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I <br />i <br />0 <br />1 <br />C" <br />1 <br />I <br />1 complies with RPA 1(A). Reclamation has not complied with RPA 1(A). The <br />2 incidental take statement included in the 1994 Biological Opinion is not valid. <br />3 60. Accordingly, Reclamation is violating ESA section 9(a)(1)(B) by not <br />4 complying with the 1994 Biological Opinion, within the meaning of the ESA's citizens <br />5 suit provision. 16 U.S.C. § 1540(g)(1)(A). By operating Glen Canyon Dam without <br />6 complying with the 1994 Biological Opinion, Reclamation has unlawfully withheld <br />7 compliance with section 9(a)(1)(B)'s "take" prohibition, within the meaning of the <br />8 Administrative Procedure Act, 5 U.S.C. § 706(1), and has operated Glen Canyon Dam <br />9 in a manner that is arbitrary and capricious, an abuse of discretion, and not in <br />10 accordance with law, within the meaning of the Administrative Procedure Act. 5 U.S.C. <br />11 § 706(2). <br />12 FOURTH CLAIM FOR RELIEF <br />(Violation of ESA Section 7(a)(2) -- Duty to Consult On Annual Operating Plans <br />13 Against the Bureau of Reclamation) <br />14 61. Each and every allegation set forth in this complaint is incorporated herein <br />15 by reference. <br />16 62. The ESA section 7(a)(2) duty to consult applies to all agency actions. <br />17 Reclamation's Annual Operating Plans for Glen Canyon Dam are agency actions as <br />18 defined under the ESA. The Annual Operating Plans establish monthly releases from <br />19 Glen Canyon Dam on a yearly basis. Reclamation's Annual Operating Plans for Glen <br />20 Canyon Dam, including the 2007 and 2008 AOPs, may affect the humpback chub. <br />21 Reclamation has failed to consult on any of its Annual Operating Plans for Glen Canyon <br />22 Dam operations for at least the last 10 years. Reclamation has not initiated or <br />23 completed consultation on the 2008 AOP. <br />24 63. Reclamation's failure to initiate and complete consultation on the Annual <br />25 Operating Plans, including the 2008 AOP, is a violation of its mandatory duty to consult <br />26 under ESA section 7(a)(2), within the meaning of the ESA's citizen suit provision. 16 <br />27 U.S.C. § 1540(g)(1)(A). <br />28 <br />Complaint 18 <br />Case 3:07 -cv- 08164 -DGC Document 1 Filed 12/07/2007 Page 18 of 20 <br />