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Idaho Lawsuits to Test ESA Primacy Over Water, Land by Mike O'Bryant Columbia Basin Bulletin - January 12, 2001

Two Idaho environmental organizations filed three lawsuits that could test how the federal endangered species act stacks up over both Idaho water laws and private property rights.

The Idaho Watersheds Project and the Committee for Idaho's High Desert filed the lawsuits in U.S. District Court in Boise, Idaho, Dec. 18, 2001. They charged three ranchers with illegally diverting water from critical habitat for bull trout and Snake River chinook and steelhead, all listed as threatened under the federal Endangered Species Act. One of the lawsuits also listed the U.S. Forest Service because one of the water diversions is in the Salmon-Chalice National Forest.

The two groups had sent to 50 ranchers in October 2000, 60-day notices of their intent to sue and named the Forest Service, the Bureau of Land Management and the Idaho State Department of Lands in some of those notices. The letters were sent to ranchers ranging form the Sawtooth Valley to the Lemhi River. According to Jon Marvel, executive director of Idaho Watersheds Project, other lawsuits are soon to follow, as are more 60-day notices of intent to sue, bringing the total number of letters to about 125.

"By bringing these lawsuits we hope to initiate discussions about the value of keeping water in streams rather than using the water for growing alfalfa," Marvel said.

He said the lawsuits are a test of two very important icons of the American West: water and private property rights.

"These lawsuits are a test of the primacy between the ESA and state water laws and one in particular is a test of the ESA against private property rights," Marvel said. "Those two iconic aspects of the West are under direct attack by these lawsuits and we think that is very healthy."

Marvel said all three ranchers named in the lawsuits are in the Salmon River watershed and are being sued because they have unscreened and unmetered water diversions, one of which completely dewaters the stream. One of the ranchers is also being sued for "take" under the ESA for how he manages his private property, which Marvel said degrades critical habitat along over two miles of Herd Creek.

Not all of the first 60-day notices will end up in court. According to Marvel, about 10 ranchers so far have stepped up and committed to installing diversion screens and changing the way they divert water, including some who will stop diverting water all together. In addition, the Forest Service in the Sawtooth National Forest has initiated environmental assessments of screening diversions in that forest.

"We're interested in these discussions, but not very interested in the federal or state governments keeping ranchers in business," Marvel said. "We would rather see water back in the streams."

He said federal legislation was passed last year that provides about $25 million to pay for screening of diversions on streams that affect listed species in Oregon, Washington and Idaho. Also, one of the Bonneville Power Administration's three model watershed projects lies in Idaho. However, these projects don't address minimum flows, as they should, Marvel said.

Screening is very expensive, he said. A screen on a modest-sized creek can cost as much as $80,000 because it needs to be a rolling-type screen, some of which are motorized, in order to keep it clear of sediment and debris.

"Usually the agricultural product produced with water from the diversions is of low value," Marvel said. "So, $80,000 would buy enough alfalfa for a ranch in mid-Idaho to last it about 10 years."

Idaho Watersheds Project was established in 1993 to protect Idaho school endowment lands and other public lands in watersheds that have been degraded by livestock. The Committee for Idaho's High Desert is dedicated to the preservation of the high desert ecosystems of southern Idaho, eastern Oregon and northern Nevada.

Link information:
Idaho Watersheds Project: http://www.idahowatersheds.org">www.idahowatersheds.org
Committee for Idaho's High Desert: www.cihd.org