Middle Rio Grande Conservancy Dist. v. Babbitt, s. CIV 99-870, CIV 99-872, CIV 99-1445M/RLP.

Decision Date21 November 2000
Docket NumberNos. CIV 99-870, CIV 99-872, CIV 99-1445M/RLP.,s. CIV 99-870, CIV 99-872, CIV 99-1445M/RLP.
Citation206 F.Supp.2d 1156
PartiesMIDDLE RIO GRANDE CONSERVANCY DISTRICT, Plaintiff, v. Bruce BABBITT, et al., Federal Defendants. State of New Mexico, ex rel the State Engineer, New Mexico Interstate Stream Commission, and the New Mexico Attorney General, Plaintiffs, v. Bruce Babbitt, et al., Federal Defendants. Forest Guardians, et al., Plaintiffs, v. Bruce Babbitt, et. al., Federal Defendants.
CourtU.S. District Court — District of New Mexico

Luis G. Stelzner, Timothy M. Sheehan, John W. Uttom, Sheehan, Sheehan & Stelzner, Albuquerque, NM, Charles T. DuMars, Christina Bruff DuMars, Law & Resource Planning Associates, Albuquerque, NM, James B. Smith, J. Brian Smith Law Firm, LLC, Albuquerque, NM, for Middle Rio Grande Conservancy District.

John E. Stroud, Special Assistant Attorney General, Santa Fe, NM, Karen L. Fisher, State of New Mexico, Interstate Stream Commission, Sante Fe, NM, Judith C. Hutchinson, Pamela S. Bacon, Perry C. Abernethy, Edward J. Apodaca, NM State Engineering Office, Legal Division, Santa Fe, NM, Tammy A. Zokan, Moore Smith Buxton & Turcke Chartered, Boise, ID, for plaintiff New Mexico ex rel. Office of State Engineers, New Mexico Interstate Stream Commission state Stream Commission.

Stuart M. Bluestone, Glenn R. Smith, Stephen R. Farris, Patricia A. Madrid, NM Attorney General's Office, Santa Fe, NM, John E. Stroud, Special Assistant Attorney General, Sante Fe, NM, for plaintiff Attorney General of State of New Mexico.

John W. Zavitz, Norman C. Bay, Andrew A. Smith, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, Lois J. Schiffer, Jane P. Davenport, U.S. Dept. of Justice, Environmental Enforcement Section, Washington, DC, Matthew A. Love, U.S. Dept. of Justice, Wild Life & Marine Resources Section, Washington, DC, Adam Issenberg, Albuquerque, NM, for defendant Department of Interior Bruce Babbitt, U.S. Fish and Wildlife Service, Jamie Rappaport Clark, Director, United States fish and Wildlife Service, Nancy Kaufman, Southwest Regional Director, United States Fish and Wildlife Service.

Lee E. Peters, Hurbert & Hernandez, Las Cruces, NM, for intervenor New Mexico Farm & Livestock Bureau.

MEMORANDUM OPINION AND ORDER

MECHEM, Senior District Judge.

Plaintiffs in each of these consolidated cases challenge a final rule of the Secretary of the Interior which designates critical habitat for the Rio Grande silvery minnow, a small and rapidly disappearing fish declared an endangered species in 1994. Plaintiffs complain pursuant to the National Environmental Policy Act, the Endangered Species Act, the Administrative Procedures Act and the Fifth Amendment to the United States Constitution that the rule designating the silvery minnow's critical habitat is invalid for failure to prepare an Environmental Impact Statement, is arbitrary and capricious and is otherwise not in accordance with the law. All plead to have it set aside.

The case comes up at this time for a plenary review of the administrative record and a determination on the merits. I find and conclude in favor of the Plaintiffs that the record fails to include what is required by law and provides an insufficient basis to support the rationality of the Secretary's determinations or the final rule.

Nature of the Case

In 1999, after decision of the Tenth Circuit Court of Appeals in Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir.1999), and a remand to the district court, the Secretary of the Interior was ordered pursuant to the Endangered Species Act to designate a critical habitat for the Rio Grande silvery minnow within 30 days, afterward extended another 90 days. Forest Guardians v. Babbitt, No. CIV 97-0453 (D.N.M.). While the Secretary listed the Rio Grande silvery minnow as endangered in 1994, the Department of the Interior failed at that time to issue an accompanying rule designating the species' critical habitat. 59 Fed.Reg. 36988. The Secretary did not publish a final rule designating the silvery minnow's critical habitat until July 1999, after the Tenth Circuit ruled against the Secretary and remanded the case to the district court. 64 Fed.Reg. 36274. In compliance with the district court's order, the United States Fish and Wildlife Service completed the administrative record and published the decision now at issue.

The present cases challenge the reasonableness and efficacy of the final rule designating critical habitat, the adequacy of the administrative record and the failure to prepare an Environmental Impact Statement prior to a final decision. Plaintiffs invoke the Endangered Species Act (ESA), 16 U.S.C. sec. 1531 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. sec. 4321 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. sec. 502 et seq.; and jurisdiction to review the final administrative decision is not contested.

