Apr 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 05-2399, 06-2020 & 06-2021. The Appeals Court sets the stage saying, "This case involves one battle in a prolonged war over a finite and elemental resource -- Rio Grande water. The needs of the plants and animals that depend upon this water for survival are in tension with the needs of the human inhabitants of the Middle Rio Grande Valley (the Valley) who depend upon the water for daily living and commercial and agricultural activities."
Alleging that the Bureau of Reclamation (Reclamation) failed to properly maintain the delicate balance between these counterpoised needs to the detriment of several endangered species, Defenders of Wildlife, Forest Guardians, National Audubon Society, New Mexico Audubon Council, Sierra Club, and the Southwest Environmental Center (the Environmental Groups) sought relief in federal court pursuant to the Endangered Species Act (ESA). Directly at issue is whether Reclamation has discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow (Minnow). The Environmental Groups claim that Reclamation does and that its failure to weigh that discretion in its consultations with the U.S. Fish and Wildlife Service (the FWS) violated § 7 of the ESA.
The majority Appeals Court said in a split ruling, "At the outset, we commend the district court. When confronted with an extended and sometimes acrimonious dispute between bitterly opposed and firmly entrenched interests, it acted impartially, thoughtfully, and thoroughly. We are constrained, however, to disagree with the district court and conclude that intervening events have mooted the Environmental Groups' scope-of-consultation claim under the ESA. We also conclude that the district court erred in denying the appellants' motions for vacatur. . . we dismiss the appeal and remand to the district court to vacate its memorandum opinions and orders of April 19, 2002, September 23, 2002, and November 22, 2005, and to dismiss the Environmental Groups' complaint with regard to their scope-of-consultation claim under the ESA."
In a lengthy dissenting opinion one Justice said, "I believe this case is more than a simple battle about allocating resources between the silvery minnow (and analogously situated plants and animals) and humans. There are a variety of options available,
and the Supreme Court and Congress recognize that 'the value of endangered species [is] incalculable.'"
Access the complete opinion and dissent (click here).
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