Irrigation decision no surprise to some - Court rules federal government's rights exceed those of the state; case may go to the Supreme Court

By Paul Butler
Methow Valley News

9/3/03

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The panel of judges, in an unpublished decision Aug. 14, affirmed a March 2002 decision by U.S. District Court Judge Robert H. Whaley of Spokane that since the ditch crosses federal land, the Forest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," he said.

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 on.

"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.