A group of Idaho ranchers claim they were wrongly prohibited from arguing their irrigation diversions are exempt from a key Endangered Species Act requirement.

The Salmon Headwaters Conservation Association is asking the 9th U.S. Court of Appeals to overturn a ruling that required federal agencies to “consult” about impacts on protected fish from 23 diversions in Idaho’s upper Salmon River Basin.

A lawsuit filed by the Idaho Conservation League environmental nonprofit sought to compel the U.S. Forest Service to undertake such consultations for threatened and endangered salmon and steelhead species in the region.

The association asked to intervene in the litigation but U.S. District Judge Lynn Winmill ruled the ranchers’ interests would be adequately represented by the Forest Service regarding the need for ESA consultation.

The judge limited the association’s role to the debate over potential “remedies” if the Forest Service was ordered to consult, such as whether to impose conditions that restrict irrigation diversions.

In 2019, the judge determined the agency must consult about ESA impacts right away, rejecting the Forest Service’s argument that the agency hadn’t yet triggered that requirement.

The ranchers feared this outcome because the Forest Service simply argued over the timing of consultation, not whether it was legally required at all, said Albert Barker, attorney for the association.

“Our claim is there was no duty for the Forest Service to consult in the first place,” Barker said during May 3 oral arguments before the 9th Circuit.

The ranchers contend their diversions are so-called “Ditch Bill easements” over which the Forest Service lacks ESA consultation authority under a 1986 law.

“We believe that because these are vested rights under the Ditch Bill, the United States has no right to interfere with any water rights or any use of water or any diversion of water,” Barker said.

The ranchers have standing to challenge the previous ruling because subjecting their diversions to consultation places them at a disadvantage, he said. “The injury is the United State has an authority over these property rights that it doesn’t (legally) have.”

Bryan Hurlbutt, attorney for the Idaho Conservation League, countered that the ranchers’ appeal should be dismissed by the 9th Circuit because they lack legal standing to make their argument in court.

“They don’t face an actual imminent injury,” Hurlbutt said. “There is no injury and nothing to be redressed.”

The Forest Service had wanted to preserve the status quo of allowing diversions without immediate consultation, which is “the same ultimate objective” as the ranchers had, Hurlbutt said.

The ranchers will still eventually be able to litigate against possible restrictions on their irrigation diversions, he said.

“They can challenge that if and when any conditions are placed on them,” he said. “There’s really a lot to come before there’s any imminent injury the intervenors might face.”

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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