Denial of Bid a Blow to Water District

Environmentalists fighting for protections for the endangered silvery minnow said the ruling is good news for the Middle Rio Grande.

Senior U.S. District Judge James A. Parker this week turned back a bid by the Middle Rio Grande Conservancy District for more freedom to run its irrigation system the way it wants.

Parker, in a decision issued late Monday, said the federal government owns El Vado Reservoir, San Acacia and Angostura dams and other works used by the district.

The decision is a blow to the state's largest irrigation district, which could have gained more independence from federal control and won some relief from Endangered Species Act obligations had it prevailed.

The district's attorney, Chuck DuMars, said he was disappointed with the ruling and said the district will appeal to a higher court and ask Congress for help.

DuMars also said the decision fits into a history of federal courts favoring the federal government in property ownership cases, including claims by Native Americans and land grant heirs.

"It's an incredibly important principle of federalism," he said.

Environmentalists fighting for protections for the endangered silvery minnow said the ruling is good news for the Middle Rio Grande.

"The jury is still out about what it will mean, but it is another in series of political and legal steps that are assuring more accountability of an agency that has escaped accountability for far too long," said John Horning, executive director of Santa Fe-based WildEarth Guardians.

Federal agencies must consult with the Fish and Wildlife Service to make sure their actions don't harm endangered species. If the district had won, it would not have had that obligation.

"That's huge because that's of course a big aspect of application of the Endangered Species Act," said Letty Belin, an attorney for the environmental groups.

The federal government, under the terms of a 1951 contract, reconstructed district facilities, paid off district bonds and acquired title to its dams, canals and ditches, Parker found.

Although the debts were paid off in 1999, an act of Congress is needed to transfer title back to the district, he said.

Parker criticized the district for arguing during the 1970s that the federal government owned the irrigation works in order to dismiss lawsuits over drownings in ditches and then taking an opposite stance in this case.

Andrew Smith, a Department of Justice attorney on the case, said "the court's decision simply validates that an orderly process of congressional review must be followed to ensure that federal projects are turned over in a manner that protects local interests."

Sens. Pete Domenici, R-N.M., and Jeff Bingaman, D-N.M., said in statements they are reviewing the ruling.

"It is premature to settle on a course of action without first having a chance to study the decision and discuss its implications with the conservancy district, water users, pueblos and other affected parties," Bingaman said.

"I will continue to review Judge Parker's opinion to understand its effects on our collaborative efforts to recover the silvery minnow while providing needed water to those who live on or near the middle Rio Grande," Domenici said.

Copyright 2005 Albuquerque Journal - Reprinted with permission


 

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