23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

FRRRPA's implementing regulations in failing to require minimum bypass flows; (10) Violation
of FRRRPA in failing to allow public participation in amending the Forest Plan; (11) Violation
of the Wilderness Act;' (12) Violation of the Wild and Scenic Rivers Act; and (13) Violation of
the Administrative Procedures Act (APA) § 553 in failing to subject the Secretary's directive to
public notice and comment procedures.
As affirmative defenses, Defendants and Defendant - Intervenors both assert that Plaintiffs
have failed to exhaust their administrative remedies with respect to some of their claims.
Defendant - Intervenors also argue that the federal Defendants lack the authority to impose water
"bypass flow" conditions upon the continued operation of existing water facilities located on
National Forest lands. Defendant - Intervenors argue that the exercise of this authority by the
Forest Service would contradict decisions by Congress to defer to and respect state authority over
water allocation and use, and would be contrary to Congressional intent to authorize the National
Forest system principally to enhance the quantity of water that would be available for non - federal
water users.
STANDARD OF REVIEW
Judicial review of final agency action is made available through the Administrative
Procedure Act ( "APA "), 5 U.S.C. § 551 et seq A reviewing court may hold unlawful and set
aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). In making its
determinations, the court is directed to review the whole record or those parts of it cited by a
1 Plaintiffs voluntarily moved to dismiss this claim with prejudice upon learning that the de-
watered zone of the Cache la Poudre is just outside the boundaries of the Comanche Park Wilderness.
-7-