authority,
Las Vegas, Nevada, for intervenor-defendant-appellee State
of Nevada.

Nancy L. Allf, Parsons, Behle & Latimer, Las Vegas, Nevada,
and Linus Masouredis, Metropolitan Water District of South-
ern California, Sacramento, California, for intervenor-
defendant-appellee Metropolitan Water District of Southern
California.

Michael B. Wixom and Shann D. Winesett, Smith Larsen &
Wixom, Las Vegas, Nevada, for intervenor-defendant-
appellee State of Arizona.

William Jenkins and Clifford T. Lee, Office of the California
Attorney General, San Francisco, California, for intervenor
State of California.

Mary Hackenbracht and David A. Hombeck, Reno, Nevada,
and Joseph R. Membrino, Hall, Estill, Hardwick, Gable, Gol-
 CONSEJO DE DESARROLLO v. UNITED STATES 4337
den & Nelson, Washington, DC, for intervenor La Jolla, Rin-
con, San Pasqual, Pauma, and Pala Bands of Mission Indians.

Sheldon H. Sloan, Los Angeles, California, for amicus curiae
Government of Mexico.

Robert Vera Avar, The State of Baja California, Mexico, for
amicus curiae State of Baja California, Mexico.

Kara Gillon, Defenders of Wildlife, Albuquerque, New Mex-
ico, for amicus curiae Defenders of Wildlife.

OPINION

THOMAS, Circuit Judge:

This case involves a dispute over a Bureau of Reclamation
project to build a concrete-lined canal to replace an unlined
portion of the All-American Canal. The district court denied
declaratory and injunctive relief. A motions panel of our
Court granted a temporary injunction halting work on the
project pending appeal. After the initial oral argument and
based on intervening legislation, the United States filed a
motion to vacate the injunction and to remand the action to
the district court with instructions that several of the claims be
dismissed as moot. We held a second oral argument to con-
sider the motion.

After consideration of the extensive briefing and arguments
of the parties, we conclude that the environmental and other
statutory claims are moot and that the district court lacked
subject matter jurisdiction over the remaining claims. We
vacate the injunction of the project pending appeal and
remand the case to the district court with instructions to dis-
miss it.
4338 CONSEJO DE DESARROLLO v. UNITED STATES
I

Colorado Poet Laureate Thomas H. Ferril described the
West by saying: “Here is the land where life is written in
water.” The legacy of the West is one of continual, and often
bitter, controversies about water rights, both above and below
the surface. In the West, “whiskey is for drinking; water is for
fighting over,” Mark Twain is said to have observed. Our
water dispute brings us to the Mexican-California border and
the plans of the United States Bureau of Reclamation to pre-
vent the All-American Canal from seeping water—seepage
upon which thousands of Mexicans rely.

The All-American Canal is one of the world’s largest irri-
gation canals, carrying water from the Colorado River to the
Imperial Valley in California. The Imperial Valley lies
between the Mexican boundary and the Salton Sea, bounded
on the east by sandhills and on the west by the foothills of the
San Diego Mountains. The canal is the valley’s only source
of water.

The All-American Canal replaced the Alamo canal, which
diverted water a short distance north of the Mexican border,
but transported water mostly through Mexico before it re-
crossed the border into the Imperial Valley. In the 1920’s,
considerable sentiment arose to have a canal that was entirely
contained within the boundaries of the United States—
perhaps in furtherance of the notion of character Noah Cross
(slightly paraphrased), that “either you bring the water to Cal-
ifornia, or you bring California to the water.”2 In any event,
the concept of an “all-American” canal was born.

The All-American Canal System was authorized under the
Boulder Canyon Project Act of December 21, 1928, 45 Stat.
1057, codified at 43 U.S.C. § 617. Construction of the canal
by the United States Bureau of Reclamation commenced in
2
Chinatown (Paramount 1974).
 CONSEJO DE DESARROLLO v. UNITED STATES 4339
1934 following the construction of the Hoover Dam, with the
project reaching completion in 1942. The design was aimed
to have the water transported entirely within the United
States. The new canal, as designed, flowed only in the United
States. However, water often refuses to be confined by our
artificial restraints. Thus, although the canal’s surface water
remained in the United States, its seepage did not—
recharging the Mexicali Aquifer and providing a reservoir of
groundwater to the Mexicali Valley on the other side of the
border. The Mexicali Aquifer underlies both the Imperial Val-
ley in California and the Mexicali Valley in Mexico. The
complaint alleges that the roughly 1.3 million people who live
in the Mexicali Valley depend on the groundwater from the
aquifer, which irrigates thousands of acres of farmland.

Prior to 1901, the aquifer was recharged by the Colorado
and Alamo rivers. Because it was unlined, the construction of
the Alamo Canal did not impact the recharge of the aquifer.
Congress considered the idea of lining the All-American
Canal, but ultimately decided on an earthen and porous design
that did allow seven percent of the volume to seep into north-
ern Mexico.

Seepage from the All-American Canal first caused wide-
spread flooding in the Mexicali Valley until mechanisms were
put in place to harness the water. The residents and businesses
of the Mexicali Valley have since expended considerable
resources to create an infrastructure of pumping facilities and
conveyance equipment that deliver the water for drinking and
irrigation. As a result, the complaint alleges that a large met-
ropolitan community has developed in reliance on the water.

