The Ninth Circuit Court of Appeals today issued an important decision that upholds the federal government’s ability to protect endangered fish. The court found that the government could restrict the use of U.S. Forest Service land for irrigation ditch rights-of-way where use of the ditch to convey water could dry up streams important to the survival of endangered chinook salmon or other federally protected species. The court specifically determined that a number of statutes “give the Forest Service authority to maintain certain levels of flow in the rivers and streams within the boundaries of the Okanogan National Forest to protect endangered fish species.” The opinion affirms a decision by the United States District Court for the Eastern District of Washington.
The case involved irrigation ditches that cross land within the Okanogan National Forest, located east of the Cascade Mountains in the Methow River Basin of Washington. The Forest Service concluded that it could continue to allow the use of its land for irrigation ditches only if their use did not threaten to harm listed fish or their habitat. Existing healthy streams in the Methow Basin are both scarce and particularly important for recovery of steelhead and chinook salmon because more than 1,100 miles of historically accessible rivers and streams are now blocked by Chief Joseph Dam. The Pacific Legal Foundation led the legal challenge to the Forest Service’s position in an effort to limit the agency’s authority to protect instream flows and wildlife.
Earthjustice and attorney John Arum, representing a number of environmental groups, intervened in the case to support the Forest Service’s position.
“The Ninth Circuit has affirmed what we have said all along: the Forest Service can protect salmon by conditioning the use of its land on protecting stream flows,” 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. “This is good news for salmon because the Forest Service manages so much salmon spawning habitat along the west coast,” he continued.
“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 survival and recover,” said Michael Mayer of Earthjustice, an attorney who also represented the environmental intervenors.
The environmental organizations represented in the case are Washington Environmental Council, Okanogan Wilderness League, Center for Environmental Law & Policy, Defenders of Wildlife, Trout Unlimited, and American Rivers.