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Middle Rio Grande Conservancy Dist. v. Norton

Citation: 32 ELR 20734
No. Nos. 01-2057, -2145, 294 F.3d 1220/(10th Cir., 06/21/2002)

The court affirms a district court decision requiring the U.S. Fish and Wildlife Service (FWS) to prepare an environmental impact statement (EIS) and to issue a critical habitat designation for the Rio Grande Silvery Minnow within 120 days. In 1994, the minnow was listed as an endangered species. The FWS then gave itself until 1995 to designate a critical habitat for the minnow, but did not actually issue the designation until 1999 after it had been ordered to do so by the court. In designating the habitat, the FWS conducted an environmental assessment (EA) but not an EIS. The district court found that the FWS erred in its decision to forego an EIS and ordered the FWS to conduct an EIS and propose a new critical habitat designation within 120 days. The FWS proposed a new critical habitat designation but did not conduct an EIS.

The court first holds that the district court's order to conduct an EIS was not an abuse of discretion. Because the FWS' delayed and inadequate compliance with the National Environmental Policy Act and the Endangered Species Act (ESA) have helped to push the minnow perilously close to extinction, and because the record contains overwhelming evidence of the environmental impacts of a critical habitat designation, this case represents one of the rare circumstances when a remand to the agency to conduct yet another EA is not appropriate. It is clear that to fulfill the ESA's goal of halting and reversing the minnow's decline, the FWS should designate critical habitat as soon as possible. Additionally, there is overwhelming evidence that the designation will significantly affect the quality of the human environment, requiring the preparation of an EIS. The court also holds that given the delays on the part of the FWS and the urgent need for a new critical habitat designation, the district court did not abuse its discretion in denying the FWS' motion for an extension to comply with the order.

Counsel for Plaintiffs
Charles T. DuMars
Law and Resource Planning Associates
201 Third St. NW, Ste. 1370, Albuquerque NM 87102
(505) 346-0998

Counsel for Defendants
Susan Pacholski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Murphy, J. Before Seymour and McKay, JJ.