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s <br />_ ~ Ltr Co Sec. Pefia ~ Sec. Babbitt <br />' 60-•Day Notice Letter <br />Ma}' 13, 1998 <br />Page 3 <br />• PAGE 29/30 <br />quality monitoring stations required for that strip-mine; <br />actively participated in WAI's rezoning application to JeL'ferson <br />County, Colorado; and negotiated an "Access and Surface <br />Agreement" with wAI concerning WAI's use of the OOG's surface <br />for strip-mining. Actions include ongoing action where the DoE <br />ret.3ins discretionary control. Pacific Rivers Council v. <br />Thomas, 30 F_3d 1050, 1055 (9`" Cir. 1994). The DOE is acting <br />contrary to the purposes of this chapter by failing to initiate <br />consultation with the FwS to insure their actions will not <br />jeopardize the continued existence of the Preble's mouse at <br />Rocky Flats- Second, absent proper consultation the pOE's <br />actions at Rocky Plats, including allowing a sand and gravel <br />mine expansion to go forward, are jeopardizing the continued <br />existence o! the Preble's mouse. <br />Violation of Section 9(a)(1) <br />Sections 9(a)(1)(B) and (G) of the ESA prohibit the <br />unlawful Cake of a listed species- The ESA defines take as "to <br />harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, <br />or collect, or to attempt to engage in any such conduct." 16 <br />0_S_t:_ ~ 1532(19). Harm is defined further to include "habitat <br />modil'.ication_" babbitt v. Sweet Nome Chapter of Communities fot <br />Greater Oregon, 115 S.Ct_ 2497 (1995). <br />The DOE is in violation of the ESA's section 9(a)(1)(B) <br />^take" prohibition by permitting actions that will result in <br />irreparable damage to Preble`s habitat and the decline of the <br />[`reVic's poF>ulation at Rocky Flats. The disruption of tl,c <br />current hydrology by mining operations on Rocky Elats is a <br />specific harm noted in t-he Preble's final rule. 63 Ped_ Reg. at <br />26525 ("while Rocky Flats supports one of the largest known <br />popul•3tions of Preble's meadow jumping mouse and has served as a <br />refug~> for Preble's, the future conservation of Preble's at this <br />site .is uncertain due to possible impacts to occupied <br />habit<tts_"). The FWS warm that <br />(a)lluvial aggregate extraction Can destroy and <br />fragment Preble's meadow jumping mouse habitat. (M)ining <br />impacts are significant and, unlike other human uses, cause <br />Eermanent changes to Preble's habitat. Mining also targets <br />gravel deposits that may provide key hibernation sites." <br />Id_ (emphasis addedl- <br />