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(Cite as: 272 F.Supp.2d 860)

United States District Court,

D. Arizona.

SAN CARLOS APACHE TRIBE, a federally recognized Indian Tribe; and Velazquez

Sneezy; Steven Casa, and Elliott Talgo, Sr., members of the San Carlos Indian

Tribe, Plaintiffs,

v.

UNITED STATES of America; and United States of America as Trustee for Gila

River Indian Community, a federally recognized Indian tribe; and San Carlos

Apache Tribe, a federally recognized Indian Tribe; Gale Norton, Secretary of

the U.S. Department of the Interior; the U.S. Department of Interior; and

Neil A. McCaleb, Director of the Bureau of Indian Affairs, a federal agency

within the United States Department of the Interior; operating the San Carlos

Indian Irrigation Project (SCIIP), for the benefit of the San Carlos Irrigation

and Drainage District (SCIDD), Defendants,

No. CV 99-255 TUC DCB.

July 9, 2003.

ORDER

BURY, District Judge.

Plaintiffs, the San Carlos Apache Tribe (Apache Tribe) brought this action in 1999. They sought and were denied a Temporary Restraining Order and a Preliminary Injunction against Defendants the United States of America, the Secretary of the United States Department of the Interior, the Bureau of Indian Affairs (BIA) operating the San Carlos Indian Irrigation Project (SCIIP) [FN1] for the benefit of the San Carlos Irrigation and Drainage District (SCIDD) and the Gila River Indian Community (GRIC). The SCIDD and GRIC are interveners in this action.

FN1. Plaintiffs use the acronym "SCIP."

Plaintiffs seek to enjoin the release of water from the San Carlos Reservoir ("Reservoir" or "Lake"), except for 10 cubic feet per second, until there is a minimum pool of 75,000 acre-feet of water in the Reservoir. The Reservoir sits on federal land, but lies within the San Carlos *867 Apache Tribe Reservation. The Apache Tribe runs a concession operation for fishing and camping in and around the Lake that has provided revenues of half a million dollars up to in excess of two million dollars a year. The water in the Reservoir is subject to being drawn down for irrigation purposes every year, which jeopardizes the recreational activities at the Lake, especially when there are drought conditions in Arizona.

The Reservoir was completed in 1928, and the amount of water in it has fluctuated considerably depending on snow-pack, runoff, precipitation, carryover, and agricultural needs. The Reservoir has fallen below 75,000 acre- feet for all or part of 399 of the 720 months between 1937 and 1997. (GRIC SOF at A.) The Reservoir has been completely drained or drained below 1,000 acre- feet on 21 occasions between 1934 and 1995 because of a lack of water. (GRIC SOF at A.) The Reservoir has filled to overflowing 8 times during 5 different years. (GRIC SOF at A.) Since March of 1999, the Reservoir has been below 75,000 acre-feet for all or part of 27 of the 41 months. (GRIC SOF at A.) The Reservoir level was at 25,810 acre-feet October 8 and 9, 2000. (GRIC SOF at A.)

The Apache Tribe alleges that draining the Reservoir below 75,000 acre-feet of water will cause a "catastrophic fishkill" that under Section 9 of the Endangered Species Act (ESA) would constitute a taking of the following endangered and threatened species: Peregrine Falcon, [FN2] Razorback Sucker, [FN3] Spikedace, [FN4] Bald Eagle, [FN5] and Southwestern Willow Flycatcher. [FN6]

FN2. Bird of prey.

FN3. Large Colorado River basin fish that can grow up to 13 pounds and lengths exceeding 3 feet.

FN4. Very small river-dwelling fish about three inches long that is native to the Gila River basin in New Mexico and Arizona.

FN5. Bird of Prey.

FN6. Small bird that migrates to Arizona in May and reproduces in riparian areas where there is moist soil to support its diet of small mosquito-type insects.

In addition to the Section 9-ESA claim, the Plaintiffs allege that there has been a material change in circumstances that justifies modification of the comprehensive management provisions for operating the Reservoir that are set out in the Gila River Decree, The Plaintiffs allege that the Defendants' release of water from the Reservoir violates the federal common law of public nuisance, the National Historic Preservation Act (NHPA), the Archeological Resources Protection Act (ARPA), the Native American Graves Protection and Repatriation Act (NAGPRA), the National Environmental Policy Act (NEPA), and the Fish and Wildlife Coordination Act (FWCA). Plaintiffs allege that Defendants have breached their federal trust responsibilities to the Apache Tribe.

This case was previously before the Honorable Alfredo C. Marquez. He issued an Amended Order on January 28, 2002, dismissing Plaintiffs' Section 7- ESA claim that Defendants failed to consult with the United States Fish and Wildlife Service (FWS) regarding the effects of drawing down the Reservoir for irrigation purposes. Judge Marquez based the dismissal on Plaintiffs' failure to satisfy the 60-day notice requirement for bringing a citizen suit under ESA. Subsequently, Judge Marquez refused to allow Plaintiffs to amend the Complaint to allege a new Section 7 claim because it would unduly delay the case, but he allowed amendment for newly appointed agency administrators to be substituted as named parties. On August 13, 2002, this case was reassigned to this Court. The First Amended Complaint *868 has been filed, and it includes allegations of Section 7-ESA violations that must be dismissed in accordance with the law of the case as previously determined by Judge Marquez. The remainder of Plaintiffs' claims are presented for decision by summary judgment. The Court grants the Federal Defendants' Motion for Summary Judgment on all claims. The Interveners' Motions for Summary Judgment are moot.

Background and History of the Case

The Akimel O'Odham (Pima) Indians are an agrarian people who were practicing irrigated agriculture before the Spanish arrived in North America. In the late 1700s, the Peeposh (Maricopa) Indians formed an economic and military confederation with the Pima Indians that prospered until the arrival of the Euro-Americans, who diverted the Gila and Salt Rivers away from the Confederation. Robbed of the water it needed to sustain its agriculture, the Pima and Maricopa Indians were reduced to poverty, malnutrition, and starvation.

In 1924, in an effort to rectify the loss of water, the United States Congress enacted the San Carlos Project Act, as follows:

For the purpose, first of providing water for the irrigation of lands allotted to the Pima Indians on the Gila River Reservation , Arizona, now without an adequate supply of water, and second, for the irrigation of such other lands in public or private ownership, as in the opinion of the Secretary, can be served with water impounded by said dam, without diminishing the supply necessary for said Indian land.

