Irrigation decision no surprise to some - Court rules federal
government's rights exceed those of the state; case may go to the
Methow Valley News
Methow Valley, WA - A recent decision by the Ninth U.S. Circuit Court
of Appeals concerning the Early Winters ditch could have broad implications
for federal jurisdiction over water rights in western states.
The panel of judges, in an unpublished decision Aug. 14, affirmed
a March 2002 decision by U.S. District Court Judge Robert H. Whaley
of Spokane that since the ditch crosses federal land, the Forest Service
can limit access to water in order to protect endangered fish.
Oral arguments were made on July 9 before a panel in Seattle that
consisted of two Ninth Circuit Court judges, Richard Paez and A. Wallace
Tashima, along with senior judge Thomas M. Reavley of the Fifth Circuit.
The judges declared: "We are of the view that the Forest Service
had the authority to restrict the use of the rights of way to protect
the endangered fish. The permits themselves, from their inception,
provided the government with unqualified discretion to restrict or
terminate the rights of way."
Attorney Russell Brooks of the Pacific Legal Foundation’s Seattle
office, who presented the legal challenge to the Forest Service’s
actions for the appellants, wasn’t surprised by the court’s decision.
"The Ninth Circuit, being the Ninth Circuit and one of the more
liberal circuit courts, looked at the case differently, as one that
dealt with rights-of-way instead of a taking of water rights,"
The appellants include the Early Winters Ditch Co., Okanogan County,
Ron VanderYacht, Lundgren Ltd., David Jones and Frances Kaul.
Brooks warned the appellate court’s opinion "could affect the
whole western United States. For more than a century, water in a state’s
boundaries has been handled under state law," he said. "Now,
federal law could have jurisdiction."
The notion in this case of the federal government being able to limit
private water transfers attracted the attention of other concerned
parties. The Colorado state attorney general’s office filed a brief
in support of reversing Judge Whaley’s decision.
"Whether the United States Forest Service can obtain water for
its own use by requiring the owner of an existing water supply facility
located in a national forest to forego exercising part of its water
right as a condition of renewing its special use permit…is an issue
of great importance to Colorado and other western states, since more
than 50 percent of the available water in the West either originates
in or flows through national forests," wrote Colorado attorney
general Ken Salazar.
Michael Mayer, a Seattle lawyer for Earthjustice, which represents
a number of environmental groups and intervened in the case in support
of the Forest Service, wasn’t surprised by the affirmation either.
Mayer felt the judges’ quick and brief decision that cited multiple
statutes in support of the Forest Service was a reflection that there
wasn’t much uncertainty among the judges and that it was time to move
"We hope this decision will help convince folks to stop fighting
the Endangered Species Act and instead start working together to find
solutions that provide endangered fish species like salmon and steelhead
the water they need to survive and recover," he said.
Water was flowing in the Early Winters ditch until about two weeks
ago, according to irrigation member Steve Devin. The ditch is now
closed due to low water levels.
The case isn’t over. Attorney Brooks says he most likely will apply
for a rehearing by the Ninth Circuit Court.
If that doesn’t go anywhere, Brooks said, the group will appeal the
decision to the U.S. Supreme Court.