9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

that humans also depend upon.
What about the Endangered Species Act in the context of the
Colorado River? Lots of interesting legal questions arise. Does it
trump the Compact? Is the Endangered Species Act the trump card? Is
it greater than treaty rights? My God, is it greater than the
Constitution? Is it greater than God? After all, it takes a God
Squad committee to make exemptions. I do not know whether it trumps
the Compact. Any lawyers that tell you they know, hire them, maybe
they have something. The point is that the question cannot be
answered in the abstract. There are no absolutes in this game. I can
not make a legal opinion that the Compact will always control, or that
the Endangered Species Act will always control. It is always
determined by facts. What are the specific facts of any conflict, or
potential conflict, or circumstance involving implementation or
enjoyment of rights under the Compact, and the impact on endangered
species? As I said, the track record shows that problems can be
worked out. Some people are in a hurry and they do not want to spend
the time it takes to work problems out. Others do not acknowledge
that there is a problem to be worked out. "Hell, I got a water right,
I am going to use it, what is the problem?" I can understand that
feeling, particularly concerning what were thought to be settled
principles, settled law, settled rights, settled schemes, settled
projects, and settled plans. Then along comes this thing called the
Endangered Species Act to upset the apple cart. Oftentimes it is
upsetting. It is also the law for now. The experience in the
. northwest shows that by not following these laws the result is total
chaos, and unimaginable suffering on the behalf of people affected by
those who do not follow the laws. One strong message I am going to
give you is, like it or not, the agencies and others who are required
to follow these laws [ESA, NEPA and all the rest] better do it, and
better do it to the letter because if you do not you are going to find
yourself in a similar situation to that which exists right now in the
forests of the northwest, where every single acre of owl habitat is
under court injunction. In fact, under four court injunctions in two
different states. Not a stick of timber from the old growth forests
of Oregon can be sold now as a result of a pattern and practice of
violating the law. Dozens of violations of federal and environmental
laws committed by perhaps, well intentioned agencies and people who
thought that these laws were bad laws. They may have thought that
these procedures are silly, costly, or frustrating and we are not
going to do them, or we are going to shortcut them. The result is a
situation unimaginably worse then if the laws would have been followed
in the first place.
Is the Endangered Species Act part of the Law of the River?
Well, whatever the Law of the River is, yes. It is part of that law,
there is no getting around it. Agencies must consult the Fish and.
Wildlife Service when they undertake activities on this river that
impact listed species. Even though the law gives the action agencies
the final authority on whether or not to proceed with the project,
they had better follow the advice that they are given by the Fish" and
Wildlife Service. If the advice is not followed then the chances of
being stopped cold in the midst of project development by a court
injunction are greatly increased. Private parties that are
undertaking actions that impact listed species should be very careful

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