Village of Logan v. United States Department of Interior

577 F. App'x 760
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 25, 2014
Docket13-2082
StatusUnpublished
Cited by40 cases

This text of 577 F. App'x 760 (Village of Logan v. United States Department of Interior) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Village of Logan v. United States Department of Interior, 577 F. App'x 760 (10th Cir. 2014).

Opinion

ORDER AND JUDGMENT *

DAVID M. EBEL, Circuit Judge.

Plaintiff-Appellant the Village of Logan (“Logan”) appeals from the district court’s order denying Logan a preliminary injunction to prevent Defendants-Appellees the Department of Interior, the Bureau of Reclamation, and the Eastern New Mexico Water Utility Authority as well as a number of individual defendants (collectively “Defendants”) from undertaking any work on the Eastern New Mexico Rural Water System Project until they prepare an Environmental Impact Statement in compliance with the National Environmental Policy Act of 1969. The district court refused to enjoin the Project preliminarily not only because the court found that delaying the Project would be contrary to the public interest, but also because Logan had failed to establish that it was likely to succeed on the merits of its underlying claims. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we AFFIRM.

BACKGROUND

The Canadian River Compact (“Compact”) allocates water from the Canadian *763 River watershed to the states of New Mexico, Oklahoma, and Texas. Following its ratification, New Mexico constructed the Ute Reservoir (“Reservoir”) on the Canadian River just west of Logan as a way to store the water New Mexico had been allocated under the Compact. Although the Reservoir was initially intended as a source of water for municipal and industrial use — and more specifically, as a way to replace the declining ground water supply in eastern New Mexico — it has since become a popular destination for outdoor recreation activities such as boating, fishing, and camping. The Reservoir is owned and operated by the New Mexico Interstate Stream Commission (“ISC”). While the Compact regulates the amount of water that can be stored in the Reservoir, it is the ISC that determines how much water can be removed from the Reservoir. That authority, however, is constrained by a 1962 Memorandum of Agreement (“Agreement”), entered into by the ISC and a predecessor of the New Mexico Department of Game and Fish (“NMDGF”), establishing a minimum reservoir elevation of 3,741.6 feet. Also referred to as the “fisheries minimum pool,” this water elevation must be maintained at all times, meaning that the ISC is required to stop all withdrawals from the Reservoir once that elevation is reached. The Agreement was most recently renewed in 2010.

Following a sustainable yield analysis, the ISC determined that up to 24,000 acre-feet per year of water (AFY) can safely be removed from the Reservoir. Since 1997, the entire yield of the Reservoir has been contracted to the Ute Reservoir Water Commission (“UWC”), which has the option to purchase up to 24,000 AFY for beneficial consumptive uses, including municipal and industrial, sanitation, irrigation, and recreation uses. The UWC is a twelve-member consortium that includes the Eastern New Mexico Water Utility Authority (“ENMWUA”) members (the municipalities of Clovis, Elida, Grady, Mel-rose, Portales, and Texico; and Curry and Roosevelt counties) and the UWC Quay County entities (Logan, City of Tucumcari, and Quay County). Under the most-current iteration of the contract, 16,450 AFY is allocated to the ENMWUA members and the remaining 7,550 AFY is allocated to the UWC Quay County entities. While the UWC is responsible for funding and constructing any water diversion or conveyance facilities, the contract makes clear that all diversion projects, and any water withdrawals themselves, must be approved by the ISC. To this end, the contract provides that the UWC’s right to purchase water is subject to the availability of water, and that the ISC is solely responsible for determining whether water is available. Should the Reservoir drop below the 3,741.6-foot minimum elevation set by the Agreement, for instance, the ISC can determine that water is not available and discontinue deliveries under the contract.

The Eastern New Mexico Rural Water System Project (“Project”) was conceived as a way to provide the ENMWUA members and Canon Air Force Base (collectively the “Participating Communities”) with a long-term sustainable municipal water supply, including drinking water. At this time, the Participating Communities’ sole source of water is ground water from the Ogallala aquifer, which underlies portions of New Mexico, Texas, Oklahoma, and Kansas and serves many other water diversion purposes-the largest of which is irrigated agriculture. Because historical demand has significantly exceeded aquifer recharge, the net result has been declining water levels throughout the Ogallala aquifer. These declining water levels have complicated the Participating Communities’ ability to provide a reliable water supply in two ways, one quantitative and *764 one qualitative. As the water levels in the acquifer have dropped, so too have well production rates, meaning that there is simply less water to be had. Equally troublesome, however, is that water quality is also diminishing, as aquifer declines have contributed to increased concentrations of constituents such as total dissolved solids, arsenic, fluoride, iron, radon, and volatile organic compounds in the ground water. Indeed, four of the Participating Communities are already experiencing difficulty complying with state and federal drinking water standards.

The goal of the Project is to construct a pipeline and the associated intake, pumping, treatment, storage, and delivery facilities necessary to deliver 16,450 AFY from the Reservoir to the Participating Communities in order to meet a portion of their current and future water supply needs. Although the Project’s intake structure has been designed, at the request of New Mexico state legislators, to allow for up to 24,000 AFY in withdrawals in order to accommodate the UWC Quay County entities in the event that they exercise their option to purchase the 7,550 AFY that has been separately allocated to them, delivery systems for such withdrawals are not planned or permitted at this time and are not part of the Project. Indeed, other than the intake structure, the remaining components of the Project (including all pipes, booster pumps, and water treatment facilities) have been designed and funded to deliver only a maximum of 16,450 AFY from the Reservoir to the Participating Communities. In other words, if at some point the UWC Quay County entities elect to purchase water that has been allocated to them, they will need to design, fund, and construct them own delivery project(s) in order to withdraw any water from the Reservoir using the Project’s intake structure.

When Congress authorized the Bureau of Reclamation (“Reclamation”) to provide financial and technical assistance to the Project, it triggered the National Environmental Policy Act (“NEPA”), requiring Reclamation to prepare an Environmental Assessment (“EA”) studying the Project’s environmental impacts. Reclamation began the NEPA scoping process in September 2007, when it asked members of the public and various government officials— including Logan’s Village Administrator— to help Reclamation identify, among other things, “[t]he important issues, resources concerns, and possible impacts to be addressed in the EA.” Aplt.App. at 599. Neither the Village Administrator nor any other Logan representative responded to Reclamation’s request.

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Cite This Page — Counsel Stack

Bluebook (online)
577 F. App'x 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-logan-v-united-states-department-of-interior-ca10-2014.