Monthly Archives: May 2014

Agency discretion, water, & endangered species

A month ago, the Ninth Circuit Court of Appeals decided a case that will help ensure that the Endangered Species Act remains applicable to federal agency actions affecting western rivers. The case involved the Bureau of Reclamation’s renewal of certain water supply contracts from the massive Central Valley Project (CVP) in California. A panel of three judges from the same court had earlier held that Reclamation could renew these contracts without engaging in ESA “consultation” to determine the impact of renewal on protected fish species. When environmental groups challenged that decision, the Ninth Circuit granted “en banc” review (before a larger panel of judges) and held in NRDC v. Jewell that consultation was required.

Why is that decision significant? Simply put, no environmental law has had as much impact on western rivers–or created as much controversy–as section 7 of the ESA. This provision requires federal agencies to “consult” on the effects of their proposed actions on threatened or endangered species, and prohibits federal actions that would jeopardize the survival of listed species. Back in the 1970s, the Supreme Court said this language reflects Congress’ judgment that saving endangered species should be “the highest of priorities.” In that same case the Court stated that the language of section 7 “admits of no exception,” but in a later case, the Court essentially said that an exception does exist for actions that a federal agency has no choice but to take. Thus, federal agencies now have an escape hatch, allowing them to evade their section 7 duties if they can show that their actions are “non-discretionary.”

The Ninth Circuit’s original decision suggested that a federal agency could open this escape hatch rather easily, if its discretion to take an action were “substantially constrained.” The three-judge panel found that in renewing forty-year contracts for CVP water supply, Reclamation had no ability to change the quantity of water to be delivered, so consultation was not required. But the en banc panel unanimously rejected that reasoning, saying that consultation was required so long as the agency has “some discretion” to act for the benefit of listed species. And it said that Reclamation had some discretion to modify contract terms other than quantity–for example, by changing the price of water or the timing of deliveries–or even to refuse to renew the contracts at all.

But the most important questions about Reclamation’s discretion are about project operations, not contract renewals. Most of the agency’s water supply contracts are “repayment” contracts that do not need to be renewed, so the contracts themselves do not raise the exact issue involved in the recent Ninth Circuit case. For most projects, the question will be whether Reclamation has enough discretion in operations–that is, in storing and releasing water for irrigation and/or other purposes–that it can make changes for the benefit of listed species affected by those operations. The Ninth Circuit decision means that if Reclamation has some discretion in its operations, it must consult on them.

The discretion issue was the key focus of the Rio Grande silvery minnow litigation a decade ago. Since then the Supreme Court issued its 2007 decision that shed light on the exemption from section 7 for non-discretionary actions. I then wrote a long article, Dams, Duties, and Discretion arguing that Reclamation’s project operations should be viewed as discretionary actions for purposes of section 7 compliance. There will be more litigation, perhaps from the Middle Rio Grande, over the application of the non-discretionary exemption to federal water project operations. For now, the Ninth Circuit was right to keep the exemption narrow.

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Float on! Recreational stream access in New Mexico

If you want to boat or fish on a stream in New Mexico, do you have a right to float or wade that stream even if it flows through private lands?  The New Mexico Attorney General says you do.  In an opinion issued last month, the AG concluded, “A private landowner cannot prevent persons from fishing in a public stream that flows through the landowner’s property, provided the public stream is accessible without trespass across privately owned adjacent lands.”  In other words, if you can get to the stream without trespassing, a private landowner on that stream has no right to stop you from floating down (or wading up, if you’re into that sort of thing).

In finding a right to float, the AG’s opinion is pretty firmly anchored, so to speak, in New Mexico law.  New Mexico’s 1907 water code declared that “all natural waters flowing in streams” within the state belong to the public, and the New Mexico Supreme Court had relied on that law in a 1945 decision finding a right to float on a lake, even though the bed of that lake was private property.  But New Mexico law had little to say on whether a recreational user has the right to touch a privately owned streambed in the course of boating or fishing.  That “right to touch” is crucial for those who want to wade a stream, drag a canoe off a submerged bar to deeper water, or even bounce off the occasional rock in a raft or kayak.  In short, a right to float without a right to touch is pretty unsatisfactory–but so it is in my former state of Wyoming, since a state supreme court case 50+ years ago.

Supreme courts have seen this issue differently in different states.   In Colorado, the court rejected the right to float in a 1979 case called Emmert.  But five years later, the Montana Supreme Court found that a right to float did exist in that state.  More recently, in its 2008 Conatser decision, the Utah Supreme Court upheld the right to float and the right to touch (although the Utah Legislature partly undid that decision a few years later).  In predicting what New Mexico courts might do on this unsettled issue, the AG’s opinion emphasized Conatser without mentioning Emmert.  As for that Colorado rule, it is somewhat bizarre that a state with such a strong recreation-based economy and economically significant whitewater industry has taken such a restrictive view of stream access rights.

What makes this issue controversial?  It comes down to the collision between the “right” of the public to use rivers for recreation, and the “right” of private landowners to exclude people from their property.  Where land and water meet, the law can get pretty weird, and the clashes can get pretty bitter.  River users like anglers and paddlers (which I happily am) often have stories about ill-tempered, belligerent landowners.  Meanwhile, riverfront landowners (which I unfortunately am not) have their own stories about ill-behaved, boorish recreationists.  A little mutual respect would go a long way, but when everyone starts asserting what they’re sure their rights are, it can get hard to find any common ground.

I think the New Mexico AG came to the right conclusion on stream access.  The opinion correctly found that the right to float had been recognized in New Mexico since 1945; on the right to touch, the opinion takes a reasonable and modern view of the law, and I think it’s right on the policy.  But the opinion is not actually law, just an official legal opinion by the state’s top legal officer.  It would not be surprising if some landowners, and some county sheriffs, should decide that they will defend private property, come hell or high water … or in this case, low water.  If that happens, some angler or boater may get charged with trespass, and then we will see if New Mexico law really does recognize a right to float and a right to touch.  For now, the AG is saying it does.

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