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Water Battle Pitting Farmers Against Feds Heads to U.S. Supreme Court Washington,DC; January 27, 2004: Pacific Legal Foundation today asked the U.S. Supreme Court to take up a case that could dramatically alter water rights throughout the West. The closely watched case pits farmers in Washington’s Methow Valley against federal agencies charged with unlawfully redirecting water to benefit fish. PLF, representing farmers and Okanogan County, argues that a recent Ninth Circuit Court of Appeal’s decision gives the federal government sweeping new authority to regulate state water that crosses federal land. The decision could have unprecedented, far-reaching effects because the federal government’s land-holdings, particularly in the West, are massive. “Settled water rights throughout the West are in jeopardy. If the Ninth Circuit decision survives, it will disrupt almost 200 years of Western water law,” said PLF Northwest Center Managing Attorney Russ Brooks. “With a single decision the Ninth Circuit has transferred to the federal government control of more than 60% of the average annual water yield in 11 Western states,” added Brooks. The case centers around the century-old water rights of dozens of Methow River Basin farmers. For the past three growing seasons, Methow Valley irrigators have been deprived of water due to a controversial decision by the Forest Service to micromanage stream flows to achieve what the government determines to be “optimal” in-stream habitat conditions for fish listed under the Endangered Species Act. As reported by The Associated Press, the government takes the position that “farmers cannot irrigate from the Methow River if water flows drop below what they were 100 years ago, when people first started drawing water from the river.” When “target flows” are not achieved, federal agencies cut off water to farmers. “The Ninth Circuit has essentially ruled that the ‘optimal’ conditions for fish are more important than the rights of people to access the water they need to survive,” said Brooks. PLF is urging the Supreme Court to take the case, arguing that the Ninth Circuit decision will have a devastating impact far beyond the Methow Valley. The Ninth Circuit’s opinion, PLF says, conflicts with more than a century of federal law holding that the power to manage water resources is reserved exclusively to the states—deference that is evident in no less than 37 federal statutes. Moreover, the decision clashes with nearly 200 years of water law in the West. “The farmers have a right to their water based on long-standing federal and state law,” said Brooks. “To hold otherwise means that the free-spirited people of the West have just come under the absolute command and control of the federal government.”
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