In 1944, the United States and Mexico entered into a treaty
designed to govern the allocation of Colorado River water
between the two nations. See Treaty Between the United
States of America & Mexico Respecting Utilization of Waters
of the Colorado and Tijuana Rivers and of the Rio Grande
4340 CONSEJO DE DESARROLLO v. UNITED STATES
[“1944 Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art.
10 (Nov. 8, 1945).

The Treaty came in the context of a developing set of
domestic authorities designed to regulate the use of Colorado
River water known collectively as the “Law of the River.”
After the first World War, as Congress began considering fur-
ther ways to capture and regulate Colorado River water, the
states constituting the Upper Basin of the river (Colorado,
Utah, New Mexico and Wyoming) grew concerned that states
in the Lower Basin (Arizona, Nevada and California) would
begin to claim appropriation rights to the water. See
Maricopa-Stanfield v. United States, 158 F.3d 428, 430 (9th
Cir. 1998). The Colorado River Compact of 1922 apportioned
7.5 million acre feet of water annually to the Lower Basin
states to forestall any disputes. See Act of August 19, 1921,
art. 2, 43 Stat. 171, reprinted in Ariz. Rev. Stat. § 45-1311.
The Boulder Canyon Project Act of 1928 (“Canyon Project
Act”) then apportioned that 7.5 million acre feet among the
Lower Basin states. See Maricopa-Stanfield, 158 F.3d at 430.
To deliver the allocations called for in the Act, the Canyon
Project Act authorized the construction of the All-American
Canal. See 43 U.S.C. § 617. The apportionment between the
Lower Basin states has also been the subject of a series of
Supreme Court decisions and decrees, culminating in Arizona
v. California, 126 S. Ct. 1543 (2006) (“Consolidated
Decree”).

The Treaty requires the United States to deliver 1.5 million
acre feet of Colorado River water to Mexico annually at des-
ignated diversion points on the international land boundary as
specified in the Treaty. The Treaty also commits the United
States to delivering an additional 200,000 acre feet in any
year in which there is a surplus of Colorado River water in
excess of the amount required to satisfy other obligations. The
Treaty then states that “Mexico shall acquire no right beyond
that provided by this subparagraph by the use of the waters of
the Colorado River system, for any purpose whatsoever, in
 CONSEJO DE DESARROLLO v. UNITED STATES 4341
excess of the 1,500,000 acre feet . . . annually.” 1944 Treaty
at Art. 10. The Treaty commits the United States to construct-
ing the works necessary to deliver these waters to the diver-
sion points. The Treaty considered the All-American Canal to
be one of the mechanisms for delivery. The Treaty committed
to the International Boundary and Water Commission
(“Boundary Commission”) the authority to resolve disputes
arising under the Treaty. Id. at Art. 2, 24(d).

In 1973, the Boundary Commission issued “minute 242”
addressing the problem of the salinity of the Colorado River.
See Agreement Confirming Minute No. 242 of the Interna-
tional Boundary and Water Commission, U.S. and Mex., 24
U.S.T. 1968 (Aug. 30, 1973). The minute acknowledged that
there was no existing agreement governing groundwater
issues in the border area between the two nations. The agree-
ment also stated that “[w]ith the objective of avoiding future
problems, the United States and Mexico shall consult with
each other prior to undertaking any new development of
either the surface or the groundwater resources, or undertak-
ing substantial modifications of present developments, in its
own territory in the border area that might adversely affect the
other country.” Id.

In 1988, Congress passed the San Luis Rey Indian Water
Rights Settlement Act (“Settlement Act”) which authorized
the Secretary of the Interior (“Secretary”) to select one of
three options for recovering the seepage lost through the All-
American Canal. Pub. L. No. 100-675, 102 Stat. 4000, § 203.
The choices included constructing a parallel lined canal, lin-
ing the existing canal, or constructing seepage recovery facili-
ties such as a well-field between the All-American Canal and
the border. The Secretary also considered a no action option.
The Settlement Act explained that “significant quantities of
water currently delivered into the All American Canal and its
Coachella Branch are lost by seepage from the canals and that
such losses could be reduced or eliminated by lining these
canals.” Id. at § 201. The conserved water was to be used to
4342 CONSEJO DE DESARROLLO v. UNITED STATES
meet the growing needs of California consumers, as well as
to settle water rights claims brought by several Native Ameri-
can groups. Id. at §§ 106, 204. The Imperial Irrigation District
(“IID”), with whom the Secretary contracts to manage the
All-American Canal, and the Metropolitan Water District of
Southern California (“MWD”) would deliver the additional
water to consumers. Id. at § 202.

The Secretary then undertook several environmental studies
to consider the impact of the All-American Canal lining proj-
ect (“Lining Project”) and issued a final environmental impact
statement (“FEIS”) and record of decision (“ROD”) in 1994.
The FEIS was noticed in the Federal Register at that time. 59
Fed. Reg. 18,573 (Apr. 19, 1994). After consideration of all
the alternatives, the ROD selected the parallel lined canal
option and the Bureau of Reclamation approved the ROD on
July 29, 1994.

Thereafter, the United States engaged in a diplomatic inter-
change with Mexico and the Mexican section of the Boundary
Commission. There is some dispute as to the nature and
extent of that exchange. The United States claims that it
engaged in an extensive consultation progress; Mexico, as
amicus, complains of cursory and insufficient consultation.

