BOARD01816

• Board Meeting Date: 11/19/2001
• Description: CF Section - Proposed Statute Revisions Construction Fund and Severance Tax Trust Fund Perpetual Base Account
• Board Meetings - Doc Type: Memo

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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 Guardians that sought court review of the Fish and
Wildlife Service's decision to designate critical habitat for the silvery minnow. In an earlier
lawsuit filed by environmentalists, the federal district court in New Mexico issued an injunction
requiring the Service to designate critical habitat within a short period of time, unless more time
was needed to prepare an environmental impact stateIl).ent. 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.

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13. Defenders of Wildlife v. Norton, U.S. District court for the District of Columbia
(environmentaI2roups' suit for violations ofESA relatin2 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 on the 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" and 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 briefs 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 I\rgument 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 d(scretion over water deliveries, The amici
addressed the ESAlextraterritoriality issue, as well as the lack of federal discretion and the
sovereign control of Mexico over whatever water crosses the border. The judge reportedly
posed several questions right up front that indicated he was beginning to see through the
plaintiffs' argument that this was just a "procedural" 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 exten~ the consultation requirement under the
ESA to extraterritorial effects, and he seemed pl!-rticularly 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 of the lower basin states' motion to intervene. The panel appeared very
knowledgeable about Colorado River issues and very skeptical about the plaintiffs'

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