Western Watersheds Project (WWP) and the Committee for Idaho's High Desert have won their first victory in their campaign to restore streamflows in the Upper Salmon River basin for threatened and endangered fish. This case is the first of as many as 100 cases WWP may bring to test the supremacy of the Endangered Species Act against state water law.
In an interesting preliminary injunction hearing on May 3, 2001 before federal District Court Judge B. Lynn Winmill in Boise, Idaho, the conservation groups reached a court approved stipulated agreement with the rancher defendants which will end forever the annual dewatering of Mahogany Creek. This settlement was advocated by Judge Winmill who preferred not to enter an injunction order if the parties could agree that water was not to be diverted in this or (in effect) subsequent years from Mahogany Creek, an occupied bull trout stream.
The rancher defendants, Judd Whitworth, Royden Eaton, and Ben Yates, and their attorney, Bruce Smith agreed not to divert the full claimed water right of 2.4 cubic feet per second (cfs) but only .02 cfs for livestock watering, and that small amount only if a screening and measuring device were installed. Judge Winmill did state that if the ranchers did divert more than .02 cfs he would enter a temporary restraining order immediately to prevent the possible dewatering of Mahogany Creek. WWP believes that the ranchers gave up their usual practice of dewatering Mahogany Creek in order to avoid a precedential federal court decision undermining state sovereignty over water use.
While this case did not result in an injunction against the use of a state water right, that water right has effectively become impossible to use. The settlement does not bode well for the hundreds of other rancher/water users in central Idaho whose wasteful water use practices have resulted in the dewatering of dozens of streams which are critical habitat for listed populations of salmon, steelhead, and bull trout.
WWP and CIHD were represented in court by the accomplished legal team of Laird Lucas along with Bill Eddie and Mindy Harm of the Land and Water Fund of the Rockies' Boise office.