The San Carlos Project Act authorized construction of the Coolidge Dam and creation of the San Carlos Irrigation Project (SCIIP). The federal government purchased the land for the Coolidge Dam site from the Apache Tribe. Consequently, the dam sits on federal property, but lies within the confines of the San Carlos Apache Reservation. Prior to inundation of the Lake in 1928, the lake-bed was the site of the town of "old" San Carlos where the Apache Tribe resided. Additionally, the waters impounded behind Coolidge Dam cover tribal cemeteries, graves, and archaeology sites that contain and protect human remains, private homes, a grain mill, and many other historical sites, many of which have significant spiritual and cultural meaning to the Apache Tribe.

The federal government financed the construction of the Dam by equal reimbursement from the sale of Pima Indian-owned lands (GRIC) and implementation of a repayment plan to cover private lands (SCIDD) that would be served from the waters impounded by the dam. The Coolidge Dam was built near the confluence of the San Carlos and Gila Rivers, approximately 90 miles southeast of Phoenix, Arizona. The water flows from the Reservoir at Coolidge Dam down the Gila River for 68 miles and is diverted at the Ashurst-Hayden Diversion Dam to the Florence-Casa Grande Canal that delivers it to GRIC and SCIDD lands through a series of lateral and sublateral canals.

To secure the water supply for the SCIIP, "the United States, on its own behalf and on the behalf of the Pima and Apache Indians (Lower Valley Users)," sued irrigation districts, canal companies, individual upstream farmers, cities and towns such as Safford and Mammoth, and mining operations such as ASARCO and Phelps Dodge (Upper Valleys Users) to determine the water rights of the water users along the Upper Gila River. United States v. Gila Valley Irrigation District, 454 F.2d 219, 220 (9th Cir.1972). There is a direct relationship between water use above Coolidge Dam (above ground and pumping diversions) and the amount of water in the *869 Reservoir available for release downstream to GRIC and SCIDD.

In 1935, the court entered a consent decree commonly called the Globe Equity 59 Decree ("Globe Equity Decree" or "Gila Decree"), bringing to a close the litigation initiated by the United States in 1925 against the users on the main stem of the Gila River. "The decree recognized that the rights of the Pimas below the reservoir were 'immemorial,' that is, prior to all others and that the rights of the Apaches above the reservoir were prior to all others, except the Pimas. The 1935 decree sets forth the full measure, extent, and limits of the rights of all the signatory parties and their successors in interest to divert and utilize the waters of the Gila River." Id.

The Globe Equity Decree established the right of the Pima Indians and SCIDD farmers to store water in the Reservoir, as follows:

The right, as of the date of priority of not later than June 7, 1924,--and for the purposes of this decree and for them only as of said date -to store the waters of the Gila River in the San Carlos Reservoir of the aforesaid San Carlos Project ... and the right in that relation to accomplish and control the release from said reservoir of the waters so stored and thus reduced to ownership, and to conduct the same down the channel of the Gila River to the Ashurst-Hayden and Sacaton diversion dams of the San Carlos Project and there to recapture and divert and control the diversion of the same by means of said dams for conveyance in the canals leading therefrom to the above described 100,546 acres of the lands of said Project for the reclamation and irrigation thereof, and for the supplementation of amounts available therefore at said dams from the natural stream flow under plaintiff's rights ....

(Decree at Article VI(5).)

Accordingly, Coolidge Dam is operated by BIA to serve as an agricultural water storage facility, with no legislative intent for the facility to serve flood control, recreation, or fish and wildlife functions. The purpose of the dam is to provide irrigation water through the SCIIP to approximately 50,000 acres of Pima Indian land (GRIC) and 50,000 acres of private non-Indian land (SCIDD). Under the Globe Equity Decree, a Gila Water Commissioner is charged to "run the river" (SCIIP). He operates a "call system" which determines how much surface water each party to the Decree may use on any particular day, which determines whether water is to be stored in or released from the Reservoir.

Since 1935 when the district court approved the Globe Equity Consent Decree, its meaning has been the subject of repeated litigation: United States v. Gila Valley Irrigation Dist., 117 F.3d 425 (9th Cir.1997); United States v. Gila Valley Irrigation Dist., 31 F.3d 1428 (9th Cir.1994); United States v. Gila Valley Irrigation Dist., 961 F.2d 1432 (9th Cir.1992); United States v. Gila Valley Irrigation Dist., 959 F.2d 242 (9th Cir.1992) (unpublished); United States v. Gila Valley Irrigation Dist., 454 F.2d 219 (9th Cir.1972); Gila Valley Irrigation Dist. v. United States, 118 F.2d 507 (9th Cir.1941); United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992); United States v. Gila Valley Irrigation Dist., 920 F.Supp. 1444 (D.Ariz.1941). Currently, the Globe Equity Decree is being overseen, interpreted, and enforced by the United States District Court for the District of Arizona, the Honorable John C. Coughenour, sitting by designation from the Western District of Washington.

*870 Under the Globe Equity Decree, the water in the lake is owned by the BIA for the benefit of the SCIIP, the Pima Indians, and SCIDD. Consequently, in 1979, before the Apache Tribe could operate the San Carlos Lake as a fishing and camping recreational facility, the BIA had to agree to a Grant of Concession, which it did for a ten-year period. The Grant of Concession was extended to October 24, 1999, and since then the Apache Tribe has operated the Lake without the Grant of Concession.

Under the Globe Equity Decree, neither the Apache Tribe, the San Carlos Apache Indian Reservation, nor any individual Apache Indians have any right to store water in the Reservoir. United States v. Gila Valley Irrigation District, 31 F.3d 1428, 1431 (9th Cir.1994). Consequently, in 1992, Congress had to enact Pub.L. 102-575, the San Carlos Apache Tribe Water Rights Settlement Act of 1992, to allow the Apache Tribe to store water in the Reservoir. Congress provided for the Apache Tribe to exchange Central Arizona Project (CAP) water allocations [FN7] in place of irrigation water releases from the Reservoir and granted the Apache Tribe permission to store the "exchanged" reserves in the Reservoir to maintain a permanent pool of water for fish, wildlife, recreation and other purposes. Pub.L. 102-575 at § 3704(e). The San Carlos Apache Water Rights Settlement Act became effective in 1999, establishing permanent water storage rights in the Reservoir for the Apache Tribe.

FN7. Congress enacted the San Carlos Apache Tribe Water Rights Settlement Act of 1992, Public Law 102-575, pursuant to a settlement agreement in General Adjudication of the Gila River System and Source, which litigated water rights claims between the Apache Tribe and non-Indian communities. Pub.L. 102-575 at § 3702. The Act approved, ratified, and confirmed the Agreement and authorized and directed the Secretary of the Interior to execute and perform the Agreement, id., which involved the annual reassignment to the Apache Tribe of CAP water apportionments previously held by the Ak-Chin Indian Reservation (22,000-33,000 acre-feet of water), Phelps Dodge Corporation (14,655 acre-feet of water) and Globe (3,480 acre-feet of water) to the Apache Tribe. Id. at § 3702. In combination with the Apache Tribe's 1981 CAP apportionment of 12,700 acre- feet of water, the Apache Tribe has approximately 52,838 to 63,838 acre- feet of water available to it, annually, to store in the San Carlos Reservoir.

