Frankenstein and pitbull? Transmogrifying the Endangered Species Act and "fixing" the San Juan-Chama Project after Rio Grande Silvery Minnow v. Keys.

• Author: Hasenstein, Ethan R.
• Position: Public Lands Management at the Crossroads: Balancing Interests in the 21st Century

1. 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). In the years since Jicarilla Albuquerque has boomed, roughly doubling in the three decades prior to 2000 to 448,607 inhabitants in 2000. (11) The silvery minnow controversy brings into sharp focus the significant water needs of urban areas and the historical hegemony of irrigated agriculture.

   Part II of this Note briefly frames the ecological, historical, and legal backdrop against which the silvery minnow struggle is playing out, paying particular attention to reclamation contract policy and interpretation, and the history and use of SJCP's waters. Part III traces the litigation leading up to the June 2003 ruling and analyzes the Tenth Circuit's opinion. Part IV focuses on the tension between the authorization of the San Juan-Chama Project, New Mexico law, and a line of recent Ninth Circuit opinions upon which the Silvery Minnow majority based its reasoning. The Note argues that, while correctly decided, the Silvery Minnow decision failed to articulate a clear standard of agency discretionary action as previously articulated by the Ninth Circuit. Finally, Part V examines the Domenici-Bingaman rider to the 2004 water and energy appropriations bill that hamstrings the Tenth Circuit's decision, and the intensifying political debate over how to deliver Albuquerque's share of San Juan-Chama Project water in light of the pressures brought to bear on urban water needs by the listing of aquatic species under the Endangered Species Act. The Note concludes that, although imperfect, the Silvery Minnow ruling was properly decided, and that the struggle over Albuquerque's water supply (and others like it) will drastically alter the historic "Iron Triangle" of irrigators, the Bureau of Reclamation, and western political figures. (12) With the West's cities now coming into their own, the triangle is beginning to look a lot more square.

2. CAN'T MOVE THE MOUNTAINS? MOVE THE RIVER: BIODIVERSITY AND PROPERTY RIGHTS IN AN ENGINEERED HYDROSYSTEM

   The ethic of biodiversity protection, antiquated federal resource development law, and the contrived relationship between water and property rights in the arid West collide in the species protection debate on the Middle Rio Grande. The river presents the confounding question of how to distribute resources upon which a local economy has historically relied while protecting an ecosystem pushed to its limits by drought and a highly mechanized management scheme.

   1. The Minnow and the Bosque Ecosystem

      The Rio Grande silvery minnow is a member of the Cyprinidae family, one of the largest fish families on earth, and occurs only in the Middle Rio Grande. (13) The 2-3 inch minnow is hardly "charismatic megafauna" on par with the grizzly bear or bald eagle. (14) But the minnow is a bellwether of ecological health on the Rio Grande. The minnow was historically one of the most abundant fish in the river, ranging nearly one thousand miles from the Rio Grande's headwaters and tributaries to the Gulf of Mexico. (15) The minnow has vanished from 95 percent of its historic range, and now inhabits a 163-mile stretch of the Middle Rio Grande's main stem. (16)

      Urban growth and irrigation-based agriculture have put tremendous pressure on the Middle Rio Grande's water resources. (17) The river itself is overappropriated, meaning that there are more claims to water rights on the river than water actually flowing in it in the driest of years. (18) In the plainest terms, the Rio Grande is a sick river. (19) The river drains a dry country and, like so many western rivers, relies on spring snowmelt to keep it wet through the searing New Mexico summer. Irrigation appropriations and dams have exacerbated the river's droughty tendencies, altering the natural pulse of runoff and suspended sediments that replenish the delicate riparian plant communities, seasonal wetlands, and gallery forests comprising the Bosque. Beyond this narrow strip of green lie the agriculture, industry, and homes of nearly 40 percent of New Mexico's population, including the metropolitan area of Albuquerque, with a population exceeding one-half million. (20) Almost two dozen federal threatened and endangered species visit or reside in the Bosque, including 227 species of birds, such as the endangered southwestern willow flycatcher (Empidonax traillii extimus), also a plaintiff in the Silvery Minnow case. (21) This vital stretch of river from Cochiti Dam to Elephant Butte Reservoir suffers the effects of considerable mechanizing, impoundment, and straightening. (22)

   2. The Reclamation Program and State Water Law

      1. Structure of the Reclamation Program

         The SJCP is a creature of 19th century federal law promoting westward expansion. With the passage of the Reclamation Act of 1902, (23) the United States initiated a systematic effort to make the desert bloom. Congress established in the Department of the Interior the Bureau of Reclamation to oversee this near-mythic effort. (24) In "reclaiming" the Western lands from the ravages of their natural aridity, the federal government embarked on a campaign of constructing dams, canals, and other facilities to realize a Jeffersonian ideal--a far-flung agrarian network of prosperous family farms. (25) While the Desert Lands Act (26) made land in the public domain available to homesteading and irrigation under state law, the paucity and remoteness of water capable of development in the arid and semiarid West required resources beyond the capacity of the yeoman farmer, the states, or private irrigation companies. (27) The Act limited water deliveries from federal projects to a mere 160 acres per "any one person," (28) the amount of land thought sufficient at the time to support a family farm. Enforcement of that limit was less than vigorous, however, (29) leading to the practice of "water spreading"--the unauthorized use of federal project water on lands not approved by the Bureau. (30) The 1982 Reclamation Reform Act (31) also expanded the original irrigation purpose of the reclamation program to...