Monday, April 12, 2004

Western States Water Council Newsletter, Issue No.1560

Western Watersheds Project v. Matejko

On March 23, the U.S. District Court for the District of Idaho found that the Bureau of Land Management (BLM), pursuant to the Endangered Species Act (ESA), has a duty to consult with the appropriate federal fish and wildlife agency over decisions regarding the imposition of conditions on water right diversions crossing its lands where such diversions could affect ESA listed species. The Western Watersheds Project brought suit to enjoin the operation of several diversions, which cross BLM land in the Upper Salmon River basin, because the diversions take water from habitat used by the endangered Bull Trout.

The water diversions at issue were created under the Mining Act of 1866, which allowed private parties with a vested water right to construct diversions across federal lands. The Act recognized such rights of way without any formal application process or approval. According to the plaintiff, the decision not to impose conditions on the operation of these diversions which cross BLM land, constituted an "action" that may affect listed species, triggering the ESA consultation requirement.

The BLM contended that the 1866 Act did not authorize it to approve diversions or require permits for their operation. But the court pointed to a BLM regulation and "Instructional Memorandum" to the effect that the agency would not impose conditions on a diversion arising under the 1866 Mining Act "unless there is substantial deviation in either location or authorized use." The court determined that the decision represented by this regulatory action itself constituted an agency action under the ESA. The court relied on the Ninth Circuit's 1981 decision in Grindstone Butte Project v. Kleppe, where the Ninth Circuit held that the Act of 1901 gave BLM authority to impose conditions on rights of way created by the Act of 1891. In Kleppe, the Ninth Circuit noted that the Act of 1866 "is essentially similar to the 1891 Act." The Ninth Circuit also favorably cited a lower court decision holding "that the Act of 1901 authorized the BLM to impose conditions on rights of way created under the Act of 1866."

The BLM has not yet indicated whether it will appeal the decision.

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