The Lining Project lay dormant, however, because the Set-
tlement Act required that the project be paid for by entities
benefitting from the conserved seepage and not by the United
States. Settlement Act at § 203. While the plan was dormant,
the Bureau of Reclamation conducted a reexamination of the
FEIS in 1999, but determined that no new significant informa-
tion changed the initial analysis and thus a supplemental envi-
ronmental impact statement (“SEIS”) was not required.

By 2002, the State of California was using over five million
acre feet of Colorado River water per year, 600,000 acre feet
above its 4.4 million acre feet allotment under the terms of the
Canyon Project Act and Consolidated Decree. Awareness of
 CONSEJO DE DESARROLLO v. UNITED STATES 4343
the size of this usage led to an intensive effort by the region’s
water users to assist California in reducing its historical over-
use of Colorado River water. This effort led to a series of
agreements in 2003 between the United States, the MWD,
Coachella Valley Water District, IID, San Diego County
Water Authority (“SDCWA”), the La Jolla, Pala, Pauma, Rin-
con & San Pasqual Bands of Mission Indians, the San Luis
Rey River Indian Authority, and the City of Escondido &
Vista Irrigation District (the “Allocation Agreement”). The
Allocation Agreement provided how the conserved seepage
water would be allocated. One aspect of the agreement was
that the State of California would pay for the Lining Project.

With the project back on track, the Bureau of Reclamation
asked the United States Fish and Wildlife Service (“FWS”) to
confirm as a biological opinion a conference opinion the FWS
had issued on February 8, 1996, regarding the Lining Proj-
ect’s impact on the Peirson’s Milk Vetch, a threatened plant
species. FWS so confirmed the opinion on September 9, 2004.

On July 19, 2005, this action was filed in the District of
Nevada seeking to enjoin the Lining Project. The Plaintiffs
consisted of Consejo de Desarrollo Economico de Mexicali,
A.C. (“Consejo”), a Mexican community group, and two
American non-profit environmental groups (“Environmental
Plaintiffs”) (Citizens United for Resources and the Environ-
ment [“CURE”] and Desert Citizens Against Pollution
[“Desert Citizen”]). The City of Calexico, California,
(“Calexico”) later intervened as a plaintiff as to one count of
the complaint. The parties stipulated to, and the district court
approved, the intervention of multiple entities on the side of
the defense, including the Imperial Irrigation District, the San
Diego County Water Authority, the Central Arizona Water
Conservation District, the State of Nevada, the Southern
Nevada Water Authority, and the Colorado River Commis-
sion of Nevada. The court also has been aided at various
points in the proceedings by other interested parties and
amici.
4344 CONSEJO DE DESARROLLO v. UNITED STATES
After the district court dismissed a number of counts in the
original complaint, the Plaintiffs filed an amended eight-count
complaint on February 23, 2006, seeking declaratory and
injunctive relief. The first four counts were brought by Con-
sejo, on behalf of a class of beneficial users of the Mexicali
Aquifer and the All-American Canal on the Mexican side of
the border. Count One alleged an “unconstitutional depriva-
tion of property without due process of law in violation of the
class’ substantive and procedural rights.” Count Two alleged
a constitutional tort pursuant to Bivens v. Six Unknown Fed-
eral Narcotics Agents, 403 U.S. 388 (1971), based on the
“usurpation of water rights owned by the well owners and
water users in the Mexicali Valley” by the Secretary and the
Commissioner of the Bureau of Reclamation. Count Three
alleged that the “application of water rights priorities in the
present context is subject to the doctrines of equitable appor-
tionment or equitable use,” and that “[t]he Secretary and
Commissioner have an affirmative duty to configure and
implement the All-American Canal Project in a manner that
results in the reasonable utilization of the water resources of
the Mexicali Valley.” Count Four alleged that the “Secretary
and Commissioner are estopped from operating the All-
American Canal” in any manner that would block the seepage
that has recharged the Mexicali Aquifer for the preceding 63
years.

All of the Plaintiffs joined in Count Five, which alleged a
violation of the National Environmental Policy Act (“NEPA”)
and the Administrative Procedure Act (“APA”). In this count,
the Plaintiffs argued that the Secretary and Commissioner
failed to prepare a SEIS despite the existence of significant
new circumstances bearing on the proposed project. The
Plaintiffs argue that five new circumstances warrant prepara-
tion of a SEIS: (1) the discovery of the Andrade Mesa Wet-
lands in Mexico and its importance as a habitat for the
endangered Yuma Clapper Rail after preparation of the FEIS;
(2) the anticipated transborder socio-economic impacts from
the water loss, which has been altered and exacerbated since
 CONSEJO DE DESARROLLO v. UNITED STATES 4345
the FEIS by demographic changes and the passage of
NAFTA; (3) new reports suggesting possible unexplored
impacts on the Salton Sea; (4) alterations in the project plan
with regard to human safety mechanisms designed to prevent
drowning; and (5) changes in the air quality condition of the
affected region. The district court later granted Plaintiff in
Intervention status to Calexico as to this count.

The final three counts were brought by the Environmental
Plaintiffs. Count Six alleged violations of the Endangered
Species Act. Specifically, the amended complaint alleged that
Bureau of Reclamation failed to reinitiate consultations with
the FWS as required despite new information about wetlands
habitat and the species therein—namely, the Yuma Clapper
Rail and the Peirson’s Milk Vetch—which came to light after
the FEIS and biological opinions in existence had been issued.
Count Seven alleged an unlawful taking of a listed migratory
bird in violation of the Migratory Bird Treaty Act. Count
Eight alleged violations of environmental requirements that
were made a part of the Settlement Act. The amended com-
plaint also alleged that no amount of damages would be suffi-
cient and thus equitable relief was necessary.

