Group asks high court to hear Methow water case

By John Hanron
Methow Valley News

2/4/04

Methow Valley, WA - The U.S. Supreme Court has been petitioned to hear a case that asks whether the Forest Service has the right to restrict Methow Valley irrigators from diverting water through ditches on federal lands in times of low instream flows.

The Pacific Legal Foundation, representing Okanogan County, Early Winters Ditch Co., and two water users on the Skyline ditch, argues that the decision handed down by a federal district court and affirmed by the Ninth Circuit Court of Appeals will have "devastating impacts" on water users throughout the West.

The Ninth Circuit ruling last August agreed that states have the primary power to administer water use, but said this case was actually a matter of federal agencies’ right to control access to federal lands. It stated that special use permits have always been revocable and that permittees have always had to agree to abide by the law.

The Forest Service, in restricting permits on the Skyline and Early Winters ditches, was following the guidance of National Marine Fisheries Service (now called NOAA Fisheries) in enforcing the Endangered Species Act.

In its plea to the high court, the PLF argues that the Ninth Circuit decision fails to recognize that in restricting access–by withholding special use permits issued to ditch companies that use federal land–the Forest Service in essence takes the fundamental power to control water away from the state.

That, the San Francisco-based legal group argues, "turns on its head the water law jurisprudence relied on by a majority of Western states."

But Michael Mayer, an attorney with Earthjustice, an Oakland-based environmental law group, said the decisions of the district and appeals courts were right on the money, and "had nothing to do with water rights."

"The Forest Service has a higher obligation, as the federal government, to use its land in such a way that it doesn’t harm species," said Mayer, who works in Earthjustice’s Seattle office.

"Yes, they have water rights that should not be encumbered," he said. "But at the same time they can’t demand that the federal government do something that’s going to harm species."

Earthjustice intervened in the suit, supporting the federal agencies on behalf of half a dozen environmental groups: Okanogan Wilderness League, the Washington Environmental Council, the Center for Environmental Law and Policy, Defenders of the Wilderness, Trout Unlimited and American Rivers.

The suit also names the U.S. Fish and Wildlife Service and NMFS as defendants.

Mayer said his group plans to file an opposition brief, but the defendants’ case will be argued by the U.S. Department of Justice.

"The likelihood of the Supreme Court hearing this is very small," Mayer speculated.

The Supreme Court is expected to decide whether to hear the case in a couple of months. The court considers more than 7,000 cases each term (October through June) but hears arguments in just 100 cases and publishes decisions on another 50 without hearing oral arguments.