*1 Beach, City Now v. Miami F.3d Experience’s mont public Street forum sta- of (11th Cir.1999) (finding 1285-86 tus. protected used to tables distribute litera- The Plaintiffs shall recover their costs protection ture are within the of the First appeal. on Amendment), Family and One World One West, Key
Now v. F.Supp. part, of AFFIRMED in REVERSED in (S.D.Fla.1994) (finding port- 1009-10 part, and REMANDED. protected able T-shirt tables they because
are more analogous newsracks than to
newsstands), with Int’l Society Krish-
na Rockford, v. Consciousness F.2d (7th Cir.1978) (briefly noting that provision, challenged by plaintiffs, prohibited erecting a table or other
structures in airport an did not facially restrict guaranteed the exercise of rights). RIO GRANDE MINNOW, SILVERY Thus, may the issue benefit from consider- Hybognathus amarus; Southwestern light ation in of specific factual context. Flycatcher (Empidonax Willow trailii extimus); Wildlife; Defenders of For Injunction E. General Guardians; est National Audubon So Likewise, we reverse the district ciety; Council; New Mexico Audubon denial injunction court’s of an against Club; Sierra Southwest Environmen interference with First activi- Amendment Center, tal Plaintiffs-Appellees, ties on the Fremont Street Experience. v. We remand this issue to the court district light for consideration in public fo- KEYS, III, John Commissioner, W. Bu rum status of the Fremont Experi- Street Reclamation; reau Hanson, of Steve ence. Regional Director, Bureau of Recla Conclusion mation; Reclamation, Bureau of an sum, agency States; we Joseph reverse the district of the United court’s Ballard, General, determination Engineer, the Fremont Street Chief Experience Army Corps Engineers; Raymond was not public forum. We Midkiff, Col., affirm the Lt. grant Albuquerque district court’s sum- District Engineer; mary judgment Army Corps United ACLU States issuance permanent injunction Engineers, agency of a against enforce- United States; leafleting ordinance, ment of the America; United States of LVMC 11.68.100(1), Norton, Secretary, vending Department Gale ordinance with Interior; respect the sale of message-bearing United States Fish and items, 11.68.100(B). Service, Defendants-Appel LVMC Wildlife We reverse lants, the district grant court’s judg- summary
ment to the regard Defendants with
general injunction Mexico; solicitation ta- State of New The Middle Rio ordinances, bling §§ Conservancy District; City LVMC 10.44 and 11.68.100(H),and remand to Albuquerque; allow dis- Acequia .the Rio De Chama trict court to Association, consider the constitutionality Defendants-Intervenors- of these in light Appellants, restrictions of the Fre- *2 Ranch; of Santa M.
Double Intervenors,
Fe, Partnership; Campanas Limited
Las Foundation; Juan Legal San
Pacific Commission; National Water
Water Association; Klamath Wa
Resources Association; City and Coun
ter Users Colorado; Fe;
ty State of of Santa Idaho; Nebraska; State of
State Oklahoma; State South
State Wyoming;
Dakota; Trout State
Unlimited; Federa National Wildlife Council;
tion; New Desert Fishes Churches, Amici
Mexico Council
Curiae. 02-2254, 02-2295, 02-2255,
Nos.
02-2304, 02-2267. Appeals,
United States Court
Tenth Circuit. 12, 2003.
June *3 Fe, Commission, Santa Stream
Interstate Montaño, Assistant NM; Special E. Peggy Trout, Attorney Witwer & General Denver, CO; Freeman, P.C., Abra- Fred mowitz, Attorney Special Assistant Gener- Franks, Albuquerque, Abramowitz & al of briefs) NM, him on the for Defen- dant-Intervenor-Appellant State of New Mexico. Modrall, Sperling,
Lynn' H. Slade *4 Roehl, Sisk, P.A., Albuquerque, & Harris (Maria Modrall, NM, Sperling, O’Brien of Sisk, P.A., Roehl, Albuquerque, Harris & NM, Kolberg and M. Robert Charles W. Legal Depart- White, Albuquerque, of City NM, him ment, with on the Albuquerque, briefs) Defendant-Intervenor-Appel- for Albuquerque. lant of DuMars, T. of Law & Resource Charles Associates, P.C., Albuquerque, Planning (Christina NM, Bruff DuMars and David Seeley, Planning & Resource Asso- Law P.C., NM, him ciates, Albuquerque, with briefs) for Defendant-Intervenor- on the Conservancy Rio Appellant Middle District. Firm, of The Simons
Frank Bond M. (Thomas Fe, NM, Simons, LLP, A. Santa IV, Reyes of The Si- and Faith Kalman NM; Firm, LLP, Fe, Fred J. mons Santa NM, Waltz, Taos, on Attorney, with him briefs) Defendant-Intervenor-Ap- Acequia Association. pellant Rio Chama Mergen, Attorney, Environ- Andrew C. Division, and Natural Resources ment Justice, Department of Farris, Attorney Stephen R. Assistant United States (Thomas Sansonetti, D.C., Fe, L. General, Mexico, Washington, Santa State New General, (Patricia Attorney Bos- NM, Madrid, Jeffrey Attorney A. Gener- Assistant Clark, Attorney al, Attorney Deputy Assistant Tracy Hughes, sert M. Assistant' Pacholski, Attorney, Mexico, Fe, General; General, Susan L. of New Santa State Divi- Stroud, and Natural Resources NM; Special E. Assistant Environment John Justice, General, Fisher, sion, Department of Spe- States Attorney Karen L. United briefs) D.C., General, him on the Washington, Attorney cial Office Assistant Defendants-Appellants. for the Engineer and the Mexico New State General, Belin, Attorney Sugarman, of Belin & San- Assistant Colorado Alletta (Steven Office, NM, Attorney State General’s Fe, Sugarman of Belin State of ta C. filed an Fe, NM; Colorado amicus brief on behalf of Laurence J. Sugarman, & Santa Defendants-Intervenors-Appellants. Boise, ID, Lucas, Attorney, with her on brief) Plaintiffs-Appellees. Lance, General, Attorney Alan G. Clive General, Strong, Deputy Attorney J. Clay D.C., Dougherty, Washington, B. James Smith, Deputy General, R. Attorney Natu- Federation, Desert National Wildlife Division, Boise, ID; ral Resources Don Council, Fishes and New Council Mexico General, Stenberg, Attorney State of Ne- filed an amicus curiae brief Churches braska; Edmondson, Attorney Drew W.A. Plaintiff-Appellees. for the General, Oklahoma; State of Bar- Mark Taylor, Esq., Elizabeth Newlin Jo- nett, General, Attorney State South Da- McCaJeb, Wolf, Taylor Esq., lene L. & kota; MacMillan, General, Attorney Hoke McCaleb, P.A., NM, Albuquerque, filed Wyoming, State of filed an amici curiae amicus curiae brief on of San Juan behalf Appellants. brief for the Appellants. for the Water Commission Baird, Esq. Campanas Michael D. of Las L. Hernandez of Hubert & Her- Steven Fe, NM; Partnership, Limited Santa *5 nandez, P.A., Cruces, NM, filed an Las Johnson, James Michael J. Pearce and W. of amicus curiae brief on behalf National Craig, Thomas R. Wilmoth of Fennemore for the De- Resources Association Water P.C., AZ, Phoenix, Campanas Las Limited fendants-Intervenors-Appellants. Partnership an filed amicus curiae brief for Appellants. Somach, Simmons,
Paul of S. Simmons Dunn, Sacramento, CA, filed an amicus Wall, Attorney, Michael E. San Francis- & co, CA, curiae brief on behalf of Klamath Water Natural Resources Defense Coun- cil, Appellants. Association for the Users filed an amicus curiae brief. Hopper Hayes Anne M. M. Reed SEYMOUR, Before PORFILIO and CA, Foundation, Sacramento, Legal Pacific KELLY, Judges. Circuit for the Defen-
filed amicus curiae brief PORFILIO, JOHN C. Senior Circuit dants-Intervenors-Appellants. Judge. City Attorney, Thompson, Bruce Robert appeal The issue is whether the Kidd, Jr., City Attorney, Assistant San- D. (BOR) has Bureau of Reclamation discre- Fe, NM; Buller and Germaine R. ta Galen tion to reduce deliveries of available water Andrews, Chappelle Montgomery & irrigation its contracts with districts Fe, P.A., Fe, NM, City of Santa Santa comply cities in New Mexico to Kopelman, County Attorney, Steven Santa Act, Species 16 Endangered U.S.C. Fe, NM; John Utton and J. Brian W. 1531-1544(ESA). Roiling §§ beneath this Sheehan, Stelzner, Sheehan & Smith interests, array many is an question P.A., NM, Albuquerque, County of Santa depends on wa- represented here. Each an amici for the De- Fe filed curiae brief ter, liquid “the that descends from fendants-Intervenors-Appellants. streams, rain, lakes and clouds as forms Peternell, Project Attorney, Andrew seas, ground springs, issues from the Boulder, CO, filed an amicus curiae brief major living constituent of all and is Appellees. Trout on behalf of Unlimited matter,” 2002 a definition mocked General, Salazar, drought. Alan Third International Attorney Ken Webster’s (Bd ed.1993). Gilbert, General, Dictionary In a nar- Ampe, 2591 Solicitor Peter J. 1114 impact, relevant addressing carefully impact, ic other order
rowly drawn
critical
circumstances,
specifying any particular
district court
area as
limited
1533(b)(2).
§
to reduce contract
Section
has discretion
habitat.” 16 U.S.C.
held BOR
stated,
to meet
Supreme
restrict diversions
has
“reveals
deliveries and
Court
agree
give
the ESA. We
by Congress
duties under
decision
a conscious
of the order that re-
portion
‘pri-
affirm that
endangered species priority over
Hill,
us.
mains before
mary
agencies.”
