WildEarth Guardians v. U.S. Army Corps of Eng'rs, CIV 14–0666 RB/SCY

• Decision Date: 06 June 2018
• Docket Number: No. CIV 14–0666 RB/SCY,CIV 14–0666 RB/SCY
• Citation: 314 F.Supp.3d 1178
• Parties: WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant, and Middle Rio Grande Conservancy District, Intervenor–Defendant.
• Court: U.S. District Court — District of New Mexico

314 F.Supp.3d 1178

WILDEARTH GUARDIANS, Plaintiff,

v. UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant,andMiddle Rio Grande Conservancy District, Intervenor–Defendant.

No. CIV 14–0666 RB/SCY

United States District Court, D. New Mexico.

Filed June 6, 2018

Amended August 14, 2018

Steven Sugarman, Cerrillos, NM, Samantha Ruscavage–Barz, Santa Fe, NM, for Plaintiff.

Andrew A. Smith, U.S. Department of Justice c/o U.S. Attorneys Office, Albuquerque, NM, Barclay T. Samford, United States Department of Justice, Denver, CO, for Federal Defendant.

Charles T. DuMars, Tanya L. Scott, Patrick J. Redmond, Law & Resource Planning Associates, Albuquerque, NM, for Intervenor–Defendant.

AMENDED¹ MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE

And Elijah the Tishbite, who was of the inhabitants of Gilead, said unto Ahab, ["]As the LORD God of Israel liveth, before whom I stand, there shall not be dew nor rain these years, but according to my word.["]

1 Kings 17:1 (King James).

New Mexico is languishing in the midst of an unprecedented, prolonged drought. As it stands, the many stakeholders who depend on water in the region have become increasingly embroiled in a perilous zero sum game. There simply is not enough water for everyone, and with painful realities imminent, how to best allocate the limited water is a deeply polarizing question.

If the Court possessed the power of Elijah, it would call down rain to nurture our parched state. But the Court has no such power. All the Court can do is answer the legal question central to this matter: is the United States Army Corps of Engineers (Corps)'s decision not to consult with the United States Fish and Wildlife Service regarding its Middle Rio Grande operations arbitrary or capricious? Plaintiff WildEarth Guardians (Guardians) thinks so, but, surprisingly, Guardians initially ignored a lengthy and detailed document Corps produced to explain its decision.

Because one cannot simply ignore an agency's explanation when challenging the agency's decision, the Court denies most of Guardians's motion. With regard to Corps's maintenance operations in Abiquiu Dam tunnel and the Jemez Canyon stilling basin, the Court withholds final judgment and remands to Corps for clarification and explanation.

BACKGROUND

I. Backdrop of the litigation.

Water is perhaps the most important of all the scarce resources, especially in the American southwest, where human inhabitants rely heavily on Rio Grande water for everything from drinking to farming. Recognizing the scarcity and importance of Rio Grande water, Colorado, Texas, and New Mexico entered into an agreement, called the Rio Grande Compact, specifying how to share water in the region and creating the Rio Grande Compact Commission to help administer the compact.

Congress, too, recognized the importance of Rio Grande water. When the Middle Rio Grande Conservancy District (MRGCD)² faltered, Congress approved the Middle Rio Grande Project. See Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1104 (10th Cir. 2010). The Middle Rio Grande Project was one of two major projects in the area, and it empowered Corps to construct, maintain, and operate dams and other devices on the Rio Grande and its tributaries. See id. The operations were not, however, to interfere with the Rio Grande Compact, as Congress strictly regulated Corps's operations and restricted what Corps could do without the approval of the Rio Grande Compact Commission. See Flood Control Act of 1960, Pub. L. No. 86–645, § 203, 74 Stat. 480, 493 (1960) (the "1960 FCA"). Congress's other major project in the area, run by the United States Bureau of Reclamation (Reclamation), was the San Juan–Chama Project, which "imports water from the Colorado River Basin to the Rio Grande Basin." See Rio Grande Silvery Minnow , 601 F.3d at 1104 ; see also Pub. L. No. 87–483, 76 Stat. 96 (1962) ("San Juan–Chama Act").

But humans are not, obviously, the only living beings to rely on Rio Grande water. The Rio Grande silvery minnow also depends on the water for survival. Once one of the most abundant species of fish in the Rio Grande, the minnow "now occupies a small portion of its historic range, primarily existing in the San Acacia Reach—a sixty-mile stretch of river south of Albuquerque, New Mexico, and north of Elephant Butte Reservoir." See Rio Grande Silvery Minnow , 601 F.3d at 1104. The minnow's decline may have been caused by low spring run-off and human manipulation of the Rio Grande, such as regulation of river flow to provide for irrigation. See id. In 1994, the minnow was listed as endangered under the Endangered Species Act (ESA). Id.

