Irrigator's lose, Fish win! [Archive] - Fly Fishing Forum

: Irrigator's lose, Fish win!


flytyer
05-05-2004, 01:51 PM
There was aver short article in yesterday's SKAGIT VALLEY HERALD (www.skagitvalleherald.com) on the Supreme Court refusing to hear the appeal of the U.S. Spokane Federal District Court's ruling that the Forest Service, Dept. of Agriculture, or BLM can turn off the irrigation diversions to keep the water in the Methow and Okanogan river systems when there are low water years. the 9th Circuit Court of Appeals had upheld the Spokane U.S. District Courts ruling last year and the irrigation districts and farmers/ranchers appealed to the Supreme Court.

This means the fish win!

It was nice to see some good news on fish preservation for a change.

cf4s
05-05-2004, 08:26 PM
Hey lawyers out there: does this decision have broader implications?

Feiger
05-06-2004, 08:09 PM
but have seen similar battles, etc. It would likely depend on several things:
* - the nature of Washington State's water rights laws and how those water rights were divvied out, managed, etc. (and comparisons to other state's water rights laws)...
* - the jurisdiction the federal land management agencies had at the headgate/point where the water was diverted.
* - whether or not a special use permit is associated with that withdrawal of water...

know nothing about this particular case, but I'd guess the water diversion was on BLM/USFS land, that the irrigator was required to have a special use permit to withdraw the water (i.e. likely a later water right (last few dozen years or so??)), and that the USFS/BLM had some level of jurisdiction over the water use. those are about the only instances where I could see the USFS/BLM having the ability to regulate water withdrawal, and be able to manage for in-stream water retention to benefit fish...

hopefully such a ruling could set some level of precedent, would be a nice tool in the tool belt...

feiger

flytyer
05-06-2004, 09:12 PM
Feiger,

The irrigation project is a federal one and the diversion headgates are on BLM and Forest Service land.

Also, the reason the water was shut off to the irrigators (the action that causes the lawsuit to be filed in Spokane Federal District Court) was to provide sufficient water for the endangered chinook and threatened summer steelhead in the Methow River system. The feds invoked the Endangered Species Act to shut off the water and the federal district court and 9th circuit court agreed. The Supreme Court has refused to hear/review the case; therefore, the water can be shut off at the diversion headgates when the river flow gets to low for the health of the fish.

This ruling applies to all the tributary rivers and their tributaries with irrigation diversions in the Methow River system. This ruling has the effect of allowing federal agencies to shut off the irrigation water at the diversion headgate of federal irrigation projects in rivers under the jurisdiction of the 9th circuit court because any other farmer/rancher/orchardist/vineyardist who takes the feds to court will face the prior ruling that allows the shut off of the irrigation water from the Spokane Federal District Court and the 9th circuit court's agreement with the Spokane court.

The fish win and the water will be left in the river during low flow/drought years.

It has nothing to do with state water rights since it was a federal action taken on a federal irrigation project; therefore the federal agencies and federal court trump state law in this case.

Feiger
05-06-2004, 10:36 PM
Don't have many federal water projects in my neck of the woods, most of the water withdrawel that occurs in lands I deal with, etc. are governed by state water law through historic water rights aquisition. Some of those date back to the mid/late 1800's. In these cases, state water law, and the water right associated with the withdrawel trumps any federal action, simply because most of the water allocation was already granted prior to the advent of the USFS/BLM/USFWS/etc. Even if the diversion exists on federal land, the water right trumps any action the Federal Government may want to take in the protection of instream flows, etc. Pretty ugly stuff, especially when you see the results... The obvious Oregon exception is the Klamath Basin's irrigation projects, and the political firestorm that is, with listed coho, chinook and suckers...
In such a case, the court precident would be set for any federal water projects, but not beyond that. Would be of little consequence here in Oregon.....
Still, a win's a win, and that one's pretty damn big!!!

flytyer
05-06-2004, 11:36 PM
Feiger,

Ahh, but the beauty in the Supreme Court refusing to review the case and having had the 9th Circuit Court of Appeals affirming the Spokane Federal District Court ruling in the case is the case was about shutting off the irrigation water at the headgate, which happened to be on BLM and Forest Service lands, to protect the endangered chinook and threatened summer steelhead in the Methow River system. Because the water was left in the river for the endangered and threatened fish, the ruling in this case could be used in state courts and other federal courts within the 9th Circuit Court's jurisdictional area (since the Supreme Court declined to accept the appeal, it only applies in the area of the 9th Circuit Court) as the basis for keeping water in the river during drought or low water years to protect endangered or threatened fish. Thus, the ruling has implications far beyond federal irrigation projects with diversion headgates on federal land.

This is a ruling that opens great possibilities for helping protect fish by keeping water in the river during drought and low water years. It is just as monumental as Hogan's and Redden's decisions.