missions’ of federal
1115 III, Keys, Commissioner of history sued John W. acterizes the litigation now Bureau of Reclamation United States before us. Two lines of converge cases (BOR), Army Corps States United here, targeting one the survival of the (Corps), and Engineers the United States silvery in minnow its critical habitat under (FWS) (alterna- Fish and Wildlife Service ESA, challenging the other impact Defendants),2 tively, Federal for actions of that designation on agri- New Mexico’s jeopardize alleged silvery minnow. cultural communities and burgeoning ur- agencies operate These federal water di- ban centers under the National Environ- storage along version and facilities Act, Policy mental 42 U.S.C. 4321-70d Grande, Middle Rio por- the New Mexico (NEPA), which all requires agen- federal tion of the Rio Grande which extends from cies to examine the impact environmental Elephant Velarde to the headwaters of the “major Federal actions significantly af- Reservoir, Butte north of Truth or Conse- fecting quality of the human environ- quences, and includes the Rio Chama and 4332(2)(C). ment.” 42 U.S.C. Although Jemez River issuing tributaries. After only we generated by address issues 19, April first order that action on action, analysis ESA our resonates I), the district court allowed inter- 0Order issues litigation. raised the NEPA (the vention the State New Mexico State), (the City Albuquerque City), In the litigation, 1999, ESA we wrote the Middle Rio Conservancy Grande Dis- 1991, process “[i]n the administrative was (MRGCD), trict and the Rio Chama Aceq- set motion to list the Rio silvery Grande (RCAA) uia (collectively, Association Inter- minnow as an endangered species and venors). appeals In their of the court’s designate its critical habitat.” Forest Judgment, Order and Partial Final Civ. Babbitt, Guardians v. 99-1320, (Order September No. (10th Cir.1999). Although listed FWS II), now before us under Fed.R.Civ.P. Rio silvery minnow Final 54(b), parties numerous have submitted Rule, 1994) Fed.Reg. (July at 36988 amicus curiae briefs. (to 17), be codified at 50 pt. C.F.R. History Litigation III. of this Secretary of the Interior did not concur- rently designate habitat, Brinkmanship precipitated its critical either *7 through design 1533(a)(3)(A),3 § inadvertence or best char- U.S.C. agreeing instead der, (3) the district court noted Secretary, by regulation the Southwestern promulgat- flycatcher, endangered (b) willow listed as an ed in accordance with subsection of this 1995, species in had increased in overall prudent section and to the maximum extent numbers, prompting parties to address and determinable— solely silvery shall, contrary (A) minnow. a Absent concurrently making with a de- appeals, similarly indication in these we (1) con- paragraph spe- termination under that a silvery fine our discussion to the minnow. endangered species cies is an or a threat- species, designate any ened habitat of such 2. In its 19, order, unpublished April 2002 species which is then considered to be criti- Corps habitat; district court found the did not have cal and bring operation' “sufficient discretion to Designating critical habitat has the same these reservoir facilities under the consulta- priority listing. County as In Catron Bd. of requirement tion of the Service, ESA.” Environmental Comm’r v. U.S. Fish and 75 Wildlife plaintiffs challenged ruling. 1429, have not (10th Cir.1996), F.3d we ex- appeal This addresses the issues BOR has plained, purpose prevent "ESA’s core is to following raised the district court’s order. species by preserving pro- extinction of tecting upon they depend the habitat 3. 16 U.S.C. 1533(3)(A)states, from the intrusive activities of humans.” and, to reflect the “best scien- 1, 1995, respectively, deadline by sodo March until October commercial data available” under to extend tific and
he later asked 1536(c)(1). 13-month Congress' ESA, 16 U.S.C. because April 1995 spending moratorium Conservancy In Rio Grande Middle duty 1996. Because through April Babbitt, F.Supp.2d Dist. v. Congress arose before critical habitat list (D.N.M.2000), agreed the district court and remained moratorium declared the designation of the entire 163 miles years and a half after two unfulfilled even con- adequate Rio Grande without Middle expired, we held the Sec moratorium data of “the best scientific avail- sideration non-discretionary duty his retary violated impact, and able” or the “economic critical failing publish final habitat impact” other relevant was invalid. Under 1, 1995. Id. at designation by March fail- scrutiny,- the court faulted FWS’ ESA impose Though reluctant factual support the Final Rule on ure plaintiffs requested, we remand deadline to scrutinize alternatives to the grounds; the dis the instruction ed the case with Grande; Rio entire 163 miles of the Middle Secretary court order the to issue trict specificity “define sufficient what bio- designation as critical “as soon habitat are logical physical features essential Secretary’s regard to the possible, without minnow;” silvery to the survival of the Id4 In priorities other ESA.” identify justify the baseline used to years after the adminis July eight impact. Id. at 1178-79. On determine Secretary began, the des process trative rejected grounds, the court FWS’ NEPA miles of the main stem of the ignated 163 preliminary of a Environmental submission Grande, from Cochiti Dam to Ele Rio (EA), than more Assessment rather Desig See Final phant Butte Reservoir. Impact detailed Environmental Statement nation, (July Fed.Reg. 36274-01 (EIS).5 stated, designa- The court “FWS’ 17). 1999) (to pt. codified at 50 C.F.R. completely ignores tion of critical habitat designation triggered a separate This reality the most Grande: basic Rio. here, parties some of the who lawsuit fully appropriated system. it is a river impact under NEPA and the challenged Rights to all of the river’s surface water action, In their consolidated ESA. variety legally are held for a of beneficial MRGCD, State, and environmental (emphasis original). im uses.” Id. at 1179 Guardians, non-profits, Forest Defenders Indeed, ignored probability of a FWS “the Wildlife, Environmental Southwest economy, cul- vast shift New Mexico’s Center, alleged designation was ar- FWS’ ture, wholly life unre- ecology and social bitrary capricious faffing to ade- at 1180. markable.” Id. pos- “to the fullest extent quately consider time, sible,” crafting relief at that the dis- and other relevant the economic *8 4332; underscored, NEPA, “urgency impacts § 42 trict court U.S.C. Norton, EA, Biological Diversity 163 In the FWS concluded the habi- 4. Center v. critical for 1297, designation significant (D.N.M.2001), tat would have no im- re- F.Supp.2d 1300 also surrounding by relying, pact areas in on the Secretary's jected predicament financial 1996, Analysis part, on a Draft Economic for suggested Congress recognize prob- marking "the end of a decade of above nor- does, Congress created. “Until lems it has years significant mal runoff and several spent protecting will be not on tax dollars activity Rio thunderstorm in the Middle fighting losing species, on battle after but Valley.” Rio Grande Conser- Grande Middle losing in court.” Id. battle Babbitt, 1156, vancy F.Supp.2d 206 Dist. v. (D.N.M.2000). 1179 complexity of the aration of an given situation and the EIS was essential “overwhelming require designa- to reconciled evidence that the many interests prepare significantly quality than tion will affect the Defendants to do more an Impact and is- the human environment .'.. require [and] Statement Environmental pervasive in changes final Both the future of the sue a new rule. distribution of minnow and the Middle Rio Grande in resulting [sic] Rio Grande silver riverwater Valley irrigated agriculture at immi- the reduction of Rio stand acre- Middle Grande added). (emphasis age.” Id. at 1227. nent risk.” Id. at 1193 designation The court left the of critical “significantly” impact What affects un- however, place, ordering in while habitat der NEPA includes a determination of rule to issue a new to take effect FWS degree “the to which the effect ... will be ” Secretary days, ordered the to within ‘highly 1229; controversial’ Id. at EIS, urged his federal prepare 1508.27(b)(4). C.F.R. Because the rec- “fully earnestly par- to representatives fully ord established “the effects of water being in ticipate mediation now conducted” reallocation and curtailment of river main- parallel in a action. Id. at 1193. significant” tenance are and “controver- sial,” 1229, id. at we instructed FWS and Although proposed a new critical FWS BOR, agencies, especially the federal re- 2002, 6, designation on June see habitat sponsible managing and operating the Designation of Critical Habitat for the Rio dams, projects reservoirs and slicing other minnow, Silvery Fed.Reg. Grande span Grande, this of the Middle Rio to (June 2002) (to 6, at 50 be codified C.F.R. “any proposed insure action” likely is “not 17), Secretary pt. did not conduct an jeopardize the continued existence of EIS, instead, portion appealing any endangered species,” 16 U.S.C. injunction court’s to allow FWS recon 1536(a)(2), warned, a duty, we which necessary. sider whether an EIS was might require reallocating already fully Conservancy Middle Rio Grande Dist. v. appropriated Rio waters Grande. Norton, 1220, 1225 Cir. Id. at 1230. 2002), rejected argument, recalling we meantime, 2000, compliance April with NEPA and In the Plain- “FWS’ tiffs, here, sought preliminary injunction the ESA has been marked massive delays inadequate decision-making,” compel Corps BOR and the to initiate fully implement their exacerbated the status of the consultations with FWS silvery discretionary Rio minnow. Id. at 1226. suf- alternatives maintain delays “These and irrational decisions ficient flows the Middle Rio Grande to expense Silvery silvery jeopardy come at the Min avoid minnow now, July officially endangered nearly eight based on initial studies.6 On FWS’ years. recognizes, damming, As FWS FWS initiated formal consultation channelization, Corps. Their consulta- and the introduction with BOR BO, predatory produced fish tions a final on June nonnative have decimated Silvery population proposed Minnow cur which found BOR’s actions [which] projects on rently occupies only percent operating five of its the federal water range.” agreed prep- historic Id. the Middle Rio Grande would result We *9 mediation, response, ordered water to maintain a continuous flow in 6. In the court tional parties negotiated Agreed and the an interim Upper October 1 San Acacia reach from Albuquerque, Order in which the through 2000. October MRGCD, BOR, Corps addi- and the released operations and in the middle Rio silvery minnow. Plaintiffs ment jeopardy to Grande, complaint specifically water deliveries under amended then filed a second Defendants, FWS, Project the Sec- the Middle Rio Grande and under adding Federal Interior, Project, require and the United the San Juan-Chama retary of the of the June seeking review BOR to consult over those actions States 7(a)(2) Procedures BO under the Administrative of the ESA.” That conclu- Section (APA), Act, and seq. § 701 et 5 U.S.C. from the definition of sion derived ESA by issuing the APA alleging action,” violated “agency broadly FWS embraced prudent a reasonable and authorized, funded, the BO without “any or carried action failing to-use the best sci- alternative agency.” out such U.S.C. by the Addi- required entific data as ESA. 1536(a)(2); (empha- § 50 C.F.R. 402.02 tionally, alleged Plaintiffs BOR and the added). hotly resolving sis In this “more procedural and Corps violated the ESA’s issue, discretion,” agency contested federal to con- requirements failing substantive authorizing court looked both over all their discre- fully sult with FWS statute, Act, 43 the Reclamation U.S.C. by causing jeopardy tionary actions and governing BOR’s allo- contracts silvery min- taking of the and an unlawful law, water, particu- cations of and case in 7(a)(1) and Section 9 nows under Section Although lar a trio of Ninth Circuit cases. provisions. the ESA’s substantive procedural the court found violations of requirement in fail- the consultation FWS’ I, upheld court the district Order in expand scope ure to of consultation comprehensive after a June 2002 BO way by relying on meaningful BOR’s procedural of the ESA’s and sub- review discretion, interpretation own of its it cred- plight provisions and stantive jeop- ited “interim solution to avoid FWS’ silvery In its APA Rio Grande minnow. ardy major all the coordination with review, court found the reasonable players in the middle Rio basin.” alternative, prudent though permitting solution, remarked, I Order at 44. This it drying some intermittent of the river reach, “unprecedented at- was achieved after arbitrary Acacia was not San tempts grips to come to all the com- capricious. On Plaintiffs’ consultation peting very interests for a limited alleging Corps claim BOR and the have a duty protect silvery supply more the middle Rio Grande basin.” minnow broadly, respectively, by limiting Recognizing water de- Id. were circumstances resolve, “complex, liveries under the Middle Rio Grande Pro- difficult to and evolv- (MRGP) ject ing,” applauded the district court the Fed- San Juan-Chama (SJCP) altering protecting silvery the normal eral Defendants for operations altering Rio Middle Grande reservoir “without water deliveries minnow facilities, held, 44 (empha- the court “BOR retains suf- to federal contractors.” Id. at added).7 manage- ficient discretion over its river sis order, and, thus, injury standing. unpublished fact lacked In an Rio Grande Silver y III, Keys, Fed.Appx. Minnow v. requiring court’s order federal defendants to Cir.2002), we Federal Defendants’ dismissed they “consider use of when intervenors’ water ” appeal interlocutory of this order for lack of injury.' consult caused no 'concrete Id. 932. jurisdiction appellate and denied a motion for "[Ujnless actually and until consultation re- Further, stay as moot. we held that interve- sults in a use their water —which decision to nors, here, parties alleged the same who may happen any ‘injury in fact' to never — consequences order had adverse for their in their interests attributable the district terests in Rio Grande water could show no *10 later, piqued by fail- jeopardy, Five months BOR’s on their Plaintiffs failure to con- serve, ure to reinitiate consultations while deliv- and take claims. It further relieved “nearly despite ering all” contracted water compliance 29, BOR from with the June 2002, in drought the severe the district requirements; 2001 flow required BOR to court chastised the Federal Defendants for (1) provide sufficient for flows the remain- asking uphold jeopardy it to determina- 2002, der of releasing water from “Heron prudent tion no and alter- reasonable 2002,” in Reservoir if necessary to meet only II at 2. native. Order Because (2) reach, the 50 cfs in flow the San Acacia Committee, Endangered Species popularly comply with the conservation recommen- styled Squad” under an.amend- “God 29, dations in the BO of June 2001 and 1536(e),8 ESA, ment to the 16 U.S.C. (3) September 12, 2002, reinitiate consulta- may grant exemption the Federal De- tion to plan “contingencies may sought, pro- fendants the district court during arise the rest of 2002 during ceeded to address the ESA substantive 2003 based on the different amounts of 12, September issues raised FWS’ may water that iii available the Rio The court scientific BO. found the best basin,” (4) Grande beginning Janu- consistently data available indicated the 1, 2003, ary comply requirements with flow San Acacia reach of the Middle Rio in “the June Biological Opinion provided possibility Grande the surest until a Biological Opinion new is issued silvery minnow’s survival. Nonethe- that contains a Reasonable and Prudent less, proposed targeting the BO flows to jeopardy, Alternative that if possi- avoids Albuquerque Silvery reach where the ble.” II at Finally, Order 3. the court wrote court, already Minnow was scarce. The in Paragraph 14: thus, arbitrary.and capri- held the BO was jeopardy cious under the take ESA’s If necessary to requirements meet flow provisions.9 recognized The court deliver- either under the June ing the same amount of contract water in Biological Opinion or under a new Bio- assure the Federal Defendants would logical Opinion resulting from reinitia- could not requirements even meet the flow consultation, tion of the Bureau of Rec- set the June 2001 BO. lamation must reduce contract deliveries Project the San Juan-Chama
Tipping the balance of hardships and Project, the Middle Rio public protected interest in favor of and/or Hill, species, required by as must the court restrict diversions Mid- and/or granted preliminary injunctive Conservancy relief to dle Rio Grande District un- (a)(2) entirely conjectural
court's order” and in- ments of subsection of this section for adequate standing. to confer application. Id. action set forth in such finding arbitrary capricious, the BO 1536(e) provides: 8. 16 U.S.C. taking the court also faulted BOR for no wa- (e) Endangered Species fully Committee ter Heron Reservoir in order to (1) There is established committee to be meet.its SJC and MRGCD water deliv- eries; Endangered Species crediting "unspecified predic- known as the Commit- weather (hereinafter tee long-term drought years section referred tions of for 10-15 "Committee"). ('BOR gives benefit of doubt to dire (2) any ap- drought prediction, Silvery The Committee review shall Min- , ”); plication pursuant assuming silvery submitted to it to this now' minnow's only through section and despite determine in accordance with survival artificial means (h) contrary. subsection of this section whether or not the best scientific data to the Order grant exemption require- from the II at 20. *11 1120 Pierce, 253 F.3d Project, con- Potawatomi Indians v. Rio Grande
der the Middle Cir.2001). (10th Bureau of with the Reclamation’s 1234-1240 sistent in the authority as determined legal Ripeness “peculiarly question 19, is 2002 Memorandum April
Court’s
timing.” Reg’l
Reorganization
Rail
Act
Opinion and Order.
Cases,
102, 140,
335, 42
419 U.S.
95 S.Ct.
(¶ 14)
II at 3.
Order
(1974).
a focus on
L.Ed.2d 320
While
IY. Jurisdiction
ripe
is
for review is
whether
issue
protracted and elaborate
Despite this
standing,
ripeness
support
sufficient
facilitating our
prelude, the district court’s
whether,
fact,
“yet
there
is
asks
54(b), and the
under Fed.R.Civ.P.
review
Wright,
13A
need for the court to act.”
C.
jurisdiction
under 28
parties’ assertion
Miller,
Cooper,
& E.
Federal Practice
A.
1291,
ques-
§
we are constrained to
U.S.C.
(1984).
3532.1,p.
“A
and Procedure
130
in the Rio
tion whether
water level
adjudication if
ripe
is not
for
it rests
claim
justicia-
makes the issue before us
Grande
‘contingent
may
upon
future events
¶ 14,10
is,
contingency
That
ble.
anticipated
may
not occur as
or indeed
”
flowing through
much water is
of how
States,
occur at all.’ Texas v. United
523
main
of the Rio
and whether
stem
300,
1257,
296,
140
U.S.
