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<br />. <br /> <br /> <br />Page 8 <br /> <br />13. Defenders of Wildlife v. Norton, U.S. District Court for the District of Columbia <br />(environmentall!;roups' suit for violations ofESA relatinl!; to Lower Colorado River . <br />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, California, 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 in my office is coordinating with the other Colorado River basin <br />states regarding litigation strategy, and will continue to monitor the case. In a short order, the <br />court dismissed the motions to intervene on the grounds that the entities did not have standing, <br />since they could not meet the "injury in fact" test. The court noted that the only relief being <br />requested was for the federal defendants to engage in another consultation with Fish & Wildlife <br />Service that takes into account impacts on listed species that occur in Mexico. Because the <br />plaintiffs are not seeking any injunctive relief that adversely impact any allocation of water, the <br />court reasoned there was no injury to the proposed intervenors. The court invited the proposed <br />intervenors to file amicus briefs on the legal issues, which they have indicated they will do. <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 AttomeysGeneral joined us in sending the analysis to <br />John Leshy ,then-Solicitor for the Department of Interior, We subsequently sent the analysis to <br />Secretary Norton. Defenders of Wildlife filed its opening brief asking the court to require the <br />Secretary to complete a new Section 7 consultation ptocess that includes an analysis of the <br />effects of Reclamation's actions on all listed species that occur in Mexico. The United States <br />responded with strong arguments that we've supported, including the argument that <br />consultation is not required or useful for the Bureau's nondiscretionary actions, and the <br />argurp.ent that once water crosses the Mexican border the Bureau has no control over whether <br />it reaches the species of concern. The brief also argued that plaintiffs lacked standing to <br />challenge the U.S. actions. The U.S. avoided tackling the extraterritoriality question head <br />on, saying that it's a red herring because the Bureau considered the extraterritorial effects of <br />its discretionary actions, whether it was required to or not. Colorado joined all the other <br />Colorado River basin states in an amicus brief Supporting the United States' arguments <br />and making the additional argument that Section 7 of the ESA does not apply to effects <br />outside the United States. By order dated Sepfember 4, 2001, the Court approved <br />Colorado's participation as amicus. <br /> <br />AG File: P:INR\NRHANNFZ\CWCBIAGREPORT9-24.01.DOC <br />