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Appeals Court Rules in Favor of Fish by Nicholas K. Geranios, The Associated Press Seattle Post-Intelligencer, August 19, 2003

SPOKANE -- The federal government can close Methow Valley irrigation ditches that cross Forest Service land to provide additional water to help endangered fish runs, an appeals court has ruled.

The decision by a panel of the 9th U.S. Circuit Court of Appeals was a setback for the Early Winters Ditch Co., Okanogan County and four irrigators. It also could impact water policy decisions across the West, irrigators contended.

The irrigators argued that the Forest Service did not have the right under the Endangered Species Act to deny long-standing water rights to farmers. But the appellate court, in an unpublished opinion released last week, disagreed.

"The permits themselves, from their inception, provided the government with unqualified discretion to restrict or terminate the rights of way," the opinion said.

The opinion upheld last year's decision by U.S. District Judge Robert Whaley of Spokane, who found that the case was about rights of way through federal land, not water rights.

Michael Mayer, a lawyer for Earthjustice in Seattle, said the decision will allow the Forest Service to best manage its land for the protection of endangered salmon and steelhead runs.

"It is an important decision in that it reaffirms the authority of the Forest Service to put in place limitations and protect the land under its control," Mayer said. "The irrigators argued their right to water should overcome all restrictions to protect salmon and steelhead."

But attorney Russ Brooks of the Pacific Legal Foundation in Bellevue, representing the irrigators, said the court is improperly giving the Forest Service authority over the streamflows.

"To us it's clearly a case where the Forest Service is regulating water and not land," Brooks said. "The Forest Service is not allowed to regulate the use of water."

Brooks said he is reviewing the opinion to determine if it will be appealed. His clients will likely ask for another hearing in the appellate court, he said.

Brooks said private property interests view this as a test case for the entire West.

"It does not bode well for people west of the Mississippi," Brooks said.

In his original decision, Whaley sided with the Forest Service, which denied the use of irrigation ditches running through the Okanogan National Forest to take water from area rivers.

The irrigators' claimed the state, and not the federal government, had the authority to set in-stream flow requirements for fish.

Whaley ruled that flow rates are set so the Forest Service complies with the Endangered Species Act, which is carried out by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. Those agencies were also named in the lawsuit.

The 250-subscriber Methow Valley Irrigation District draws water from the Methow and Twisp rivers in north-central Washington. The federal government contended that operations by the district were killing protected salmon and steelhead.

The fisheries service sued the irrigation district in May 2000, seeking to force it to replace its dirt ditches with pressurized pipes and groundwater pumps to save water.

The dispute arose in 1990, when a state-commissioned study found that the district's ditches, dug in 1919, were inefficient, delivering one gallon of water to fields for every eight withdrawn from the Twisp.

The Yakama Indian Nation sued the state in 1991 for allowing the district to waste water. That led to a proposal to switch to a system of wells and pressurized pipes.

The district initially agreed to the plan, then backed away, saying it would be too costly to operate and would unfairly restrict its water use.