118 S.Ct.
L.Ed.2d
require-
that amount satisfies the flow
(1998), quoting
406
Thomas v. Union Carbide
2003,
29,
ments for
set either
the June
Ag
Co.,
568, 580-81,
Prod.
473 U.S.
ric.
BO,11appears
or a new
to erode
2001 BO
(in
(1985)
3325,
105
A. The San pro- stage initial of the San Juan-Chama Mexico, ject, prin- for the Colorado-New authorizing the Congress Two acts of furnishing sup- cipal purposes major projects in the Middle two ... in thé Rio Basin and plies this action. Rio Grande overarch existing ... Middle Rio Grande the San Juan Chama- Congress enacted *13 municipal, Conservancy District and Project Act of June Reclamation domestic, uses, pro- and and industrial 96) (SJCP (76 No. 87-483 Stat. Pub.L. and viding recreation and fish wildlife Act), Storage River under the Colorado benefits. 11, 1956, 43 Project April Act of U.S.C. 620g
§ of the Riv- 620.12 Section Colorado 13, 1962, Act of June Pub.L. No. 87-483 Project Act the Storage directed Secre- er 96). (76 Stat.
tary of the Interior: legislation The authorized construction construct, investigate, plan, operate, conduits, storage of “diversion dams and (1) public recreational fa- and maintain at the Heron regulation and facilities acquired lands withdrawn or cilities on site,”13 princi- the Numbered Reservoir development project of said or of for the here, facility and en- pal storage at issue projects, to conserve participating said already existing El Dam. larging the Vado natural, historic, scenery, the and the charged Secretary oper- with Congress objects, on archeologic and the wildlife ating Project “so that for the SJC lands, public provide and to use said life, preservation aquatic of fish and enjoyment of and of the and the same Rivers,” Navajo flow of the and Rio Blanco projects created these water areas project involved the earlier “shall not be means as are consistent with the such depleted” in a 1955 BOR below levels set purposes projects; and primary of said entitled, Report Project, San Juan-Chama (2) mitigate of, losses and facilities 8(f), Mexico. Section Colorado-New improve for, propagation conditions (76 96). Pub.L. No. 87-483 Stat. The 1962 and offish wildlife. at capped SJCP Act Rio Grande diversions added). (a.f.) 1,350,000 § of water for ten 620g (emphasis As acre-feet U.S.C. required Secretary oper- § anticipated by years 43 U.S.C. which project under the terms of the stage crafted the initial of the San Juan- ate the Storage Project Upper Colorado River Act of one of four states in the Colorado River 12. 11, 1956, Basin, April authorized signatory U.S.C. was a to the Colorado River construct, Secretary of the Interior to Compact of 1922 which this statute Navajo operate, and maintain the Dam and was authorized. Reservoir on Middle Rio Grande “to initi- comprehensive development ate the of the Only imported may SJC Upper water resources of the Colorado River stored in Heron Reservoir. All native water Basin, others, purposes, among for the is released to the below Heron Dam and river River, regulating the flow of the Colorado effectively through bypassed Reser- "is Heron use, storing consumptive water for beneficial regular Programmatic voir on a basis." Bio- making possible upper it for the States of the logical Discre- Assessment of Reclamation's utilize, consistently provi- Basin to with the tionary Management Actions Related to Water Compact, sions of the Colorado River Grande, Mexico, n New Jan- on the Middle Rio among apportionments made uary 2001. Mexico, 43 U.S.C. 620. New them....” (1963 Contract) Compact,14 purposes.” Repayment River Basin Upper Colorado added).15 river commis- (emphasis Repayment with the several The 1963 consulting appropriate agencies Unit- stage sions and on the initial Contract was based Mexico, Texas, Colorado, States, New Project,16 ed promised the SJC to fur- 8(e), project entities. Section and other 101,800 average nish an of about a.f.17of (76 96). Stat. No. 87-483 Pub.L. water, project as “water available defined works,” through for use envisioned, Project created a the SJC As Dam for outlet of the Heron diversion of from the trans basin diversion Colorado Blanco, the natural flows of the Rio Little Basin, the Rio Grande tak- River Basin to Rivers; Navajo Navajo regulation upper from the tributaries ing water storage facilities at Heron Reservoir and River, tributary a of the Colora- Juan San enlargement existing El Vado Dam River, transporting through it do Chama; on the Rio and water use: Divide to tunnel under Continental Chama, major tributary of the Rio Rio provide City Albuquerque To the water Heron BOR stores Grande. *14 municipal additional water for purposes; Heron Reservoir on the Reservoir. Below provide supplemental irriga- to water for El Reservoir. Rio Chama is Vado irrigable tion of land in the Middle Rio District; Conservancy replace Project Contracts 1. BOR-SJC Basin; depletions in the Rio Grande and authorization, congressional Under reservoirs; dams, canals, laterals, and Interior, Secretary pursuant of the drainage furnishing for a firm water Laws, including the Federal Reclamation Cerro, Taos, supply to the land Storage River Act and the 1956 Colorado Llano, tributary irrigation Pojoaque Act, sup- or 1962 SJCP “all as amended units. into a basic contract plemented,” entered return, City agreed repay (City) on City Albuquerque with the by the for costs incurred United States 25, 1963, for furnishing “for June water constructing complex. the reservoir The domestic, uses, industrial municipal, repayment schedule contract listed purposes;' for the and for other beneficial sums, Those howev- annual installments. purpose obtaining, securing, supple- er, portion “that municipal ... did not include menting supply water acquired un- Compact right The to the use of 14. The Colorado River of 1922 di- among ap- seven states provisions vided the Colorado River this Act shall be der the vying Compact for its water. The bisected the irrigated, purtenant to the land and benefi- basins, into two Colorado Riv- measure, Colorado River basis, the cial use shall be the I, Upper Compact, er Basin, Art. states right. the limit of the Colorado, Utah, Wyoming, and New Mexico, "naturally which drain into the Colo- term, project, 16. The contract defines System,” 11(f)(g), Art. and those of rado River stage Juan- mean the initial of the San "shall Basin, California, Nevada, and Ari- the Lower Mexico, Project, au- Colorado-New as Chama Gross, Galloway zona. Sharon P. The Congress June the Act of dated thorized Compacts, 25 Nat. and the Colorado River 96).” (76 Stat. 1962 (1985). Resources J. 938 BOR reduced the Firm Yield 17. In incorporated 15. The contract also the Recla- 96,200 a.f./yr. An acre Heron Reservoir to 17, 1902, § U.S.C. mation Act of June cover the volume of water that would foot is provides: depth one acre to a of one foot. right appurtenant to land and Water right extent of project furnishing cost al- The is authorized for and maintenance operation annual irrigation municipal water for uses19 fish and wildlife function.” located to the providing Contract, and for recreation and fish § Repayment 7b.18 benefits, other and wildlife and for bene- project title to all provided that purposes. ficial remain in the works and facilities “shall provided by until United States otherwise 101,800 § 18h. The annual allotment of a.f. § Congress.” 12. water, “available water” was qualified, RIGHTS —WATER Under “WATER ac- During periods scarcity when the GENERAL,” Repay- the 1963 SUPPLY may supply tual available water be less a limitation for ment Contract included yield, City firm than the estimated (Water Clause): shortages Shortage supply shall share the available water causes, account of drouth or other On in the ratio that allocations above bear may during any occur at there times yield. to the estimated firm year shortage quantity of water Repayment 18j. Contract When storage from the reservoir available reimbursed, totally City costs are se- complex pursuant the City for use right cured “vested renew said con- any this contract. In no event shall indefinitely ... long tract so as a water liability against accrue the United States supply may be available and the employees of its officers or payments current on its for water service.” indirect, any damage, arising direct or Repayment Contract *15 shortage. out of such contract, An amendatory executed on 6, 1965, July by authorized a subsequent added). § (emphasis Repay- 18b The 1963 26, 1964, Congress Act of of March autho- gave City ment Contract the “the exclusive Secretary the “to rized make water avail- dispose right use and of that share of permanent pool a able for for fish and project supply water available and allo- purposes and recreation wildlife Cochiti municipal purposes. supply cated water Reservoir from the San Juan-Chama Pro- may disposal by diverting Such use or ject.” The court’s decision Jicarilla applying directly and such water from the States, Apache Tribe v. United system,” Rio offsetting Grande stream un- Cir.1981), prompted derground project water withdrawals with contract, City amendment. Under this § “[U]pon completion water. 18d. of re- agreed portion a release of its San payment portion City’s of that of the water Project Juan-Chama water for the Cochiti ..., supply City costs shall have Reservoir. permanent right portion to the use of that of the supply Subsequent allocated to its contracts between BOR and entitled, cities, towns, use A herein.” 18d. subsection other New Mexico and water Uses,” provided, incorporated “Other districts the essential terms precedent covering 18. A condition of this contract stat- a share of the costs of the reser- storage complex. ed: voir § 9b 19. The contract no comma after has Repayment contrast, Other Contracts. The United amendatory “uses." In MRGDC’s required States shall not be to initiate con- repayment Project contract for SJC water has struction until Middle Rio Grande Con- a comma after "uses” in the same clause. servancy District shall have executed a con- interpretation Our is not al- satisfactory Contracting tract Officer tered the difference. Repayment obligations and Albuquerque’s Con- cancel all indebtedness in tract, including shortage exchange conveying for MRGCD’s and as- contracts, water clauses. Later signing available “all of property rights, includ- example, reservoirs, for 1990 contract between BOR canals, dams, ing and flood- River, Mexico, New and the town Red works, together control with its water compli- provisions contained additional rights, including title and' ownership ance NEPA and Title of the Civil VI property thereto ... such conveyed so Rights Act of 1964. The 1992 contract States .United shall be so held until Secretary the Jicarilla between Congress otherwise directs.” Plan. MRGP Apache delivery Navajo Tribe for Res- The MRGP Plan included “fish and wildlife Project Supply ervoir water from the SJC provided: features” and further works at Heron Reservoir and the Tribe’s general, any contract between the Navajo diverting water from River on district and the United States should be provided cooperation the Reservation pursuance of the Federal reclamation FWS, BOR, among parties, including by specific laws as modified direction of Affairs, plan- and the Bureau of Indian Congress pursuance provi- ning projects, and construction “as re- 9(a) sions of section of the Reclamation law, quired by including, federal but not 485], Project Act of [43 U.S.C. to, Eagle limited the Bald and Golden Act, Protection the Fish and Wildlife Coor- comprehensive Envisioned as a scheme Act, Act, Endangered Species dination developed through “coordinated studies Act, and the National Clean Water Corps the Bureau and the Reclamation Policy Environmental Act.” of Engineers,” designated the MRGP Plan responsible BOR for the El Vado Reser- Project B. The Middle Rio Grande improvements, voir Rio Grande channel Congress approved operations, irrigation pro- the Middle Rio rectification (MRGP) work, ject drainage under the Flood rehabilitation re- work; Acts of Control 1948 and 38 U.S.C. habilitation and extension and des- *16 701f-2, 701s, §§ respectively, ignated Corps for flood con- for construction of three reservoirs, trol improving and Besides and for dams as well as levees reclamation.20 stabilizing and economy protection. of the Middle local flood Middle Rio Grande Valley, proposal sought Project, Rio Grande to Letter from the of the Bureau Interior, Budget Secretary rescue and rehabilitate the Middle Rio to of the (MRGCD), Conservancy April District 1949. The Plan indicated MRGP “[ajdditional organized private capital with development 1925 as a of fish and political State, values, subdivision of the but floun- and wildlife recreation facilities dering by the through late 1940s because of its needed the Middle Rio Grande “originally Valley satisfy increasing by unsound basis of assessment of to demand visitors, Development A Plan large benefits.” for number of out-of-state Mexico, Project, together Middle Rio Grande New the local demand such with for Plan, Report Project on the Potential allocated proposal facilities.” The BOR, $670,109 wildlife, by August recreation, drafted for fish and (MRGP Plan). end, geological survey programs, To that and consid- the United part agreed acquire States to the MRGCD’s ered to be non-reimbursable and as a broadly Congress §§ 20. declared-in 33 U.S.C. 701s and 701f-2 authorized flood control as appropriated specific projects § funds to for 33 U.S.C. 701a. any shortage and channelization devel- because of such claimed of the reservoir opment. damage. Repayment § Contract 23. MRGCD 1. MRGCD Contract agreed assign filings its water in the El 24, 1951 be- September Reservoir to the United States Vado MRGCD, tween the United States and the domestic, “primarily irrigation for held written under the Reclamation Acts municipal use” and “reserved to the Unit- (1951 1902, 1948, Repayment and 1950 seepage ed ... and return flows.” States Contract), amendatory “and acts thereof Further, “may ... the MRGCD thereto,” supplementary incorporated disposal part contract for the of a “comprehensive plan for the control of supply any water for use not detri- the Rio Grande” as detailed in the 1947 primary speci- herein mental uses Project Report. BOR Central to its terms fied.” Id.
