Tenth Circuit Upholds Silvery Minnow Ruling
Liberty Matters News Service
The Tenth Circuit Court of Appeals in Denver has affirmed an earlier ruling “that said federal water managers can take water from cities and farmers, who have contracted for it, when it’s needed to help the endangered Rio Grande minnow.”
An angry Governor Bill Richardson took aim at the Endangered Species Act, which he said must be “more flexible and reasonable. It’s got to deal with broad ecosystems, not very specific issues relating to one species…adjusted to reality and modernized, adjusted to not pit people against fish.”
New Mexico’s congressional delegation promised to seek relief from the ruling.
Republican Sen. Pete Domenici said he would try to amend the ESA “in a way that would change the law so (the ruling) would not apply.”
Environmentalists are back-pedaling furiously to defuse the anger. John Horning, executive director of Forest Guardians said; “It mischaracterizes the Endangered Species Act to say all we care about is a silvery minnow.”
Area farmers planted crops in anticipation of sufficient water and “[N]ow they’re sunk,” said Charles Dumar, attorney for the water conservancy district. Conservancy district chief engineer, Subhas Shah, said the district would appeal the decision and further, “file a property rights takings claim with the U.S. Court of Claims on behalf of the farmers.”
Chávez Blasts Minnow Ruling
Albuquerque Mayor Martin Chávez used the airwaves to blast a recent federal ruling on the silvery minnow, and so did some of his Saturday radio show guests.
Sen. Pete Domenici, R-N.M., and Rep. Heather Wilson, R-N.M., who talked on his show, also voiced strong objections, reiterating earlier statements that they would seek legislation to block the decision.
"This was not a good week for news about water and water rights," Wilson said.
Deciding the Endangered Species Act takes precedence over federal water contracts, the 10th Circuit Court of Appeals by a 2-1 vote last week upheld an earlier court ruling that the U.S. Bureau of Reclamation can take San Juan-Chama Project water from cities and others who contract for it, and Middle Rio Grande Project water from farmers.
"My wife was joking with me the other day; the picture will be of minnows having their coffee as Starbucks. No people. Minnows going to work. No people," Chávez told listeners.
"It's not going to be that way."
Chávez vowed to secure the city's water from the San Juan-Chama project, which brings water from the Colorado River basin into the Rio Grande.
Wilson said she plans on introducing legislation to "try to restore our water rights."
"This was a precedent-setting decision because this water that they say has to stay in the river is not Rio Grande water," she said. "It's non-native water.
"So it's saying that water that's brought here and paid for by the city of Albuquerque and the citizens of Albuquerque can be used to preserve habitat along the Rio Grande even though it's not Rio Grande water."
Domenici said he spoke with Interior Department Secretary Gale Norton about the decision Friday.
"She said they are going to strongly recommend to the attorney general of the United States that the United States government appeal and do it in stages," Domenici said.
"This is a tough decision for the West, not just for Albuquerque," Domenici said about the potential impact on state water rights.
Chávez put the ruling into the category of "no good deed goes unpunished," telling listeners that the city has "done more for habitat preservation and preservation of the minnow than any other entity, public or private."
For instance, he noted the city has developed a minnow captive breeding program.
Endangered Silvery Minnow Ruling Upheld
Critics of the decision by the U.S. 10th Circuit Court of Appeals in Denver decried it as a threat to all cities and farmers served by federal water projects.
Albuquerque Mayor Martin Chavez said it takes "water from the mouths of this city's children" and puts the city's future water supply in jeopardy.
The decision upheld a federal judge's ruling in September that water in Heron Reservoir _ in north-central New Mexico, about 20 miles south of the Colorado border _ should be used to help the tiny fish.
The silvery minnow was once one of the most abundant fish in the Rio Grande Basin, but in recent years biologists have had to rescue hundreds of fish from the river because it has gone dry.
In his September ruling, Judge James Parker said federal agencies should consider using water stored in the reservoir for the fish. He said the Bureau of Reclamation, which manages dams and reservoirs, can reduce deliveries of water under its contracts with irrigation districts and cities to comply with the Endangered Species Act.
Attorney General Patricia Madrid and Gov. Bill Richardson pledged to fight the case to the Supreme Court, if need be.
"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."
The Fish and Wildlife Service and Bureau of Reclamation also had appealed Parker's ruling. Federal attorneys argued that the Endangered Species Act doesn't give the Reclamation Bureau discretion to deliver less than the full amount to those who contract for water.
