Ranchers in Idaho have filed six lawsuits against the U.S. Forest Service seeking to confirm their rights to divert and convey water from federal property.
Each lawsuit represents one or more farmers, ranchers and agricultural companies that derive their water rights from waterways in the Salmon-Challis National Forest.
The litigation was instigated by the plaintiffs learning the U.S. Forest Service “may assert the right to control” their water rights by “exercising dominion and control” over points of diversion and ditches on the government’s land, according to a complaint.
The complaints seek to confirm the plaintiffs have the right to continue diverting water and to assert “quiet title” to use existing rights of way across public land, said Albert Barker, an attorney representing several plaintiffs.
The underlying controversy began earlier this year, when the Idaho Conservation League filed a lawsuit against the Forest Service, said Nate Helm, whose in-laws run the Arrow A Ranch.
Arrow A Ranch and other affected ranches have sought to intervene in the case to protect their interests as the Salmon Headwaters Conservation Association, but the federal judge overseeing the case has only partially granted that request, he said.
In its complaint, the Idaho Conservation League argues that tributaries of the Salmon River are crucial habitat for federally protected salmon, steelhead and bull trout that can be harmed or killed by irrigation diversions and ditches.
Despite this threat, the Forest Service has never conducted an inter-agency consultation to ensure against jeopardizing these fish species with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, as required by the Endangered Species Act, the complaint said.
Aside from potentially diverting fish into “inhospitable canals,” diversion structures pose other hazards, such as making downstream habitat less suitable for the species, according to the environmental group.
“Diversions reduce the wetted width and depth of streams below the diversion structure, which increases water temperature and reduces the amount of water available in side channels for fish habitat,” the complaint said.
Chief U.S. District Judge Lynn Winmill said he recognized the affected ranchers have a “significant protectable interest” in their water rights, which could be impeded if the environmental group succeeds in compelling the Forest Service to conduct an inter-agency consultation.
Even so, the judge said the ranchers haven’t shown it’s necessary for them to intervene regarding whether the Forest Service is liable for conducting a consultation, and thus limited their participation to a potential “remedies” phase about correcting the agency’s alleged misconduct.
Helm said he’s optimistic about the ranchers' legal prospects given a 2004 ruling from the 9th U.S. Circuit Court of Appeals which set a precedent that’s favorable to irrigators.
In that decision, the 9th Circuit held that a federal agency no longer had authority over water diversions and therefore wasn’t required to consult on their effects under the Endangered Species Act.
At this point, however, the Forest Service isn’t recognizing the ranchers’ rights-of-way, which is what prompted them to file the lawsuits, said Jon Christianson, an affected rancher.
“You don’t get to stick your head in the sand and claim the benefit of ignorance,” Christianson said of the government’s position. “It seems like a perversion citizens are forced to sue the government to recognize the rights the government gave them.”
As for the environmental lawsuit’s claims about the adverse impacts of diversions, Christianson said the diversions are screened so as not to hurt fish.
Also, dams, reservoirs and off-shore fishing and ocean conditions are having a bigger impact on fish populations, since fish aren’t making it that far upstream, he said.
“What they’re asking for isn’t really going to affect salmon,” Christianson said.