Tuesday, August 26, 2014
Tenth Circuit Affirms Order Denying Preliminary Injunction Against Eastern New Mexico Rural Water System Project
On August 25, the Tenth Circuit (Hartz, Ebel, Phillips) issued a decision in Village of Logan v. U.S. Department of Interior, No. 13-2082. The Eastern New Mexico Rural Water System Project, which will include a pipeline and associated facilities, is being constructed to deliver water from the Ute Reservoir to a group of participating communities. The Project will allow the participating communities to reduce their reliance on groundwater from the Ogallala aquifer, which is suffering declining water levels and water quality from overuse. The Village of Logan, New Mexico has a right to some water from the Ute Reservoir, but it will not benefit from the Project. If Logan wants to receive water from the Reservoir, it will have to construct its own delivery project. The Bureau of Reclamation issued an Environmental Assessment and Finding of No Significant Impact for the Project, and Logan made no comments or objections. More than a year later, Logan sued to enjoin the project, alleging violations of NEPA. The district court denied the motion. Logan appealed, and the Tenth Circuit affirmed. In rejecting Logan’s arguments, the Tenth Circuit held (a) that Logan had not shown it would suffer irreparable harm from the Project, because most of its alleged injuries were either already complete or speculative; (b) that the harms of delaying construction of the Project outweigh any injuries to Logan; (c) that the public interest favors allowing the Project to proceed; and (d) that Logan was unlikely to succeed on the merits of its NEPA claims because it waived most of its challenges by failing to raise them during the administrative proceedings.