for Endangered Silvery Minnow Considered a Beneficial Use
Rio Grande Silvery
Minnow, et al. v. Keys, 333 F.3d 1109 (10th Cir. 2003).
Sarah Elizabeth Gardner, J.D.
Defenders of Wildlife
and other environmental groups sued the Bureau of Reclamation, Department
of the Interior, Fish and Wildlife Service, and Army Corps of Engineers
under the Endangered Species Act for water diversions and storage facilities
believed to jeopardize the endangered Rio Grande silvery minnow (minnow).
The Tenth Circuit Court of Appeals held that the Bureau of Reclamation
(Bureau) has the discretion to reduce contract deliveries and restrict
diversions to meet Endangered Species Act (ESA) duties.1
Listed as endangered by the Fish and Wildlife Service (FWS) in 1994,
the recovery of the silvery minnow has been hampered by a lack of water.
As with many of the Western rivers, the Rio Grande is fully appropriated,
with farmers, cities, and species in competition for the valuable resource.
The main conflict coalesces around the flow and allocation of the Rio
Grande. How much water must be retained in the Rio Grande to protect
the silvery minnow? Which sector should be required to give up
its water to save the minnow? Should existing water contracts yield
to new ESA requirements?
In 1999, the Secretary of the Interior designated 163 miles of the main
stem of the Rio Grande as critical habitat for the minnow. Litigation
immediately ensued and the federal agencies involved have struggled
ever since to balance the existing water obligations in the region with
the mandates of the ESA. Two major water projects operate in the region.
In June 1963, the Secretary of the Interior entered into a contract
with the City of Albuquerque to furnish and supplement its water supply
for municipal, domestic, and industrial uses. A subsection of the contract
provided for the furnishing of water for fish and wildlife benefits.
The second project, the Middle Rio Grande Project (Project), was approved
and operated for flood control and reclamation purposes in the 1920s
- 1940s. The project flopped, but the U.S. agreed to rescue the project
in the late 1940s and acquired all the Projects obligations in
exchange for all its property rights, water rights, and necessary easements,
including an obligation to provide water for fish and wildlife.
Two biological opinions have been prepared relating to the effect of
water quantity on the minnow and the Bureau and the Corps have been
repeatedly chastised by the court for failing to properly consult with
the FWS. The plaintiffs instituted the present lawsuit to challenge
the Bureaus activities with regard to both water projects and
ensure that the required amount of water is delivered to those portions
of the Rio Grande designated as critical habitat for the minnow.
Discretion to Allocate Water
The Bureau claimed that the existing water contracts defined its obligations
under the ESA, and because the contracts failed to expressly permit
a delivery reduction below the fixed amounts, it did not have the authority
to reduce payments under its negotiated water contracts. The City of
Albuquerque, who intervened in the lawsuit on behalf of the Bureau,
claimed that the fixed repayment contracts cannot be made subservient
to ESA compliance because they gave the City a perpetual right
to use the project water. The State of New Mexico, an additional intervener,
argued that the delivery of water for fish and wildlife purposes is
not a beneficial use and that the loss of water to protect the silvery
minnow resulted in irreparable harm to its citizens.
The Tenth Circuit looked to the contractual language to decide whether
the contracts reserved discretion for the Bureau to comply with the
ESA. Reading the contracts as a whole, the court held that the contracts
established a repayment schedule, provided that in years of scarcity
non-federal parties would share the available water, and expressly stated
that the provision of water for fish and wildlife is a beneficial use
of the water resources. The court determined that in the contract, the
Bureau retained the discretion to determine the available water
from which allocations would be made and the allotments that would be
altered for other causes, which could include the prevention
of jeopardy to an endangered species.2 Therefore, the
Bureau had the discretion, for the purpose of preventing the extinction
of the silvery minnow, to reduce contractual deliveries of available
The court ended its opinion by quoting the U.S. Supreme Court in its
seminal case TVA v. Hill regarding the broad legislation enacted by
Congress to protect endangered species which provide keys to puzzles
which we cannot solve, and may provide answers to questions which we
have not yet learned to ask.3 The court recognized
that the minnow provides a measure of the vitality of the Rio
Grande ecosystem, a community that can thrive only when all of its myriad
components living and nonliving are in balance.4 The court then affirmed the district courts decision that the
Bureau has discretion to reduce deliveries of water under its contracts
to comply with the ESA.
1. Rio Grande Silvery Minnow, et al. v. Keys, 333 F.3d
1109, 1114-1115 (10th Cir. 2003).
2. Id. at 1129.
3. Id. at 1138 (citing Tenn. Valley Auth. v. Hill, 437
U.S. 153, 177 (1978)).
Creates Habitat Conditions for Silvery Minnow
In the fall of 2001,
construction began on a Rio Grande Silvery Minnow Rearing and
Breeding Facility at the Albuquerque Biological Park. New Mexico
Governor Bill Richardson joined City of Albuquerque Mayor Martin Chavez
on June 27, 2003 for the ribbon cutting on the state-of-the-art refuge
for the endangered silvery minnow.
The facility consists
of a 50,000 gallon naturalized refugium along with a 3,500
square foot building with aquariums where the minnows will be artificially
spawned and raised to supplement the refugium population. The refugium
reconstructs the habitat thought to best foster minnows, consisting
of a donut-shaped outdoor pond varying in depth from about 1 inch to
2 feet with pumps that control the current to mimic the natural flows
of the Rio Grande. The bottom surface consists of sand, gravel, and
silt. The area surrounding the pond includes boulders and cottonwood
boughs which create natural cover and eddies.
The Refugium is
funded by the New Mexico Interstate Stream Commission and managed by
the City of Albuquerque in cooperation with the US Fish and Wildlife
Service, New Mexico Game and Fish, the Interstate Stream Commission,
and the Bureau of Reclamation.