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002'~2. . be meeting on November 2':1, 200] to discuss the comments received and policy or technical implications of the comments, and provide guidance to the Technical Consulting Team regarding revisions to the document. Comment Letters on the USFWS Draft Native Fish Recovery Goals Documents . . Included in the Board folder is a copy of the recent comment letter submitted to the U.S. Fish and Wildlife Service (USFWS) regarding the draft native fish recovery goals documents. Additionally, included in the Board folder are copies of similar comment letters from the California Department of Fish and Game, Metropolitan Water District, and State of Colorado. Status of Defenders of Wildlife, et aI., v. Norton, et al. Lawsuit Regarding the current status of the lawsuit in Defenders of Wildlife, et al., v. Norton, et al. Mr. Harris traveled to Washington, D. C. and attended the oral arguments in the United States District Court on October 30,2001, and the oral arguments in front of the D.C. Circuit Court' of Appeals on November 1,2001. At the District Court hearing, Judge Robertson started the proceedings with introductory remarks and asked both plaintiff's and defendant's counsel to address several questions. These included the following: . What is he definition and meaning of Reclamation's discretion? . Is Reclamation entitled to a certain amount of deference associated with the interpretation r and application of the agency's discretion? . Do the plaintiff's have standing? . What are the causative substantive links between the agency's actions and discretion and the effects on endangered species? . What was the congressional intent associated with the extraterritorial application of the Endangered Species Act? . What res judicata issues are there with certain plaintiff parties (i.e., Center for Biological Diversity )? The plaintiff's attorney, Ms. KatWeen Meyer, addressed the Court's questions in reverse order. She stated that res judicata doesn't apply to any of the plaintiffs. Her sense was that this case is completely different than the Lake Mead case. On the extraterritorial application of the ESA, she believed that Congress was concerned about species extinctions world-wide and that over 1,000 species are listed with more than half of these in foreign countries. Regarding the question on agency actions and the ESA, she relied on, in great part, on the U.S. Supreme Court's decision in TVA v. Hill to reach the conclusion that the agency should be precluded from taking any action that results in hann to any endangered species, regardless of where the species is located. Finally, it was her primary argument that all the court needed to do was direct Reclamation to re-consult under Section 7 ofESA. Plaintiffs contend that Reclamation has not "lawfully" complied with the ESA on potential effects to species in Mexico, and it is only the consultation process that is deficient, . 7