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Judge: BLM Must Consult Over Upper Salmon Diversions by CBB Staff Columbia Basin Bulletin - April 2, 2004

A federal judge has ruled that the Bureau of Land Management must "consult with the appropriate federal fish and wildlife agency over its decision not to impose conditions on certain water diversions" in central Idaho's Upper Salmon River basin.

U.S. District Judge B. Lynn Winmill, in an order issued late last week, said BLM policies and decisions "not to impose conditions on diversions arising under the Act of 1866" is indeed an "action" that triggers the need for consultation under the Endangered Species Act.

The Western Watershed Project and Committee for Idaho's High Desert filed the lawsuit in June 2001 claiming the BLM was violating the ESA by failing to ensure that irrigation diversions on BLM lands in the Upper Salmon River basin do not harm salmon, steelhead or bull trout. The March 23 order answers only one of seven claims listed in the lawsuit.

In his ruling, Winmill rejected BLM arguments the 1866 act -- the Mining Act -- shielded BLM from the need initiate consultation as required under the ESA when federal actions "may affect" listed species. The BLM has said the Mining Act did not require it to permit or approve operations involving the diversion of water across federal land. The act allowed private parties with a vested water right to construct diversion across federal lands. The lawsuit targeted hundreds of diversions in Idaho. Snake River chinook salmon, steelhead and bull trout are listed as "threatened" under the ESA.

"Under the Endangered Species Act the BLM is required to consult with the appropriate fish and wildlife agency when BLM action may affect endangered or threatened species," Winmill noted in his ruling.

He added that "BLM has the discretion to impose conditions on the operation of [the] diversions."

"This ruling confirms that the BLM cannot allow private parties to degrade our public lands and streams simply because they have been doing that for decades," said Jon Marvel, executive director of the Hailey, Idaho-based Western Watershed Project. The Justice Department, which represents the BLM in the proceedings, has not decided yet whether it will appeal the decision.

"We have not yet made our determination on how to proceed," said Justice Department spokesman Blain Rethmeier.

In its lawsuit, WWP said that 26 separate tributaries of the Lemhi River are dried up every summer by diversions which irrigate low-value forage crops such as grass hay and alfalfa. The group called the Lemhi one of the most important salmon spawning streams in Idaho.

To avoid the review of hundreds of diversions, the judge said the parties to the case agreed to pick six "test-case diversions" on three upper Salmon River streams -- Big Timber Creek, the Pahsimeroi River and Mahogany Creek.

"Western Watersheds produced evidence that these six diversions may be affecting listed species such as the bull trout by dewatering the streams, trapping fish in ditches, and preventing fish from migrating to spawning grounds or to colder water," the judge wrote. "The BLM takes issue with some of Western Watersheds' allegations but does not dispute their main thrust that the diversions may affect a listed species." The federal "action" requirement requires an "expansive definition. Consistent with that, 'action' would include not only an agency action that itself may affect a listed species, but also an agency decision to ignore actins by others that might have the same effect," Winmill wrote. He said there is "no principled distinction between" decisions the BLM makes to operate a diversion itself, to issue permit to a rancher a diversion to a rancher, or to ignore a diversion across federal lands that affects bull trout.

Marvel said WWP will request that the BLM quickly comply with the ESA by immediately conducting reviews of all diversions on BLM lands in the Upper Salmon basin to determine how they may be harming fish and how the diversions can be improved.

Copies of the court ruling will be available on WWP's website at www.westernwatersheds.org.