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Columbia Basin Bulletin

The U.S. Supreme Court was sent a request Tuesday to review a Ninth Circuit Court of Appeals decision that a group of Washington farmers say could dramatically affect water rights throughout the West.

The long-running lawsuit by Methow Valley farmers accuses federal agencies of unlawfully redirecting water to benefit fish. The Pacific Legal Foundation, representing the farmers and Okanogan County, argues that a recent federal appeals court decision gives the federal government sweeping new authority to regulate state water that crosses federal land. The decision could have far-reaching effects because the federal government's considerable land-holdings, particularly in the West.

"Settled water rights throughout the West are in jeopardy. If the Ninth Circuit decision survives, it will disrupt almost 200 years of Western water law," said Russ Brooks, PLF Northwest Center managing attorney.

The federal government and intervenors in the case now have 30 days to submit a response to the request. The high court would then consider whether it would review the case.

"We don't expect the Supreme Court to take it on," said Earthjustice attorney Michael Mayer. Earthjustice represents a coalition of environmental groups that intervened in the case on the side of the defendants. Those groups are Washington Environmental Council, Okanogan Wilderness League, Center for Environmental Law & Policy, Defenders of Wildlife, Trout Unlimited, and American Rivers.

Justice Department attorney Ellen Durkee, involved in the case at Ninth Circuit, said at midweek that she had been unaware of the petition and did not know how, or whether, the federal government would respond.

"It's a decision that the solicitor general's office makes," Durkee said. Mayer said Earthjustice would likely file a response that would include arguments that proved successful in district and appeals courts.

The case was originally filed in the U.S. District Court of Eastern Washington by Okanogan County, Early Winters Ditch Company and others against the Forest Service, National Marine Fisheries Service and U.S. Fish and Wildlife Service. The lawsuit claimed that the Forest Service was in effect compromising state authority to regulate water rights.

U.S. District Court Judge Robert H. Whaley ruled in favor of the plaintiffs and PLF then appealed the decision. The Ninth Circuit affirmed the district court decision via an unpublished order in August 2003. Brooks sought a rehearing in the Ninth Circuit but was denied.

The court then entered a new memorandum opinion and judgment on Oct. 29, 2003, that reiterated its support for the district court decision.

The district and appeals courts found the federal government could restrict the use of irrigation ditch rights-of-way across U.S. Forest Service land in order to maintain in-stream flow levels in the Methow River basin for the protection of chinook salmon or other species protected under the Endangered Species Act.

"With a single decision the Ninth Circuit has transferred to the federal government control of more than 60 percent of the average annual water yield in 11 Western states," added Brooks. The petition submitted to the Supreme Court asks that it judge "whether the statutory authority of the United States Forest Service to manage public lands includes the authority to preserve in-stream flows for federally protected species by ordering private parties to stop diverting stream water, through ditches they built long ago on federal land, thereby confiscating their water rights vested under state law."

The petition concludes that "the Ninth Circuit's holding that the Forest Service possesses authority to confiscate private water rights appropriated under state law contradicts this Court's precedents and Congress' pronouncements limiting federal authority over state water and defining the purposes for which national forests were established. Moreover, the Ninth Circuit's opinion establishes dual systems of federal and state water rights, contradicting centuries of Western water law and its delicate, yet firm, federalism balance."

The Ninth Circuit's opinion, PLF says, conflicts with more than a century of federal law holding that the power to manage water resources is reserved exclusively to the states-deference that is evident in no less than 37 federal statutes.

"The farmers have a right to their water based on long-standing federal and state law," said Brooks. "To hold otherwise means that the free-spirited people of the West have just come under the absolute command and control of the federal government."

The case involved irrigation ditches that cross land within the Okanogan National Forest, located east of the Cascade Mountains in Washington. The Forest Service concluded that it could continue to allow the use of its land for irrigation ditches only if their use did not threaten to harm listed fish or their habitat.

Early Winters and the Skyline Ditch Company have since the early 1900s gained special use permits from the Forest Service that allows them to operate ditches across federal land. They tap water respectively from Early Winters Creek and the Chewuch River, both tributaries to the Methow River. The plaintiffs argued that those permits can legally regulate land use, but not water use.

The Forest Service, beginning in 1999, followed the guidance of NMFS (now known as NOAA Fisheries) and USFWS biological opinions in putting water conveyance restrictions into the terms of the special use permits. The BiOps were prepared to judge whether the planned irrigation activities jeopardized the survival of endangered Upper Columbia steelhead and spring chinook and bull trout.

The permits requirements that minimum in-stream flows be maintained have resulted in the irrigators' water being turned off late in the season in each of the past three years, according to the PLF.

"The Ninth Circuit has essentially ruled that the 'optimal' conditions for fish are more important than the rights of people to access the water they need to survive," Brooks said.

Link information:
Pacific Legal Foundation: www.pacificlegal.org.






Page Updated: Thursday May 07, 2009 09:15 AM  Pacific

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