Rio Grande Silvery Minnow

Rio Grande Silvery Minnow et al. v. Keys

Species Background:

The Rio Grande Silvery Minnow once populated a span of 2,400 miles of the Rio Grande from New Mexico to Texas. Silvery minnow eggs hatch within a mere 24 hours and its robust larvae are able to swim in just 3-4 days. Despite the species' resiliency, as water from the river has been continually diverted for numerous uses, populations have suffered in the face of significant habitat loss. Currently, the silvery minnow is believed to occur only in a 174 mile reach of the Rio Grande in New Mexico, known as the Middle Rio Grande. Its current habitat is limited to about seven percent of its former range, and is fragmented by three river-wide dams. It is also the last of its kind; others like it are extinct or have been extirpated from the Middle Rio Grande. This led to the listing of the silvery minnow under the Endangered Species Act (ESA) in 1994. Only two years later, in 1996, the Middle Rio Grande Conservancy District (MRGCD) diverted so much water from the Middle Rio Grande that thousands of silvery minnows, as well as other fish, died. The U.S. Fish and Wildlife Service (FWS), Bureau of Reclamation (Reclamation) and the Army Corps of Engineers (Corps) were forced to take emergency measures to secure water for the remaining stretches of the river to prevent further loss of the species.

Case Background:

Initial Challenge: 1999-2000

Five years after the listing of the silvery minnow under the ESA, water managers and users still failed to comply with the law by mitigating adverse impacts to fish and wildlife. Defenders and a coalition of conservation groups challenged [1] the Corps and Reclamation's failure to consult with FWS about the impacts of their full range of uses of the Middle Rio Grande, essential to avoid catastrophes like the one in 1996. The parties reached an agreement after mediated talks in which Reclamation and the Corps agreed to use acquired water to protect the silvery minnow and its habitat while enabling MRGCD to have a full irrigation season.

Biological Opinion Challenge: 2001-2003

Subsequently, FWS issued a Biological Opinion in 2001 in which they maintained that proposed management of the Middle Rio Grande would jeopardize the silvery minnow, but then set forth a "reasonable and prudent alternative" (RPA) to avoid jeopardy. Defenders and the same coalition of conservation groups challenged the Biological Opinion, arguing that the federal government must recognize the extent of their influence over the river to mitigate the extensive river drying planned for the Middle Rio Grande. Judge Parker upheld the Biological Opinion [2] while also noting that Reclamation must recognize its discretion in managing projects along the river and its authority to evaluate the reasonableness of MRGCD's water use.

Nonetheless, in the Fall of 2002 Reclamation requested reinitiation of consultation because the agency again ran out of water for the silvery minnow. FWS's new Biological Opinion recognized that Reclamation's proposal would severely jeopardize the existence of the silvery minnow, but this time could not come up with an adequate RPA. As a result, Defenders and the coalition requested emergency relief [3] from the court in an effort to save the silvery minnow from extinction. A week later, Judge Parker ruled from the bench [4], striking down this new Biological Opinion because it did not consider using all the sources of water available to Reclamation. The court also granted a preliminary injunction, ordering that Reclamation was relieved from the minimum flow requirements of the June 2001 Biological Opinion and setting forth different flow targets that would keep some silvery minnow habitat wet while requiring less water. Judge Parker also ordered Reclamation to reinitiate consultation in order to plan for contingencies that may arise during 2002 and 2003 based on the availability of water in the Rio Grande basin.

Negotiations and Ongoing Litigation: 2005-Present

All parties except for the conservation groups appealed this decision. The 10th Circuit Court of Appeals affirmed the injunction in 2003.[5] Conservation groups and a diverse group of New Mexicans began negotiations to create cooperative water management reforms in the Middle Rio Grande. In 2005, Defenders and fellow conservation groups came to a settlement with the City of Albuquerque and Albuquerque-Bernalillo County Water Utility Authority that would help recover the silvery minnow by creating an environmental "bank account" for the Rio Grande via long-term storage space for environmental water and funding sources acquiring water through the creation of the Living River Fund [6]. Judge Parker approved the settlement.[7]

As for the other parties still involved in litigation, (Reclamation, the Corps, the State of New Mexico, and the MRGCD), the appeals court mooted the case in 2004 after the injunction expired. The case was sent back to the District Court, who refused to moot or vacate the earlier decisions from 2002. The opposing parties appealed again to the 10th Circuit.[8] Defenders currently waits for a decision from the 10th Circuit on whether the decisions are moot, should be vacated, or again affirmed, as in 2003. If they are vacated, river management and wildlife in the Rio Grande would take a turn for the worse, because the federal, state and local water users would return to operating the river in the same disjointed manner in which they had back in 1999, when Defenders first brought suit.

Related documents:

[1] 1999 Complaint

[2] April 2002 District Court Decision

[3] September 2002 Motion for Injunctive Relief, September 2002 Brief for Injunctive Relief

[4] September 2002 District Court Opinion, September 2002 District Court Order

[5] 2002 10th Circuit Appellees Response Brief,  June 2003 10th Circuit Decision

[6] Settlement Agreement from 2005 with Albuquerque

[7] November 2005 District Court Judgment, November 2005 District Court Opinion

[8] 2006 10th Circuit Appellees Response Brief

Status:


Active

Co-filers:


Forest Guardians, National Audubon Society, New Mexico Audubon Council, Sierra Club, Southwest Environmental Center