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Southwest Ctr. for Biological Diversity v. U.S. Bureau of Reclamation

ELR Citation: 28 ELR 21247
Nos. 97-16768, 143 F.3d 515/46 ERC 1551/(9th Cir., 05/04/1998)

The court affirms a district court's decision that an environmental group, alleging that the management of Lake Mead was jeopardizing the continued existence of the southwestern willow flycatcher, failed to provide the requisite notice to invoke subject matter jurisdiction under the Endangered Species Act's (ESA's) citizen suit provisions. The court first holds that the group, at a minimum, was obligated to provide sufficient information of an ESA violation in its notice of intent to sue so that the Secretary of the Interior or the U.S. Bureau of Reclamation could identify and attempt to abate the violation. Because the group failed to do so here, the district court had no choice but to dismiss the complaint against the Bureau of Reclamation for lack of subject matter jurisdiction. The court next holds that, after dismissing the group's complaint for lack of subject matter jurisdiction, the district court correctly refused to reach the merits of the states' claim that the suit should have been dismissed for failure to join them as indispensable parties. Once the Bureau of Reclamation was no longer subject to an order to spill water from Lake Mead, the states' claim became hypothetical and moot as a matter of law.

The court last holds that the district court did not err in holding that the Secretary did not act arbitrarily or capriciously in adopting the final reasonable and prudent alternative (RPA) over the draft RPA. The Secretary need only have adopted a final RPA that complied with the ESA's jeopardy standard and that could be implemented by the agency. In addition, the Secretary was not required to explain why he chose one RPA over another. Moreover, there was a rational connection between the facts found in the biological opinion prepared by the U.S. Fish and Wildlife Service (FWS) and the choice made to adopt the final RPA, and the court must defer to the special expertise of the FWS in drafting RPAs that will sufficiently protect endangered species.

Counsel for Plaintiff
Eric R. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
David C. Shilton, Samuel D. Rauch III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Kozinski and Thompson, JJ.