BOARD01445

• Board Meeting Date: 11/19/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

The United States has filed an appeal in the lOth Circuit and petitioned for a stay to allow the
Fish and Wildlife Service two more years to complete a new habitat designation. .

Discussion: This case is a consolidation of cases filed by the Middle Rio Grande Conservancy
District, the State of New Mexico, and Forest GuardiaJ:\s that sought court review ofthe Fish and
Wildlife Service's decision to designate critical habitatifor the silvery minnow. In an earlier
lawsuit filed by environmentalists, the federal district dourt in New Mexico issued an injunction
requiring the Service to designate critical habitat within a short period oftime, unless more time
was needed to prepare an environmental impact statement. The agencies are in the process of
designating critical habitat for both the silvery minnow and the Western willow flycatcher.
However, at this point it appears the agencies may simply re-designate the prior critical habitat.
They may also designate some critical habitat for the flycatcher within Colorado. Nothing new
to report.

Page 8

13. Defenders ofWildIife v. Norton, D,S. District Conrt for the District of Columbia
(environmental groups' suit for violations ofE8A relating to Lower Colorado River
activities).

Issue: U.S. and Mexican environmental groups filed a lawsuit against the Secretary of
the Interior, the Bureau of Reclamation, the Fish and Wildlife Service, the National Marine
Fisheries Service, and the Secretary of Commerce onithe Secretarial authority to manage the
lower Colorado River for the benefit of endangered species in Mexico. The court denied motions
to intervene filed by Arizona, California, Nevada,. an~ several of the large water user entities in
those states. The lower basin entities appealed that decision. .

Discussion: Carol Angel in my office is coordinating with the other Colorado River basin
states regarding litigation strategy, and will continue,to monitor the case. .

On its own motion, the D,C. district court scheduled oral argument in late
October on the competing summary judgment briiefs filed by the plaintiffs and defendants
this summer. Attorneys for Nevada and several lower basin water user organizations
argued for the amici (including Colorado). The argument to the district court apparently
went well. The federal attorney apparently did a good, thorough job explaining the Law of
the River and the federal government's lack of discretion over water deliveries. The amici
addressed the ESAlextraterritoriality issue, as wjlll as the lack of federal discretion and the
sovereign control of Mexico over whatever wate~ crosses the border. The judge reportedly
posed several questions right up front that indic~ted he was beginning to see through the
plaintiffs' argument that this was just a "procedlIral" remedy -. he focused on the law
governing water deliveries on the lower Colorado, the discretion of the federal government,
whether there was any legislative intent to extend the consultation requirement under the
ESA to extraterritorial effects, and he seemed particularly skeptical that the plaintiffs'
alleged injury could be redressed (i.e., did they have standing to bring this suit).

Two days later, the D.C. Circuit Court of Appeals heard argument on the district
court's denial ofthe lower basin states' motion (0 intervene. The panel appeared very
knowledgeable about Colorado River issues and very skeptical about the plaintiffs'

.