Subsequent to the filing of the complaint in this case, on
November 18, 2005, the Bureau of Reclamation issued a bio-
logical analysis for the Lining Project regarding the Potential
Species Impact in the Republic of Mexico and transmitted it
to the FWS. The FWS informed the Bureau of Reclamation
by memorandum dated January 11, 2006, that, in its opinion,
consultation with FWS was not required by the ESA when the
impacts being considered take place in foreign territory. One
day later, on January 12, 2006, the Bureau of Reclamation
issued a Supplemental Information Report (“SIR”) which
determined that no substantial changes, significant new infor-
mation, or circumstances existed that would require the
Bureau of Reclamation to issue a SEIS.

The Plaintiffs moved for summary judgment as to Count
Five (NEPA violations) and CURE moved for summary judg-
4346 CONSEJO DE DESARROLLO v. UNITED STATES
ment as to Count Six (Endangered Species Act violations).
The Defendants opposed those motions and cross-moved for
summary judgment on those claims. The Defendants also
moved to dismiss counts 1-4 and 6-8 of the amended com-
plaint for lack of standing, and contended in addition that
claims five, seven and eight were time barred.

On June 23, 2006, the district court granted the motion to
dismiss Consejo with respect to Counts 1-4 and 6-8, but
denied the motion to dismiss CURE with respect to Counts 6-
8. The order also held that Counts Seven and Eight were time-
barred and that Count Five was time-barred with respect to
any challenge to the 1994 FEIS, but not with respect to any
challenge to the Bureau of Reclamation’s failure to produce
a SEIS.

On July 3, 2006, the district court denied The Plaintiffs’
motion for summary judgment as to Count five and CURE’s
motion for summary judgment as to Count Six and granted
The Defendants’ cross-motions on both those counts. Judg-
ment was entered on July 3, 2006. The Plaintiffs filed timely
appeals from the judgment.

The Plaintiffs then filed a motion in the district court for an
injunction pending appeal, which was denied. The Plaintiffs
filed a motion for an injunction pending appeal with this
Court, which was granted by a motions panel of the Court.

After we heard oral argument on the merits of the appeal
in December 2006, Congress enacted and the President signed
into law the Tax Relief and Health Care Act of 2006, Pub.
Law No. 109-432, 120 Stat. 2922 (“2006 Act”). Contained
within the 274-page omnibus tax bill were sections directly
affecting the Lining Project. In pertinent part, the 2006 Act
provided that:

(a) . . . Notwithstanding any other provision of law,
upon the date of enactment of this Act, the Secretary
 CONSEJO DE DESARROLLO v. UNITED STATES 4347
shall, without delay, carry out the All American
Canal Lining Project identified — (1) as the pre-
ferred alternative in the record of decision for that
project, dated July 29, 1994; and (2) in the allocation
agreement allocating water from the All American
Canal Lining Project, entered into as of October 10,
2003.

(b) . . . (1) . . . Subject to Paragraph (2), if a State
conducts a review or study of the implications of the
All American Canal Lining Project as carried out
under subsection (a), upon request from the Gover-
nor of the State, the Commissioner of Reclamation
shall cooperate with the State, to the extent practica-
ble, in carrying out the review or study.

(2) Restriction of Delay.— A review or study con-
ducted by a State under paragraph (1) shall not delay
the carrying out by the Secretary of the All Ameri-
can Canal Lining Project.

Id. at § 395. Section 397 of the 2006 Act provides that:

The Treaty between the United States of America
and Mexico relating to the utilization of waters of
the Colorado and Tijuana Rivers and of the Rio
Grande, and supplementary protocol signed Novem-
ber 14, 1944, signed at Washington February 3, 1944
(59 Stat. 1219) is the exclusive authority for identi-
fying, considering, analyzing, or addressing impacts
occurring outside the boundary of the United States
of works constructed, acquired, or used within the
territorial limits of the United States.

Id. at § 397.

Following the effective date of the 2006 Act, the United
States filed a motion to remand this case to the district court
4348 CONSEJO DE DESARROLLO v. UNITED STATES
with instructions that Counts Five through Eight of the
amended complaint be dismissed as moot and for an order
vacating the injunction pending appeal imposed by the
motions panel. The Plaintiffs vigorously opposed the motion,
and we heard argument on the motion.

II

If legislation passing constitutional muster is enacted while
a case is pending on appeal that makes it impossible for the
court to grant any effectual relief, the appeal must be dis-
missed as moot. Paulson v. City of San Diego, 475 F.3d 1047,
1048 (9th Cir. 2006). Here, the government contends that
enactment of the 2006 Act renders the statutory environmen-
tal claims contained in Counts 5-8 of the amended complaint
moot. In those counts, the Environmental Plaintiffs allege that
the Lining Project cannot proceed until the government com-
plies with NEPA, the Endangered Species Act, the Migratory
Bird Treaty Act, and the Settlement Act.