was the transfer of title to all MRGCD Repayment provided The 1951 Contract works, defined as: “[tjitle by to all works constructed structures, reservoirs, those ditches United States under this contract vest- [is] by operated canals now constructed and ed in ... States until otherwise United District and those be constructed provided Congress, notwithstanding for or rehabilitated under the terms of this the transfer hereafter of such works to storage, contract for the diversion and operation the District and mainte- distribution of water for use in the Dis- Throughout, § 29. nance.” the contract trict, lands, drainage together and the preserved the status of Indian lands and rights way oper- therefor and for rights within the MRGCD. ation thereof. Contract, Repayment Under the 1951 agreed 8. The United to con- States granted necessary MRGCD all easements struct, rehabilitate, operate, and maintain to the works and structures in exchange the MRGC works May MRGCD the United States. payment MRGCD’s of reimbursable con- 1963, “in privileges consideration struction, operation, and maintenance contract,” repayment derived from the costs. The contract included clause bar- conveyed MRGCD to the United States liability ring shortages: for water assigned “rights, titles and inter- shortage Should there ever occur a rights” ests in and to described quantity normally of water which 1690,21including “upwards Permit No. would be through available *17 1,872,000 a.f.” whose source was the Rio project means of said works constructed Grande, Chama, tributaries, Rio and other therewith, connection no event shall “irrigation, power, for and other beneficial liability any against accrue therefor uses.” States, officers, United or of its 1953, agents, employees any damage 1955, Subsequently amended in 1956, arising Repayment direct or indirect therefrom and and these MRGCD Con- payments pro- to the United again States tracts were amended on June Act, vided for herein shall not be reduced after enactment the SJCP supplementing rights 21. File No. 1690 attached to the "is of the Middle permit a to construct El Vado Dam and im- Conservancy Rio Grande District with water pound and 123,267 maintain therein a maximum of acres.” 198,110 acre-feet of water for flood control
1127 supplemental supply clearly expands contends the latter action secure a Project Incorporating existing its authority, proposition reject water. from SJC Project by Am. many Paper of the terms in BOR-SJC ed Forest and Ass’n v. U.S. E.P.A., (5th Cir.1998) contracts, amendatory contract 137 this added F.3d 299 (“the provisions allocating fish and wildlife ESA serves not as font of new authority, something States unless “unusual but as far costs the United more mod agencies circumstances” arose to “throw the alloca- est: a directive to to channel balance;” Shortage existing authority particular tion out of the Water their in a di (“[o]n rection”); Whooping Clause account of drouth other Platte River Crane causes”); Comm’n, authorizing Energy other uses clause Trust v. Fed. Regulatory (D.C.Cir.1992). project irrigation municipal water “for 962 F.2d uses, providing recreation and fish Babbitt, BOR relies on Sierra Club v. wildlife benefits.” (9th Cir.1995), F.3d 1502 support both to consequence argument de- contrary
As a
of the contracts
and to contrast the
authorizations,
legislative
from these
conclusions reached in
rived
O’Neill v. United
(9th
States,
Project
Cir.1995);
virtually all available SJC
water is
ing Co., Simpson v. Timber progeny tion Center BOR contends and its did O’Neill Info. Cir.2001) (take permit 255 F.3d question not reach the whether the ESA spotted owl did not reserve for Northern imposes mandatory duty irri- devote protect to act to Coho discretion for FSW gation jeopardy water to avoid of an en- mullet later listed as salmon and marbled Thus, dangered species. BOR contends protected species). precise issue us is before whether the shortage gives clause alone it discretion to
Moreover, contends because the BOR reduce contract deliveries of the use of MRGP Act did not mention comply with the ESA. water for fish and wildlife and the SJC expressly Plan excluded this use in inquiry would not channel the so We already report,23 using a later contrac- narrowly, particularly predi- because its tually water is not “consistent committed obligations cate is that BOR’s ESA are scope agency’s with the of the Federal solely by Repayment fixed Contracts. legal authority” to constitute a reasonable regulations, Under ESA and its 50 prudent alternative under the ESA. programs Action means all or activities prudent 402.02.A reasonable and C.F.R. funded, any authorized, kind or car- agency’s alternative must be within the out, in part, by ried whole or in Federal insists; otherwise, authority, it BOR is an include, agencies.... Examples but are expansion agency authori- unreasonable not limited to: ty under the ESA. O’Neill, Houston, distinguishes BOR (c) licenses, granting contracts, Klamath, ground on the subse- leases. quently legislation, enacted Central fully agree 50 C.F.R. 402.02. We BOR’s (CVPIA), Valley Project Improvement Act negotiating executing these contracts expressly allocated for fish project water Houston, “agency is action.” 146 at Thus, maintains, F.3d and wildlife. BOR Hence, 1126. similar, plain the breadth of this specific legislation absence of here language surely places the burden on BOR precedential undermines their value. Al- how, concedes, carrying to show out though the mandates BOR the “other causes” through of the reclamation virtually clause in identical to laws the Re- O’Neill Contracts, payment the clause BOR to limit might here and also well refer intended subsequent Congress Congress’ sovereign authority enactments like enact ESA,24 specific congressional no subsequent legislation figures later into the act expressly interpretation altered its fixed contractual of these contracts.25 The support, quote Federal scrutiny Defendants 25.It also activates under the doc- 23. terms, portion Report provides sup- broadly of the which no trine of unmistakable states, port for this broad face arrangements statement in the "[c]ontractual remain express statutory language. subject subsequent legislation presid- ing sovereign.” Apache Merrion v. Jicarilla Tribe, 130, 147, Indeed, States, U.S. S.Ct. in O’Neillv. United " (1982). (9th Cir.1995), L.Ed.2d 21 United v. States Winstar argued BOR 'on account 839, 878, Corp., 518 U.S. 116 S.Ct. operation, drought, of errors in other (1996), L.Ed.2d 964 summarized the collec- unambiguous causes’ ... is broad and holding unmistakability: tive on shortages stemming mandatory from compliance govern- sovereign with ESA and CVPIA are short- that a contract with a ” ages resulting 'any other cause.' Id. ment will not be read to include an unstat- contracting 682-83. exempting ed term the other *19 providing water expressly tracts included us, then, is whether before question nu- as a-beneficial Contracts, of for fish wildlife use.26 a watershed Repayment authorizations, clauses, re- together, taken establish These congressional merous comply with for BOR to retained the that BOR discretion deter- serve discretion al- from which mine the water” ESA. “available which, made, allotments locations would be interpre controls law “Federal scarcity, might be in times of altered pursuant contract entered tation of a causes,” prevention jeopardy of “other is a the United States law when federal species. The terms of endangered to an Seckinger, 397 v. States party.” United contracts, properly read negotiated these 209-10, L.Ed.2d 90 S.Ct. U.S. presume BOR’s discretion together, Serv., (1970); Group Hosp. v. Howard Moreover, reading implementation.- Cir.1984) their (10th 1508, 1510-11 manage and deliver discretion to BOR’s suit (federal controls when outcome law plain language States). out of the “available water” on the United effect has direct - disconnects Repayment Contracts root expressly Contracts Repayment congressional authoriza- from their in the recla them federal authorization ed their supple or laws, as amended tion. “all mation
mented.”
¶ H,
Thus,
made
after BOR
all
.
whole,
Repay
a
at as
Looked
deliveries
“available
the 2002 contract
specific re
a
established
ment Contracts
water,”
“actual
wa-
available
[if]
year,
a calendar
payment schedule
ter,”
than the esti-
18j,
§
is less
5.6 % of
7a,
although
specified
§
drought,
yield
firm
because of
mated
and maintenance
operation
the annual
negotiated
under these
has discretion
BOR
wildlife,
to fish and
are attributed
costs
the “available wa-
to determine
contracts
pay those
obligated to
would be
BOR alone
Intervenors and to fulfill
ter”
allocate
expressly limited
§
BOR
costs.
7b.
Surely,
under the ESA.27
its obligationsi
drought “or other
liability
case
consultation with
reinitiation of
BOR’s
quantity of
might affect “the
causes”
a
act
otherwise remain
futile
would
FWS
storage
from the reservoir
water available
finding of sub-
given the district court’s
added). The
(emphasis
§
complex.”
18b
of the ESA.
stantive violations
exchanges
recognized
contracts
O’Neill,
fully in fine with
This result is
Rio
aquifers
from
and the
for water
Klamath, correctly relied
Houston, and
water,
system, native
stream
O’Neill turned
district court.
upon
scarcity,
during periods of
18d,
and that
as does this
interpretation,
on
is
supply”
“actual available
when the
argument
Addressing BOR’s
case.
par
non-federal
yield,”
“firm
less than
shortage
clause
language
water.
in that available
ties
share
will
and that short-
unambiguous
“broad and
Repayment Con-
18j.
Importantly,
preservation
ing
conservation
subsequent
that water
application of
party
from
preven-
importance,”
(including
of Con-
sovereign
an Act
are "of
act
utmost
ambiguous
figured prominently
term of
gress),
will an
water”
nor
tion of "waste
convey-
as a
grant
contract be construed
of the definition.
discussions
in state court
sovereign power.
or surrender
ance
doctrine;
parties addressed
None of
course,
exercises that discre-
BOR
27. Of
how
resulting
BOR
BO
be tied to the
tion will
States,
Apache
v.
Tribe United
26. Jicarilla
reinitiating consultation.
and FWS’
1981),
looked to
Cir.
F.2d
use, not-
to define beneficial
New Mexico law
*20
age stemming
mandatory compliance
necessary
available for sale if
shortages
ESA and CVPIA are
re-
comply with ESA.” Id.
”
causes,’
‘any
sulting from
other
Klamath,
In
third-party water users
“
682-83,
stated,
at
‘[a]ny
the court
other
sought
to enforce water contracts with
phrase
causes’ is a catchall
not
does
third-party
BOR as
beneficiaries entitled
‘explicitly’
any particular
include
causes.”
to enforce
existing
terms of contracts
Id. at
(emphasis
original).
The
negotiated in 1956.
proposition that using Project SJC water Repayment Contracts based on its under- recreation, for wildlife fish and purposes is standing of the Act SJCP and the statuto- not beneficial under the SJCP Act and ry scheme it incorporates is incorrect. state In deciding law. whether of Repayment The Contracts include the in- Albuquerque could solely divert for recre tent “replace depletions in the Rio purposes water,” ational its “excess most end, Grande they permit Basin.” To that evaporate of which would planned in the contracting parties to and apply divert storage, reservoir the court acknowledged, Project directly from the Rio generally can “[i]t be said that state law Grande or offset pumping underground governs the distribution of water from fed Project Indeed, water with water. 18d. projects eral Congress expresses unless the Middle Rio approach.” irrigation different and di- Id. at 1133. New Mexico, system, matter, version state, practical as a arid func- “[w]ater conserva preservation tion tions as an interconnected series dams [are] utmost im portance. reservoirs, Its transporting Project utilization for maximum SJC a requirement none, may benefits is water which depletions second to offset caused only for progress natural and but for man-made survival.” circumstances. (citation omitted). Thus, Id. fully The record spe absent a documents this continuing congressional authorization, cific practice, “storage defeating the State’s contention [project] only is to be benefi SJC water does not harm the cial consumptive use.” Id. at silvery Further, 1139.34 party minnow. no con- Evaporation water, of 93% of the stored permanent tests the opera- of the effects al., 33. "Beneficial use is 'a concept e.g., restrictive Snow v. Abalos et 18 N.M. 140 P. valid water uses in the water law of the (1914) ("but arid application it is the requiring western states only that water be to a gives beneficial use continuing purposes used for that are beneficial right water.”). to divert and utilize the society general, user and to irriga- such as " Gross, municipal tion and uses.’ Sharon P. analysis, In its the court indicated that 43 Galloway Project and the Colorado River U.S.C. contemplated investigating con- Compacts, (1985), 25 Nat. Resources J. 935 "public struction of recreational facilities” Utton, quoting Prof. Albert Glossary E. mitigate and "facilities to losses of and im- (1985). Commonly Terms Used in Water Law for, prove propagation conditions of fish law, generally, New Mexico states that a ben- and wildlife.” See, wasting eficial use cannot include water. conveyance age facilities these on the life projects tion of federal purposes shall on a nonreimbursable Grande. Middle Rio basis. noted, clearly Act have SJCP As we Project water for fish using
