9318

• UCREFRP Catalog Number: 9318
• Author: U.S. Fish and Wildlife Service.
• Title: Procedures for Stocking Nonnative Fish Species in the Upper Colorado River Basin.
• USFW Year: 1996.
• USFW - Doc Type: Denver.
• Copyright Material: NO

amended its complaint to add a claim against the Secretary of the Interior under the
Administrative Procedure Act (APA) challenging the reasonable and prudent
alternative (RPA) in the final BO as arbitrary, capricious and contrary to the ESA.
The seven Colorado River Basin States filed a brief by special appearance and
argued before the district court that to the extent appellant sought injunctive relief
compelling the release of water from Lake Mead to the detriment of the States'
legal entitlements to or interests in such water, the suit should be dismissed for
failure and inability to join them as indispensable parties. The district court (1)
dismissed appellant's claims against Reclamation for lack of subject matter
jurisdiction because appellant failed to give the required 60-day notice before
bringing suit; (2) denied the States' indispensable parties motions as moot; and 131
granted the Secretary's motion for summary judgment, holding that the final BO and
RPA were not arbitrary or capricious or an abuse of discretion. Appellant, the
States and intervenor water and power providers appealed. The Ninth Circuit
affirmed the decision of the district court, holding that: (1) The district court lacked
subject matter jurisdiction over appellant's claims against Reclamation, since none
of the 3 letters appellant alleged gave the required 60-day notice informed the
Secretary and Reclamation that appellant had a grievance about Flycatcher habitat
at the Lake Mead delta. (2) Once Reclamation was no longer subject to an order
to spill water, the States' claim became hypothetical and moot as a matter of law.
(3) The Secretary did not act arbitrarily or capriciously in adopting the final B0, RPA
and an incidental take statement allowing the take of Flycatchers, because the
Secretary was not required to pick the first reasonable alternative FWS came up
with in formulating the RPA or even the best alternative or the one that would most
effectively protect the Flycatcher; rather, the Secretary need only adopt a final RPA
that complies with the jeopardy standard and could be implemented by the agency.
Furthermore, the Court held that under the ESA, the Secretary was not required to
explain why he chose one RPA over another or to justify his decision based solely
on apolitical factors. Finally, the Court held that there had been no violation of the
RPA in this case, there is no indication that Reclamation cannot acquire and restore
the habitat required by the RPA, and the FWS full supports the RPA, which insures
the creation of replacement habitat and the survival of the Flycatcher species before
it permits the destruction or adverse modification of the Lake Mead habitat.
3. Legislation
In the Second Session of the 105th Congress (without regard to the water
year, Congress enacted the following statutes that are important to the Upper
Colorado River Basin States:
Public Law 105-372, approved November 12, 1998, Salton Sea
Reclamation Act of 1998.
Public Law 105-329, approved October 30, 1998, Arches National Park
Expansion Act of 1998.
Public Law 105-277, approved October 21, 1998, Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999.
Public Law 105-245, approved October 7, 1998, Energy and Water
Development Appropriations Act, 1999.
Public Law 105-199, approved July 16, 1998, National Drought Policy Act
of 1998.
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