Law of the Rio Chama
Publication Date
Spring 2001
Document Type
Article
Abstract
The San Juan-Chama Project provides water to municipalities and irrigation interests in the Middle Rio Grande Valley of New Mexico under contracts entered into with the Bureau of Reclamation. Interests representing an endangered fish are now asserting claims for a share of this water. This article addresses the question of whether the terms of the San Juan-Chama contracts provide the Bureau of Reclamation the authority to reallocate contracted San Juan-Chama water for the Rio Grande silvery minnow in light of that agency's obligations under the Endangered Species Act. The article examines the terms of the contracts themselves and concludes that contract language can be construed to provide sufficient authority for reallocation of project water. This conclusion is strengthened if the Endangered Species Act is held to amend the project's authorizing statutes and the contracts. The Ninth Circuit case law supporting this conclusion is examined in the context of the Middle Rio Grande. The implications of the fractured Winstar opinions on the application of the unmistakable-terms canon of government contract construction are also analyzed. If parties sue to enjoin the government from reallocating water to the silvery minnow and the Ninth Circuit reasoning is adopted, the Endangered Species Act will be held to amend the contracts and permit reallocation. If not, the parties will likely be afforded damages if the government elects to reallocate water for the minnow.
Publisher
Natural Resources Journal
Recommended Citation
Drake, Joan E.. "Contractual Discretion and the Endangered Species Act: Can the Bureau of Reclamation Reallocate Federal Project Water for Endangered Species in the Middle Rio Grande." (2001). https://digitalrepository.unm.edu/uc_rio_chama/33