A

In examining the impact of the 2006 Act on this case, we
employ our usual methodology in statutory construction. As
always, our starting point is the plain language of the statute.
Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090,
1096 (9th Cir. 1999). “[W]e examine not only the specific
provision at issue, but also the structure of the statute as a
whole, including its object and policy.” Id. If the plain mean-
ing of the statute is unambiguous, that meaning is controlling
and we need not examine legislative history as an aid to inter-
pretation unless “the legislative history clearly indicates that
Congress meant something other than what it said.” Carson
Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th
Cir. 2001) (en banc). If the statutory language is ambiguous,
we consult legislative history. United States v. Daas, 198 F.3d
1167, 1174 (9th Cir. 1999).
 CONSEJO DE DESARROLLO v. UNITED STATES 4349
The government underscores the provisions of the 2006 Act
that direct the Bureau of Reclamation to proceed with the Lin-
ing Project “without delay” and “notwithstanding any other
provision of law.” 2006 Act, § 395(a). The government con-
tends that the import of this language is to exempt the Lining
Project from compliance with any other federal law.

[1] Assuming it uses constitutional means, Congress may
exempt specific projects from the requirements of environ-
mental laws. See Sierra Club v. USFS, 93 F.3d 610, 613-14
(9th Cir. 1996); Mt. Graham Coalition v. Thomas, 89 F.3d
554, 556-58 (9th Cir. 1996); Mt. Graham Red Squirrel v.
Madigan, 954 F.2d 1441, 1457-61 (9th Cir. 1992); Stop H-3
Ass’n v. Dole, 870 F.2d 1419, 1432 (9th Cir. 1989) (noting
that Congress may “moot a pending controversy by enacting
new legislation”). Our first task in examining the statute is to
determine whether Congress intended that result.

[2] The fact that the 2006 Act used the phrase “notwith-
standing any other provision of law” is not dispositive. United
States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir. 2007) (en
banc). Indeed, “[w]e have repeatedly held that the phrase
‘notwithstanding any other provision of law’ is not always
construed literally.” Or. Natural Res. Council v. Thomas, 92
F.3d 792, 796 (9th Cir. 1996). Rather, when the phrase is
used, we have determined its reach by “taking into account
the whole of the statutory context in which it appears.” Novak,
476 F.3d at 1046. In viewing the statutory context, we attempt
“to give effect, if possible, to every clause and word of a stat-
ute, rather than to emasculate an entire section,” Estate of
Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir. 1993), mind-
ful that “[t]he cardinal principle of statutory construction is to
save and not to destroy,” id.

[3] Placing the “notwithstanding” language of the 2006 Act
in context, we are guided by the further statutory language
that the Lining Project proceed “without delay” “upon the
enactment of this Act.” 2006 Act § 395(a). If Congress had
4350 CONSEJO DE DESARROLLO v. UNITED STATES
intended for the Lining Project to proceed under the usual
course of administrative proceedings, it would have been
unnecessary for Congress to act at all. The environmental
challenges would have been resolved in due course. However,
proceeding along the usual course of resolving environmental
disputes would be inconsistent with the Bureau of Reclama-
tion proceeding “without delay” “upon the enactment of this
Act.” The Environmental Plaintiffs allege in their complaint
that the Lining Project violates various federal environmental
statutes and cannot proceed until the government complies
with those strictures. Thus, application of the cited statutes
cannot be reconciled with the language of the 2006 Act.
Under those circumstances, when Congress has directed
immediate implementation “notwithstanding any other provi-
sion of law,” we have construed the legislation to exempt the
affected project from the reach of environmental statutes
which would delay implementation. Mt. Graham Red Squir-
rel, 954 F.2d at 1456. That is not to say the agency may act
lawlessly in completing the project. See Or. Natural Res.
Council, 92 F.3d at 797 (rejecting the idea that the phrase
“notwithstanding any other provision of law” “require[d] the
agency to disregard all otherwise applicable laws,” other than
the environmental statutes at issue). Rather, we have applied
a common sense construction of the phrase to refer to those
laws that would delay the commencement of a project in dero-
gation of express Congressional directive to proceed immedi-
ately or, in this case, “without delay.”

[4] Applying these principles to the case at hand, we must
conclude as a matter of statutory construction that the 2006
Act renders the challenges to commencement of the Lining
Project based on NEPA, the Endangered Species Act, the
Migratory Bird Treaty Act, and the Settlement Act (contained
in Counts Five through Eight of the amended complaint)
moot. Each of those claims, if relief were to be granted, would
delay commencement of the Lining Project. Congress has
instructed otherwise, “notwithstanding any other provision of
law.” Therefore, we must construe the 2006 Act as exempting
 CONSEJO DE DESARROLLO v. UNITED STATES 4351
the Lining Project from the identified statutory claims. If
valid, the 2006 Act thus exempts the Bureau of Reclamation
from the challenges contained in Counts 5-8 of the amended
complaint.

B

Having determined the 2006 Act’s statutory reach, we turn
to the Plaintiffs’ other objections to the application of the
2006 Act to the instant case. The Plaintiffs contend that the
2006 Act (1) violates the Tenth Amendment, (2) invades the
judiciary’s Article III powers, (3) violates the Equal Protec-
tion Clause, and (4) deprives them of protected constitutional
interests without due process of law.3 None of these argu-
ments is persuasive.

