ELR Citation: ELR 20402
No(s). 92-F-884 (D. Colo. Oct 27, 1992)

The court holds that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) by failing to designate the critical habitat of the razorback sucker fish within two years of the U.S. Environmental Protection Agency's (EPA's) listing the species as endangered under the ESA, and has 90 days to designate critical habitat for the species. The species once thrived throughout 3,500 miles of the Colorado River and its tributaries, but is currently threatened with extinction. The court first holds that environmental groups have standing under the ESA to seek injunctive relief for the protection of the species. First, the environmental groups have suffered a particularized harm as a result of the FWS' inaction. Specifically, the environmental groups have suffered an injury-in-fact because certain of the groups' members have been denied the ability to observe and fish for the species in areas where it flourished. By failing to timely follow Congress' directive, the FWS is ensuring that the species is never replenished and that members of the environmental groups are not permitted to enjoy the species. Further, the FWS' failure to define the species' critical habitat blocks any enforcement of the ESA's key provisions, and current water projects threaten the species' comeback. Moreover, requiring the FWS to designate the species' critical habitat, based on the available information, will allow implementation of the ESA's protection provisions that will minimize further threats to the species' critical habitat and survival.

Based on the same facts, the court holds that the FWS violated the ESA and orders EPA to designate critical habitat for the species within 90 days of this order. Although the FWS claims that designation at this time must be made on incomplete information, EPA has completed much of the necessary analysis to designate the critical habitat of the species, and the ESA provides for modification to critical habitat designations as additional information is available.

Counsel for Plaintiffs
Lori Potter, Andrew P. Caputo
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Michael J. Norton, Ass't U.S. Attorney
U.S. Attorney's Office
633 17th St., Ste. 1600, Denver CO 80202
(303) 844-3885

Counsel for Defendants
Christiana P. Perry, James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 724-1010/514-2000