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<br />. <br /> <br />. <br /> <br />. <br /> <br />Page II <br /> <br />16. Colorado River Cutthroat Trout, et al. v. Babbitt. <br /> <br />Issue; Whether the Fish and Wildlife Service violated their mandatory duty under the <br />ESA to make an initial 90-day finding regarding a petition to list the cutthroat trout. <br /> <br />Decision: Pending <br /> <br />Discussion: Various envirornnental groups, Center for Biological Diversity, Biodiversity <br />Legal Foundation, Biodiversity Associated, Center for Native Ecosystems, and Colorado Wild, <br />have filed a lawsuit in federal district court in the District of Columbia seeking an iiYunction <br />against Fish and Wildlife Service. The complaint alleges that the envirornnental groups filed a <br />petition to list the cutthroat trout in December of I 999 and that defendants have failed to act on it <br />as required by the ESA. Plaintiffs allege that under the ESA the Service was required to make <br />within 90 days an initial finding as to whether the petition presents substantial information <br />indicating that the petitioned listing may be warranted. If such a finding is made, the Service <br />must within 12 months determine whether the species should be listed. The cutthroat trout <br />currently live in isolated high elevation headwater streams that include the upper Colorado and <br />Yampa Rivers in Colorado, the Little Snake River in Wyoming, and tributaries of the Green <br />River in Wyoming and Utah. <br /> <br />17. Defenders of Wildlife v. Norton (environmental 2roups' suit for violations ofESA <br />relatin2 to Lower Colorado River activities. <br /> <br />Issue: U.S. and Mexican environmental groups filed a lawsuit against the Secretary of <br />the Interior, the Bureau of Reclamation, the Fish and Wildlife Service, the National Marine <br />Fisheries Service, and the Secretary of Commerce on the Secretarial authority to manage the <br />lower Colorado River for the benefit of endangered species in Mexico. <br /> <br />Decision: The court denied motions to intervene filed by Arizona, Califomia, Nevada, and <br />several of the large water user entities in those states. The lower basin entities appealed that <br />decision. <br /> <br />Discussion: Carol Angel and Jennifer Gimbel in my office are coordinating with the other <br />Colorado River basin states regarding litigation strategy. They have participated in several <br />conference calls with Lower Basin interests and the feds and will continue to monitor the case. <br />In a short order, the court dismissed the motions to intervene on the grounds that the entities did <br />not have standing, since they could not meet the "injury in fact" test. The court noted that the <br />only relief being requested was for the federal defendants to engage in another consultation with <br />Fish & Wildlife Service that takes into account impacts on listed species that occur in Mexico. <br />Because the plaintiffs are not seeking any injunctive relief that adversely impact any allocation <br />of water, the court reasoned there was no injury to the proposed intervenors. The court invited <br />the proposed intervenors to file amicus briefs on the legal issues, which they have indicated they <br />will do. We will be considering whether Colorado should also participate in those briefs. <br /> <br />Our office prepared a legal analysis on the issue of whether the Bureau must consider the <br />impacts of its actions in the lower Colorado River on listed species in the Colorado River delta in <br />Mexico. The Wyoming and New Mexico Attorneys General joined Ken in sending the analysis <br />to John Leshy, Solicitor for the Department ofIntenor. We sent the analysis to Secretary <br />