Standard on Summary Judgment

On summary judgment, the moving party is entitled to judgment as a matter of law if the Court determines that in the record before it there exists "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment because the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is any factual dispute that might effect the outcome of the case under the governing substantive law. Id. at 248, 106 S.Ct. 2505. A factual dispute is genuine if the evidence is such that a reasonable jury could resolve the dispute in favor of the non-moving party. Id.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, but is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party satisfies its burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. A party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers, but instead must set forth *871 specific facts demonstrating a genuine issue for trial. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. "If evidence is merely colorable ... or is not significantly probative, summary judgment may be granted." Eisenberg v. Insurance Co. of North Am., 815 F.2d 1285, 1288 (9th Cir.1987). In determining whether to grant summary judgment, the Court views the facts and inferences from these facts in the light most favorable to the non-moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The Judge's role on a motion for summary judgment is not to determine the truth of the matter or to weigh the evidence, or determine credibility, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. The inquiry mirrors the standard for a directed verdict: whether the evidence presented reveals a factual disagreement requiring submission to a jury or whether evidence is so one sided that one party must prevail as a matter of law.

Section 9 of ESA: Take of an Endangered or Threatened Species

Before reaching the merits of Plaintiffs' Section 9 claim, the Court must address two jurisdictional issues: the 60-day citizen suit notice requirement and standing.

a. 60-day citizen suit notice provision

ESA is the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The Court observed, "Congress intended endangered species to be afforded the highest of priorities [in order to] halt and reverse the trend toward species extinction, whatever the cost." Id. at 184, 98 S.Ct. 2279. The broad sweeping, all encompassing requirements of ESA are accompanied by a citizen suit provision that allows private citizens to sue the United States and its agencies for substantive violations of the ESA. Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); 16 U.S.C. § 1540(g)(1). No such action, however, may commence until at least 60 days after written notice has been given to the agency.

The 60-day notice period is designed to afford the agency an opportunity to review its actions and take corrective measures if needed. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998). The 60-day notice period presents a chance for "settlement or other resolution of a dispute without litigation." Id . The 60-day notice requirement is jurisdictional. Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir.1996); Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir.1988).

The notice given here was in the form of a letter dated July 3, 1997. (Federal Defendants' 19 Exhibits filed August 9, 2001 (19 Exhibits), Ex. 9(D): letter of July 3, 1997.) Plaintiffs filed this case on May 10, 1999, seeking a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction.

The July 3, 1997, letter notified the Secretary of the Interior that an emergency condition existed within the San Carlos Apache Reservation with respect to the following endangered species: Bald Eagle, Peregrine Falcon, Razorback Sucker, and Southwestern Willow Flycatcher. The paragraph in the letter noticing the Section 9 claim is as follows:

*872 The present drawdown of San Carlos Lake impounded by Coolidge Dam on the Gila River within the San Carlos Apache Reservation places the above- referenced species at imminent risk and constitutes a "taking" under Section 9 of the Endangered Species Act as well as an "action" authorized, funded or carried on by [an agency of United States] "... likely to jeopardize the continued existence of any endangered species or result in the adverse modification of habitat of such species ..." with proper consultation. 16 U.S.C. § 1536(a)(2).

(Plaintiffs' Exhibits in Support of Consolidated Response and Statement of Facts ... (Plaintiffs' Exhibits), Ex. 23: Notice of Intent to Sue at 1) (emphasis added). As suggested by the emphasized language, Intervener SCIDD argues that the Letter of Notice limited Plaintiffs' complaints to the circumstances that existed in 1997.

SCIDD argues that "[a]fter receiving the letter from the Tribe, Secretary Babbitt, in collaboration with others, secured unused CAP water supplies for the 1997 year, which were stored in the Reservoir, thereby alleviating Plaintiffs' stated concerns regarding impacts on threatened and endangered species." (SCIDD MSJ at 4; SOF at ¶ 21.) SCIDD concludes, "[t]he Tribe cannot use a letter addressing reservoir conditions in 1997, which were ultimately alleviated, to justify a lawsuit addressing conditions on the lake in 1999." (SCIDD MSJ at 4; SOF at ¶ 22.)

It is, however, equally true that after receiving the letter from the Tribe, the Federal Defendants participated in ongoing communications with Plaintiffs and other concerned parties to develop possible long-term solutions to the problems associated with low Lake levels and BIA's practice of draining the Lake to satisfy the calls of downstream irrigators. The BIA recognized that it "was imperative that such discussions begin now to avoid the kind of crisis reaction that occurred last summer." (Plaintiffs' Exhibits, Ex. 24: Letter of BIA Area Director Barry Welch (Welch letter) of February 12, 1998.) BIA briefing papers consistently presented the issue for resolution as the "operation of Coolidge Dam and San Carlos Reservoir by Bureau of Indian Affairs, San Carlos Irrigation Project in compliance with [the Globe Equity Decree], without undermining the Reservoir sports fishery concession, and in compliance with applicable federal environmental laws." (Plaintiffs' Exhibits, Ex. 25: February 1998 BIA Briefing Paper at 1.) Neither the Federal Defendants nor GRIC challenge the sufficiency of Plaintiffs' 60-day Letter of Notice.

In addition to the immediate emergency situation addressed in the Letter of Notice, Plaintiffs claimed that "The Secretary's failure to properly manage and regulate the storage and release of water in the San Carlos Lake to maintain adequate water to safely preserve the fish population ..." threatened the Razorback Sucker which likely lived in the Lake and that "[t]he death and decay of millions of pounds of fish threaten Bald Eagle, Peregrine Falcon and Southwestern Willow Fly Catcher with loss of food source and exposure to disease." (Plaintiffs' Exhibits, Ex. 23: Notice of Intent to Sue at 2.) The Letter of Notice noted that "The Tribe [had] previously requested your help and the assistance of the President in protecting these endangered species, the sport fisheries in the Lake, archeological and Tribal burial sites, and public health, which also are at imminent risk from the drawdown of San Carlos Lake." Id . Finally, the Letter of Notice concluded with, "You are requested to take emergency measures and actions necessary pursuant to the Endangered Species Act of 1973, ... to protect and preserve these endangered and threatened species. You are requested to *873 issue an emergency order to prevent the drawdown of San Carlos Lake below 60,000 acre feet." Id .

