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<br /> <br />Applicant was umeliable, and therefore the Applicant could not meet its initial burden. The <br />Court also took issue with aspects of Applicant's surface water modeling. Post-trial motions <br />were filed September 14. The main fight now is over costs and a motion by objectors for <br />attorneys' fees under Rule 11. No word yet on whether Applicant plans to appeal. <br /> <br />. <br /> <br /> <br />Page 6 <br /> <br />Discussion: In its post-trial motions Applicant seeks to introduce more evidence by way <br />of affidavit to support arguments that are very similar to those originally rejected by the <br />trial court. Objectors will seek an extension of time in order to obtain partial transcripts <br />with which to rebut the arguments made in the motions. If the extension is not granted the <br />objectors' responses would be due October 1, 2001. <br /> <br />11. Rio Grande Silvery Minnow v. Keys, No. 99 CV 1320, NM Federal District Court. <br /> <br />**Note name change from Martinez to Keys <br /> <br />Issue: Will water users on the upper and midclle Rio Grande be forced to by-pass flows <br />to keep the river bed wet and protect fish under the Endangered Species Act? <br /> <br />Decision: Pending. <br /> <br />Discussion: Several environmental groups (Defenders of Wildlife, Sierra Club, Forest <br />Guardians, Audubon Society, and the Southwest Environmental Center) filed suit against the <br />Bureau of Reclamation and the Corps of Engineers. The federal agencies asserted in a biological <br />assessment that they have little discretion tQ ma!(e releases from federal reservoirs for the silvery <br />minnow and willow flycatcher, because of constrain~s by Compacts, federal law and existing <br />contracts. The environmental groups filed a mOtion, for, preliminary injunction in ApriUo assure. <br />'. . that water remained flowing in the river through theirrigatio.n season. <br /> <br />The Court ordered mediation and issueda.gag order as to the negotiations. The parties were <br />able to negotiate a stipulation providing water to the minnow, using some of Albuquerque's San <br />Juan-Chama contract water by exchange, conserved water by the Middle Rio Grande <br />Conservation District, and pumped water from the lpw flow conveyance channel into the river. <br />The Court approved the stipulation and ordered me4iation for a permanent solution to the <br />problem. We are concerned regarding any positionithe United States may take with respect to <br />releasing San Juan-Chama water directly for instrea,m flows. The federal law authorizing the <br />San Juan-Chama project appears to forbid releases for such purposes. Further, we are concerned <br />about our water in the Rio Grande and whether the federal government is looking to Platoro or <br />the Closed Basin Project to add to the flows for the minnow beyond our Compact delivery <br />requirements. <br /> <br />On June 29, 2001, the United States issued the Programmatic Biological Opinion on the <br />Effects of Actions Associated with the U.S. Bureau of Reclamation's, U.S. Army Corps of <br />Engineers', and Non-Federal Entities' Discretionary Actions Related to Water Management on <br />the Middle Rio Grande, New Mexico ("Bi-Op"). <br /> <br />The Bi-Op analyzes the effects on the listed species (silvery minnow and Southwestern <br />fly catcher) from existing depletions to the Rio G~ande that result from both Indian and non- . <br />Indian water uses within the action area, and extends incidental take coverage to those uses. <br />