Appeals court to hear arguments in silvery minnow case


(Note: If ever an article was written to illustrate the extent to which the 'free press' has been muzzled, this is it. Read with care as you navigate the minefield of language deception.)


January 13, 2003


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Casper Star-Tribune

Casper, Wyoming

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Albuquerque, New Mexico (AP) - A panel of federal judges will hear arguments Tuesday over whether water earmarked for cities and farms can be used instead to protect a tiny fish at the heart of an environmental debate.

Three judges of the Denver-based 10th U.S. Circuit Court of Appeals will review a ruling by U.S. District Judge James Parker, chief judge of the federal bench in New Mexico, offering the U.S. Bureau of Reclamation a northern New Mexico reservoir to maintain habitat for the endangered Rio Grande silvery minnow.

The city of Albuquerque and agricultural users along the river contend Parker overstepped. Environmentalists have acclaimed last September's ruling.

In a case that has drawn intense focus from other Western states and national environmental groups, the 10th Circuit has put Parker's ruling on hold.

''It has potential implications for species and bureau projects all around the West,'' said Letty Belin of Santa Fe, an attorney with the Land and Water Fund of the Rockies who has helped sue the federal government on behalf of the minnow.

The appellate ruling will be binding for New Mexico, Colorado, Kansas, Oklahoma, Utah and Wyoming.

''It's an important case because it's got some original questions that as far as I know haven't been addressed before,'' Assistant State Attorney General Stephen Farris said.

Farris has said Parker failed to address the cause of the silvery minnow's decline: drought. Instead, he said Parker ruled that water be released from Heron Reservoir although the reservoir is not responsible for harming the species.

Parker has ''reached outside of what was causing the harm and has gone to a project that's not related,'' Farris said last September.

Federal attorneys have argued that the Endangered Species Act doesn't give the Bureau of Reclamation the authority to reduce deliveries to San Juan-Chama Project users of Heron Lake water or to the Middle Rio Grande Conservancy District, which delivers water to irrigators.

''The bureau is not obligated to be the savior of all endangered species that exist in Western rivers, nor does it have the authority to be so,'' the state argued.

Belin disagreed, saying the San Juan-Chama and Middle Rio Grande projects ''are severely harming the silvery minnow,'' and the San Juan-Chama Project was intended to compensate for Rio Grande depletions.

''It's supposed to keep the river whole,'' Belin said before the appellate hearing.

Charles DuMars, attorney for the Middle Rio Grande Conservancy District, said the case also raises the question of whether private water rights can be taken for endangered species.

The conservancy district, serving irrigators from Cochiti to Bosque del Apache, contends its irrigation water is privately owned.

Environmental groups argued that the Bureau of Reclamation has the authority to limit the district to reasonable beneficial use and the authority to require minimum river flows past diversion dams.

''A reversal of (Parker's) ruling would almost certainly ensure the extinction of the Rio Grande silvery minnow, rendering a total waste of the massive efforts to save it,'' environmentalist lawyers have argued.

Some other potential questions confronting the judges:

- Can water from one river be ordered into use to solve an endangered species problem in another river?

- Did Parker defer adequately to the recommendations of the U.S. Fish and Wildlife Service, which said it would be better to save stored San Juan-Chama water for future needs?

- Does the Endangered Species Act take precedence over Bureau of Reclamation contracts and other federal laws?

The three judges who will hear arguments in the silvery minnow case Tuesday are:

Senior Judge John C. Porfilio of Denver, a 1982 Ronald Reagan appointee and former Colorado attorney general.

Judge Paul J. Kelly, Jr., Santa Fe, a former New Mexico State Representative who was nominated by George Bush in 1991;

Judge Stephanie K. Seymour of Tulsa, Okla., who was an attorney in private practice before being nominated by Jimmy Carter in 1979.