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<br /> <br />. <br /> <br />Regarding the San Juan-Chania project ("SJC"), it appears that the Bi-Op does not call for <br />changes either to the Compact or to the governing rules and regulations of the SJC project, nor <br />does it call for any significant changes to existing uses of SJC water. <br /> <br /> <br />Page 7 <br /> <br />The Bi-Op also gives New Mexico water users incidental take protection. In exchange <br />for this, New Mexico and the United States entered into a settlement where the U.S. would rent <br />water from New Mexico for three years to maintain flows in the Rio Grande. New Mexico must <br />then use those funds in programs designed to restore the endangered species. Based on the Bi- <br />Op and this agreement, the U.S. and New Mexico then moved the District Court to dismiss the <br />complaint as moot. The environmental groups opposed this and moved to amend their complaint <br />to add a claim that the Bi-Op was arbitrary and capricious. <br /> <br />The Court a\1owed the environmental groups to amend their complaint, did not dismiss <br />the action as moot and made comments to the effect that, had the Bi-Op not been issued when it <br />was, he would have found for the plaintiffs. The Court also stated that in his view all Corps of <br />Engineer and Bureau of Reclamation actions are discretionary and the federal agencies may <br />disregard contracts or compacts. The Court requested briefing on this issue and the issue of <br />whether the litigants can "go behind" the Bi-Op and challenge the agency conclusions. The <br />State of Colorado filed a motion for amicus status and an amicus brief joining the State of <br />New Mexico's Brief on these issues. The Court has not yet ruled on the State of Colorado's <br />motion nor has the Court held a hearing on the substantive issues. <br /> <br />. <br /> <br />12. Middle'Rio Grande Conservancy District v. Norton,'CIV. 99-870,99-872,99- <br />1445M/RLP (Consolidated), NMFederal District Court. <br /> <br />.' "" <br /> <br />Issue: <br /> <br />Whether the rule designating criticalhi!biti!(fot the silvery minnow is valid. <br /> <br />Decision: The U.S. District Court determined that the rule is invalid. However, the rule was <br />to remain in operation for 120 days, in which time the Secretary may issue another rule <br />designating habitat. The United States has filed an appeal in the lOth Circuit and petitioned for a <br />stay to allow the Fish and Wildlife Service two more years to complete a new habitat <br />designation. <br /> <br />Discussion: This case is a consolidation of cases filed by the Middle Rio Grande Conservancy <br />District, the State of New Mexico, and Forest Guardians that sought court review of the Fish and <br />Wildlife Service's decision to designate critical habitat for the silvery minnow. In an earlier <br />lawsuit filed by environmentalists, the federal district court in New Mexico issued an injunction <br />I requiring the Service to designate critical habitat within a short period of time, unless more time <br />was needed to prepare an environmental impact statement. The agencies are in the process of <br />designating critical habitat for both the silvery minnow and the Western willow flycatcher. <br />However, at this point it appears the agencies may simply re-designate the prior critical <br />habitat. They may also designate some critical habitat for the flycatcher within Colorado. <br /> <br />. <br />