contemplates legislation, Given the breadth of this law, Under state benefits. and wildlife ESA, plain meaning of the and our inter- a beneficial use. constitute such releases Contracts, pretation Repayment we Indeed, ongoing efforts —the the State’s reject the State’s characterization Agreement of 2001 Water Conservation remedy district court’s order. The govern- federal the State and the between fully appreciates district court crafted 100,000a.f. up release ment to store and protecting State’s commitment to its water three Rio Grande water over of Middle duty ensuring resources and BOR’s Rio Grande convening the Middle years, the ESA. Work- Endangered Species Collaborative *23 participation of group; and its record City Albuquerque VIII. of —02-2267 silvery min- hatchery augmentation im- City The contends reallocation of at habitat restoration— now and efforts ported Basin water to al- Colorado River takes here defy fixed stance the State the drought the on the leviate effects obligations under the marginalize BOR’s authority silvery minnow exceeds BOR’s ESA. error, City main- under the ESA.35The governor of New Finally, we note tains, from the district court’s view derives the Recla- requested relief under Mexico pre-existing contractual the ESA overrides Emergency Drought Relief mation States contemplates rights. Although the ESA Act, §§ 2201-2226. Under 40 U.S.C. grant- entering BOR’s into contracts 2212(d): “action” under 50 ing leases constitute Secretary make water from may The 402.02(c), con- pre-ESA C.F.R. these projects and non- Federal Reclamation expanded cannot consulta- trigger tracts on a nonreim- project water available express tenns tion duties unrelated purposes pro- bursable basis for view, In the fixed of the contract. its restoring and wildlife tecting or fish Contracts, essentially, are off- Repayment losses, resources, including mitigation any a solution limits as mechanism condi- drought as a result of occur mere- compliance. Because the ESA ESA operation of a Federal tions or rep- provides “directives” and does ly drought project during Reclamation power, BOR can- any grant resent new Secretary may store conditions. The silvery minnow jeopardy to the not avoid convey project nonproject wa- authority. acting agency of its outside purposes, and wildlife ter for fish EPA, Paper Ass’n v. American Forest & conveyance such may provide (5th Cir.1998); 291, 299 Platte 137 F.3d wild- for both State and Federal water Habitat Whooping Critical River Crane pri- held in and for habitat life habitat FERC, Maint. Trust v. Secretary may ownership. The vate (D.C.Cir.1992). pur- water for these make available City position, the re- support In of this project authorized poses outside the owns no minds that the United States of the Federal stor- service area. Use caution, Lujan standing. agree. v. City it We con- In an abundance of Defenders 560-61, S.Ct. Wildlife, 504 U.S. interpreting court's order tends the district (1992). adversely gives 119 L.Ed.2d rights to its interests only ty under state law but holds rights delivering water the contractual share of duty water) a to store water Heron Reservoir causes;” for “drought or other use of the beneficial SJC contractors. reallocate costs unusual “[i]f circumstances any rights to The absence of the water it arise which throw the allocation out of power diverts defeats BOR’s to direct the balance,” necessarily may include protect use of the it water stores to endan- wildlife;” replace depletions “fish and “to contrast, gered species. City as- Basin;” in the Rio Grande and to allocate Repayment gives serts the Contract proportionately “[d]uring periods of scarci- City “perpetual right” to use ty when the actual supply available water with, least, along very “at the an may yield.” be less than firm Although right exclusive contractual to its share of Repayment gives City Contract supply.” right, Given this “permanent right” to the use of its alloca- City contends the district court erred tion of repayment water when its obli- found, most, it City “[a]t when has met, gations right are remains condi- expectation inchoate to receive the full tioned these and other contractual amount itsof 2003 contract deliveries dur- terms. This City’s view does not alter the ing subject 2003 ... to factors that affect contractual rights aligns but them with the amount water available.” purposes Acts, overall of the Reclamation Repayment misreads the Project, subsequent SJC legisla- *24 “perpetual Contracts as contractual obli tion.36
gations” “perpetual and provid contracts” ing “perpetual and rights” exclusive Conservancy IX. Middle Rio Grande consumptive beneficial and use. The 1963 District —02-2255 Repayment states, “[ujpon Contract expiration of said term supply [until water The MRGCD extends 150 miles from payable by City costs paid ... are Dam, the Cochiti city south of the of Santa full], City shall right have a vested to Fe, Bosque Apache del National indefinitely renew said contract appro at Refuge, 128,787 Wildlife encompasses and priate charges annual service long so as a lands, of irrigable acres half of which are supply may water be available and the presently irrigated. The in- MRGCD City is current on payments its for water cludes six pueblos, Indian Albuquerque, service.” Repayment Contract 26 and villages. numerous towns and Since added). (emphasis Indefinite, having no its creation under the New Mexico Conser- limits, exact cannot be read to mean con vancy Act, §§ N.M. Stat. Ann. 73-14-1 to tinuing forever. 73-14-5, the grown MRGCD has from its Rather, discussed, as Albuquerque we have the ex- Chamber of Commerce and press terms of the Repayment Con- landowner roots to key partici- become a (liabili- tract direct BOR to limit deliveries pant in management.37 state water Pres- noting It bears contracted with Valley.” The contract reflects the 22, 1997, April BOR City's on under the Reclama- protecting silvery commitment to ESA, tion Laws and the "to assure the water minnow. irrigators needs of the minnow and the within Conservancy the Middle Rio Grande District.” 37. MRGCD is accountable to the New Mexico two-year provided contract for BOR to Engineer State who has monitored its water 30,000 purchase up and use a.f. of its SJC Engineer use. In fact State Thomas C. Tur- Project Abiquiu water from aug- ney Reservoir "to advised in a March 2001 letter to ment the supply total water to the Middle Rio and the MRGCD BOR that in the absence of El Dam and Reservoir owns Vado water, BOR MRGCD 238,000 a.f. of ently, of its or non- law and 217,000 by a.f. are native federal and is authorized asserts 20,900 Pro- a.f. are SJC and project water native Rio Grande permit to store state ject water. BOR releases for MRGCD. water there agreed call that water MRGCD’s Pro- native and between
This distinction
by the state
and authorized
version
MRGCD’s
ject
permeates
rehabilitating
operates the United
government’s
permit. MRGCD
federal
the'
irrigation and
the district’s
operating
to divert these
diversion
States’
dams
all
works,
title of
its claim
diversion
Pueblo
native flows for MRGCD
works,
BOR
contention
and its
MRGCD
season.
during
irrigation
Indian use
curtailing private
its
cannot excuse
Nonetheless,
fortify its substantive
un-
obligations
its alleged
on
rights based
here,
filed a cross
arguments
MRGCD
eddy of
is an
That version
the ESA.
der
MRG
works
quiet
title to
claim
fact
inescapable
which swallows
details
2409a(b).38 Correctly,
U.S.C.
gov-
to the federal
agreed
MRGCD
resolve the claim
rescue,
court did not
rebuilding, re-
the district
financial
ernment’s
irrigation stor-
until the “con-
expanding
pending
its
remain
storing, and
which will
exchange
capabilities,
delivery
therefrom,
age
sixty
any appeal
clusion of
all
assets
of MRGCD
the transfer
before the
properly
it is
days.” When
of the restoration.
of the costs
repayment
will,
doubt,
court,
no
district
claim
manage-
agreed to BOR’s
also
MRGCD
reclama-
the federal
reviewing
resolved
by that
As foreseen
project works.
ment
MRG Pro-
authorizing the
legislation
tion
the 1951
amended
agreement, MRGCD
Repayment Contract
ject and the
supple-
in 1963 to
Repayment Contract
provided:
SJC
native water with
supply of
ment
by the
constructed
Title to all works
Project water.
*25
contract and to
States under
United
to MRGCD
BOR transferred
In
conveyed to the
as are
all such works
all its
maintenance of
and
operation
the
con-
... be and
... shall
States
United
except for
drainage works
and
irrigation
name of the
in the
to
vested
tinue
be
Reservoir,
Acacia
San
Dam and
Vado
El
provided
until otherwise
United States
Dam,
channelization
and other
Diversion
trans-
notwithstanding the
by Congress,
by the
operated
protection works
flood
any
works
such
I,
district court
the
Corps.
Order
hereafter of
fer
and maintenance.
operation
District
found:
section
any
under this
ty
action
involved
required
Proof of
filing the
state
MRGCD's
decree,
Use,
the
judgment or
in this
a final
pending
would assert
the State
Beneficial
therefrom,
per acre of
any appeal
of
litigation that “7.2 a.f. water
conclusion of
an annual basis
irrigated
on
non-Pueblo lands
final determination
sixty days; and
the
if
of
diversion
States,
and non-wasteful
is a sufficient
United
adverse
shall be
to
figure
with the State’s
water.” This
contrasts
may
such
retain
United States nevertheless
delivery
acre-feet
requirement of 3.0
“farm
property or
real
possession
or control
annually”
divert-
the MRGCD’s
per acre
elect,
may
upon
any part
as it
thereof
per
1989
ing
acre” from
"over 11 acre-feet
to be
person determined
payment to the
through 1999.
upon
of an amount
thereto
entitled
in the same
court
election the district
such
2409a(b)
§
states:
38. 28 U.S.C.
just compensa-
to be
shall determine
action
b)
shall not be disturbed
United States
or control.
possession'
tion for such
any
proper-
real
possession or control
Repayment
(emphasis
Contract
the district court’s directive. The Fish
added).
Repayment
The 1951
Contract
(FWCA),
Wildlife Coordination Act
assigned
filings
all of the MRGCD’s water
12, 1958,
was enacted August
pas-
before
to
simply
the United States. Not
full re-
sage of the SJCP Act of 1961.
Under
payment
approval
but
by Congress
also
662(c),
agencies
U.S.C.
“Federal
autho-
must
predicate
reversion of title to the
operate
rized to construct or
water-control
Project
under the
MRGCD
MRG
Act and projects
modify
are authorized to
or add to
Hence,
Repayment
Contract.
under
...
structures
accommodate
circumstances,
all of
presume
we
title means and measures for such conservation
Project
to the MRG
works
remains
of wildlife resources as an integral part of
during
pendency
United States
of this
662(a)
projects.”
such
Section
provides:
litigation.
any
whenever
waters of
stream or
quiet
claim,
Absent
title
our
body
other
proposed
water are
or
resolution
appeal
of MRGCD’s
must re
diverted,
authorized to
impounded,
main focused on
obligations
BOR’s
deepened,
channel
or the
or
stream
consequence
as a
ESA
of its water
body
other
of water otherwise controlled
development
resource
whether that water
or
any
modified for
purpose whatever
imported.39
is native or
That BOR neither
...
any department or
agency
owns
rights
waters,
nor holds
to native
has
..., department
United
agen-
States
or
no
Grande,
reservoirs on the Middle Rio
cy first shall consult with the United
purchased
“has neither
nor appropriated
Service,
States Fish and Wildlife
De-
delivery
water for
Valley
to Middle
partment
Interior,
...
awith view
farmers,” is not
determinative
BOR’s
to the conservation of wildlife resources
obligation to consult with
comply
FWS and
by preventing loss of and damage to
with the ESA.
retaining
BOR’s
authority
such resources as well
providing
manage
MRGCD and
trig
SJCP works
development
and improvement
gers
obligations.
its ESA
Klamath Water
thereof in connection with such water-
Users,
compensate Judge, with those, any, if whom whose contractu- PORFILIO, JOHN C. rights Judge, al Circuit to water are reduced in order joins, concurring. meet the aforementioned [2002] flow re- *28 quirements.” Although portion that of the As the majority and agree, dissent this court’s order is now moot, the issue of case turns on whether government the re-
1139 unmistakability was that held instead with contracts the under discretion tains waiver, not reservation. of needed provisions the apply users to the (ESA). I Act Species Endangered the Corp., U.S. 518 v. States Winstar United scholarly and the with completely agree L.Ed.2d 135 877-78, 116 S.Ct. colleague my of opinion comprehensive Agencies (1996) Pub. (citing Bowen v. 964 such provide themselves the contracts that Entrapment, Security Social to Opposed only to ex- separately I write discretion. 2390, 91 L.Ed.2d 41, 52, S.Ct. 477 U.S. of the doctrine upon alternatively pand omitted)) (internal (1986) quotations federal terms, principle a of unmistakable Stevens, J., Breyer, (Souter, J., joined my curiously in been, that has law contract words, J.). a O’Connor, other J., and litigation.1 this in ignored view, largely is a government the to the agree to I Thus, if even were demands a subject remains party do themselves the contracts that dissent power sovereign subsequent exercise agen- authority in the retain expressly not in provides expressly the contract unless in except the deliveries cy to reduce sover- subsequent that terms unmistakable shortages, caused water naturally event con- A silent not affect it. eign acts will doctrine terms unmistakable to right government’s preserves tract the contracts modifies nonetheless ESA legislation. subsequent it modify by affirmatively not do contracts because Winstar, apply. will not in legislation opinions future that the various state Given majority, it is a commanded of which none Court, the Supreme by the As described to which not all contracts that clear that posits terms unmistakable doctrine subject to the are party is a government to provision “unmistakable” absent Yankee See terms doctrine. unmistakable arrangements, contrary, contractual States, 112 Co. v. United Elec. Atomic sovereign it- a to which including those (Fed.Cir.1997); Joan 1569, 1578-79 F.3d subject to subse- remain party, self and the Drake, Discretion Contractual E. sovereign. We by the legislation quent the Bureau Act: Can Species Endangered that to find proposal rejected the thus Project Federal Reallocate Reclamation right waives forever sovereign the Mid- in Species Endangered Water powers un- sovereign itsof one exercise J. Grande?, Rio dle Nat. Resourobs right reserves the expressly it less (“In (2001) sum, Winstar the fractured contract, and in the power exercise history in most its most of For am reminded of I West, confrontation has avoided Bureau dog incident "... curious irrigators, siding with controversy by night-time.” clear re- ignoring meant when that even night-time.” nothing dog did “The while it But law.... of federal quirements incident,” remarked curious was the "That act, govern- federal may be reluctant Holmes. Sherlock authority clearly considerable has ment Blaze, Doyle, Silver Conan Sir Arthur project water. use of over the Holmes Sherlock Memoirs Adventures Benson, Private Is It? Whose Water D. Reed 2001) (1894). (Modern Library Authority Reclamation Over Rights and Public by the fed- failure particular note in I Water, 409-10 L.J. 16 Va. reasons, Envtl. if their to discuss eral defendants recognizes, as authority (1997). Indeed does concluding the doctrine any, for do, though it "even refuses the dissent argument here, respond to the apply relationship to a contractual into entered has even or indeed apply, that it does by others water, retains States United deliver doctrine terms the unmistakable to mention in un- authority unless surrendered sovereign the fol- authority has made One passing. Id. at 412. terms.” mistakable failure: to this relevant lowing observation *29 1140
decision
us
leaves
uncertainty
with some
quent changes in
might prevent
the law
regarding the extent and applicability of
it from performing,
agreed
pay
to
the unmistakable terms
specific
doctrine in
damages in the
that
event
such failure to
situations.”)- Significantly for our pur
perform caused financial injury.
poses, however,
justices
the
all agreed in
871,
Id. at
116
Indeed,
S.Ct. 2432.
the
Winstar that the doctrine nonetheless has plaintiffs acknowledged that the contract-
continued viability, and cases subsequent
ing government agencies could not bind
to Winstar have found it dispositive in a
Congress not to change government policy.
variety
See,
of circumstances.