As the Letter of Notice suggests when read in its entirety, the drawdown problem at San Carlos Lake was not a new problem arising in 1997. It had been "previously" brought to the attention of Defendants and the President. The Plaintiffs' complaint that Defendants failed to properly manage and regulate the storage and release of water in the San Carlos Lake to maintain adequate water to safely preserve the fish population reaches beyond the mere emergency situation faced in 1997. Just because Plaintiffs complained that the Defendants' ongoing operations posed an immediate threat, as of July 3, 1997, to the named species cannot make the notice inadequate for the purpose of challenging the ongoing operation of the Reservoir.

There was nothing unique about the 1997 drawdown or draining of the Lake. There was nothing unique about the 1997 operation of the Lake. It was the ongoing operation of the dam and the repeated drawdowns of the Lake that Plaintiffs were challenging. The drawdown or draining of the Lake in 1997, like any other drawdown or draining of the Lake in any other year, created a reasonable certainty of imminent harm to support a "taking" claim under Section 9 of the ESA.

Because Plaintiffs provided the Defendants with a 60-day notice of its intent to sue, Plaintiffs may proceed with its Section 9 claim under ESA. Plaintiffs have standing to proceed under the citizen suit provision of ESA. The Court rejects SCIDD's standing challenge.

b. "Take" under Section 9 of the ESA

Count One of the First Amended Complaint alleges that the drawdown of water from the Reservoir below 75,000 acre-feet will constitute a take of the Razorback Sucker, Spikedace, Bald Eagle, Peregrine Falcon, and Southwestern Willow Flycatcher. Plaintiffs allege that the drawdown will result in a violation of Section 9 of the ESA by significantly harming and degrading the habitat for those species, resulting in a "take" of those species.

The Federal Defendants assert that this claim should be dismissed and summary judgment should be granted in favor of them because the undisputed facts demonstrate that there has not been and will not be a "take" of any of the identified endangered species. Defendants assert that the Plaintiffs have not made a sufficiently probative showing that a "take" of an endangered species has occurred pursuant to the requirements of Section 9 of the ESA.

Section 9 of the ESA makes it unlawful for any "person" to conduct certain prohibited activities with regard to an endangered or threatened species, including "taking" the species or "violat[ing] any regulation pertaining to such [endangered species." 16 U.S.C. § 1538(a)(1). "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. at § 1532(19). "Harm in the definition of 'take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification, or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3 (emphasis added). So long as the injury to wildlife occurs, either in the past, present, or future, the injury requirement in the definition is satisfied. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir.1995).

"[H]abitat modification does not constitute harm unless it 'actually kills or injures wildlife.' " Arizona Cattle Growers' *874 Ass'n v. United States Fish & Wildlife, 273 F.3d 1229, 1238 (9th Cir.2001) ( quoting Defenders of Wildlife v. Bernal, 204 F.3d 920, 924-25 (9th Cir.1999)); see also Rosboro Lumber Co., 50 F.3d at 784. Thus, habitat degradation, by itself, does not equal harm. To show that habitat modification constitutes "harm" under ESA, Plaintiffs must show "a reasonably certain threat of imminent harm to a protected species." Bernal, 204 F.3d at 925. A "potential injury" to wildlife is insufficient to constitute harm. Rosboro Lumber Co., 50 F.3d at 784-86. Thus, "harm" can be realized through the modification or degradation of a listed species' habitat where it is shown that such modification or degradation, indirect or prospective, will either kill or injure wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. § 17.3; see: Marbled Murrelet, 83 F.3d at 1064 (finding reasonable certainty of imminent taking); Greenpeace v. Nat'l Marine Fisheries Serv., 106 F.Supp.2d 1066 (W.D.Wash.2000) (finding that Alaskan fisheries' operations may constitute taking of the Steller sea lion where fisheries are catching fish normally eaten by the sea lion); Bensman v. United States Forest Service, 984 F.Supp. 1242 (W.D.Mo.1997) (holding that removal of dead trees used by the Indiana bat for habitat and hibernation may constitute taking).

Plaintiffs assert that it has demonstrated that the likelihood of a "take" is very real as to the Bald Eagle, the Southwestern Willow Flycatcher, and the Razorback Sucker. Although Plaintiffs included allegations in its Amended Complaint pertaining to the Spikedace and Peregrine Falcon, it offers no evidence nor any argument in its Response to counter Defendants' assertion that summary judgment should be granted as to these two species. [FN8]

FN8. The Spikedace is not found in the Reservoir nor in the Arizona portion of the Gila River upstream from the Reservoir, though they may be present in the mainstream of the Gila River in New Mexico. The Peregrine Falcon was removed from the Federal List of Endangered and Threatened Wildlife, effective August 25, 1999.

In June of 1998, the BIA/SCIIP completed a Biological Assessment (BA) of whether the ongoing operation of the Coolidge Dam was likely to affect endangered or threatened species, specifically, the Bald Eagle, the Southwestern Willow Flycatcher, and the Razorback Sucker. (19 Exhibits, Ex. 17: Biological Assessment, June 1998.)

Preparation of the BA was done pursuant to Section 7 of the ESA that requires every Federal agency, in consultation with the Fish and Wildlife Service (FWS) to "insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an agency action) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species...." 16 U.S.C. § 1536(a)(2). The proscription extends to "all activities or programs of any kind," and includes "actions directly or indirectly causing modifications to the land, water or air." 50 C.F.R. § 402.02.

An agency proposing to take an action must inquire whether any endangered or threatened species "may be present" in the area of the action. When there exists a chance that such species may be present, the agency must conduct a BA to determine whether or not the species may be affected by the action. See 16 U.S.C. § 1536(c)(1) (pertaining to agency actions where no contract for construction has been entered into and no construction begun). If the proposed agency action is not *875 a "major construction activity," the BA is not required and the agency may make an independent evaluation of whether the action "may affect" a listed species. 50 C.F.R. 402.14(a). These steps serve as a screening function to determine whether successive steps are required. Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985).

Answers in the affirmative required the agency to enter into formal consultation with FWS. 50 C.F.R. 402.14(a). Alternatively, an agency may satisfy its obligation to consult by either preparing a BA even if one is not required and seeking concurrence from FWS or by entering into informal consultation with FWS. Id. at § 402.13. The purpose of both the BA and the informal consultation requirements is to determine whether the proposed action is likely to affect listed species or critical habitat. In either event, only the conclusion of "no likely adverse affect" terminates the agency's duty to formally enter § 7 consultation. Id. If it is determined that a threatened or endangered species "is likely to be affected" or that the agency action "may affect" a threatened or endangered species, formal consultation is required. Id. at § 402.14. [FN9]

FN9. Once the agency enters formal consultation, the FWS must issue a biological opinion evaluating the nature and extent of the effect of the agency action on the endangered or threatened species. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 n. 8 (9th Cir.1994). Where the biological opinion concludes that the proposed action is likely to jeopardize a protected species or adversely modify critical habitat, the agency must modify its proposed action. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998). In this instance, the FWS may suggest "reasonable and prudent alternatives to the proposed action." American Rivers v. National Marine Fisheries Service, 126 F.3d 1118, 1122 (9th Cir.1997) ( citing 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3)).

