Judge rules feds can close ditches

By K.C. Mehaffey

Wenatchee World staff writer

SPOKANE, WA - 3/20/02 - A federal judge has ruled the U.S. Forest Service has the authority to close ditches that cross federal land to provide water for endangered fish.

U.S. District Court Judge Robert Whaley dismissed Okanogan County's lawsuit against three federal agencies. Whaley said the Forest Service was not claiming a water right when it shut down irrigation ditches in the Methow Valley.

The decision affects only irrigators whose canals cross federal land.

Three irrigation districts in the Methow Valley are currently required to stop diverting water when rivers drop below minimum levels needed for endangered fish. The Early Winters Ditch Co. was the only one to join Okanogan County in the lawsuit.

Environmental groups called the decision a landmark victory. Okanogan County and irrigators expressed great disappointment. They have not yet decided whether to challenge Whaley's decision, which was filed Thursday.

The county and the Washington Agriculture Legal Foundation have spent at least $130,000 so far on the lawsuit, said Okanogan County Chief Civil Deputy Prosecutor Don Anderson. The county has spent between $60,000 and $70,000, he said.

Okanogan County, the Early Winters Ditch Co. and four irrigators in June sued the Forest Service, National Marine Fisheries Service and U.S. Fish and Wildlife Service, claiming the agencies unlawfully cut off water to irrigators in the Methow Valley.

County officials said they wanted to establish that federal agencies don't have the right to infringe on a state's right to set water policy.

While Whaley agreed that states have the sole authority to regulate water rights, he determined the agencies did not overstep their bounds when closing ditches to enforce the Endangered Species Act. "This is not a controversy about water rights, but over rights-of-way through lands of the United States," he wrote.

He noted that irrigators retained their water rights, and could still divert water by alternate means.

The judge also ruled that Okanogan County had no standing in the lawsuit, because it owns no property that is directly affected by the ditch closures. Early Winters Ditch Co. will have to be a party to any further action, the judge determined.

Mike Grady, senior policy analyst for the National Marine Fisheries Service, said his agency showed it worked with irrigators to find solutions, and helped find funds to fix fish screens and drill wells for irrigation when ditches are required to stop diverting water.

He said he's pleased that the judge found federal agencies followed correct procedures in enforcing the Endangered Species Act.

He said the decision sends a clear message to irrigators who are working with federal agencies to develop habitat conservation plans that they've chosen the right course, he said.

"We hope this decision will help convince folks to stop wasting so much time, effort, and money challenging the ESA and instead start working together to help the fish," said John Arum, a lawyer representing a coalition of environmental groups that intervened to defend the federal action.

Other groups intervening on behalf of the federal government were the Okanogan Wilderness League, Center for Environmental Law & Policy, Defenders of Wildlife, Trout Unlimited, American Rivers and Washington Environmental Council.

Okanogan County Commissioner Craig Vejraska said he was very disappointed, and noted the final outcome of this case will affect all irrigators who need a permit to transport water across federal land. "We thought we were on pretty firm ground," he said.

Steve Devin, president of the Early Winters Ditch Co., said he's waiting for lawyers to review the decision and advise them of their options.

He said the judge's ruling that this case isn't about water rights was a shock.

"It's a real Catch-22," he said. "They didn't recognize that link: If you can't get your water you don't have any water. And if you don't exercise your water right, you lose it."


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