e.g., Kla
881,
Id. at
The doctrine applies clearly do not claim to this con- Bank tract. Board and Execution of FSLIC the contract purported to itself and Congress bind imposed duties ossify the law con- the Endangered formity contracts; Species Act both they embody seek no acts of sovereign injunction against application authority. government of FIR- has not REA’s capital new requirements waived in to them unmistakable terms power exemption no impose FIRREA’s environmental laws on these con- They terms. simply claim tracts, that the Gov- it clear enforcing the ernment assumed the risk that subse- contract provisions as demanded *30 the dis- subsequent legislation. Under govern- the frustrate users would water negates governmental view silence sent’s the ESA. under obligations ment’s the doctrine silence authority, under while under the applies here also doctrine The Moreover, asserting that it. preserves in Winstar. of the dissenters position ap- only terms doctrine the unmistakable dissent, Rehnquist, Justice in Writing does, says it the dis- if the plies contract the Ginsburg, viewed by Justice joined If meaningless. doctrine sent renders the reduc[ing] “drastically opinion as principal it is sub- provides that the contract itself doctrine, unmistakability scope of the the to the legislation, resort ject subsequent to un- clouds of residue with shrouding the necessary. never be doctrine would acts sovereign [limiting] the certainty, and straightfor- analysis no is virtually applicable it have The will doctrine so that The not turn on discretion. Id. at S.Ct. ward and does application.” future of dis- clearly grant needs no disputed princi- the government The dissenters power. sovereign in contract to its that the cretion exercise opinion’s,, ple view so, the is whether sovereign’s issue impact the Once it has done question did not applies pre-ex- to request resulting legislation only the it involved power because provided equivalent of The answer isting not the contracts. damages was that doc- terms exemption the unmistakable part in injunction against govern- trine, the unless legislation. Id. which holds subsequent view, sovereign au- has surrendered the dissenters’ ment 2432. Under S.Ct. terms, the contract thority contract in unmistakable unmistakable of an the absence legislation. subsequent right subject to to remains waiving government’s term concedes, case, legisla- the dissent by subsequent the contract amend in affirmatively provide doctrine do not and the contracts dispositive tion was not be they will contract applied to the unmistakable terms have been should Accord- legislation. damages. subsequent subject to preclude an award Winstar superb ap- join completely I ingly, thus terms doctrine while unmistakable colleague that concludes my us under opinion before in the plies circumstances Winstar, discretion reserved expressly opinion government principle both here, I believe under the also joined, and in the contracts justices four mandates justices terms two of unmistakable opinion to which doctrine dissenting result. the same subscribed. ways, the in various Although couched KELLY, Jr., Judge, Circuit PAUL doctrine that the hold here would
dissent dissenting. because these contracts apply does (“BOR”) is of Reclamation The Bureau has no discretion government the United wholesaler largest change the themselves contracts States; it administers reservoirs comply with thereby contract terms farmers of five one western provides out dissent ESA. The the mandates Rec- See Bureau irrigation water. (cid:127)with on doctrine terms the unmistakable stands Information, website, Facts & lamation require that would The dissent its head. http://www.usbr.gov/main/whaVfact.html agency’s reserve the expressly 2003). The court (last May terms, visited while modify its discretion to deliv- BOR has discretion holds, that the exactly holds unmistakable doctrine terms of available full amount than er less pre- contrary, that a silent contract (“SJC”) Rio Middle by San Juan-Chama modify sovereign’s power to serves (“MRG”) project its con- sence of pre-existing discretion, BOR tractors. As an alternative holding, the doctrine of unmistakable terms amends court concludes even in the absence of the contracts to allow unilateral realloca- *31 any pre-existing BOR, discretion the tion under guise the of compliance with the the doctrine of terms unmistakable allows reasons, ESA. For these and others set the BOR to deliver less than full below, the forth I dissent.
amount of available water under the con- We have considered the habitat of the
Thus,
BOR,
tracts.
the
without
recog-
silvery minnow before. Recently, in Mid-
nized property right to the water in ques-
dle Rio Grande Conservancy Dist. v. Nor-
tion, may use
this stored
water to
ton,
(10th
Although agree I with the court that this action which diminishes the value of ripe case appellate review, is for I cannot critical habitat for the survival or recov- agree with the court’s conclusion that the ery of Silvery Minnow. Conse- BOR has discretion to reduce deliveries of quently, agencies federal prohibited are available water under its already-negotiat- from taking or authorizing any action ed contracts with the parties various deprives critical pri- habitat of its view, this In my case.1 none the con- mary elements, constituent those physi- tract provisions, federal statutes and regu- biological cal and features essential to lations, or other factors cited the court species. conservation of the Because provide the BOR this discretion. extensive reaches of the Middle Rio Moreover, it is clear that the ESA itself dry are under current water cannot fill this for simple void reason management practices and do not con- that the ESA is directed at the exercise tain “water of quality sufficient pre- discretionary authority agency al- vent formation pools,” isolated ready possesses, rather than constituting a designation require will the federal wa- source additional administrative author- managers ter to reallocate water for the ity. Nor can I conclude that in the ab- Minnow’s use. The draft Economic 1. We do parties not have all of the with an adequately by sented government, the federal interest the water before us. The district only was the given forum available court denied the Middle Rio Grande Conser- tribal sovereign immunity. Rio Grande Sil vancy ("MRGCD”) District's motion to dis- very Martinez, Minnow v. No. 99-1320 JP/ join Cochiti, miss failure to the Pueblos of KBM, 5-6, (D.N.M. Doc. 440 at July 10-11 Felipe, Ana, San Domingo, Santo Santa San- 19, 2000). government opposed The mo dia indispensable and Isleta parties. as dismiss, tion to but now reminds us of district court found Pueblos neither neces- rights Pueblos' to use Middle Rio Grande sary, nor indispensable, reasoning water, questions position its earlier rights Pueblos' water contractors, are senior to the other light of presentation Plaintiffs’ appeal. on sought Plaintiffs no relief Aplt. Reply Br. at 17-18. against Pueblos, repre- Pueblos were See discretion. agency retains when in con- by FWS upon relied Analysis, Paper Ass’n v. United & Forest American a pri- EA, recognized ducting the Cir. States would designation EPA mary effect font of 1998) (“[T]he not as a serves ESA of federal expenditure to reduce something far more authority, but new available to make used funds to channel agencies a directive modest: uses. agricultural municipal di particular in a authority existing their cita- (footnotes internal at 1227-28 Id. lack rection.”). wholly is That discretion language omitted). Although the tions no simply is and there this ease ing in *32 consider, not and could not broad, didwe dis allow the authority that would other reallocation water consider, of the issue or to BOR withhold the court order trict in- This case here. presented context the silvery min in favor of the divért water realloca- unilateral involuntary and volves participated parties have now. Various accom- reallocation not about is tion. It aon volun silvery minnow the preserving exchanges of voluntary through plished entitled parties are basis, tary but those irrigation water for native water SJC rights. pre-existing their on stand Those volun- species. endangered benefit has been in this case the water Because consultation required exchanges have tary Mexi to New pursuant appropriated fully insuring that SJC cooperation, new claim to a law, lay BOR cannot the co consistent use for beneficial released is an endan water, to benefit of even use the of SJC purposes primary the with of novo review Upon de species. gered not about is this case Similarly, project. conclusions, I legal court’s district the rights leasing water government’s the reverse.2 would so as benefit willing contractors species. endangered Does Not These Contracts Negotiating A. ESA, implementing view, its my the Subject to Agency Action Constitute confer acts reclamation and the regulations ESA the the permit and do not here no discretion that the hold appears to court use deliveries reduce contract BOR to origi- executing the negotiating silvery BOR’s the of benefit for the the water the long before contracts, concluded nal require feder- does The ESA minnow. ESA, “agen- constitutes enactment is species that a never to insure agencies al defi- the broad consistent cy action” rather, gov- requires it jeopardized; implementing in the ESA contained nition actions proposed its to insure ernment Action. § 402.02 C.F.R. regulations, species listed jeopardize a likely to are not 1346(a)(2), §§ 28 U.S.C. Claims. govern- Federal also ordered district court 2. The 1491; Dep’t v. Corp. Hess Amerada whose of compensate contractors ment Cir.1999); Interior, its or- under were shorted deliveries Unit- Storage Dist. v. Water ("The Lake Basin (COA) Tulare Federal App. 144 Aplt. I ders. (Court (2001) States, Cl. those, 49 Fed. any, ed if compensate must Government Fifth adjudicating case Claims Federal are reduced rights to water contractual whose imple- upon taking claims based Amendment flow the aforementioned to meet in order ESA). agree with Although I mentation only this conflict Not does requirements.”). could certain- its orders district court gov- on reliance court's with the district see right, taking property of a ly result in non-liability provisions in con- ernment Basin, would at I Cl. 49 Fed. Lake Tulare tracts, qualification important it also lacks way I light $10,000 this directive reverse must in excess claims that contract ESA claims. resolve the would Court United States in the be resolved Ct. Op. at 1128.3 If that is what court negotiating “BOR’s and executing these meant, negotiating and executing these contracts is ‘agency action.’” Op. Ct. appear contracts alone would to trigger 1128 (emphasis supplied). But to the ex- provisions consultation 7 of tent the court is suggesting past ne- ESA, 1536(a)(2), 16 U.S.C. as well gotiation and execution of water supply the Fish and Wildlife Service’s contracts action,” constitutes “agency (“FWS”) responsibility to suggest reason- authority readily distinguishable. prudent (“RPAs”) able and alternatives to Houston involved contract renewals. The proposed agency action. See 50 C.F.R. renewals subsequent were to the enact- (“Section § 402.03 7 and requirements ESA, ment of the Congress had part apply to all actions in which specific amended the reclamation laws ap- discretionary there is Federal involvement plicable to those Indeed, renewals. control.”). The FWS suggest must Houston court specifically noted that RPAs if an agency likely action is to re- “[cjlearly was there some discretion avail- sult in jeopardy to the continued existence able to the Bureau during negotiation species or adverse modification of process.” Houston, 146 *33 at F.3d 1126. critical habitat. 16 U.S.C. Subsequent Ninth Circuit authority in § 1536(b)(3)(A); 402.14(h)(3). 50 C.F.R. § terpreting Houston refutes interpreta the The district court’s order requiring the tion that merely because an agency nego BOR to reduce contract deliveries and re- contract, tiated a prior the negotiation strict future diversions if necessary to “agency constitutes action.” In Environ meet flow requirements silvery for the mental Prot. Ctr. Simpson v. Timber minnow is tantamount to Info. imposition of an Co., Cir.2001), 1073 Yet, RPA. the RPA, for an the applicable reg- rejected court an argument that require ulations “existing discretionary in- federal contracts permits that volvement and are in actions no way within the agency’s related to lawful authority ESA or provide of do not pres- —neither ent here. mechanisms protect to threatened and en dangered species may require alteration if Although agency action includes the dis- necessary to comply with the ESA.” Id. at cretionary task of negotiating contracts (internal 1082 omitted). quotation renewals, § 402.02, see (c), Action court stated: here, above, as noted parties’ contracts (those of We did not suggest the MRGCD and the Houston City of that Albuquerque once the (“City”)) renewed were contracts prior formed were execut- ed, to the ESA. More agency had importantly, continuing these exist- discretion ing contracts reserve no to to amend them any water the BOR time to address and contain express provision no confer- needs of endangered or threatened ring authority upon the species. BOR to reallocate
water for the benefit of endangered spe- Id. past BOR’s actions in negotiating and cies. executing these contracts do not constitute The court upon relies present Natural Res. agency subject action to the ESA. Def. Houston, Council v. 146 Moreover, F.3d 1126 none the existing SJC con- (9th Cir.1998), for its conclusion that tracts expire will within the next five (cid:127) Judge Porfilio has opin- authored the main will refer concurring to opinion ion for the court that I will refer to as the (Conc.Op.), fully recognizing that both are opinion (Ct.Op.). court’s joined He has also opinions of the court with panel majorities. Judge Seymour’s concurring opinion that I ESA interpretation (June 29, an (COA) App. Aplt. X years. agency to do “whatever a federal obligates 2001). species endangered an protect to it takes” engages BOR that the cannot be said It “the directs statute because is “farfetched” by performance merely action agency car- authorities’ ‘utilize their agencies to deliver responsibilities its contractual not objectives; it does ESA’s ry out the correct- The FWS water. stored available agency anon powers conferred expand the federal describing the recognized this ly act.”) (emphasis original enabling by its X Opinion. Biological in its action omitted); Wild citation Defenders 2234-2242; also (COA) see App. Aplt. Norton, Supp.2d 67-68 v. life (D.D.C. It is 402.02, an action. C.F.R. Effects of 2003) (“The formulas established agen- there is enough conclude strictly River limit by the Law ESA meaning within cy action authority to release addi Reclamation’s reser- federal “ongoing there are anytime 7(a)(2) Mexico, and Section tional waters Br. at Aplee. operation[s].” voir or those limita loosen does not of the ESA interpretation would shift 28. Such authority.”). expand Reclamation’s tions or than rather entirely actor onto focus the action. the character nor the BOR Contracts B. Neither subject to action agency To constitute by the Upon Relied Federal Statutes ' find that ESA, must the court Necessary Discre- Provide Court unilaterally re- has the discretion BOR Action Agency to Constitute tion of available deliveries duce *34 provisions upon relies several The court and contracts already-negotiated under its its BOR and the in the contracts between endan-r that water and use reallocate statutes, contractors, federal additional dis- lacks such the BOR If species. gered justify trying to other factors and various performance cretion, the modifying BOR’s has the BOR discretion conclusion the basis cannot form contracts available deliveries contract to reduce as “al- defined RPA, RPAs are an where As the the ESA. with comply water during formal identified actions ternative however, clear, makes following discussion agency’s an within are consultation” the provides neces- factors these none of purpose the with authority, consistent sary discretion. economically feas- action, and proposed the 402.02, and Reasonable 50 C.F.R. ible. Provisions 1. The Contract Though the ESA alternatives. prudent conclusion—that court’s ultimate The permit it does broadly, construed deliver- to reduce has discretion the BOR non-discretionary con- agency to breach comply with water available ies of Bab- v. Club See Sierra terms. tractual to an endan- jeopardy prevent ESA and Cir.1995) 1502, 1511-12 bitt, F.3d look a careful species requires gered — did not Congress (“In sum, we hold City contracts repayment the SJC agree- apply to an 7 to for section intend MRGCD, as the as well the ESA passage finalized before ment construction rehabilitation MRGCD currently lacks agency the federal where way of introduction: By contract. ac- private influence discretion to to dif- widely due vary rights spe- Users’ protected tivity for the benefit contracts. reclamation ferences Whooping Crane cies.”); Platte River be classified generally can FERC, most While Trust v. Maint. Habitat Critical or water contracts repayment as either (D.C.Cir.1992) (holding 27, 34 contracts, service sig- their.terras vary