In this way, "the consultation procedure allows FWS to determine whether the federal action is likely to jeopardize the survival of a protected species or result in the destruction or adverse modification of its critical habitat and, if so, to identify reasonable and prudent alternatives which will avoid the action's unfavorable impacts." Sierra Club v. Babbitt, 65 F.3d 1502, 1504 (citing 16 U.S.C. § 1536(b)(3)(A)).

Here, the BIA/SCIIP voluntarily prepared the BA for its ongoing operation of Coolidge Dam. The BA noted that there was a potential for adverse impact on the named species, but concluded that the probability for such impacts was "low for bald eagle and spikedace, extremely low for peregrine falcon, and is unknown for razor back sucker and Southwestern willow flycatcher." (19 Exhibits, Ex. 17: BA at 18.) The BIA/SCIIP failed to submit its conclusion that the ongoing SCIIP operation was "not likely to adversely affect" any listed species to FWS for concurrence, but as already noted herein that claim is barred by law of the case. This does not, however, bar the information and conclusions contained in the BA from being relied on by the Government to support its position that the ongoing operation of the Dam will not result in a taking of the Bald Eagle, the Razorback Sucker, and the Southwestern Willow Flycatcher.

According to the BA, "operation of the lake is not known to have significantly affected any of five species listed above since they were listed as threatened or endangered." [FN10] (19 Exhibits, Ex. 17: BA at 18.) "The impacts discussed in the BA [were] those that may potentially occur due to drawdown of reservoir volumes to the point where a major fish kill occurs." Id.

FN10. Major fish kills have been reported or suspected as having occurred in 20 of the 70 years of operation of Coolidge Dam, so the BA is not wholly hypothetical. It is based on past experience.

*876 c. Bald Eagle

It is undisputed that at least three breeding pairs of Bald Eagles nest at the Lake, two other pairs of Bald Eagles nest near the Lake: one is approximately 18 air-miles north and east of the dam up the San Carlos River at Talkalai Lake, and the other is approximately 10 air-miles downstream from the dam along the Gila River at Granite Basin. The Lake is the summer home for approximately 50 Bald Eagles that winter in Arizona. For purposes of the section 9 analysis, it is assumed that all of these eagles rely upon the Lake as their primary or significant source of food, [FN11] and the three breeding pairs of eagles at the Lake use its habitat for nesting and rearing their young.

FN11. According to the Federal Defendants' Expert, Richar Glinski, who has extensive experience with and was responsible for developing Arizona's nest-search and nest-watch program, the Bald Eagles at Talkalai and Granite Basin do not use the Lake for foraging or any portion of the nesting cycle. (Federal Defendants' Exhibits, Ex. 7: Glinski Report at 7.)

The parties dispute whether or not the draining of the Lake during the summer months to provide irrigation water downstream has "low" potential to adversely affect the Bald Eagle or has a "strong" potential to take the Bald Eagle. Defendants assert that it is low and that there is no evidence to support the Plaintiffs' assertion that the ongoing operations of the Lake, including it being drained in the Summer, has resulted or will result in a section 9 taking of the Bald Eagle.

Plaintiffs' taking claim is premised on two theories: 1) draining the Lake has the strong potential to harm the nesting and breeding habitats of the eagles by reducing the eagles' food supply, and 2) draining the Lake will result in a major fish kill and large numbers of rotting fish pose a threat to the Bald Eagle by exposing them to avian botulism. The 1998-BA analyzed both of these possibilities.

It explained that draining the Lake increases the food supply in the short term because fish trapped in shallow water are easy prey for the eagles. In the long run, however, a catastrophic fish kill would decrease prey availability. The BA concluded that it is unlikely that a decreased forage base would result in starvation because eagles are wide-ranging and opportunistic foragers. (19 Exhibits, Ex. 17: BA at 19.) The eagles might temporarily abandon nesting sites but they "typically show great fidelity to nesting sites and it is probably unlikely that they would permanently abandon lakeside territories following a temporary loss of fish." Id. "Temporary loss of fish would likely eliminate or at least greatly reduce the number of eagles that winter at San Carlos Reservoir," but it is highly unlikely that any displaced eagle would be directly affected by the displacement although such eagles might be subject to increased indirect impacts, such as starvation or illegal shooting. Id. It is important to note, as the BA did, that low lake levels occur in the Summer months and eagles nest in the months of December through June and the nestling period is February through May, so the BA concluded that starvation of nestling eagles was unlikely . Id.

"Though it appears unlikely that any adult eagles would starve because of a fish kill, eagles might be subject to botulism poisoning under certain conditions." Id. Botulism is a form of food poisoning that results when C. botulinum spores ingested by vertebrates or invertebrates germinate when their host dies. Flesh-fly and blow fly maggots concentrate the toxin, and feeding by waterfowl or other birds on thee maggots causes death and accelerates the cycle as more and more contaminated hosts die. Id. at 22. Environmental conditions *877 that promote outbreaks of avian botulism are high air temperatures, fluctuating water levels, and a suitable medium for bacterial growth, such as vertebrate and invertebrate carcasses. Id. "There are records of bald eagles dying as a result of botulism poisoning, although they are relatively few and it appears that most birds of prey are fairly resistant to the toxin. Id. Relatively low occurrence of avian botulism in eagles may be the result of the importance of carrion in their diet." Id. The BA concluded that while there is some potential for eagles to be affected by botulism poisoning, " the probability of it appears to be low. " Id.

The BA reported that an analogous situation may have existed along the Salt River below Stewart Mountain Dam, near the Blue Point Bald Eagle breeding area. (19 Exhibits, Ex. 17: BA at 18.) Eagles have nested there since 1981. Id. Water releases were low between 1986 and 1989 and stopped altogether from January to March 1989 and during most of 1990. Id. Large fish kills were recorded during this period, and the Blue Point nest fledged three eaglets in both 1987 and 1988, but in 1989 even isolated pools in the Salt River began drying up and nesting at Blue Point failed. Id. Death of the two nestlings in 1989 may also, however, have been partly attributable to human disturbance. Id. No nesting occurred in 1990, but the nest successfully fledged two young from 1991 to 1996. Id.

