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Rio Grande Silvery Minnow v. Keys

ELR Citation: 33 ELR 20060
Nos. Nos. 02-213-, -2135, 46 Fed. Appx. 929/(10th Cir., 09/11/2002)

The court holds that intervenors in an environmental group's Endangered Species Act (ESA) suit lacked standing to appeal a district court's decision upholding a U.S. Fish and Wildlife Service (FWS) biological opinion (BO) for the endangered silvery minnow. The group alleged that the BO was lacking because it relied on an erroneous Bureau of Reclamation (Bureau) conclusion that the Bureau lacked discretion to protect the minnow by diverting water from river water stored for irrigation and drinking water. An irrigation district, local water users, the state of New Mexico, and a city intervened in the suit. In a memorandum opinion specifically addressing only the validity of the BO, but not the validity of the ESA suit as a whole, the district court held that the Bureau erred in determining that it lacked discretion to divert stored river water. The court concluded that although the Bureau did have discretion, the FWS' reliance on the Bureau's erroneous conclusion to the contrary did not render the FWS BO faulty. The intervenors and the Bureau appealed this decision. The court first holds that the intervenors do not have standing to appeal because they cannot show injury-in-fact. The district court's decision stated that the Bureau had the discretion to divert water, not that it would or should. The court also holds that the Bureau did not have a proper basis to bring an interlocutory appeal from the district court's decision. The district court's decision was not a final decision on the merits, and the Bureau failed to establish a proper basis for an interlocutory appeal. It argued that the district court decision was an express injunction under 28 U.S.C. §1292(a)(1), but the district court's order did not purport to dispose of any motion for injunctive relief; rather, it was clearly directed at the group's request for review of the FWS BO.

[Counsel not available.]