The Multiple Plaintiffs

Bringing this action on its own behalf and on behalf of its constituency, the Middle Rio Grande Conservancy District (MRGCD) claims the final rule at issue will cause a substantial curtailment of irrigated agriculture in the Middle Rio Grande Valley and will result in vast, completely negative ecological, economic, aesthetic, cultural and social changes. MRGCD is a political subdivision of the State of New Mexico with the powers of a municipal corporation. It includes 128,787 acres of irrigatable land in the Middle Rio Grande Valley, including lands of six Indian Pueblos (Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta), and it holds the consolidated rights of 70 community acequias (historic ditch systems for the apportioning and distribution of water) which remain senior to all other water users in the area, including municipalities. MRGCD water rights support substantial pasture and alfalfa, and green chili and vegetable, all crops valued by MRGCD at $28,000,000 annually. In addition to distributing water, MRGCD maintains the distribution system, provides flood protection, manages environmental measures and ensures recreational amenities within the conservancy district.

By its First Amended Complaint MRGCD contends that the Environmental Assessment prepared in anticipation of designating critical habitat for the silvery minnow ignores critically important data, neglects consideration of alternatives and concludes in error that no Environmental Impact Statement (EIS) is required. MRGCD also claims that Defendants have failed to consider the impact of the final rule on non-federal entities and on all federal agencies assigned responsibilities within the Middle Rio Grande Valley. Fearing that water historically used for agriculture will be diverted to provide instream flows for the Rio Grande silvery minnow and therefore result in drying up extensive acreage used for farming, MRGCD contends the designation of critical habitat is too broad, is not tailored to the needs of the silvery minnow and fails to account for or balance the interest of other water users.

Additionally, MRGCD alleges that the rule designating critical habitat violates the Fifth Amendment to the United States Constitution. It claims MRGCD or its constituents could be subject to the ESA's civil and criminal penalties for adversely modifying critical habitat without fair warning of prohibited conduct. MRGCD also complains it has been denied due process by FWS's predeterminations which rendered public comment meaningless and denied the right to be heard.

The State of New Mexico ex rel the Attorney General, the State Engineer and the Interstate Stream Commission alleges in its First Amended Complaint that because the final rule at issue "involves the mainstem of the Rio Grande or the active river channel including the water column," it represents "an actual or de facto acquisition of an interest in water." Accordingly, the State maintains that designation of the entire 163-mile section of the Middle Rio Grande as critical habitat for the silvery minnow creates an irreversible and irretrievable commitment of the State's water resources and adversely impacts "the ability of municipalities to provide and maintain an adequate domestic water supply," as well as the ability of the State to manage flood control and to comply with its obligations pursuant to the Rio Grande Compact.

The State additionally complains of the absence of an EIS. It challenges specific facts and analyses that result in Defendant's determination of no significant impact (FONSI), a result which, if correct, excuses the failure to prepare an EIS. The State contends the Economic Assessment published in lieu of an EIS reaches an FONSI only by ignoring the likelihood of specific economic impacts and neglecting fundamental factors related to the nature of the Rio Grande as an active river channel. In its First Amended Complaint, the State points to a wide variety of what it terms essential considerations which it sees as omitted, slighted or viewed in error by Defendants' Environmental Assessment and Draft Economic Analysis.

The State also claims that in designating critical habitat for the Rio Grande silvery minnow, Defendants failed to make determinations absolutely required by the ESA. Specifically, the State argues that in designating the entirety of the silvery minnow's present habitat, FWS failed (a) to determine what is essential for conservation of the species, (b) to define what specific biological and physical features are necessary to its recovery or (c) to indicate where in each reach of the Middle Rio Grande the required features exist. The State further alleges that FWS neglected reasonable alternatives directed toward designating portions of the middle river, rather than its entirety, and repeats MRGCD allegations pursuant to the Fifth Amendment.

Finally, on behalf of the Interstate Stream Commission (ISC), the State challenges the...

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9 cases
  • New Mexico v. General Elec. Co., CIV 99-1118 BSJ/KBM.
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    • United States District Courts. 10th Circuit. District of New Mexico
    • 6 Abril 2004
    ...1215 (10th Cir.2004); (Proposed Joint Pre-Trial Order, received July 29, 2003, at LI-23). See also Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F.Supp.2d 1156, 1179 (D.N.M.2000) (agency ignored "the most basic reality of the Rio Grande: it is a fully appropriated river 11. (See, e.g.......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
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    ...reflect the "best scientific and commercial data available" under the ESA, 16 U.S.C. § 1536(c)(1). In Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F.Supp.2d 1156, 1170 (D.N.M.2000), the district court agreed the designation of the entire 163 miles of the Middle Rio Grande without ade......
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    ...under the ESA to designate critical habitat to the maximum extent determinable."); Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F.Supp.2d 1156, 1169 (D.N.M.2000) ("The [ESA] compels the designation [of critical habitat] despite other methods of protecting the species the Secretary mi......
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    ...for the conservation of threatened and endangered species. See I. Response at 24 (citing Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F. Supp. 2d 1156, 1169 (D.N.M. 2000) (Mechem, J.); Gifford Pinchot, 378 F.3d at 1070 ). They insist that Fish & Wildlife's exclusion decision primaril......
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1 books & journal articles
  • Critical Habitat Designation
    • United States
    • Endangered species deskbook
    • 22 Abril 2010
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