apply construction to reclamation nificantly by project contracts). district. The court’s odyssey through important Several terms define users’ (no the contracts legislation and other mat- rights to receive and use wa- related, ter generally how including the ter, including specifying terms the Fish and Wildlife Coordination Act of 1958 quantity delivered, of water to be and the Reclamation States Emergency during allocation of shortages, 1992) Drought Relief Act of per- does not acreage lands and total on which suade me otherwise. The subsections that used, may be pur- and the follow discuss turn each of the contract poses for may which the water provisions cited the court to justify its used. terms While such as vary these conclusion. contracts, among other terms —includ- ing an important provision relieving a. The “all as supplement- amended or government of liability for failure ed” Provisions to deliver water for any ap- reason — The court upon preamble relies pear in reclamation high contracts with repayment the SJC contracts providing consistency. government that the acting was pursuant Benson, Reed D. Whose Water Is It? Pri to Federal Reclamation Laws “all as eRights vat Authority Public Over amended or supplemented,” Aplt. VI Project Water, Reclamation 16 Va. Envtl (COA) App. 1182, 1198; Aplt. IV (1997) (footnotes omitted). L.J. 393-94 (MRGCD) App. as pream well The parties contracts in this case ble to the 1951 MRGCD rehabilitation and are more than water service pro contracts construction contract stating it was made viding long-term supply of they water — pursuant the Reclamation Act of 1902 “and not only required and the acts amendatory thereof supplementa MRGCD pay periodic operation and ry (MRGCD) Aplt. thereto.” I App. 155. maintenance costs of project, the SJC but Flood Control Act of repay also to government for a share *35 which the 1951 MRGCD contract was exe project construction costs over 50 years. cuted, contains similar language describing These payments latter were in consider authority the under which the Secretary of ation of a right to portion use that of the the Interior operates and specifically project water allocated to respective the “[t]his states Act [Flood Control shall Act] entities. be deemed a supplement to said Federal provisions None of the relied upon by reclamation laws.” Flood Control Act of court, the alone or in combination and 1948, 80-858, 203, Pub.L. No. 62 Stat. particularly against a backdrop of the au- 1171, 1179. thorizing legislation, support a conclusion Far from incorporation an ESA, that these contracts confer on discretion the provisions the BOR to reduce deal with the deliveries of available government’s water and source the authority reallocate it in favor of an en- dangered into species. enter the Though contracts. simply, Stated far the ESA being supported is not an the plain amendment to the recla- language federal laws, contract or the shortage provisions, mation it probably does supplement BOR did negotiate not retain such reclamation laws where agency an en- discretion. See joys Irrigation Kennewick noted, discretion. But as no court has States, Dist. v. United 880 1018, F.2d held that expands the ESA an agency’s (9th Cir.1989) (normal 1032-33 existing rules of discretion, authority or and there
1147 Although endangered species. pose of expanding project to this specific no law is broad, is facts do Hill language amending prior the BOR’s discretion v. Nor See matter. Forest & of Wildlife See American Defenders law. reclamation 67, ton, at 2003 WL F.Supp.2d 257 (ESA Ass’n, at 298-99 F.3d 137 Paper (In Hill, 1737547, Supreme “the at *10 v. O’Neill powers); no substantive confers considering a situation was Court 677, States, 681 Cir. F.3d United discretionary con agency has no which an of reclama 1995) amendment (subsequent action, and 50 C.F.R. proposed trol over a ESA obli directing BOR meet tion law did discretion] [requiring agency § 402.03 Congress were event In the gations). ruled.”). It also when the Court not exist ap laws specific reclamation to amend a direct that Hill involved noting bears re require project SJC plicable to the endangered link between to benefit amounts in contract ductions link direct here no such species jeopardy; have the contracts species, endangered exists.4 renegotiation calling for provision specific the doc- court holds that Although the option. at the contractor’s of the contract in the terms results of unmistakable trine ¶ 1195; 12i, (COA) ¶ IV App. 25, Aplt. VI perfor- in the the ESA incorporation of O’Neill, (MRGCD) 908; also App. see Aplt. contracts, it is doubtful mance of these F.3d at 683. light applies here the doctrine Hill, 437 U.S. Valley Auth. v. Tennessee “[T]he sovereign power involved. (1978), 57 L.Ed.2d 153, 98 S.Ct. Government, sovereign, has the Federal recog contrary. The Court not to the that confer vest- contracts to enter power occasion, “on might, ESA nized that Op- Agencies Pub. v. rights,” ed Bowen projects ongoing to alter require agencies Entrapment, 477 U.S. posed to Soc. Sec. the Act.” Id. goals of fulfill the in order to L.Ed.2d 35 41, 52, 106 S.Ct. examples But 98 S.Ct. government (1986), but contracts all proposition support of that discussed legislation of subject subsequent remain (1) the Air it whether discretion involve un- sovereign has sovereign unless jeop to avoid bombing runs altering Force to exercise right mistakably waived (2) cranes, the Park whooping ardy to Winstar, v. States United power. such by supply grizzly bears protecting Service 839, 878, 116 S.Ct. 518 U.S. carcasses, reducing elk ing them excess (1996). “[Application L.Ed.2d 964 (3) hunting, or clearcutting, preventing enforce- on whether ... doctrine turns open Authority not Valley alleged the Tennessee obligation the contractual ment of snail protect Dam to ing sovereign the Tellico of a exercise block the would *36 184-88, 2279. 879, 98 S.Ct. at 116 Id. darter. Id. power of the Government.” perfor has examples government involve Although the None of these 2432. S.Ct. impose envi- power contracts existing government not surrendered mance un- in contracts terms on these ronmental laws contain definite the contracts where Dist. v. terms, Irr. see Madera no mistakable obligations describing parties’ the (9th 1397, Cir. Hancock, 1406 F.2d 985 pur- the to advance discretion unilateral and does Rio Grande may effect on the flows project water Merely SJC because anything, silvery If Rio Grande minnow. depletions in the replace the not harm used to basin, voluntarily parties’ entered the or that of that water the eventual release jeopardy to the prevent agreements to reservoir, into primary benefi- consistent minnow, with harm to equate silvery does not intended, incidentally benefits cial uses The Op. at 1132. silvery Ct. minnow. silvery minnow. has no Reservoir storage water in Heron 1148
1993),
lia, J.,
government
does
seek to
concurring
not
judgment)
(noting
by modifying
enforce the ESA
that “the
any indepen
doctrine has little if
interprets
deliveries because it
such en- dent
legal
beyond
force
what would be
contingent
forcement to be
agency
upon
dictated
normal principles of contract
discretion,
altogether
which is
lacking interpretation.”). Normally non-jurisdic
Winstar,
880,
here.
estimate of 10.24 bility Provisions relinquishment portion of a of its water allocation “to make water available for a The 1951 MRGCD contract with the permanent pool for fish wildlife and provides BOR that: purposes recreation at Cochiti Reservoir Should there ever occur a shortage Project” from the San pursu- Juan-Chama quantity normally water which Congressional ant allowance of such would be available through by (COA) purpose. X Aplt. App. means of said works constructed provisions These establish how certain therewith, in connection in no event shall operation costs of and maintenance of the any liability against accrue therefor storage complex reservoir will be distribut- States, any officers, United or of its ed. The district court viewed the latter agents employees or any damage for provision as “reducing contractors’ costs to direct or arising indirect therefrom and higher portion reflect a going payments to the United pro- States (COA) needs,” fish and wildlife I Aplt. vided for herein shall not be reduced App. says nothing but that any about any because of such claimed shortage or entity having the discretion to allocate wa- damage. ter in the shortage. all, absence of After ¶ 24, (MRGCD) Aplt. I App. 166. A simi- provision deals cost distribution provision lar City’s pro- exempts and the MRGCD vides that: paying portion of costs attribut- drought causes, On account of or other able to a “fish and wildlife function.” may there occur at during any times Nothing suggests contracts that the year a shortage quantity of water “fish gives and wildlife function” available from the storage reservoir right BOR the to reallocate water commit- complex by City pursuant use others, ted contract to and instead use this contract. In no event any shall that water for instream benefiting flows liability against accrue the United States fish and wildlife. of its employees officers or provisions These merely provide that if any damage, indirect, direct or arising operation reservoir and maintenance costs out of such shortage. associated with a fish and wildlife function ¶ 18b, (COA) Aplt. VI App. 1192. The they increase —as apparently did when the MRGCD contract for SJC water contains a City relinquished a portion of its allocation ¶ 12(b) virtually provision. identical IV in favor of Cochiti Reservoir —the cost dis- (MRGCD) Aplt. App. 902. may tribution need to Opera- be modified. tion and maintenance costs for the reser- The language provisions in these plainly voir storage complex encompass do not applies to shortages actual caused direct provision costs for of water to en- lack of water beyond that are BOR con- dangered species. trol, And the fact that the thus making immunity ap- clause City and the pay MRGCD do not have to propriate suggesting duty *39 arising by liability damages for less from point is non at this water available allocate irrigation in water re- City’s shortages in the reason of Paragraph 18j discretionary. ¶ any or other sulting con- from distribution MRGCD’s 12i in the and contract States, 4 Cl. water, by the v. United required causes.” Orchards as for SJC tract (1984). 87-483, They defensive No. are Pub.L. Ct. authorizing legislation, (1962), nature, as affirma- interpret contain to them 11(a), 99-100 and 76 Stat. shortages— discretion to enforce sharing grants for tive provision in the deliveries prospective and reduce contract occurring ESA shortages when (which part shortage does violence is of a Juan Basin absence runoff in the San Basin) language is insufficient and intent. their River of the Colorado satisfy con- storage to with in combination Rights” Provision d. The “Water non-liability pro- The requirements. tract hardly suggest provision above in the quoted Rights” visions The ‘Water to reduce water City grants the BOR has discretion with the BOR contract reason, including right” for other to: City deliveries the “exclusive Moreover, even as- elsewhere. shortages that share of the dispose of use and scarcity in time of suming such discretion and allo- supply available project water and legislation authorizing shortage, or supply pur- municipal cated to water water deliveries require contracts the SJC .... poses reduced; they do not proportionally
to be disposed of for may be used or Water to aid an reallocated to be allow water from any purpose desired species. endangered disposal use or time to time.... Such diverting applying such may causes” “other court construes the The Rio directly from the Grande water non-liability provisions in the language diverting apply- system, by stream the BOR to invest contracts SJC utilizing project ing underground water deliveries to reduce contract discretion the adverse effects to offset water is an unreason- the ESA. This implement hereto- underground withdrawals such Surely the “other interpretation. able Rio from the hereafter made fore or causes external language means causes” otherwise as system, or stream unpredict- that are unknown the BOR City may desire. may re- failure such as facilities able shortage, (COA) ¶ of a water in the occurrence The 18d; App. sult 1192-93. Aplt. VI from an shortage resulting to a opposed also con- for water SJC MRGCD spe- endangered duty protect ongoing “the the district granting provision tains a not rea- interpretation court’s cies. The that share dispose of to use and right risk-shifting it upsets because allo- sonable supply available project water provision, in this arrangement inherent supply purposes.” irrigation water cated to a contractor impossible ¶ (MRGCD) it would be App. 12d, Aplt. IV forma- at contract (particularly, predict City’s con- Although the court reads tion) applica- might be provision when exchanges “recognizing] provision as tract ble. aquifers project water system native Rio Grande stream and the in these con- non-liability provisions provision water,” Op. at see Ct. agreements, tracts, common water disposal of permissible use It?, speaks to Envt’l Benson, Is 16 Va. Water Whose not the City’s option, at the pur- exculpatory. Their are L.J. at (COA) ¶ 1192- 18d; App. Aplt. VI harm- BOR’s. States United pose “hold[ ] is to *40 93. as to use within the terms project designed Discretion The is to furnish an City, is invested in the yield contract estimated firm from proposed stor- age project the BOR. This is critical distinction. use approximately 101,800 provisions recognize City annually. These acre-feet Of this (and MRGCD) 48,200 'perma- yield, each have “a acre-feet shall be available right nent portion annually City to the use of that for use as a munici- project supply water pal supply. allocated to its use water herein,” long pays so as each share its ¶ (COA) 18j, Aplt. App. VI 1203. Similar- Id; 1112d, (MRGCD) Aplt. App. costs. IV ly, MRGCD’s contract contains the follow- (emphasis supplied). permanent This ing provision: right extends for the duration of the con- project The designed is to furnish an ¶ (COA) 1192-93; Aplt. App. tracts. VI yield estimated firm proposed stor- ¶ (MRGCD) Aplt. App. IV 903-04. age approximately use of Paragraph City’s 26 of the pro- contract 101,800 annually. acre-feet of water Of City vides that “the has a right vested amount, 20,900 acre-feet shall be said indefinitely renew contract at appro- annually available to the District for use priate charges annual service long so as a irrigation as an supply. water supply may water be available and the ¶ (MRGCD) 12i, Aplt. IV 903. Both con- City is current on payments its for water tracts scarcity provisions contain service.” Id. at 1196. The MRGCD SJC provide “[djuring periods scarcity ¶ 15, provisions. contains similar when the actual available water supply (MRGCD) Aplt. App. IV 903-04. Accord- may be less than yield, the estimated firm court, ing to the “indefinite” does not mean [City/District] shall share in the avail- forever, 1134; Op. Ct. according to the supply able water in the ratio that alloca- dictionary, “indefinitely” means “without tions above bear to the estimated firm specified assignable end; limit or unlim- ¶ (COA) yield.” 18j, Aplt. App. 1203; VI (2d itedly.” English Oxford Dictionary ¶ 12i, (MRGCD) Aplt. IV ed.1989). provisions impose These mandatory shortage, Absent empowered the BOR is duty upon the BOR to furnish available to restrict City’s water deliveries un- supply water quantities contracted der only the contract where the is for. scarcity The qualifications relate to more than delinquent months in its scarcity or shortage by caused the lack of payments for supply water costs based water from the San Juan Basin and stor- upon costs, construction or is in arrears in age; nothing suggests that the BOR has payments advance for operating and discretion to shortage create a so as to ¶ 16a(l) maintenance (2), costs. & Aplt. VI protect an endangered species jeopardized (COA) App. 1191-92. provision A similar by drought Merely conditions. because a included the 1951 MRGCD rehabilita- contract may provide the BOR with some tion and construction contract. provides It discretion in one set of carefully limited for a refusal of water where the MRGCD beyond circumstances its control cannot is in payment arrears in charges due serve as a imply basis to that the BOR has (MRGCD) Aplt. the contract. IV unlimited discretion in all involving areas App. at 887. delivery. BOR’s control of water deliveries give power does not it to reallo-
e. The Use and Allotment Provisions unilaterally cate committed con- City’s contract provides: any tract more than a bailee virtue of efits, and, section, may as discussed in property mis- the next of the bailed possession nor statute fill that gap. does good. for social property deliver that 2. The Federal Statutes Provisions The “Other Uses” f. a. The Fish and Wildlife Coordination *41 heavily on the con- also relies The court Act project that the language stating
tractual
City suggests
The
that
the “Other
furnishing
for
for
water
is “is authorized
provision
prompted
Uses”
was
municipal
pro-
uses and for
irrigation and
Fish
and Wildlife Coordination Act
fish and wildlife ben-
viding recreation and
(“FWCA”)
1958,
85-624,
Pub.L. No.
