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Summer 2002 Bulletin
JUDGE PARKER’S DECISION IN RIO GRANDE
SILVERY MINNOW v. KEYS
by Letty Belin, Land & Water Fund of the Rockies
Second, and more significant, Judge Parker concluded that various previously off-limits sources of water—such as San Juan-Chama water from Heron Reservoir—must be considered in all future efforts to protect the Rio Grande’s endangered species. This ‘scope of consultation’ is the key issue we’ve been fighting over with the Bureau of Reclamation and Corps of Engineers for the past three or four years. Judge Parker concluded that the Bureau has discretion to: (1) deliver less water to the Middle Rio Grande Conservancy District (MRGCD) through the Middle Rio Grande project, because of contract “water shortage” clauses and, importantly, because the Bureau has a duty under federal Reclamation law to limit water deliveries to reasonable beneficial use (he says the record indicates MRGCD may be exceeding that), and (2) determine whether to use San Juan-Chama water for the minnow, also under shortage clauses in the contracts and applicable legislation. The decision is a huge victory for the plaintiffs. If upheld on appeal, it will fundamentally change the way in which the Rio Grande can and will be operated, to allow far more flexibility to operate the river so as to protect endangered species and the ecosystem as a whole. It also is precedent-setting for the entire west. It is the first time of which we are aware that a court has ever held that the Bureau of Reclamation has an obligation to determine whether its water contractors are wasting water and to limit them to the amount of water they can put to “reasonable beneficial use.” From the other side’s point of view, the decision gives endangered species a new senior water right that takes precedence over all other water rights. While we see it more as an acknowledgment that the federal government has control over the river facilities that it built and it owns, the effect is the same: water that would have gone to water contractors can instead be supplied to the species if necessary to keep the species alive. In the meantime, the decision raises as many questions as it answers. We believe that all of the defendants (the federal government, the state government, the city of Albuquerque, and MRGCD) are anxious to take the case up to the Tenth Circuit on appeal. It is difficult to make predictions about likely outcomes of an appeal, since the outcome is entirely dependent on who the three judges on the appeal panel happen to be. The most we can say is that Judge Parker’s decision is very careful, detailed, and well-reasoned, and he is not a judge who is frequently reversed. Also, there is the drought. Projected flows for the Rio Grande this summer at San Marcial—the critical area for the silvery minnow—are 2% of average. Right now, the federal government says that it will run out of supplemental water to enhance river flows by early June. The government intends to prepare a plan for how it will keep the river flows at the minimum levels required by the Biological Opinion, assuming the new rules established by Judge Parker’s decision are in effect. Whatever plan the government proposes likely will be objectionable to the others such as MRGCD, Albuquerque, and the State (since it will probably involve reducing water available to some or all of these parties). And some of these parties are likely to make emergency court filings in either Judge Parker’s court or the Tenth Circuit to stop his decision from taking effect right away. All in all it promises to be a crazy next few weeks and months. This summer’s drought and Judge Parker’s decision also pose a complicated political scenario for the Alliance for Rio Grande Heritage in pursuing its various campaigns. While the Alliance has always acknowledged that the litigation has provided a critical impetus for change in river management – a fact made all the more apparent by Judge Parker’s decision – the litigation also is a source of great tension between Alliance members and other constituencies such as farmers, acequias, and perhaps pueblos. Now more than ever the litigation presents the direct and immediate threat of reducing deliveries to farmers and cities to sustain the river and endangered species. We are acutely aware of this dichotomy. How can we reach out to farmers at the same time that our litigation is possibly taking some water away from them? While we believe that the MRGCD farmers are wasting water and can get by with less, this is not an approach that makes for friendly relations between Alliance members and farmers. However, it is important to note that the decision did not in anyway fracture the coalition between farmers and Alliance members protesting Albuquerque’s proposed diversion plan. Indeed, farmers in the coalition were quick to point out that the decision provides a strong additional argument against the City’s diversion plans. The Alliance will be working hard in the coming weeks to integrate the decision into its ongoing process of coalescing with farmers and other land based constituencies.
This report provides a brief summary of recent developments in the federal lawsuit known as Rio Grande Silvery Minnow v. Keys.
The big news is that on April 19, 2002, Judge Parker issued a detailed 50-page ruling in the case. Basically, it is a beautifully crafted decision that is Solomonic in its wisdom. Judge Parker upheld the federal agencies’ current plans for addressing the flow requirements of the silvery minnow, but at the same time dramatically changed the rules of water management for the future. First, Judge Parker affirmed the June 2001 Biological Opinion by the Fish and Wildlife Service which plaintiffs had attacked because it allows significant river drying. This part of the decision means that as long as the government follows the requirements of the BO (which lasts until December 2003), it will be in compliance with the Endangered Species Act. The plaintiffs had attacked the BO on grounds that it was biologically arbitrary as it called for half the flows that most scientists believe necessary to sustain the silvery minnow.
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