From the August 29th issue of the Weekly Newsletter of the Western States Water Council:

LITIGATION/WATER RIGHTS
Okanogan County v. NMFS/Rights-of-Way

In an unpublished August 14 decision, the Ninth Circuit Court of Appeals affirmed a district court decision that instream flow conditions imposed under a special use permit for ditch rights-of-way across U.S. Forest Service (USFS) lands did not deny the users their state-vested water rights. In March 2002, U.S. District Court Judge Robert Whaley rejected claims that USFS lacked authority to restrict the use of the Early Winters Ditch and the Skyline Irrigation Ditch in Okanogan County in Washington’s Methow Valley. The USFS conditions to protect minimum streamflows require that diversions stop when river water levels drop below what they were 100 years ago, before irrigation started. In 2001, USFS stopped water diverted to 400 irrigated acres. In June 2001, Okanogan County and several farmers brought suit, claiming that the USFS conditions, based on National Marine Fisheries Service (NMFS) requirements to protect salmon, were arbitrary and capricious and had “taken” their water (WSW #1454 and #1414). The lawsuit was filed after more than two years of negotiations over how much water must be left instream.


While acknowledging that the ESA does not grant powers to federal agencies they do not otherwise have, the Ninth Circuit cited the National Forest Management Act, Organic Administration Act, Federal Land Policy and Management Act (FLPMA), and the Multiple Use Sustained-Yield Act to establish that USFS has “authority to maintain certain levels of flow in the rivers and streams within the boundaries of the Okanogan National Forest to protect endangered fish.” The court further declared, “The permits themselves, from their inception provided the government with unqualified discretion to restrict or terminate the rights of way.”

FLPMA has a savings clause which states, “Nothing in this Act...shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.” It adds, “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.” (90 Stat. 2743, 2786-87) The court noted that despite the savings clause, the case dealt with a right-of-way and not the water rights themselves, citing Utah Power & Light Co. v. United States. The conditions of the contract controlling the right-of-way enabled the USFS to impose the conditions in question.

Moreover, while the appellants relied on United States v. New Mexico, 438 U.S. 696 (1978), to argue that the Congress did not intend to reserve water rights for wildlife preservation purposes when it set aside lands for national forests, the court held: “US v. NM did not address the power of the Forest Service to restrict the use of rights of way over federal land.” The court added, “...FLPMA specifically authorizes the Forest Service to restrict such rights of way to protect fish and wildlife and maintain water quality standards under federal law, without any requirement that the Forest Service defer to state water law.”