Friday, June 13, 2003

By Tania Soussan
Journal Staff Writer
    Water can be taken from Albuquerque, Santa Fe and middle Rio Grande farmers to help the endangered silvery minnow, the federal 10th Circuit Court of Appeals ruled Thursday.
    As environmentalists praised the decision, Gov. Bill Richardson and Attorney General Patricia Madrid vowed to appeal the ruling all the way to the U.S. Supreme Court.
    "This case involves one pivotal question: Who controls New Mexico's water — New Mexico or the federal government?" Madrid said. "To me the answer will always be New Mexico."
    "It seems to be a 100 percent victory, and it's gratifying," said Letty Belin, a Santa Fe attorney for the Land and Water Fund of the Rockies, representing several environmental groups that sued to protect the tiny minnow and its habitat in the Rio Grande.
    "I see this decision as squarely on the same trajectory as earlier decisions on federal water contracting," Belin said.
    Albuquerque Mayor Martin Chávez called the decision a "municipal nightmare."
    New Mexico congressional delegation members also protested the ruling, and Rep. Heather Wilson, R-N.M., said she would introduce legislation to short-circuit the ruling.
    The appeals court affirmed a ruling by Chief U.S. District Judge James A. Parker in Albuquerque last September. The appellate judges wrestled with complex questions, including whether the federal Endangered Species Act takes precedence over federal water project contracts.
    In the 2-1 ruling Thursday, the appeals court agreed with Parker that the U.S. Bureau of Reclamation can take San Juan-Chama Project water from the cities and others who contract for it, and Middle Rio Grande Project water from farmers.
    "The silvery minnow provides a measure of the vitality of the Rio Grande ecosystem, a community that can thrive only when all of its myriad components — living and non-living — are in balance," the two judges in the majority wrote.
    Richardson called the ruling "a setback for New Mexico."
    "We must pursue all legal remedies to overturn this short-sighted decision all the way to the Supreme Court," Richardson said. "As governor, I pledge my best efforts to protect Albuquerque and the state of New Mexico from this grievous imbalance in the Endangered Species Act."
    The federal San Juan-Chama Project brings water from the Colorado River Basin into the Rio Grande, while the Middle Rio Grande Project provides river water to New Mexico farmers between Cochiti Reservoir and Bosque del Apache. Contractors, such as the city of Albuquerque, pay for the water to supplement their supplies.
    Chávez said Albuquerque's future water supply is at stake.
    "If it takes an appeal, we will appeal," Chávez said. "If it takes federal legislation, we will do that. I will not let this go."
    The ruling is the latest development in a long-running legal battle over protections for the silvery minnow. Six environmental groups sued the federal government in 1999 and the state of New Mexico, the city of Albuquerque and irrigators intervened in the case.
    The two majority judges — Senior Judge John C. Porfilio of Denver and Judge Stephanie K. Seymour of Tulsa, Okla. — said the Endangered Species Act requires the Bureau of Reclamation to use its authority over water projects to benefit the minnow when necessary.
    Judge Paul J. Kelly of Santa Fe dissented and said the case has "enormous significance."
    Kelly said the bureau had no authority to deliver less than the full amount of water — either from the San Juan-Chama or Middle Rio Grande projects — to its contractors.
    "Under the court's reasoning the ESA, like Frankenstein, despite the good intentions of its creators, has become a monster," Kelly wrote. "... The BOR merely operates the works; it lacks any reserved or acquired water right (let alone with priority) that would allow it unilaterally to take and use the water for the sole benefit of an endangered species."
    Bureau of Reclamation Area Manager Ken Maxey said the agency is disappointed with the ruling but said he could not comment further.
    The case could have impacts beyond the silvery minnow and the water users of the middle Rio Grande basin. Bureau of Reclamation water projects and endangered species all over the West could be affected by the federal court rulings.
    Sen. Pete Domenici, R-N.M., said the decision "threatens to undo water law throughout New Mexico and much of the West."
    Wilson said, "This is a precedent setting and very controversial decision, and I intend to introduce legislation to overturn it."
    Several Western states and water users in California and the Klamath Basin of Oregon and national environmental groups filed friend of the court briefs in the case.
    The judges based much of their decision on the New Mexico case on repayment contracts between the Bureau of Reclamation and the San Juan-Chama Project water users and the Middle Rio Grande Conservancy District, which gets water from a separate bureau project.
    The judges said shortage clauses in the contracts provide the basis for the bureau's discretion to allocate available water to prevent the extinction of the silvery minnow even if that means reducing contract deliveries.
    Chuck DuMars, attorney for the Conservancy District, said the ruling "completely ignores the reality or the consequences either for the minnow or the farmers."
    He said that and a lack of strongly backed reasoning will make the decision easier to appeal.
    The Bureau of Reclamation has almost enough water to meet minnow needs this summer so the ruling is unlikely to have an immediate impact. But the agency could decide to postpone delivery of this year's San Juan-Chama water in case it is needed for the minnow in the fall, DuMars said.
    Journal staff writers Michael Coleman and Dan McKay contributed to this report.