According to the BA, if a major fish kill occurred at San Carlos Reservoir, it would take one to two years to re-establish the forage base, assuming sufficient water was present subsequent to the year of the fish kill. (19 Exhibits, Ex. 17: BA at 19.)

In response to the Defendants' motions for summary judgment, Plaintiffs submit the following evidence: 1) Drought Impact Report of 1998; 2) Ohmart Expert Report of March 22, 2002; 3) Arizona Game and Fish Department, Driscoll Memo of May 17, 1999; 4) San Carlos Apache Tribe Recreation and Wildlife Department, Moors Affidavit; 5) Game and Fish Memo of June 30, 1997.

The Drought Impact Report of 1998 was prepared to assess the "profound impacts on economies and ecosystems" of the San Carlos Reservoir caused by the frequent periods of drought in the Southwest. (Plaintiffs' Exhibits: Ex. 2: Drought Impact Report at (ix).) "Topics beyond the scope of this study included detailed analysis of hydrology, climate predication modeling, endangered species, water rights issues, and economic impact to agribusinesses in the Safford and Salt River Valleys." Id. Nevertheless, the Report included a short section on Endangered Species that covered the impact to the Bald Eagle "from the loss of San Carlos Reservoir." Id. at 24. Plaintiffs quote the following: "agency biologists anticipate that the loss of the San Carlos Reservoir would have a high probability of leading to reduced or no productivity [from the two Bald Eagle breeding areas] until the Reservoir and a suitable forage base can be reestablished." Id. The Plaintiffs omit the next sentence in the Report, "In all likelihood, the [eaglets from the breading areas] should be able to forage and migrate without any negative effects from reduced reservoir levels." Id.

The assertion in the Ohmart expert report that "any reduction or temporary absence of food can cause starvation of the young or nest abandonment of the nests by adults," (Plaintiffs' Exhibits: Ex. 12, Ohmart Report at 4), is highly suspect. He asserts that "[t]he periods of water releases for irrigation coincides with the time period that eaglets are in the nest." Id. at 5. This is contrary to all other evidence in the record, including the San Carlos Bald Eagle Nest Watch Report *878 upon which Mr. Ohmart relies, that identifies February to May as the hatching period to actual fledging. (Plaintiffs' Exhibits: Ex. 12, Nest Watch Report at 3.)

The Affidavit of Amanda Moors, Wildlife Population Biologist with the San Carlos Apache Tribe Recreation and Wildlife Department was prepared in 1999, the year Plaintiffs' filed this action. (Plaintiffs' Exhibits: Ex. 16.) She reports that the two Bald Eagle nests at San Carlos Lake were very productive in the several years prior to 1999. Id. at ¶ 6. She notes that fledgling Eagles coming from these two nests represent approximately 1/6 of all the fledglings in the state. Id. Her opinion regarding the effects of a severe drawdown or loss of all the water in the Lake is couched in terms of "may," such as: "avian botulism may occur if the drawdown is in the warmer months" and Eagles would have problems getting enough food and would be forced to move to another area for food and this movement "may lead to the abandonment of the nesting areas on the Reservation." Id. at ¶¶ 10, 11.

The June 30, 1997 Game and Fish memo reported that the Reservoir level is expected to reach the low level of 40,000 acre feet by late August or early September. (Plaintiffs' Exhibits): Ex. 17: Memo at 2. It reported that the Lake had dropped to 34,000 acre-feet of water in 1997 without a catastrophic fish kill. Id. The memo noted that there are two pair of Bald Eagles nesting at the Lake and that a major fish kill could pose a concern for their reproduction productivity. Id. at 3. The memo noted that at Alamo Lake and Lake Pleasant drawdowns were halted or restricted to ensure survival of the eagle's forage base. Id.

Last, Plaintiffs submit the Arizona Game and Fish Department's inter-office memo by Jamey Driscoll, Acting Birds Program Manager, of May 17, 1999. (Plaintiffs' Exhibits: Ex. 19.) In 1999, the drawdown of the Lake made a major fish kill imminent, and Driscoll specifically addressed what the effect would be on the Bald Eagles at San Carlos Lake. Id. at 1. He noted that eagles wintered at the Lake and that there were two pairs of eagles at the Reservoir and one pair that nested below the Lake. Id. at 1-2. In his opinion, it was a stretch to project any impact on eagles that wintered at the Lake. Id. at 2. He concluded that there would be no immediate direct impact on the eagles near and around the Lake because none were actively breeding, but that effects might be observed in years to come. Id. at 2. He explained the extent of the impact depended on when the drawdown occurs, how long the Reservoir remains low, disease related to decaying fish, and how fast the fish population recovers. Id. He pointed out that keeping the water in the Reservoir would have a negative effect on the pair of Bald Eagles nesting downstream because they depended on the water in the Gila River for their food supply. Id. He concluded, "[i]f water is drained from the reservoir, we are looking at least one year's worth of productivity at two sites, and lower winter concentrations." Id. at 3.

Driscoll also reported that his research had "not found proof that botulism will affect Bald Eagles," but he believed it would be "narrow minded" to say that "it will not and could not happen to Bald Eagles." Id. "There are no known cases of bald eagles being affected in Arizona." Id. In the large- scale fish kill along the lower Salt River from 1986 to 1990, there is no mention of avian botulism. Id. Based on the low occurrence of cases nationwide and the lack of any known occurrences in the western United States, the probability that Bald Eagles nesting or wintering at San Carlos Lake would be affected by botulism appears to be low. Id; see also Federal Defendants' Exhibits, Ex. 7: Glinski *879 Report (reporting that two experts with 30 years experience treating injured and diseased raptors, one expert working for in Arizona since 1973, have never encountered botulism in Bald Eagles and both stated that Bald Eagles would not likely be impacted by this disease).

The BA and the Plaintiffs' evidence, except for the expert report by Ohmart, were all prepared within the context of Section 7 of the ESA. This is important because the Section 7 analysis in the BA assesses whether draining the Lake is likely or "not likely to adversely affect" the Bald Eagle, as compared to the Section 9 analysis that determines whether the drawdown of the Lake will actually kill or injure the Bald Eagle. Where habitat degradation merely retards recovery of a species, plaintiff must "show significant impairment of the species' breeding or feeding habitats and prove that the habitat degradation prevents, or possibly retards, recovery of the species." Arizona Cattle Growers' Assoc., 273 F.3d at 1238 ( quoting Nat. Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508, 1513 (9th Cir.1994)). For habitat modification to constitute "harm" under ESA, the evidence must show "a reasonably certain threat of imminent harm to a protected species," not potential injury which denotes only an injury that may or may not occur. Rosboro Lumber Co. 50 F.3d at 784-86.