1

The Plaintiffs argue that the 2006 Act violates the Tenth
Amendment because it requires the Bureau of Reclamation to
commandeer California’s resources to carry out the project
given that the Settlement Act directs that “[n]o federal funds
are authorized to be appropriated to the Secretary for con-
3
The Plaintiffs make two additional claims that we do not address. First,
the Plaintiffs contend that if the currently-planned project proceeds it will
violate the 2006 Act itself, because the Act calls for implementation of the
preferred alternative as determined by the 1994 ROD, but the plan has
changed since then—namely, the 1994 plan called for human safety ridges
on the canal to prevent drowning while the 2006 plan calls for ladders.
Because the complaint never alleged violations of the 2006 Act—indeed,
it could not have—that claim is not properly before us.
Likewise, Desert Citizen claims that the 2006 Act still requires compli-
ance with the air quality commitments made in the 1994 FEIS and ROD.
We agree and the government does not dispute this point. Desert Citizen
has not alleged that Reclamation is not in compliance with those commit-
ments. To the extent Desert Citizen’s claim is that the project is or will be
in violation of the 2006 Act if it does not so comply, that claim is similarly
not before us.
4352 CONSEJO DE DESARROLLO v. UNITED STATES
struction of [the canal].” Pub. L. No. 100-675, § 203(e)(1),
102 Stat. 4000 (Nov. 17, 1988).

As with all claims, we must satisfy ourselves that we have
jurisdiction. We must determine independently that the Arti-
cle III requirement of a live case or controversy has been met,
even if the issue has not been raised by the parties. See Ameri-
can Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010,
1015 (9th Cir. 2006). If a “live” controversy does not exist,
the case is moot. Id. (citing City of Erie v. Pap’s A.M., 529
U.S. 277, 287 (2000)).

[5] Here, the Plaintiffs argue that if the 2006 Act goes into
effect, it will require the commandeering of California’s
financial resources. However, California has already agreed to
appropriate its financial resources to the Lining Project. See
The Allocation Agreement. Therefore, the controversy the
Plaintiffs seek to litigate by this challenge—whether the
United States may appropriate California’s resources—no
longer exists. Accordingly, we hold that this claim is moot
and we therefore lack jurisdiction to reach its merits.

2

The Plaintiffs also contend that the 2006 Act violates the
principle of separation of powers by dictating a specific result
in a pending judicial case. Congress may change the substan-
tive law governing a pending case so long as it does not “di-
rect any particular findings of fact or application of law, old
or new, to fact.” Robertson, 503 U.S. at 438. However, “[t]he
constitutional principle of separation of powers is violated
where (1) Congress has impermissibly directed certain find-
ings in pending litigation, without changing any underlying
law, or (2) a challenged statute is independently unconstitu-
tional on other grounds.” Ecology Ctr. v. Castaneda, 426 F.3d
1144, 1148 (9th Cir. 2005) (internal quotation marks and cita-
tions omitted).
 CONSEJO DE DESARROLLO v. UNITED STATES 4353
[6] This type of controversy and claim is not new. We have
considered similar challenges in the context of planned gov-
ernment action, and concluded that similar legislation did not
violate the principle of separation of powers. Ecology Ctr.,
426 F.3d at 1148-49; Mt. Graham Red Squirrel, 954 F.2d at
1457-58; Stop H-3 Ass’n, 870 F.2d at 1431. As in the legisla-
tion underpinning our prior decisions, the 2006 Act does not
direct us to make any findings or to make any particular appli-
cation of law to facts. Rather, the legislation changes the sub-
stantive law governing pre-conditions to commencement of
the Lining Project. As such, it does not violate the constitu-
tional separation of powers.

3

The Plaintiffs next claim that the 2006 Act violates the
Equal Protection Clause by selectively denying Latinos their
fundamental life and property interests in a healthy environ-
ment because the affected Imperial Valley region has a large
Latino population.4 They argue that strict scrutiny applies to
the legislation since it discriminates against Latinos as a sus-
pect class and that the Act cannot survive strict scrutiny review.5
4
Although the Bureau of Reclamation, being a Federal agency, is not
subject to the strictures of the Equal Protection Clause, “In Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme
Court indicated that the Fifth Amendment’s Due Process Clause, subjects
the federal government to constitutional limitations that are the equivalent
of those imposed on the states by the Equal Protection Clause of the Four-
teenth Amendment. The Equal Protection Clause commands that no state
shall deny any person the equal protection of the laws. U.S. CONST.
amend. XIV, § 1.” Stop H-3 Ass’n, 870 F.2d at 1429 n.18. We therefore
read Desert Citizen’s challenge as a Fifth Amendment claim.
5
This contention is based on the claim that minority communities are
often exposed to greater environmental hazards than non-minority com-
munities. See Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158
F.3d 92, 130 (2d Cir. 1998) (citing Michele L. Knorr, Environmental
Injustice, 6 U. Balt. J. Envtl. L. 71, 77-84 (1997) (summarizing evidence
of discrimination against minority and low-income communities with
4354 CONSEJO DE DESARROLLO v. UNITED STATES
We need not reach the merits of this claim because, on the
record before us, Desert Citizen does not have standing to
bring it.6 “An association has standing to bring suit on behalf
of its members when its members would otherwise have
standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Friends of the Earth v.
Laidlaw Envt’l Serv. (TOC), Inc., 528 U.S. 167, 181 (2000)
(citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.
333 (1977)).

