Western Water Wars

Cattleman, The, Aug 2004 by McAfee, W R

Their outcome will affect ranchers everywhere.

The U.S. Ninth Circuit Court of Appeals, whose jurisdiction covers most of the western states, has ruled the Forest Service has the authority under the Endangered Species Act (ESA) to cut off state water intended for ranchers and farmers as it flows across federal land.

The case - County of Okanogan et al. v. National Marine Fisheries Service (NMFS), et al. - turned on whether or not the Forest Service had the authority to withhold and regulate state water flowing across federal land intended for private use.

The beginning of the case

The case began when the Forest Service shut off state water intended for Okanogan County farmers and ranchers at points where the water normally was diverted into irrigation ditches as it flowed across federal land, citing the ESA as their authority.

The ditches, property of the Early Winters Ditch Company, Inc. (Early Winters) and the Skyline Ditch Company (Skyline), delivered water to families and small businesses in Washington's Methow Valley so they could water livestock and grow feed, small grain crops, and orchards.

Early Winters claimed a water right in the flow of Early Winters Creek under state law going back to 1909. The Forest Service issued them a special use permit in 1910 regulating maintenance of the irrigation ditch and, as late as April 15, 1998, renewed Early Winters' permit through December 31, 2006.

Skyline filed documents with the secretary of the Interior in 1903 for a permit to construct and maintain a ditch to take water from the Chewuch River to the farming community; establishing the organization as an unincorporated association of water users. The Forest Service issued Skyline a special use permit regulating maintenance of their ditch beginning in 1971, even though it had been used for more than 50 years prior to the date.

Thus the Methow River Valley farmers and the irrigation companies they formed to transport their water had held beneficial rights to the ditches and the water for almost a century - water rights firmly established as private property rights controlled by the state of Washington under Western States Law of Prior Appropriation; rights that include the point from which water is diverted, or the point of diversion.

Forest Service action

The Forest Service ignored this and, citing Section 7 of the Endangered Species Act after "consultations" with the NMFS, confiscated water long intended for the farmers "... to increase river flow to benefit fish."

Their "authority" to do this began in 1997 when the NMFS listed the Upper Colombia River steelhead trout and Chinook salmon as endangered.

The Fish and Wildlife Service followed suit and listed the bull trout as endangered.

Once the feds had endangered species in the area, they went after the water and notified the ditch companies that their "... consultations about these (endangered fish) weren't complete and therefore their permits might have to be 'amended.' "

The Forest Service concluded the Skyline Irrigation Ditch fish screen was "... 'ineffective'in protecting steelhead trout ... and that continued operation was likely to 'adversely affect' the steelhead and Chinook salmon."

It similarly concluded the Early Winters Ditch "... was likely to 'adversely affect' the steelhead and Chinook by 'adversely affecting' their nesting and spawning grounds."

The question begs how these adversely affected fish survived over the last century.

Needing a biological opinion to make their conclusions official, the NMFS issued one in favor of the fish in 2000 and the Forest Service cut the flow of water to the Early Winters and Skyline ditches.

The prohibitions took vested water away from the farmers and used it to "enhance fish habitat," creating hardships for Okanogan County's agriculture community dependent upon the water and forcing the two sides into U.S. District Court in Eastern Washington.

The farmers argued the confiscation of their water was unconstitutional and exceeded the fed's statutory authority.

Prior thinking

When Congress established the national forests in the late 1800s - most of which are in the western United States - it wasn't to protect fish.

Instead, Congress specified the national forests were to "... establish favorable conditions of water flows (for landowners and other users), and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States."

The General Mining Law of 1866 and the Desert Lands Act of 1877 show Congress' intent was to allow the states to administer water on public land. State law and local customs were to determine the acquisition of water rights by private individuals in federal forests, and that water for stock was not included in - or preempted by - (federal) rangeland management policy.

Gifford Pinchot, first Chief Forester of the United States, wrote in a 1907 Forest Service use booklet in keeping with Congress' intent: "The creation of a National Forest has no effect whatever on the laws which govern the appropriation of water. This is a matter governed entirely by state and territorial laws."