Skip to comments.Appeals Court Sides With Minnow (NM ESA fight)
Posted on 06/19/2003 8:39:12 PM PDT by CedarDave
Friday, June 13, 2003
Appeals Court Sides With Minnow
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.
Copyright 2003 Albuquerque Journal
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URL: http://abqjournal.com/news/apmino06-18-03.htm Domenici, Chavez Continue Assault on Minnow Ruling
June 18, 2003All content copyright © ABQJournal.com and Albuquerque Journal
By Sue Major Holmes The Associated Press
Last week's silvery minnow federal court ruling came under more fire Wednesday from New Mexico leaders, including Albuquerque's mayor who urged federal officials to help avoid "a head-on collision" between the endangered fish and the city he runs.
Mayor Martin Chavez traveled to Washington to make his appeal. He was joined there by Sen. Pete Domenici, who, speaking on the Senate floor, called for changes in the Endangered Species Act
Albuquerque, the state of New Mexico and the Middle Rio Grande Conservancy District, which represents irrigators, have all said they will appeal the June 10 decision by a 10th U.S. Circuit Court of Appeals panel in favor of the tiny Rio Grande silvery minnow.
Domenici, R-N.M., criticized the ruling, telling fellow senators that it means "the ESA can pre-empt anything and everything" and creates a "new federal right for endangered species."
"Under the court's theory, no city, county, state or agricultural community can reasonably expect a permanent water supply. That is not what Congress intended when we passed the Endangered Species Act. That is not what I intended when I voted for that law," Domenici said.
The senator called for the law to be amended "to better protect struggling species while still allowing people access to the resources we need to survive."
Meanwhile, Mayor Chavez said in a telephone call to The Associated Press that city officials are putting the final touches on their strategy to fight the ruling. On Thursday, he plans to be back in New Mexico, where he will join in a tour of the San Juan-Chama project, a focal point of the water battle.
"What we're trying to avoid is a head-on collision between the species and the municipality," he said between meetings in Washington. "I don't have an interest in repealing the Endangered Species Act, nor do I think it's doable."
"We want to craft a narrow solution. As mayor, I absolutely must have the San Juan-Chama water off the table. It creates uncertainty, which has a negative impact on economic development."
He added: "We're trying to make right the original intention of the act. I don't believe the framers of the ESA envisioned wiping out entire cities."
In its ruling, the three-judge 10th Circuit panel upheld a federal judge's ruling giving the U.S. Bureau of Reclamation discretion to cut contract water deliveries to farmers and municipalities from Heron Lake and release water as needed for the minnow.
Albuquerque stores water in Heron from the San Juan-Chama, a diversion project built in the 1970s that brings water from a separate water basin to be released into the Rio Grande.
The city has been making plans in recent years to use that surface water to spare its dwindling aquifer. Chavez was taking area leaders to Heron on Thursday to stress the water's importance.
Domenici said San Juan-Chama water was never part of the Rio Grande ecosystem, but was brought in for other purposes.
Federal attorneys argued in court that the Endangered Species Act doesn't give the Bureau of Reclamation discretion to deliver less than the full amount to those who contract for water. And Albuquerque contended that under legislation that set up the San Juan-Chama project, a contract would be needed to use the water for the fish.
The 10th Circuit said, however, the Endangered Species Act modifies the water contracts since they do not state that future legislation will not apply.
Domenici said the decision cannot be allowed to stand because it would devastate water users in the growing West.
"It threatens all federal contracts," he said.
Domenici, Chavez Continue Assault on Minnow Ruling
They got flushed!
Thursday, June 19, 2003
Domenici Says Ruling 'Favors Fish Over People'
By Tania Soussan Journal Staff Writer
A recent federal court ruling "favors fish over people," Sen. Pete Domenici told the Senate on Wednesday as he pleaded for congressional support to change the Endangered Species Act.
"This really has far-reaching implications for all Americans," Domenici said of the ruling in a passionate floor speech. "It essentially favors fish over people."