72
efits,
purposes.”
for other beneficial
and
563;
661-666(c)
§§
Stat.
See 16 U.S.C.
¶
¶
(COA)
1193;
12h,
18h,
Aplt.
App.
VI
(current version).
upon
This" court relies
(MRGCD) App. 903.
Aplt.
authority
the FWCA as another source of
requiring
for the district court’s order
However,
recognized
court has
that
Op.
consultation and
RPA. Ct.
at 1136
and wildlife bene-
the “recreation and fish
662(a)
(c)).
upon §§
(relying
&
The
of the
are incidental benefits
SJC
fits”
“requires
agencies
FWCA
federal
to con-
purposes.
project,
primary
not
Jicarilla
develop
sult
and to
USFWS
States,
Apache Tribe v. United
657 F.2d
plan
mitigation
some
for the
of losses to
Cir.1981).5
(10th
Though the
populations
might
fish and wildlife
that
significant
it
that the contract
court finds
proposed agency
result from
actions al
use,
fish and wildlife
recognizes this
though
authority
the USFWS has no
provision suggests
of the
next sentence
agency to
require
adopt
its recom
benefit,
inures to the
provision
that the
mendations.” Texas Comm. on Natural
of,
City:
supply
“The
the detriment
(5th
Marsh,
Res. v.
736 F.2d
City,
users
be available for water
Cir.1984);
(noting
see also id. at 268
for a
payable
and the costs
compliance
challenged
can be
in a
FWCA
municipal
supply
apportion-
reflect
water
action, though
private right
no
NEPA
regulation
among
purposes
these
and
ment
(5th
exists),
reh’g,
on
b. The Reclamation States respond same manner as he could to com Drought Relief Act 102-185, Rep. munities individuals.” S. upon court also reprinted The relies the Reclama- in 1992 U.S.C.C.A.N. Emergency Drought tion Act suggests Secretary States Relief 62. No one that the (“RSEDRA”) unilaterally of 1992which allows the Sec- could reallocate contract water retary of the Interior community to make water from from one or individual to an projects authority federal reclamation “for other under available of the RSEDRA. purposes protecting restoring fish c. Storage The Colorado River and wildlife resources.” 48 U.S.C. Act 2212(d). § governor The fact that the drought Storage New Mexico declared a and re- Nor does the Colorado River Act, quested way Project Act in specifically 620g, relief under the no 43 U.S.C. worth, 6. For it is what and the State the water could be made available to urban point enacting of New out Mexico Cong. areas and for wildlife habitat.” RSEDRA, Congress rejected provision 27, 1991) (state (daily S18643 Rec. ed. Nov. Secretary given would au- "which have (State) Wallop). Aplt. Reply ment of Sen. Br. thority, during drought, to have water users 26; Aplt. (City)Reply Br. at 28. forego their contractual entitlement so that which, beyond that Secretary judg- “to investi- of water his authorizes ment, construct, shortage, in the event of result operate and maintain will plan, gate, of, being in a amount reasonable available for mitigate losses ... facilities Navajo for, requirements the diversion for the propagation improve conditions wildlife,” irrigation project Indian and the initial invest the BOR with fish and stage project of the Juan-Chama Like similar lan- San necessary discretion. RSEDRA, specified in sections and 8 of this Act.”7 and the guage the FWCA 87-483, 11(a), power include the Pub.L. No. 76 Stat. authority does not (1962). project precisely works available water committed to reallocate Although because of these limitations. contract. suggest Plaintiffs that the BOR could re- yield, lease more water than the firm Factors 3. Other 75-80, Aplee. government Br. at re- provisions In addition to the contract sponds purpose that this would defeat the above, discussed and federal statutes portion and the small other factors to court relies on various yield already firm contracted for is that the BOR retains justify its conclusion Aplt. Reply reserved for Taos Pueblo. Br. so discretion to reduce deliveries water Moreover, provide at 16-17. the contracts *43 silvery minnow. jeopardy as to avoid to the existing rights have contractors first points the ab- example, For the court to “During periods of to uncommitted water. provision specify any of contractual sence the actual abundance when available water in the ing amounts of water “absolute” supply may more than estimated firm be contracts. The court determines SJC yield, City right to share shall have fluctuation in potential there is a because in supply in the actual available water “actual available water” and “estimat- that the allocations to the ratio above bear BOR has yield,” ed firm and because the firm yield, estimated all as determined ¶ to contract deliveries for discretion reduce Contracting 18j, Aplt. Officer.” VI causes,” has discretion to (COA) (MRGCD) “other the BOR 1203; App. App. Aplt. IV Op. at 1129. (similar reduce available water. Ct. con- provision in MRGCD SJC tract). problem reasoning with this is that The reasoning is also inconsis- completely at odds the authoriz- The court’s
it is
with
City’s
as
purpose
purpose
of the
tent with
of the
contract
ing legislation and a central
parties’ pur-
in
of
yield
firm
reflected
the recital
project
insuring an estimated
—
96,200
pose
City “obtaining, securing,
of the
and
by diverting
storing
acre-feet
and
supplementing
supply,
in
its
such wa-
years
in Heron Reservoir
with
water
water
runoff,
Aplt.
municipal purposes,”
to
for
VI
average precipitation and
ter
above
(COA)
1182,
App.
agreeing
pay
in
and
to
using
to avoid a shortfall
and
that water
obtain,
costs “to
average precipitation and share of the construction
years
below
supply.”
supplement
secure and
its water
provide
runoff so as to
contractors with
¶
(COA)
1185,
4(a),
Aplt.
App.
authorizing legisla-
The
VI
available water.
(COA) App. 1199. It is
Secretary
Aplt.
shall
amended VI
provides
tion
that “[t]he
purpose
inconsistent with the
into contracts for a total amount
also
not enter
domestic,
municipal,
industrial
furnishing irrigation
and
and
Section 2 relates to
7.
Navajo
Irrigation
uses,
water to the
Indian
providing recreation and fish
furnishing
supplies
to
8 relates to
water
benefits."
wildlife
Conservancy
the "Middle Rio Grande
District
contracts,
quent
specifically
in
as reflected
the re-
to the
re-
contract
MRGCD’s
800,000
quired
provide
BOR to
acre-
purpose that
parties’
cital of the
for fish
feet
water
and wildlife
supplemental supply
“acquire a
MRGCD
compliance
and habitat
restoration and
irrigation
for the
to be used
obligations
with future
under the ESA. Id.
Aplt.
irrigable and arable lands.”
IV
7;
Projects
n.
Reclamation
(MRGCD)
Merely
because the
App.
Adjustment
Authorization and
Act of
the amount of
BOR determines
available
102-575, 3406(b)(2),
Pub.L. No.
Stat.
and contracts
water for authorized uses
response
argu-
4715-16.
In
it can declare less water
does not mean
government
ment that the
would be hable
diverting
after
some
uses
available
to con-
failure
deliver
choosing.
the court’s
tractors, the court held that the “contract’s
City’s
court also cites the
contract
liability
unambiguous
limitation is
and that
augment
sup-
with the BOR
the water
unavailability
resulting
of water
Valley.
ply of the Middle Rio Grande
legislation
the mandates of valid
consti-
contracted with the
the BOR
shortage by
‘any
tutes a
reason of
other
augment
water to
the water
purchase SJC
” O’Neill,
causes.’
Co.,
Finally, Klamath Protec- Although Water Users contracts issue establish Patterson, duties, tive Ass’n. v. rights F.3d certain bilateral Cir.1999), the court held interpretation that various water court’s renders the con- third-party users were not beneficiaries illusory tracts somewhat because the BOR a 1956 contract modify rights between the BOR and a will discretion have those *45 duties, power company operated pro- that a BOR thereby rendering uncertain ject. Id. at 1211. The BOR established parties’ expecta- settled contractual end, operating plan altering new interim water tions. In the the court concludes that power flow levels to company government’s “authority it to man- is eventually agreed. age Id. at 1209. The trig- new MRGCD and SJCP works” that plan ESA, only by gers obligations was motivated not the ESA to consult and necessity compliance but also presumably Op. reallocate water.8 Ct. various fishing treaty tribal and water 1136. This is considerable tension with (and ESA, rights. Id. The court Supreme authority held Court the Recla- contract, Act, 383) though passed subsequent 372, §§ recog- mation 43 U.S.C. applied long agency nizing government “as as the federal gener- the federal Quite apart project-water, 8. displace from the SJC holds that' the BOR also can only percent diversionary 12 of the MRGCD’s rights MRGCD's state-law water in its non- supply project water is water —the rest is non- project water. opinion essentially water. The court's
1158 directions to remand this matter rights tion with ally respect state-law must right in any inherent water wa and lacks to the FWS for further ESA consultations flowing through feder in or originating ter I properly in view of believe to be the what States v. New property.9 See United al scope of the BOR’s discretion. limited 696, 716-18, Mexico, 98 S.Ct. 438 U.S. (1978); 3012, 1052 67 L.Ed.2d California States, 645, 665, 438 U.S. 98
v. United (1978); 2985, 1018 Ickes 57 L.Ed.2d
S.Ct. 94-95, 412, Fox, 82, 57 S.Ct. 81
v. 300 U.S. (1937); v. L.Ed. 525 United States Cruces, 1170,
Las Irrigation
Cir.2002); Holguin Elephant v. Butte t., 88, 91 N.M. 575 P.2d 91- UPCHURCH, David L. Petitioner- Dis (1977); Middle Rio Grande Water Appellee, Conservancy Rio Ass’n v. Middle Users v. t., 258 P.2d N.M. Dis (1953). reasoning court’s Under the BRUCE, Warden, L.E. Hutchinson Cor Frankenstein, ESA, despite good like Facility; Stovall, Kan rectional Carla creators, of its has become a intentions Attorney General, Respondents- sas The ESA was never meant to monster. Appellants. government, on
allow the federal behalf No. 02-3242. endangered species, to overturn this estab merely oper precedent. lished BOR Appeals, United States Court of works; it ates the lacks reserved or Tenth Circuit. (let acquired right priori alone with June ty) unilaterally that would allow it to take and use the water for the sole benefit of an
endangered species. See Nevada v. Unit- States, 110, 126, 463 U.S.
ed S.Ct. (1983).
2906,
not that reclamation are bargain or viewed as a bad
subsidized
some; government is not free
breach those contracts. The court’s alter- holding, practice can
native (as
justified by incorporated the ESA into
the contracts via doctrine unmistak- terms) regardless
able of whether the con- discretion, unprecedented.
tracts confer *46 injune-
I would
the district court’s
vacate
They
Irrigation
do
involve a
9. The court cites Ivanhoe
Dist. v.
unilateral reduction
291,
McCracken,
government
357 U.S.
78 S.Ct.
contract deliveries
in favor
Morton,
(1958)
may
of another use that
not be
L.Ed.2d 1313
Israel v.
consistent with
(9th Cir.1977),
consistently recognized
support
state law. We have
549 F.2d
acquiring
primacy
of a distinction between
of state law after release of the
Cruces,
rights
operating
projects.
federal
water. United States v.
Las
Both
(10th Cir.2002);
Ivanhoe and Israel involve federal restrictions
Jicarilla
Tribe,
supplying project
Apache
water to excess land.