Judge Robert Whaley of the United States District Court for Eastern Washington issued a landmark decision upholding the right of the federal government to place restrictions on the use of water when it requires a federal permit and its use violates the federal Endangered Species Act. Judge Whaley dismissed all claims brought by Okanogan County and a number of Methow Valley water users challenging the authority of the U.S. Forest Service to place restrictions on the use of irrigation ditches crossing Forest Service lands in order to protect ESA listed Chinook salmon, steelhead and bull trout. Judge Whaley noted that while the Forest Service was not attempting to claim a water right, Congress has established that “the Forest Service is authorized to impose minimum instream flow restrictions in a special use permit” in order to protect fish.
“We’re very pleased that the Court has found that the Forest Service has the authority to protect flows needed to preserve endangered fish,” said John Arum, one of the attorneys representing a coalition of local, state, and national environmental groups that had intervened to defend the federal action. “We hope this decision will help convince folks to stop wasting so much time, effort, and money challenging the ESA and instead start working together to help the fish,” said Arum
Earthjustice attorney Todd True and John Arum, a private attorney based in Seattle, represented the Washington Environmental Council, Okanogan Wilderness League, Center For Environmental Law & Policy, Defenders of Wildlife, Trout Unlimited, and American Rivers in this case.