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fA' Colorado Division of wildlife December 1, 1994 Page 4 admits that nonnative escape from the reservoir cannot be prevented, and further admits that channel 'catfish are capable of surviving in the riverine environment. Interaction between channel catfish and endangered fish, as di$cussed above, often leads to predation on and/or competition with endangered species. As for walleye, the Division bases its claim that stocking this voracious predator will not impact endangered fish on experience with only one west slope reservoir. This is inadequate, and the expert experience and opinion detailed above with regard to walleye, as well as documented predation on endangered fish by other high level predators such as northern pike (see Denver Post article, enclosed), disproves the Division's claim. In addition, we understand that Highline reservoir will be drained in the near future to accommodate construction. At that time, the Division will likely have to poison the very fish it earlier took the trouble to stock. Thus, as with Elkhead, we will likely pay to solve a problem we created in the first place. Such squandering of public funds makes stocking in Elkhead or Highline arbitrary and capricious. Thus,. save Harvey Gap, none of the eleven proposed stocking sites provide sufficient guarantee against escape of stocked fish. If the Division stocks these locations it will likely run afoul of both federal and state law. Throughout the proposals the Division gives the benefit of the doubt to the proposed stock. This is substantial-doubt, and the Division's action here conflicts with the requirements of law. As we have noted in previous correspondence with the Division, even if the likelihood of harm to a listed species is small, the federal Endangered Species Act does not permit weighing benefits of other factors against impacts to endangered species. Indeed, in Tennessee Valley Authoritv v. Hill, the u.S. Supreme Court rejected just such balancing, finding instead that endangered species must be afforded "the highest of priorities." 437 U.S. 153 (1978). The Division ignores this legal standard. Ignoring the law, however, does not make it go away, nor does it exempt the Division from 1egal requirements. We remind the Division once again that by stocking piscivorous "armwater species such - as bass, -- crappie, catfish,_bluegill,. _and. walleye in the Colorado River Basin, the Division risks liability "under S 9 of the Endangered 'Species Act. Section 9 forbids any person from "taking" an endangered species. "Take" is defined broadly, and includes such -actions as "harm," "harass," or "kill." "Harm" includes adverse modification of habitat. When fish stocked by the Division compete with or prey upon endangered species, the Division is liable for a take under the Endangered Species Act.