Consequently, concerns discussed within the context of section 7's requirement that an agency consider any actions that may affect a species, may not even meet the definition of a "potential" harm under section 9. The Government's expert, Richard L. Glinski's opinion is especially helpful because it is made within the context of an unlawful taking under section 9. It is his opinion that "there is no relationship between reservoir levels and Bald Eagle recruitment, and fluctuating reservoir levels do not result in the take of Bald Eagles, and do not present a reasonably certain threat of imminent harm to the species." (Federal Defendants' Exhibits: Glinski Report of 2002 at 7.)

He studied the relationship between water levels as the Lake and eagle productivity from 1993 to 2001, a period of generally declining reservoir levels in response to a regional drought. Id. at 8. He studied three breeding areas (BA): Collidge BA, located downstream from the dam; San Carlos BA, located on the northern boarder of the Lake at its confluence with the San Carlos River; and the Suicide BA, located about one-half mile up-lake from the dam. The Suicide BA is the most recently established BA. In Glinski's opinion, it was the appearance of the Suicide BA in 1999 that lowed the productivity of the other two resident pairs of Bald Eagles. According to Glinski, the "presence of 'additional' birds near territorial birds, or birds that attempt to nest near occupied BAs, often lowers productivity of the resident pair. (Newton 1979)" at 6. "This density dependence is typical of expanding raptor populations (Newton 1979)." id.

Glinski writes that the increase in eagle BAs at the Lake during the period analyzed is significant because with the advent of the Suicide site in 1999, the productivity of the other two BAs would be expected to decline. Id. at 9. He explains that the location of the Suicide BA places it in the most competitive foraging location, capable of cutting the Coolidge pair of Bald Eagles off from foraging near the dam, which is likely where they confined their hunting after the San Carlos BA became established. Id. In looking at the Suicide BA from 1999 to 2001, this site has maintained high eagle productivity, fledging 7 young in three years, with Lake levels fluctuating from about 300,000 to about 26,000 acre-feet of water. Id. He finds it doubtful that *880 the Coolidge BA could be able to exist if water from the Lake were not allowed to flow into the Gila River. Id.

In conclusion, Glinski asserts that San Carlos Lake mimics the situations of other reservoirs in Arizona relative to Bald Eagle nesting. "[T]he major trend in Bald Eagle nesting population in Arizona is that more nests are producing more total young, but each nest is contributing fewer young to the growing population." Id. at 12. "The increased population of eagles has the effect of diminishing individual BA productivity." Id. Productivity is related to density, not reservoir level. Id. at 13. The fluctuating reservoir levels do not result in the take of Bald Eagles and there is no threat of imminent harm to the species from the ongoing operation of the dam.

The Court considers the presentation of evidence here on summary judgment and, therefore, it is not proper to weigh the persuasiveness or credibility of one expert as compared to the other, but only to determine whether there is a genuine issue for trial. Construing the evidence in the most favorable light for the Plaintiffs, the evidence at best suggests some potential for harm, and much of the evidence relied on by the Plaintiffs is simply that there may be some potential harm. Neither showing is sufficient to raise a material issue of fact regarding the claim that drawdown of the Lake below 100,000 acre-feet of water will constitute a taking of the Bald Eagle in violation of section 9 of the ESA.

d. Southwest Willow Flycatcher and Razorback Sucker

While Plaintiffs failed to present evidence sufficient to raise a material issue of fact as to the Bald Eagle, there is not even a scintilla of evidence that the Federal Defendants' operation of the Lake will even affect the Southwest Willow Flycatcher and Razorback Sucker. There is no evidence to support the Plaintiffs' section 9 claim that Lake operations will result in a taking of the Southwest Willow Flycatcher and/or Razorback Sucker.

The Razorback Sucker is a native fish species that completely disappeared from the Gila River by 1960. Reintroduction of the fish was attempted between 1981 and 1989, but was a failure. The restocking of the Gila River was made in the vicinity of Thatcher, Arizona and approximately 1,100,000 fingerlings (less than 130 mm in total length) and a few (fewer than 25) large (greater than 500 mm) razorback suckers were placed in the river. (BA at 14.) Within a few days of stocking "a very high number of reintroduced razorbacks were eaten by channel and flathead catfish." (BA at 15.) Any Razorback Sucker in the Lake would be a survivor or offspring of this reintroduction. From Thatcher to the Lake is a 50 mile swim downstream. (BA at 15.) If they survived the predation by the mostly exotic fish species in the Gila River, they would have reached the Lake and then would have had to survive the 1976 and 1977 drawdowns of the Lake that resulted in massive fish kills. (BA at 15.)

No Razorback Suckers were found among the approximately 1,664 fish captured during depletion surveys conducted in 1996 at the Eagle Creek diversion dam, nor among a sample of 2,529 fish from six locations along the Gila River and San Simon River in the Safford area in May 1997. (Federal Defendants' Exhibits, Ex. 3: Leibfried Expert Report at 2; Ex. F: BA at 15.) It is undisputed, that there has never been a Razorback Sucker found in the Lake. The number one reason that there are no Razorback Suckers in the Lake is because of the high level of predation of the sucker by exotic species, especially flathead catfish and large-mouth bass that Plaintiffs' stock in the San Carlos *881 Reservoir. (Federal Defendants' Ex. 3: Leibfried Expert Report at 2.)

The Southwest Willow Flycatcher is a migratory bird that occupies breeding range in Arizona during the months of May through August. It inhabits riparian areas along the Gila River, especially downstream between the confluence of the San Pedro River and Ashurst-Hayden Dam. ( See 19 Exhibits, Ex. F: BA at 16 (approximately 30 pairs and 35 or 36 territories and 27 nests)). The Plaintiffs' own Expert Report provides the following evidence to defeat Plaintiffs' section 9 claim. Flycatchers nest in May, June and July at three principal locations at or near the Reservoir: 1) upper San Carlos River (above the Southern Pacific Railroad bridge); 2) lower San Carlos River (below the Southern Pacific Railroad bridge), and 3) the Gila River (near Calva). (Plaintiffs' Exhibits, Sealed Supplement of June 21, 2002, Report at 2.) Areas 1 and 3 are substantially outside the maximum pool elevation of the Reservoir (877,000 acre-feet of water or above 2511.5 feet elevation) and "therefore are not directly influenced by its operation." Id. At least 16 flycatchers representing eight confirmed nesting pairs were reported to have been detected at the Lower San Carlos River Breeding Area [Area 2] in June of 1998. Id. The habitat where they nested was at or above 2,500 feet elevation or at the approximately 877,000 acre-feet water level of the Lake. Id. Plaintiffs' expert reports that in 11 out of 71 years the Lake has reached its maximum pool elevation and, when this happens it has a positive influence on this breeding area. Id. 2-3. However, if the water rises to 877,000 acre-feet it reaches the spillway level and then it may inundate and destroy flycatcher nests. Id. at 3, 4. According to Plaintiffs' expert, if the Lake is kept at 75,000 acre- feet, which is the recommendation of the Plaintiffs, [FN12] flycatcher habitat at this corresponding elevation (2,430 feet) is over 4 miles away. Id. Consequently, due to the distance between the Lake and flycatcher habitat, operation of the Lake at this level "would be unlikely to impact or influence flycatchers." Id.

