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<br />002679 <br /> <br />MANAGING ESA ISSUES <br /> <br />HOLLAND & HART LLP <br /> <br />. Southwest Center for Biological Diversity v, US Bureau of Reclamation, 143 F3d <br />5]5 (9th Cir. 1998) (environmental organizations could not pursue ESA citizen suit <br />claims against BurRec that were not identified in 60-day notice of intent to sue letter; <br />on other claims, FWS could exercise discretion in selecting reasonable and prudent <br />alternative in biological opinion; FWS was not required to pick the best alternative, <br />just one that complied with jeopardy standard and could be implemented by BurRec - <br />- decision need not be justified solely on apolitical factors). <br /> <br />. NRDC v. Houston, 146 F,3d 1118 (9th Cir, 1998) (district court properly rescinded <br />renewal of 40-year water delivery contracts from Friant dam in Central Valley Project <br />where BurRec violated procedural obligations to consult with NMFS and FWS on <br />contract renewal), <br /> <br />. Klamath Water Users v. Patterson, 15 F. Supp. 2d 990 (D. Or. 1998) (irrigation <br />groups alleging status as third-party beneficiaries to dam operation contract between <br />PacifiCorp and BurRec were not intended beneficiaries and could not sue or object to <br />changes in contract for ESA purposes, such as maintenance of minimum reservoir <br />levels; in any case, irrigators' water rights under BurRec repayment contracts or <br />third-party beneficiary theory were subservient to subsequent enactment of ESA), <br /> <br />. United States v. Town of Plymouth. Mass., 6 F. Supp. 2d 81 (D. Mass, 1998) (local <br />municipal government could be liable for ESA Section 9 takings committed by third <br />parties where government could have prevented the actions causing the take by <br />prohibiting off-road vehicle activity on beach unless appropriate actions were taken <br />to protect threatened piping plovers). <br /> <br />. Loggerhead Turtle v. Volusia County, 148 F.3d 1231 (lith Cir. 1998) (governmental <br />body may be liable for ESA Section 9 violation if a third party acts pursuant to <br />government body's authority and directly exacts a taking of a listed species; county <br />that did not limit artificial lighting during endangered turtles' nesting season could be <br />subject to suit and possible injunctive relief to prevent such takings), <br /> <br />. Strahan v. Linnon, No. 97-1787 (1st Cir. July 16, 1998), 1998 US App LEXIS <br />16314 (unpublished disposition) (permitting agency is not liable under ESA Section 9 <br />for actions of independent permittee where permittee is responsible for compliance <br />with environmental and other laws; therefore, Coast Guard was not liable for takings <br />of marine mammals by non-Coast Guard vessels to which Coast Guard had issued <br />Certificates of Documentation and Inspection). <br /> <br />. Arizona Cattle Growers' Ass 'n v. FWS, CV No 97-02416 PHX-SMM (DAE) (D <br />Ariz. Dec. 10, 1998) (FWS lacked authority to impose ESA management restrictions <br />through biological opinion and incidental take statement where agency had not <br /> <br />- 6 - <br />