Gov. To Meet Interior Chief On Minnow Ruling
New Mexico leaders scrambled Friday to develop a counteroffensive to this week's appeals court ruling on the silvery minnow, including taking aim at the Endangered Species Act.
Gov. Bill Richardson plans to meet Monday or Tuesday in Washington with Interior Secretary Gale Norton. And Albuquerque Mayor Martin Chávez plans to fly there next week to meet with New Mexico's congressional delegation.
The 10th Circuit Court of Appeals on Thursday upheld an earlier ruling that said federal water managers can take water from cities and farmers, who have contracted for it, when it's needed to help the endangered Rio Grande minnow.
The Endangered Species Act must be "more flexible and reasonable," Richardson said Friday.
"It's got to deal with broad ecosystems, not very specific issues relating to one species. Not overturned, not terminated, but adjusted to reality and modernized, adjusted to not pit people against fish."
Richardson said he wants any federal decisions on hold while the case makes its way through the courts.
"We don't need the Bureau of Reclamation taking action on water that's going to hurt our people before we have the full remedies of going all the way to the Supreme Court," he said. "I'm going to try and convince the secretary of the Interior ... to try and do that."
Sen. Pete Domenici and Rep. Heather Wilson, both New Mexico Republicans, said they will seek legislative changes to block the appeals court ruling.
Domenici said he would try to amend the Endangered Species Act "in a way that would change the law so (the ruling) would not apply."
He would not offer specifics but said he also plans to introduce legislation under which "the habitat will be taken care of in a different way."
Rep. Tom Udall, D-N.M., is "optimistic that a common sense solution can be found that will balance New Mexico's water needs," said spokesman Glen Loveland.
Letty Belin, an attorney with the Land and Water Fund of the Rockies, said she was distressed by the reaction of the state's political leaders.
"I wish I could hear from our leaders some collaboration on efforts to solve our problems instead of dividing us," she said. "We only filed suit after two years of trying to work out problems ..."
John Horning, executive director of Forest Guardians, said environmentalists are trying to deal with the political backlash.
"It mischaracterizes the Endangered Species Act to say all we care about is a silvery minnow," he said. "We care about a river that is undeniably the lifeblood of this state, the lifeblood of this region. The conversation we are forcing is how to live sustainably in this place."
The on-the-river impact of the appeals court decision remains muddy.
The Rio Grande is drying up in stretches south of Albuquerque and the federal appeals court ruling won't change the outlook.
"I'm so struck by the irony," said Belin. "We won the case, but the river's going dry."
Belin represents environmentalists who sued in 1999 to seek protections along the river for the minnow, the endangered southwestern willow flycatcher and their habitat.
She said Friday that her clients might go back to federal court to challenge the Fish and Wildlife Service opinion on how much water the minnow needs.
Under that opinion, the Bureau of Reclamation has almost enough water to meet the minnow's needs through the summer, but the outlook for the fall is uncertain.
The court ruling affects San Juan-Chama Project water, which is imported from the Colorado River Basin for contractors in New Mexico, and the Middle Rio Grande Project, which supplies farmers.
The bureau has not released this year's allocations of San Juan-Chama water to Albuquerque, Santa Fe, the Middle Rio Grande Conservancy District or other contractors.
The appeals court ruled days after the affidavit was filed, forcing the bureau to reconsider releasing the water.
Charles DuMars, an attorney representing the conservancy district, said the bureau could decide to hold the San Juan-Chama water in case it is needed in the fall. That's bad news for farmers, he said.
"Everybody was counting on it and they've all planted their crops," DuMars said. "Now they're sunk."
Subhas Shah, conservancy district chief engineer, added that the district will appeal the case and file a private property rights takings claim with the U.S. Court of Claims on behalf of the farmers.
Bureau of Reclamation Commissioner John W. Keys III could not say Friday in conference call from Washington, D.C., when water will be released.
He called the appeals court opinion "a major setback in the efforts to resolve competing water allocation needs during a period of extreme drought."
"While the Department of the Interior believes that the 10th Circuit opinion is wrong, we will continue to work to meet the water needs of irrigators, endangered species, pueblos, the city of Albuquerque and other San Juan-Chama contractors," Keys said.
In a separate development, an inadvertent mistake by a conservancy district ditch rider caused about four miles of river drying near Bosque del Apache National Wildlife Refuge on Friday.
The Fish and Wildlife Service sent crews out to rescue minnows, and the bureau said the river should be flowing again by this morning.
No dead fish were found by mid-afternoon, said bureau Area Manager Ken Maxey.
Journal staff writers Michael Coleman and Kate Nash contributed to this story.