Another species that relies on the Rio Grande is the southwestern willow flycatcher. The flycatcher is a small bird, approximately 15 cm long, which breeds in southwestern states. See Final Rule Determining Endangered Status for the Southwestern Willow Flycatcher, 60 Fed. Reg. 10694 (Feb. 27, 1995). The flycatcher's habitat, consisting primarily of deciduous shrubs and trees, is growing increasingly scarce due to "brood parasitism and lack of protective regulations." Id. In 1995, the flycatcher was listed as endangered under the ESA. Id.

In an effort to protect the minnow and flycatcher, Guardians, an environmental advocacy organization, has sued Corps for conducting its Middle Rio Grande Project operations in a manner that allegedly violates sections 7 and 9 of the ESA.

Section 7(a)(2) of the ESA requires federal agencies to ensure that they do not "jeopardize the continued existence" of or harm any endangered species or its critical habitat. See 16 U.S.C. § 1536. To facilitate compliance with this substantive command, § 7(a)(2) provides that an agency considering an action must first determine whether the proposed action may affect an endangered species or its habitat. 50 C.F.R. § 402.14(a). If the action may do so, the agency must consult with the United States Fish and Wildlife Service (FWS). See 50 C.F.R. §§ 402.13, 402.14. At the end of consultation, FWS issues a Biological Opinion, which includes FWS's assessment of the likely effects of the proposed agency action. See 16 U.S.C. § 1536(b)(3)(A) ; 50 C.F.R. § 402.14(g)—(h). If FWS believes the proposed action is likely to jeopardize or harm an endangered species or its habitat, FWS issues a Reasonable and Prudent Alternative that the agency may take to avoid adversely affecting the endangered species. 50 C.F.R. § 402.14(h). At that point, an agency must either terminate an action likely to harm an endangered species (according to FWS's Biological Opinion), seek an exemption, or follow the Reasonable and Prudent Alternative. Rio Grande Silvery Minnow , 601 F.3d at 1106.

Crucially, § 7(a)(2) is subject to an important limitation. The section only applies to actions that an agency has discretion or control over—so if the agency has no discretion to alter its actions, then an agency need not consult with FWS over that particular action. 50 C.F.R. § 402.03.

In addition to § 7(a)(2), § 9 of the ESA prohibits any federal agency from "taking" a listed species. 16 U.S.C. § 1538(a)(1). To "take" in this context means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct." 16 U.S.C. § 1532(19). If, after consultation, FWS finds that an agency's action will result in incidental taking of an endangered species, FWS may include an Incidental Take Statement in its Biological Opinion. 16 U.S.C. § 1536(b)(4). Any taking covered by the scope of the Incidental Take Statement will not violate § 9. See 16 U.S.C. § 1536(o)(2).

According to Guardians, Corps is violating § 7(a)(2) by jeopardizing the minnow and flycatcher through its Middle Rio Grande operations while not consulting with FWS regarding such operations. (See Doc. 66 at 36–37.) Additionally, Guardians alleges that Corps is violating § 9 by "taking" the minnow through its operations. (See id. at 37.)

For this matter, a request to reverse an agency action, Guardians focuses on § 7(a)(2). According to Guardians, Corps's decision that it does not have sufficient discretion over its Middle Rio Grande operations to require consultation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. (Doc. 120 at 55.) As such, Guardians asks this Court to force Corps to consult with FWS. (Id. at 56.)

II. More on Corps and why it believes it does not have discretion to deviate.

a. Corps's Middle Rio Grande operations.

Under the Middle Rio Grande Project, Corps operates and maintains four dams on the Rio Grande and its tributaries: Abiquiu, Cochiti, Galisteo, and Jemez Canyon Dams. (A.R. 000004 (2014 Reassessment) at 9.) These dams are operated in a "coordinated and concerted manner," in accordance with § 203 of the 1960 FCA. (Id. )

Abiquiu was initially authorized only for flood and sediment control, but later legislation gave Abiquiu the authority to store San Juan–Chama Project water, see Pub. L. No. 97–140, § 2(b), 95 Stat. 1717 (1981) ("P.L. 97–140"), and natural Rio Grande basin water, see Pub. L. No. 100–522, § 1, 102 Stat. 2604 (1988) ("P.L. 100–522"). (2014 Reassessment at 9–10.) Only San Juan–Chama Project water is currently stored at Abiquiu. (Id. at 10.)

Cochiti, like Abiquiu, was originally only authorized for flood and sediment control. (Id. (citing 1960 FCA).) Later legislation added the authority to create a permanent pool at Cochiti Lake for the "conservation and development of fish and wildlife resources ...." (Id. (citing Flood Control Act of 1964, Pub. L. No. 88–293, 78 Stat. 171 (1964) (the "1964 FCA") ).) Corps has maintained a permanent pool of San Juan–Chama Project water at Cochiti since 1975. (Id. )

Galisteo Dam is authorized only for flood and sediment control. (Id. (citing 1960 FCA).) Galisteo "is ungated, and its reservoir is normally dry, with most inflows occurring in the summer months as a result of thunderstorm activity." (Id. ...