FN12. The Court notes that operating the Reservoir at 75,000 acre- feet of water, with the exception of the release of 10 c.f.s. per day, in May through July would be the only scenario that might result in a take of the Southwestern Willow Flycatcher because it would dry up the riparian flycatcher habitat along the Gila River downstream of the Coolidge Dam. (Federal Defendants' Exhibits, Ex. 8: Brown's Expert Report at 5.)

Plaintiffs' fail to present even a scintilla of evidence to support its section 9 claim that the Federal Defendants' operation of the San Carlos Reservoir will result in a taking of the Razorback Sucker or the Southwestern Willow Flycatcher. Plaintiffs' ESA claim fails.

Federal Common Law Claim of Nuisance

Plaintiffs allege that the drawdowns and draining of the Lake by the Defendants threaten injury and pose health risks to the public at large and to the Apache Tribe and its members. Plaintiffs allege that these threats constitute a public and private nuisance. Plaintiffs seek injunctive relief in the form of an Order from this Court that Defendants abate this nuisance.

Section 1331 of Title 28 provides that "the district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States." Section 1362 also provides subject matter jurisdiction over this case because "the district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band ..., wherein the matter arises under the Constitution, laws or treaties of the United States."

*882 Jurisdiction exists over violations to the federal common law as well as those of statutory origin, Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and, therefore, this Court has subject matter jurisdiction over Plaintiffs' common law nuisance claim.

Under the doctrine of sovereign immunity, the United States is, however, immune from suit except when Congress has waived the Government's immunity. Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641, 644 (9th Cir.1998). Neither 28 U.S.C. § 1331 nor § 1362 waives sovereign immunity. See Pit River Home and Agri. Co-op. Ass'n v. United States, 30 F.3d 1088, 1098 n. 5 (9th Cir.1994) (explaining that sections 1331 and 1361 do not waive the sovereign immunity of the United States) ( citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983) § 1331 not a waiver), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984); Smith v. Grimm, 534 F.2d 1346, 1352 n. 9 (9th Cir.) § 1361 not a waiver, cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976); see also Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v. Montana Board of Oil and Gas, 792 F.2d 782 (9th Cir.1986) (noting that section 1362 does not waive sovereign immunity).

Congress waived immunity for suits against the United States for money damages under the Tucker Act and the Federal Tort Claims Act (FTCA). Contract claims are brought under the Tucker Act. The FTCA is the exclusive remedy for torts committed by Government employees in the scope of their employment. United States v. Smith, 499 U.S. 160, 163, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). Defendants argue that the FTCA is the only avenue of relief available to the Plaintiffs and that Plaintiffs failed to give notice of their claim to the agency as required by the FTCA. Consequently, Plaintiffs may not proceed under the FTCA. Defendants argument fails, however, because Plaintiffs do not seek monetary damages.

Plaintiffs seeking non-monetary relief in the form of judicial review of an action by a federal agency may proceed under the Administrative Procedures Act (APA). 14A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3659 (3d ed.1998). In 1976, Congress amended the APA to specifically waive sovereign immunity in suits brought against the United States seeking relief "other than money damages."

The APA provides as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. § 702.

The APA does not provide an independent basis for jurisdiction, Assiniboine, 792 F.2d at 793 (citing Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)), but it waives sovereign immunity in non-monetary relief claims brought under federal question statutes 28 U.S.C. §§ 1331 and 1362. Id. The APA also provides the frame work for review of Plaintiffs' nuisance claim. 2 Fed. Proc. Law Ed., § 2:266 (APA provides *883 framework for judicial review of agency actions once jurisdiction is otherwise established) ( citing Gallo Cattle Co. v. United States Dept. of Agriculture, 159 F.3d 1194 (9th Cir.1998)).

The initial difficulty this Court faces in analyzing its jurisdiction over Plaintiffs' nuisance claim is that Plaintiffs have wholly ignored the APA. They failed to plead the APA as a jurisdictional basis for their claims in the Complaint and refuse to recognize its significance even in the responsive brief to the motions for summary judgment. Consequently, Plaintiffs have failed to identify for the Court the requisites in their claim necessary for proceeding under the APA.

Section 702 of the APA includes important exceptions to administrative review. Section 702 states: "Nothing herein ... confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." [FN13] Section 704 adds: "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Judicial review is not available when the "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).

FN13. Defendants seek dismissal of the nuisance claim under this exception because they argue that the FTCA provides an adequate remedy in a court and impliedly forbids the relief sought here. Defendants rely on a statement in United States v. Smith, 499 U.S. at 163, 111 S.Ct. 1180, that the FTCA is the exclusive remedy for a tort claim against the government, but Smith only involved a claim for monetary damages. There are Tucker Act cases, see North Star Alaska v. United States, 14 F.3d 36, 38 (9th Cir.1994), which by analogy might provide a basis for holding here that the FTCA provides the exclusive remedy for an equitable tort claim. It is unnecessary to rely on this exception to the APA's waiver of immunity, however, because the APA does not apply to Plaintiff's nuisance claim. See supra; see also Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 134 (D.D.C.1994) ( en banc ) (explaining that APA does not apply to common law claim of mis-administration against an agency).

[25] Additionally, when review is not sought pursuant to specific authorization in a substantive statute, but only under the general review provisions of the APA, 5 U.S.C. § 702, Plaintiffs must satisfy two requirements: 1) they must show that they have been affected by some "agency action" as defined in section 551(13), 5 U.S.C. § 701(b)(2), and the "agency action" must be a "final agency action" pursuant to section 704; 2) they must prove that they have suffered a "legal wrong" or are "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the relevant statute. Lujan v. National Wildlife Federation, 497 U.S. 871, 882-883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

As to the second factor, the injury the Plaintiffs complain of must fall within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis of the complaint. Id. As to the first factor, "agency action" for purposes of § 702 is defined in 5 U.S.C. § 551(13), 5 U.S.C. 701(b)(2), as follows: "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." <