[7] Here, Desert Citizen fails the first of these three ele-
ments. It has not demonstrated that any of its members would
have standing to bring this claim in their own right. Desert
Citizen’s argument, that it is being discriminated against on
the basis of a suspect class—namely, Latinos—requires that
its members are also members of that class. Nothing in the
record indicates that they are. We further note that nothing in
the record indicates that representing the interests of Latinos
is germane to Desert Citizen’s organizational purpose.

respect to pollution and hazardous waste disposal); Edward P. Boyle,
Note, It’s Not Easy Bein’ Green: The Psychology of Racism, Environmen-
tal Discrimination, and the Argument for Modernizing Equal Protection
Analysis, 46 Vand. L.Rev. 937, 968 (1993) (“A substantial amount of evi-
dence shows that environmental discrimination is a national phenome-
non.”); Rachel D. Godsil, Note, Remedying Environmental Racism, 90
Mich. L.Rev. 394, 397 (1991) (“A host of studies have concluded that
minorities are exposed to a higher level of pollution of all forms than are
whites.”); Marianne Lavelle & Marcia Coyle, Unequal Protection: The
Racial Divide in Environmental Law, Nat’l. L.J., Sept. 21, 1992, at S2
(concluding from results of study that “federal government, in its cleanup
of hazardous sites and its pursuit of polluters, favors white communities
over minority communities under environmental laws meant to provide
equal protection for all citizens”)).
6
We consider this claim brought exclusively by Plaintiff Desert Citizens
as Plaintiff Consejo has failed to sufficiently argue this claim in its brief.
 CONSEJO DE DESARROLLO v. UNITED STATES 4355
Accordingly, Desert Citizens does not have organizational
standing to bring this claim.

4

[8] Desert Citizen also challenges the 2006 Act as violating
its procedural due process rights by depriving its members of
life and property interests in a healthy environment without
due process of law. This challenge is based on the asserted
failure of Congress to comply with its own procedural rules
in adopting §§ 395 and 397 of the 2006 Act. We need not
decide here whether the right to a healthy environment is of
constitutional magnitude. Cf. Stop H-3, 870 F.2d at 1430 &
n.21. Even assuming, arguendo, that it is, the procedural deci-
sion of Congress, discharging its function as a law-making
body, not to hold a hearing on general legislation is a question
not subject to judicial review. “It is the role of courts to pro-
vide relief to claimants, in individual or class actions, who
have suffered, or will imminently suffer, actual harm; it is not
the role of courts, but that of the political branches, to shape
the institutions of government in such fashion as to comply
with the laws and the Constitution.” Lewis v. Casey, 518 U.S.
343, 349 (1996). “A controversy is nonjusticiable—i.e.,
involves a political question—where there is a ‘textually
demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discov-
erable and manageable standards for resolving it.’ ” Nixon v.
United States, 506 U.S. 224, 228 (1993) (quoting Baker v.
Carr, 369 U.S. 186, 217(1962)). However, “the courts must,
in the first instance, interpret the text in question and deter-
mine whether and to what extent the issue is textually com-
mitted.” Here, Article I of the Constitution provides that
“[e]ach House may determine the Rules of its Proceedings.”
U.S. Const., art. I, § 5. In short, the Constitution textually
commits the question of legislative procedural rules to Con-
gress. Thus, whether Congress decides to hold a hearing on
legislation applicable to the general public is a non-justiciable
political question beyond our power to review.
4356 CONSEJO DE DESARROLLO v. UNITED STATES
5

[9] Given that the 2006 Act passes constitutional muster on
the claims raised by the Plaintiffs, we must give it full effect
as we have construed it. Therefore, we conclude that, in light
of the 2006 Act, we cannot fashion effective relief and the
challenges raised in Counts 5-8 based on alleged past viola-
tions of NEPA, the Endangered Species Act, the Migratory
Bird Treaty Act, and the Settlement Act are moot.

III

The remaining claims asserted by Consejo in Counts 1-4
based on various property rights and common law theories are
not affected by the 2006 Act. However, for various reasons,
the district court lacked subject matter jurisdiction over those
claims.

A

[10] The district court lacked subject matter jurisdiction
over Consejo’s first claim, that its members were deprived of
property without due process of law. Assuming, without
deciding, that Consejo’s members had a cognizable property
interest, its remedy for an alleged takings claim is under the
Tucker Act, 28 U.S.C. § 1491. A takings claim is premature
until the plaintiffs have exhausted their rights under the
Tucker Act. Preseault v. ICC, 494 U.S. 1, 17 (1990). This
restriction is jurisdictional. “The simple fact is that we have
no jurisdiction to address the merits of takings claims where
Congress has provided a means for paying compensation for
any taking that might have occurred.” Bay View, Inc. on
behalf of AK Native Village Corps. v. Ahtna, Inc. 105 F.3d
1281, 1285 (9th Cir. 1997).

[11] Consejo appears to be claiming that the Lining Project
may be enjoined because it infringes on its members’ property
rights. However, as we noted in Bay View, “the government
 CONSEJO DE DESARROLLO v. UNITED STATES 4357
is not prohibited from taking private property; indeed the emi-
nent domain clause contemplates that the government will
take private property as needed for public purposes, so long
as it pays compensation.” Id. at 1284. In short, jurisdiction
over Consejo’s takings claim lies in the Court of Federal
Claims, not the District of Nevada.

