U.S. Water News Online
ALBUQUERQUE -- The way to resolve water-wildlife issues such as the Rio Grande silvery minnow case is not in court but in places like a University of New Mexico legal research center, a UNM professor says.
Marilyn O'Leary, director of the UNM law school's Utton Transboundary Resource Center, says ``preventive diplomacy'' can help parties stay out of court.
``Litigation is not the best way to resolve these issues. It (the minnow case) is too narrow. You don't have all the people at the table and all the information that you need,'' she said. ``Legal decisions are basically a snapshot in time based on laws and legal claims we have today. When things change, we have to go back and try to change a court decree, and that can be very difficult.''
However, John Horning, director of a group that frequently litigates -- Santa Fe-based Forest Guardians -- says it's naive to suppose environmental change could come about without litigation.
Forest Guardians notified the government in 1995, months after the minnow was declared an endangered species, that it would sue over the minnow and other protected species. That lawsuit, filed a year later, aimed at grazing along streams in New Mexico.
O'Leary said past water compacts do not adequately address severe drought and dwindling water supplies as lawyers look to scientists for answers, and scientists look to lawyers.
The center is working with Sandia National Laboratories -- using a water budget computer model, she said.
``We're not going to solve these water issues as individuals,'' she said in a statement. ``We need to look at not only what we want but what is good for us all.''
Last fall, the Utton Center held its first national conference on interstate surface and groundwater issues. It plans another conference bringing in Indian tribes, irrigators, acequia groups, cities and others.
More than 135 lawsuits have been filed in New Mexico since 1995 by Forest Guardians and the Tucson, Ariz.-based Center for Biological Diversity.
``Litigation is about demanding accountability,'' Horning said.
``Litigation is not a panacea, and it's not a perfect tool in all instances, but it is a vital ingredient to catalyze agencies and institutions that are reluctant to change,'' he said.
Change may be painful or uncomfortable, he said, but it's generally better than the status quo.
He cited a report by economists Frank Ward from New Mexico State University and James Booker from Siena University in New York state, which projected benefits for agriculture, industry and other users.
``Economic benefits to New Mexico agriculture were estimated at $68,000 per year,'' the study says.
Horning says the study suggests there are viable economic alternatives in running the river at court-ordered flows in one minnow lawsuit.
``In a world that recognizes the increasing preciousness of water,'' Horning said, ``low-value, water-intensive crops are going to take a hit. Our political leaders need to recognize that changes in water allocation will benefit the regional economy.''
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