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. . . Page 9 endangered species. Based on the Bi-Op and this agreement, the U.S. and New Mexico then moved the District Court to dismiss the complaint as moot. The environmental groups opposed this and moved to amend their complaint to add a claim that the Bi-Op was arbitrary and capricious. The Court allowed the environmental groups to amend their complaint, did not dismiss the action as moot and made comments to the effect that, had the Bi-Op not been issued when it was, he would have found for the plaintiffs. The Court also stated that in his view all Corps of Engineer and Bureau of Reclamation actions are discretionary and the federal agencies may disregard contracts or compacts. The Court requested briefing on this issue and the issue of whether the litigants can "go behind" the Bi-Op and challenge the agency conclusions. The State of New Mexico contacted the Colorado Attorney General's office to inquire if Colorado would be interested in filing an amicus brief on these issues. Plaintiffs brief on these issues was due July 16, 2001. Any amiclls briefs in response would be due August 8, 2001. 12. Middle Rio Grande Conservancy District v. Norton, CIV. 99-870,99-872, 99- 1445M1RLP (Consolidated), NM Fedentl District Court. Issue: Whether the rule designating critical habitat for the silvery minnow is valid. Decision: 'The rule is invalid. However, the rule is to remain in operation for 120 days, in which time the Secretary may issue another rule designating habitat. The federal defendants are seeking an extension of time to complete a neW rule or, in the alternative, a stay of the order pending appeal. The federal district court denied both requests. The United States has filed an appeal in the IOlh Circuit and petitioned for a stay to allow the Fish and Wildlife Service two more years to complete a new habitat designation. Discussion: This case is a consolidation of cases filed by the Middle Rio Grande Conservancy District, the State of New Mexico, and Forest Guardians that sought court review of the Fish and Wildlife Service's decision to designate critical habitat for the silvery minnow. In an earlier lawsuit filed by environmentalists, the federal district court in New Mexico issued an injunction requiring the Service to designate critical habitat within a short period oftime, unless more time was needed to prepare an environmental impact statement. In designating the habitat, the Service relied on an environmental assessment and argued that a full EIS was not necessary because designation of the habitat brought no greater impacts than what occurred when Service designated the species as endangered. In a strongly worded opinion Judge Mecham held the designation to be invalid. The Fish and Wildlife Service has initiated the public scoping process for a new rule designating critical habitat for the silvery minnow.