MULTI-STATE COALITION SUES U.S. FISH AND
 WILDLIFE SERVICE OVER DESIGNATION OF CRITICAL
 HABITAT FOR THE ARKANSAS RIVER SHINER

(April 24, 2002) - A coalition of 17 agricultural and ranching associations and water supply agencies from Texas, New Mexico, Oklahoma and Kansas filed a lawsuit today against the U.S. Fish and Wildlife Service to challenge the designation of critical habitat for the Arkansas River basin population of the Arkansas River shiner. The case, styled New Mexico Cattle Growers, et al. v. Norton, was filed in the U.S. District Court for the District of New Mexico. The Smith|Robertson attorneys handling the case for the plaintiffs are Alan Glen, Michael Klein and Craig Douglas. To view a copy of the Plaintiffs' Original Complaint for this case, click here.

The shiner is a small minnow (usually no more than 3 inches in length) that exists in certain river and stream segments in the Arkansas River basin as well as the Pecos River. In 1998, the Service listed only the Arkansas River basin population of the shiner as a threatened species under the Endangered Species Act (ESA). The Service initially determined that the designation of critical habitat under the ESA was not necessary due to the substantial protection afforded to the species by the other provisions of the ESA. In April 2001, however, the Service reversed its position in response to a lawsuit and designated 1,160 river miles and 42,600 adjacent acres in Texas, New Mexico, Oklahoma and Kansas as critical habitat for the shiner pursuant to section 4 of the ESA. The designation affects portions of the Arkansas (Kansas), Cimarron (Oklahoma and Kansas), Beaver (Oklahoma), North Canadian (Oklahoma) and Canadian Rivers (Oklahoma, Texas and New Mexico). A significant portion of the area designated as critical habitat is not currently occupied by the shiner, and is furthermore unsuitable for occupation by the species in the future.

The plaintiffs believe that the Service's designation of critical habitat for the shiner violates federal law in a number of ways. First, the Service failed to adequately consider the economic impact of the designation of critical habitat on the affected landowners, which is required by section 4(b)(2) of the ESA. Second, the ESA requires the Service to use the "best scientific data available" when designating critical habitat. In this instance, the Service relied on a series of unsubstantiated assumptions rather than sound scientific evidence. Third, the Service failed to prepare an Environmental Impact Statement for the critical habitat designation, which was required under the National Environmental Policy Act.

For more information, please contact Craig Douglas.