He said legislative action is needed to short-circuit last week's ruling by a three-judge panel of the federal 10th Circuit Court of Appeals. In a 2-1 decision, the judges said water earmarked for cities and farmers can be taken to save the endangered Rio Grande silvery minnow from extinction.
Domenici said he will renew efforts to amend the Endangered Species Act in the next month or two.
He said the court ruling means local governments and farming communities cannot "reasonably expect a permanent water supply" something Congress did not intend when it passed the act.
"I believe there has to be a better way," Domenici said. "I believe we can amend this law to better protect struggling species while still respecting the authority of the government, states and localities and Indian tribes. I believe we can amend this law to better protect struggling species while still allowing people access to the resources we need to survive."
Domenici said he will have legislation ready soon so it can be attached to the next bill moving out of the Senate.
The minnow ruling has sparked a flurry of meetings on Capitol Hill as state leaders and members of New Mexico's congressional delegation work to formulate a strategy.
Albuquerque Mayor Martin Chávez met Wednesday with Reps. Heather Wilson, R-N.M., Steve Pearce, R-N.M., and Tom Udall, D-N.M., and with a top Interior Department official. Albuquerque is among the contractors for water that could be sent down the Rio Grande to protect the minnow and its habitat.
"What we're trying to do is fashion a solution that doesn't require a head-to-head collision between the species and the city," Chávez said in a telephone interview.
Because the court ruling will affect all Western states, there is not a lot of support in Congress for legislation that addresses only New Mexico, Chávez said.
But a broad change to the Endangered Species Act would be politically thorny and tough to pass.
Gov. Bill Richardson, who traveled to Washington earlier this week, said Wednesday it's unrealistic to expect Congress to radically alter the act.
"I don't think we can amend or change the Endangered Species Act," Richardson said during a town hall meeting in Socorro. "I think it's there; I think maybe we should tinker with it. I don't think there's the votes or the strength or the effort to change it."
Sen. Jeff Bingaman, D-N.M., will meet today with Domenici to discuss ways to address the issue.
"It's going to take the entire congressional delegation getting behind one effort if this is going to pass," Bingaman spokeswoman Jude McCartin said. "Sen. Bingaman does not want to begin a big ESA fight if we don't need to. He wants to generate legislation that is narrowly tailored to fix New Mexico's problem."
Richardson also suggested the delegation try to block the funds to implement the appeals court ruling or that the state join the Interior Department in appealing the decision.
New Mexico Attorney General Patricia Madrid said Wednesday that her staff already is working on a request for the full appeals court to reconsider the case.
"That is not a simple undertaking," she said. "We want it to be well-researched and well laid-out."
The deadline for filing a request for rehearing is in late July.
Madrid also said she will be asking every state in the West to support New Mexico by filing friend-of-the-court briefs in the case, something several states already have done.
Madrid has scheduled a telephone conference today with Interior Secretary Gale Norton to talk about ways to get New Mexico through the summer without water wars.
Journal staff writer David Miles contributed to this report.
Copyright 2003 Albuquerque Journal
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And the Western Governors like the ESA here.
And Richardson was dropped as Interior Secretary candidate.
And Bill scored more than 94% as an environmentalist.
Perhaps the Great Karmatic Worm has turned.
The greenies got lots of political mileage out of Klamath. They're after a lot more. This issue will replace global warming, which has about worn out its welcome.
What is not being explored/researched is how the minnows survive in areas where a drought completely isolates them from a continuous water supply. But when the rains come again, they're back doing their thing. These fish have evolved to be survivors. For example, there were attempts to breed them in captivity that failed until it was discovered they only breed in turbid water (such as murky water stirred up by spring runoff). The critters are hardy, but the envirowackos and their press friends play it for a disaster of the first magnitude.
There should be some sort of control device somewhere....
Time for a new 'Party' in New Mexico???? (I'll bring the chips and beer.....)
On August 8, 2003, the United States filed a petition asking the Tenth Circuit Court of Appeals to re-hear or re-hear en banc the case of Silvery Minnow v. Keys. It is a great success of Grange members grassroots efforts to urge New Mexico Government to appeal the decision.