The Silvery Minnow: Rio Grande s Canary in the Coal Mine

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In a highly anticipated ruling released on June 12, 2003, the 10^th Circuit Court of Appeals in Denver, Colorado, upheld a New Mexico District Court's decision allowing the Bureau of Reclamation ("BOR") to release water from dams along the Middle Rio Grande River to preserve the endangered silvery minnow.¹ This case has become a "show- down in the West" between man's need for water versus animals', in this case a protected species under the Endangered Species Act ("ESA").² It set legal precedents for water rights in New Mexico and other arid areas of the United States and may have saved the endangered silvery minnow from extinction.³

The controversy at issue arose from two acts of Congress: The Sam Juan-Chama Project ("SJCP") and the Middle Rio Grande Project ("MRGP").⁴ The SJCP authorized the Secretary of the Interior, acting on behalf of the Bureau of Reclamation, to enter into a contract with the City of Albuquerque to furnish water for municipal, domestic, and industrial uses for which the city would pay the costs for constructing the Heron Dam, the enlargement of the El Vado Dam, and general water use for the city.⁵ The United States agreed to construct operate, and maintain the MRGC Project works in exchange for their repayment of construction and maintenance costs.⁶ Both of these contracts ensure perpetual water deliveries to the city of Albuquerque, New Mexico, whose underground aquifer continues to shrink as its desert population Page 4 continues to grow at unprecedented rates.⁷

The silvery minnow was listed as an endangered species in 1994.⁸ This once prosperous species, one of the last five native species left in the river, now occupies less than 5% of its historic range.⁹ The 10^th Circuit Court of Appeals quoted Aletta Belin, attorney for Plaintiffs-Appellees, that the silvery minnow is the Rio Grande's equivalent of a canary in a coal mine; in effect, the silvery minnow is the litmus test for the health of the Rio Grande ecosystem.¹⁰

The main issue before the Court of Appeals was whether the BOR had the ability to negotiate the amount of water it supplies to New Mexico by complying with the ESA in releasing more water for the Rio Grande, the designated critical habitat for the silvery minnow.¹¹ The BOR maintained that because their contracts were enacted before 1973 and contain no express clause that permits the BOR to reduce deliveries of project water below their fixed amounts that they were unable to comply with the ESA.¹² BOR cited Sierra Club v. Babbitt to support this argument, which holds that Congress did not intend for section 7 of the ESA to apply to an agreement finalized before passage of the ESA where the federal agency lacks the discretion to influence private activity for the benefit of the protected species.¹³

The Court of Appeals distinguished the case from Sierra Club based on several distinctive clauses contained in the BOR contracts.¹⁴ BOR limited its liability in case of drought "or other causes" which might affect "the quantity of water available from the reservoir storage complex.¹⁵ The contract further recognizes that if the actual water supply is less than normal yield, that the non-federal parties will share what water is available.¹⁶ Therefore, the Court of Appeals held that the BOR retained discretion to determine the amount of available water that would be made, including diverting water in times of scarcity to protect the habitat of an endangered species.¹⁷

By affirming, the Court of Appeals also upheld and affirmed the landmark 1978 decision of TVA v. Hill, placing endangered species at the highest level of priorities in our country. TVA v. Hill prioritized the continued existence of the endangered snail darter above the economic benefits of a nearly- completed dam. The 10^th Circuit Court of Appeals decision in this case sends a strong message to the United States to conserve and use our water and other natural resources in sustainable ways.

However, recent legislation proposed by Senator Pete Domenici (NM), may thwart any chances of survival that the silvery minnow won by its victory in court. Public opinion after the 10^th Circuit's ruling coupled with an unprecedented drought in New Mexico prompted Senator Domenici to submit his bill as "an effort to stop any radical interpretation of the ESA on the Rio Grande," by mandating that the SJCP and the MRGP water contracts supercede the ESA.¹⁸ Although some environmentalists think that the Bush administration will encourage this bill, others feel that Domenici's bill is an exaggerated and emotional reaction to the current conditions in New Mexico.¹⁹

If Domenici's bill passes, it could, in one fatal blow, effectively render the ESA moot after a thirty-year history of protecting and promoting endangered and threatened species. The destiny of the Rio Grande silvery minnow is not solely about the survival of one species of fish, but the larger problems our world is only beginning to face: overpopulation, scarce natural resources, urban sprawl, and sustainable development.

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[1] Rio Grande Silvery Minnow v. Keys, D.C. No. CIV-99-1320 JP/RLP, 2003 U.S. App. LEXIS 11672, at *5-6 (10th Cir. N.M. June 12, 2003).

[2] See Douglas Jehl, Take City's Water or Let Minnow Die, N.Y. Times, Jan. 19, 2003, at A1 (This case poses the most direct confrontation yet between the ESA...and the waters rights held by cities like Albequerque in Western states where water is becoming increasingly scarce...").

[3] Kate Nash, City, Fish See Fates in Court, Albuquerque Tribune, Jan. 13, 2003, available at: http://www.abqtrib.com/archives/news03/ 011303_news_fish.shtml.

[4] Rio Grande Silvery Minnow, 2003 U.S. App. LEXIS 11672, at *31.

[5] Colorado River Storage Project Act, 43 U.S.C. § 620 (2003).

[6] Flood Control Acts of 1948 and 1950, 33 U.S.C. §§ 701(s), 701(f)-(2) (2003).

[7] See Rio Grande Silvery Minnow, 2003 U.S. App. LEXIS 11672, at *31.

[8] 50 C.F.R. § 17.11 (1999).

[9] Appellate Court Affirms Bureau of Reclamation's Responsibility to Conserve Rio Grande Ecosystem, available at: http://www.fguardians.org/news/pr030612.html.

[10] See Id.

[11] 50 C.F.R. 17.11; See Rio Grande Silvery Minnow, 2003 U.S. App. LEXIS 11672, at *5.

[12] See Rio Grande Silvery Minnow, 2003 U.S. App. LEXIS 11672, at *48-50.

[13] Id.

[14] See Id. at *55.

[15] Id.

[16] Id.

[17] Id.

[18] Thomas Hargrove, Domenici Move in Minnow Case a Credible Threat to Endangered Species Act, Enviros Say, ALBUQUERQUE TRIBUNE, June 20, 2003, available at: http:// www.abqtrib.com/archives/news03/062103_news_minnow.shtml.

[19] See Id.