Frankenstein and Pitbull? Transmogrifying the Endangered Species Act and "Fixing" the San Juan-Chama Project after Rio Grande Silvery Minnow V. Keys

By Hasenstein, Ethan R. | Environmental Law, Fall 2004 | Go to article overview

Frankenstein and Pitbull? Transmogrifying the Endangered Species Act and "Fixing" the San Juan-Chama Project after Rio Grande Silvery Minnow V. Keys


Hasenstein, Ethan R., Environmental Law


I. INTRODUCTION
II. CAN'T MOVE THE MOUNTAINS? MOVE THE RIVER: BIODIVERSITY AND PROPERTY
  RIGHTS IN AN ENGINEERED HYDROSYSTEM
  A. The Minnow and the Bosque Ecosystem
  B. The Reclamation Program and State Water Law
    1. Structure of the Reclamation Program
    2. Contracts for Project Water as Property Rights
  C. The San Juan-Chama Project
    1. Albuquerque's Use of SJCP Water
    2. The First Attack on Albuquerque's Use of San Juan-Chama
      Project Water: Jicarilla Apache Tribe v. United States
    3. The Middle Rio Grande Conservancy District and the Middle Rio
      Grande Project
III. ENDANGERED SPECIES ACT LITIGATION IN THE MIDDLE RIO GRANDE
  A. ESA Section 7, Discretionary Federal Actions, and the Consultation
      Requirement
  B. The Critical Habitat Litigation: Forest Guardians v. Babbitt
  C. The NEPA Litigation
  D. The Jeopardy Litigation: Framing the Discretion Issue
  E. The Second Attack: The Silvery Minnow Ruling
    1. Majority Opinion
    2. Judge Kelly's Dissenting Opinion
IV. THE FOUNDATIONS OF THE SILVERY MINNOW RULING: NINTH CIRCUIT CASE LAw
AND THE RISE OF THE URBAN WEST
  A. The Court's Reliance on the Ninth Circuit's Emerging Discretion
    Standard
  B. The Middle Rio Grande: Not Your Average Integrated Hydrosystem
V. CONCLUSION: THE POLITICAL AND JUDICIAL AFTERMATH
  A. The Legislative Response: The Domenici-Bingaman Rider
  B. Judicial Appeals
  C. Silvery Minnow 'S Durability: Forcing Proactive Approaches to the
    Bureau's Responsibility

I. INTRODUCTION

In 2002, as New Mexico sweated through a summer of crippling drought, stretches of the Rio Grande ran bone dry. Yet the farmers of the Middle Rio Grande Conservancy District (District) enjoyed full irrigation ditches and wet, green fields, much as they had nearly every summer since the 1920s. A clash between western water use and imperiled wildlife was about to occur. When the actors in this drama took the stage--environmental groups, a thirsty desert metropolis, irrigators, and the United States Bureau of Reclamation (Bureau)--a diminutive fish would get top billing in a political firestorm over the "pit bull of environmental laws" (1)--the Endangered Species Act (ESA). (2)

A three-judge panel of the Tenth Circuit Court of Appeals would be the latest court to sharpen the teeth of the ESA. In June 2003, after nearly ten years of acrimonious litigation, a 2-1 majority of the court ruled in Rio Grande Silvery Minnow v. Keys (Silvery Minnow) (3) that the Bureau could curtail water deliveries under contract to the District and the City of Albuquerque to help save the Rio Grande silvery minnow (Hybognathus amarus). The ruling, over a vigorous dissent by Judge Paul Kelly, (4) moved many not merely to outrage but to legislative action. Senators Pete Domenici (R-N.M.) and Jeff Bingaman (D-N.M.) (5) introduced a provision overriding the court's ruling to attach to the 2004 Energy and Water Appropriations Act. This "rider" strips the Bureau of discretion to curtail water deliveries under contract from the San Juan-Chama Project to boost flows for protection of the minnow, an endangered species under the federal Endangered Species Act. (6)

The San Juan-Chama Project (SJCP) diverts water from the headwaters of the San Juan River to the headwaters of the Rio Grande. There, SJCP water feeds Albuquerque and, further downstream, provides supplemental flow for the Middle Rio Grande Project (MRGP). (7) The SJCP has drawn the Tenth Circuit's attention before. In 1981, the court barred Albuquerque's speculative storage of imported water (and considerable evaporative losses therefrom) in Jicarilla Apache Tribe v. United States (Jicarilla). (8) Then, as now, Congress provided the "fix" to override the court's ruling. (9) This begs the question: On Jicarilla's twenty-third birthday, is history repeating itself?.

Unlike another marquee water crisis in the West today, (10) the dispute on the Middle Rio Grande poses an even more intractable problem: how to "cut off" a municipal user (here, the City of Albuquerque). …

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Frankenstein and Pitbull? Transmogrifying the Endangered Species Act and "Fixing" the San Juan-Chama Project after Rio Grande Silvery Minnow V. Keys
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