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<br />. <br /> <br />. <br /> <br />extraterritorial effects on listed species. The Court noted that Reclamation had not changed the <br />action area or the analysis of endangered and threatened species in Mexico from the 1997 <br />consultation process to the one performed in 2002. <br /> <br />Enclangered Species Act Consultation <br /> <br />The Court, in its opinion, reviewed Reclamation's ESA Section 7 consultation processes in <br />the administrative record. The Court made several interesting observations which are worth <br />highlighting. <br /> <br />First, the Court stated that "there is a general presumption against extraterritorial application <br />of American statutes in the absence of an 'affirmative intention of the Congress clearly expressed' <br />to extend their scope to extraterritorial conduct." However, the Court went on, "the presumption is <br />inapplicable, to federal agency actions within the United States that have extraterritorial effects." <br /> <br />The Court stated that the definition of extraterritorial effects was, <br /> <br />"By defmition, an extraterritorial application of a statute involves the <br />. recognition of conduct beyond U.S. borders. Even when significant effects of the <br />regulated conduct are felt outside U.S. borders, the statute itself does not present a <br />problem of extraterritoriality, so long as the conduct which Congress seeks to <br />regulate occurs largely within the United States" (Environmental Defense Fund vs. <br />Massey, 986 F.2d 528, 531, D.C. Circuit, 1993). <br /> <br />The government had alleged, in its briefs, that "even if Reclamation's actions have <br />extraterritorial effects on the protected species in the delta, the consultation requirements of <br />Section 7(a)(2) have no application to non-discretionary actions." The Court agreed that the ESA <br />regulations are clear on this point, "Section 7 [of the ESA] and the requirements of this Part apply <br />to all actions in which there is discretionary Federal involvement or contro\''' <br /> <br />The Court also concludes that "the formulas established by the Law of the River strictly limit <br />Reclamation's authority to release additional waters to Mexico, and Section 7(a)(2) of the ESA does <br />not loosen those limitations or expand Reclamation's authority." Further, the Court refers to a case <br />involving the Platte River and the whooping crane and quotes, "Section 7 directs agencies to 'utilize <br />their authorities' to carry out the ESA's objectives; it does not expand the powers conferred on an <br />agency." <br /> <br />The plaintiffs alleged that Reclamation had discretion related to "river regulation, <br />improvement of navigation, and flood control" which could benefit the listed species in a beneficial <br />fashion. The Court disposed of this notion with the following statement; that "Reclamation does not <br />have the discretion to manipulate water delivery in the United States in order to create excess <br />releases for the delta." <br /> <br />12 <br /> <br />" <br />