Court overturns ruling on endangered species

Decision strikes blow to environmental group

By Rebecca Meany
Express Staff Writer

The Bureau of Land Management does not have to get input on impacts of water diversions and ditches built before 1976, a federal appeals court has ruled.

The 9th Circuit Court of Appeals on July 24 overturned a lower court decision that would have required the BLM to "consult" on water transmissions over rights of way on BLM-administered land—input that would provide ways to mitigate actions and minimize effects to protect endangered species.

In the case of Western Watersheds Project v. Matejko, the court held that six rights of way used to move water across federal lands in the Upper Salmon River Basin are not subject to consultation because the 1976 Federal Land Policy and Management Act, which gave the BLM its authority over such actions, was not in place when the ditches and diversions were built.

Western Watersheds Project, based in Hailey, argued that under the federal Endangered Species Act the BLM was required to "consult" on the use of the rights of way.

Consultation is one requirement of a formal process that occurs when an endangered species issue arises.

"The court adjudicated six test cases," said Tim Burton, BLM state fisheries biologist. "The question was, 'Do we have discretionary authority over ditches that are pre-1976?'"

The court ruled it does not.

Congress, under an 1866 statute, granted access to rights of way—long before the Endangered Species Act was passed, in 1973, and before the BLM was vested with its authority over such actions, in 1976.

The state of Idaho entered the case because consultation could have resulted in a significant change in established law, according to a news release issued by the Office of the Attorney General.

"(It) would have disrupted state water rights and could have resulted in costly modifications as a condition for continued use of the rights of way on public lands," the news release says.

The decision reversed a 2004 federal district court ruling that held consultation was required.

The appeals court, however, ruled it wasn't required because the BLM had taken no action to fund, permit or use the rights of way and had no general ongoing regulatory responsibility with respect to their use, the news release says.

"This case had the potential to be extremely disruptive to a significant portion of Idaho's agricultural community," Attorney General Lawrence Wasden said in the release. "As a result of this decision, holders of rights of way throughout Idaho can go on with their business without having to worry about losing the ability to move their water across public lands. The significance of the decision goes far beyond the few Upper Salmon rights of way involved in the case because the decision will protect thousands of similar rights of way in Idaho and elsewhere in the West."

Jon Marvel, executive director of Western Watersheds Project, could not immediately be reached for comment.