The Silvery minnow wins over the city and ag water needs
June 12, 2003

RIO GRANDE SILVERY MINNOW, Hybognathus amarus;  SOUTHWESTERN WILLOW FLYCATCHER (Empidonax trailii extimus);  DEFENDERS OF WILDLIFE;  FOREST GUARDIANS; NATIONAL AUDUBON SOCIETY;  NEW MEXICO AUDUBON COUNCIL;  SIERRA CLUB;  SOUTHWEST ENVIRONMENTAL CENTER, Plaintiffs--Appellees,
v.
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 CORPS OF ENGINEERS, an agency of the United States;  UNITED STATES OF AMERICA;  GALE NORTON, Secretary, Department of Interior;  UNITED STATES FISH AND WILDLIFE SERVICE, Defendants--Appellants,
STATE OF NEW MEXICO;  THE MIDDLE RIO GRANDE CONSERVANCY DISTRICT;  CITY OF ALBUQUERQUE;  RIO DE CHAMA ACEQUIA ASSOCIATION, Defendants

--Intervenors-Appellants,
DOUBLE M. RANCH;  CITY OF SANTA FE, Intervenors, LAS CAMPANAS LIMITED PARTNERSHIP;  PACIFIC LEGAL FOUNDATION;  SAN JUAN WATER
COMMISSION;  NATIONAL WATER RESOURCES ASSOCIATION;  KLAMATH WATER USERS ASSOCIATION;  CITY AND COUNTY OF SANTA FE;  STATE OF COLORADO;  STATE OF IDAHO;  STATE OF NEBRASKA;  STATE OF OKLAHOMA;  STATE OF SOUTH DAKOTA;  STATE OF WYOMING;  TROUT UNLIMITED;  NATIONAL WILDLIFE FEDERATION;  DESERT FISHES COUNCIL;  NEW MEXICO COUNCIL OF CHURCHES, Amici Curiae.

Nos. 02-2254 02-2255 02-2267 02-2295 02-2304 99-1320

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10th Circuit Rules against Reclamation and for ESA/Silvery Minnow

In a 2-1 decision, the 10th Circuit ruled that the Bureau of Reclamation has the authority to invoke shortage provisions in water contracts, thus giving the agency discretion and authority to reallocate water to preserve the silvery minnow from extinction under the ESA.

The opinion is squarely consistent with similar opinions in the 9th Circuit, thus avoiding a split in opinions among the Circuit Courts of Appeals that Reclamation and Justice appeared to be trying to set up. The Supreme Court is much more likely to accept a case for review if Circuits are split.

The decision was based upon a close reading of the project authorization legislation and the water contracts (which contain explicit shortage provisions.) Of particular interest is the concurring opinion, which went further in asserting that Reclamation authority to reduce water delivery is preserved not only by the contract provisions, but also the doctrine of “unmistakable terms.” Under this doctrine, the contract would have to affirmatively state that future legislation (in this case ESA) would not apply.

The dissent disagreed – taking the position that the contracts do not expressly retain authority to reduce water deliveries in any circumstance other than naturally caused water shortages.

This decision is a very big deal, because it places Reclamation squarely on the hook for setting water deliveries considering the needs of species protected by ESA. It also is completely contrary to the limited notion of Reclamation authority put forward by the Administration and Assistant Secretary Bennett Raley. The opinion is available on the 10th Circuit website.

http://www.ck10.uscourts.gov/