B

The district court also lacked subject matter jurisdiction
over Consejo’s Bivens claims. In Count Two of the amended
complaint, Consejo seeks to enjoin various individual govern-
ment officials, based on Bivens, 403 U.S. 388. Bivens created
a remedy for violations of constitutional rights committed by
federal officials acting in their individual capacities. In a para-
digmatic Bivens action, a plaintiff seeks to impose personal
liability upon a federal official based on alleged constitutional
infringements he or she committed against the plaintiff. See,
e.g., Balser v. Department of Justice, Office of U.S. Trustee,
327 F.3d 903, 909 (9th Cir. 2003). “[A] Bivens action can be
maintained against a defendant in his or her individual capac-
ity only, and not in his or her official capacity.” Daly-Murphy
v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). This is because
a Bivens suit against a defendant in his or her official capacity
would merely be another way of pleading an action against
the United States, which would be barred by the doctrine of
sovereign immunity. Nurse v. United States, 226 F.3d 996,
1004 (9th Cir. 2000). Therefore, the Supreme Court has
refused to extend Bivens remedies from individuals to agen-
cies. FDIC v. Meyer, 510 U.S. 471, 484 (1994).

[12] Here, Consejo has sued various Federal officials in
their official capacities. It seeks to enjoin official action. Con-
sejo does not claim damages based on the past unconstitu-
tional acts of Federal officials in their individual capacities.
Therefore, the district court lacked subject matter jurisdiction
over the claim because the United States has not consented to
its officials being sued in their official capacities.
4358 CONSEJO DE DESARROLLO v. UNITED STATES
C

Consejo’s third and fourth claims (apportionment and
estoppel) seek equitable remedies based on common law
property rights. However, because the United States has not
consented to be sued, the district court lacked subject matter
jurisdiction over the claims.

The United States, as a sovereign, is immune from suit
unless it has waived its immunity. Dep’t of Army v. Blue Fox,
Inc., 525 U.S. 255, 260 (1999); United States v. Mitchell, 445
U.S. 535, 538 (1980). A court lacks subject matter jurisdiction
over a claim against the United States if it has not consented
to be sued on that claim. McCarthy v. United States, 850 F.2d
558, 560 (9th Cir. 1988). “When the United States consents
to be sued, the terms of its waiver of sovereign immunity
define the extent of the court’s jurisdiction.” United States v.
Mottaz, 476 U.S. 834, 841 (1986) (citing United States v.
Sherwood, 312 U.S. 584, 586 (1941)). A waiver of sovereign
immunity by the United States must be expressed unequivo-
cally. United States v. Nordic Village, Inc., 503 U.S. 30, 33
(1992). As a general matter, purported statutory waivers of
sovereign immunity are not to be liberally construed. Id. at
34.

The only waiver of the sovereign immunity of the United
States cited by Consejo is the Administrative Procedure Act.
Section 702 of the APA states that

[a] person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. . . . The United
States may be named as a defendant in any such
action . . . Provided, That any mandatory or injunc-
tive decree shall specify the Federal officer or offi-
cers . . . personally responsible for compliance.
 CONSEJO DE DESARROLLO v. UNITED STATES 4359
5 U.S.C. § 702 (emphasis added).

However, as we have noted, “[d]espite the breadth of this
language, the statute does not confer jurisdiction independent
of some other specific statute.” Office of Governor, Territory
of Guam v. Dep’t of Health and Human Servs, Admin. on
Dev. Disability, 997 F.2d 1290, 1292 (9th Cir. 1993). In Cali-
fano v. Sanders, 430 U.S. 99, 107 n.6 (1977), the Supreme
Court noted that the § 702 language must be read in conjunc-
tion with § 703, which suggested that the APA remedies
under § 702 “look[ed] to outside sources of jurisdictional
authority.”

By itself, § 702 does not impose any substantive duties on
agencies or government officials. It is a procedural statute that
requires another relevant statute to form the legal basis for the
complaint that the government has acted unlawfully. See
Wright, Miller & Cooper, 14A Federal Practice and Proce-
dure § 3659 (3d ed. 2006).

Here, Consejo’s counts three and four rely not on relevant
statutes that the Bureau of Reclamation is alleged to have vio-
lated, but rather on Consejo’s members’ common law water
rights. In count three, Consejo alleges that “[t]he Secretary
and Commissioner have an affirmative duty to configure and
implement the All-American Canal Project in a manner that
results in the reasonable utilization of the water resources of
the Mexicali Valley,” but it does not state from where that
duty derives. In count four, Consejo only alleges that “[t]he
Secretary and Commissioner are estopped from operating the
All-American Canal Project differently” than before. Absent
any relevant statute on which to judge the legality of the agen-
cy’s actions, § 702 is inapplicable and cannot be invoked as
a waiver of sovereign immunity.

[13] Therefore, Consejo’s equitable claims of apportion-
ment and estoppel are barred by sovereign immunity. Because
4360 CONSEJO DE DESARROLLO v. UNITED STATES
the United States has not consented to be sued, the district
court lacked subject matter jurisdiction over the claims.

IV

In sum, the 2006 Act renders the claims based on past vio-
lations of NEPA, the Endangered Species Act, the Migratory
Bird Treaty Act, and the Settlement Act moot. The district
court lacked jurisdiction over Consejo’s takings claim, which
must be asserted before the Court of Federal Claims. Conse-
jo’s remaining claims are barred by sovereign immunity.

We remand this case to the district court with instructions
to dismiss Counts 5-8 as moot and to dismiss Counts 1-4 for
lack of subject matter jurisdiction. We vacate the injunction
pending appeal previously entered by the motions panel.7
Given our decision, we need not and do not reach any other
questions raised by the parties or relied upon by the district
court. All pending motions are denied as moot.

VACATED and REMANDED with instructions.

7
Because it is an interlocutory order pending appeal, see Fed. R. App.
P. 8(a), our order vacating the injunction pending appeal shall become
effective immediately upon the filing of this opinion, regardless of when
the mandate issues.