Feiger
05-07-2004, 09:24 AM
was the issue brought to the courts the need for water to save fish? or was it WHO had the right to decide, regulate and distribute water for what purpose? two very different things! The nearest example we have in Oregon is the Klamath Basin water projects. USFWS has jurisdiction over the project because it was built by the federal government on the USFWS refuge. The turmoil over recent years has been whether or not to maintain flows in the lower klamath basin to support listed coho and sensitive chinook salmon, maintain water levels in the Klamath lakes for the endangered suckers, or provide water for irrigators (at levels unsustainable even in non-droght years because the rights were over sold--- but that's another story). The USFWS, in trying to meet obligations to the Endangered Species Act, have cut off many irrigators. The Administration, of course, has tried to step in, as well as members of congress, to change the USFWS' management of the water project. FWS still maintains control, with responses to the administration and congress, on how the water is managed. If ever sued, the feds would win... HOWEVER, in waters (like the John Day River, my home waters), the water is not federally regulated, it is ruled by state water law. The USFWS, USFS, BLM, and NOAA fisheries has NO say in whether or not there is suitable levels of water for anadormous fish in that system beyond a VERY base flow prescribed by water law. Water use is not regulated by federal say, but right of priority of with drawel. That won't change, dealing with state soverienty... This ruling will not likely change that situation, which is the majority condition through out the west. If we think the "oil wars" are nasty, we haven't seen anything yet!!!

fredaevans
05-07-2004, 10:29 AM
Part of the story is that's how the Fed's got the farmers to come, plant, graze, etc., what would otherwise be 'high desert.' No water, no way.

Interesting blurb on the radio a couple of days ago. Many of the farmers (due to the water shut off) drilled huge wells into a local aquafer (sp?) .... the water table has dropped as much as 20 feet in one year.

Skilly
05-07-2004, 11:18 AM
It will be interesting to see if this decision will effect Oregons water rights and uses.

As it stands now the irrigators rights to their allotted water superseeds any other needs. As Feiger and Fred have noted, these rights go back before any federal agencies enterred the picture. Basically settlers were promised just about anything to settle Central and Eastern Oregon. Almost like trying to fight a treaty.

flytyer
05-07-2004, 04:11 PM
Feiger,

The farmer/ranchers, orchardist and irrigation district filed the suit to force the forest service and BLM to turn to water back on and prevent the water from being shut off in the future. They lost the case in federal district court, the appeals court, and the Supreme Court be virtue of the Supreme Court denying the appeal.

Yep, the water wars this has the potential to open up could prove to be monumental. And since the forest service and BLM used the Endangered Species Act as the rationale for shutting off the ittigation water to protect the endangered and threatened fish, the case has implications far beyond the Methow river system. It has the potential to impact state water rights since it would allow the state to invoke the ESA as the reason for shutting off irrigation water to protect endangered or threatened fish.

My what a can of worms this case has opened!

kjackson
05-07-2004, 04:32 PM
I like this a lot. It would be very interesting to test this on the Dungeness River where spring and summer chinook are in trouble as well as Dolly Varden/bull trout... yes indeed. The irrigation districts in the Sequim Valley at one point supplied water to farms, most of which are now supporting ranks of retiree's houses. Anybody got a spare lawyer lying around?

Keith

Feiger
05-07-2004, 10:28 PM
Assuming you were talking about the Klamath Basin Projects? Tho I assume those comments would apply to the Methow as well.... It's scary and frustrating. I can relate and understand the frustration of the irrigators who have their lives invested in those lands and are so closely tied to the irrigation water. Shame on the feds for not planning more wisely.

Flytyer-- in the state of Oregon, at least, the this ruling won't help the state very far in changing water rights and instream flows. ODFW has been pursuing this for years, State water laws in Oregon do not give the State itself any opportunity or authority to regulate water for other uses besides that which it is distributed for permitted use. They have to find someone who has a water right that is willing to "sell" it back into the stream and keep it there... afraid this ruling won't change much in Oregon.

flytyer
05-07-2004, 11:02 PM
Feiger,

Remember what case law is?

Since the federal courts ruled that withholding water to help save and protect endandgered/threatened fish is consistent with the ESA, the various states (or environmental groups, even NOAA Fisheries) could use it as the basis for lawsuits to get water law changed by court ruling.

Granted it will not be easy to accomplish, and it will be one heck of a fight. But this ruling could be used to force a change in instream flows in those rivers/streams with an endangered/threatened fish that rely on adequate streamflows to survive.

Feiger
05-08-2004, 03:27 AM
I do know what case law is, as i "get" to see a lot of it in my daily work and routine. however, few things are more sacred in the west than water law and the water rights that go with it... And VERY few things trump it, even the ESA. In regards to this case, it will strictly depend upon what it was the judge was ruling on. my guess is this case was decided on the fact that the USFS/BLM used its jurisdictional authority to reduce water withdrawals, regardless of the reason for doing so. the fact that the government used an ESA issue as basis for the decision may be relatively irrelevant... being one who works for a large federal land management agency, which spends a lot of time in court for reasons good and bad, my experience has been that such cases are considered VERY carefully in regards to potential precedent that may be set with a ruling. I'd be very surprised if irrigators would take a case to court with the potential to set such a precedent of having the ESA trumping water rights. But you never know. It would be nice if your right, will certainly make for interesting "court room drama"....
have to do some internal researching to learn more....