A Great Court Victory, New Litigation, An Invitation, and WWP Board Meeting Schedule

Online Messenger #47

Here is the November 15, 2002 news release sent out by WWP:

Federal Court Ruling Halts Diversion To Protect Bull Trout

In a decision with implications throughout Idaho and other parts of the West, a federal judge has ordered an Idaho rancher to stop using a decades-old irrigation diversion that poses harm to bull trout, a threatened species under the Endangered Species Act.

U.S. District Judge B. Lynn Winmill issued a permanent injunction that bars rancher Verl Jones from taking water out of Otter Creek, a tributary to Panther Creek in the Salmon River Basin of central Idaho. Jones uses the water for his livestock operation near Challis, Idaho.

The decision, issued Thursday in favor of plaintiffs Western Watersheds Project and the Committee for the High Desert, marks one of the few times a court has halted water diversions to prevent harm to ESA-listed fish.

"This decision affirms that farmers and ranchers cannot violate the Endangered Species Act," said WWP executive director Jon Marvel. "If listed fish continue to be harmed by irrigators, they either have to change their ways or risk losing use of their diversions."

The order prohibits Jones from diverting any water until he installs a new "fish gate" to prevent bull trout from being sucked into an irrigation ditch to die. A "head gate" must also be installed to allow the fish to migrate past the diversion in order to spawn.

"The Endangered Species Act applies to everybody, and it prohibits private actions that kill or harm listed fish," said Laird J. Lucas, a Boise attorney who represents the conservation groups. "It's important for all water users to understand that they must comply with this law."

In December 2000 WWP and CHD sued Jones under ESA, claiming the rancher's crude rock diversion caused unlawful "take" of bull trout. ("Take" is defined under ESA to mean "harass, harm . . . wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.")

In 2001, the groups sought and won a preliminary injunction barring Jones' diversions. Last year leased his water right to the U.S. Forest Service for $20,000. The ruling issued Thursday made the earlier injunction final, but noted that Jones could continue to lease his water rights to federal agencies until he installs a new diversion.

"We are seeing a growing awareness across the West that these kinds of diversions are deadly to fish and have to be modernized," said CHD conservation director Katie Fite. "We hope Idaho ranchers and farmers will hear the warning in this case and make improvements without waiting to be dragged into court."

"The day is long past when farmers and ranchers can simply block up streams to divert water into unscreened ditches," added Marvel. "We are talking about practices developed in the 19th century, which must be updated for the 21st century. Times have changed, and so must the people who use our public lands and waters."

This court victory is due in large part to the hard work of WWP's attorney, Laird Lucas, but thanks are also due to WWP'S expert witness, biologist Kaz Thea, and WWP's central Idaho Director Stew Churchwell, who knows the Morgan Creek-Panther Creek area like the back of his hand.

Although as of this posting on Friday morning November 15, Judge Winmill's decision is not yet posted online, interested readers will be able to access the ruling in a day or two at the following URL: http://www.id.uscourts.gov/.

Here is a copy of the WWP News Release sent out November 11, 2002:

Western Watersheds Project and Committee For The High Desert Sue BLM Over Destruction Of 2.1 Million Acres In Southern Idaho

Forest Guardians, Western Watersheds Project and the Committee for The High Desert filed a lawsuit today against the U.S. Bureau of Land Management, alleging the agency has violated the Clean Water Act by allowing livestock grazing to pollute streams and wetlands.

On November 8, 2002 Western Watersheds Project and the Committee for the High Desert sued the Bureau of Land Management for the agency's authorization of temporary grazing permits for nearly 67,000 AUMs (animal unit months) on lands in Idaho already devastated by livestock grazing, fire and drought. This the equivalent of 67,000 cattle grazing on public lands for one month.

"For nearly a decade, BLM has repeatedly authorized grazing above already permitted levels without any meaningful environmental analysis," said Todd Tucci of the Land and Water Fund of the Rockies, representing the two conservation groups. "It is patently irresponsible for the agency to authorize additional grazing without analyzing the ecological impacts across nearly 2.1 million acres of public lands."

The lawsuit maintains that the BLM has repeatedly violated the National Environmental Policy Act by routinely allowing ranching corporations such as the J.R. Simplot Co. to increase livestock numbers beyond the limits established under existing permits. The lawsuit also charges that the BLM violated the Federal Land Policy and Management Act by authorizing land management decisions that violate the BLM's Jarbidge Resource Management Plan.

"The BLM has again put politics above science in permitting the continued destruction of public lands in the Jarbidge Resource Area by some of the nation's most powerful ranching corporations," said Tucci.

The 2.1 million acres of public lands on the Jarbidge RA in south-central Idaho are home to bighorn sheep, pronghorn antelope, redband trout, red-tailed hawks and well over 300 other species of wildlife. It is familiar territory to hunters, hikers, anglers, birders and other users for its unique natural, recreational and cultural resources. The area includes the remarkable canyons of the Bruneau and Jarbidge rivers.

Jarbidge RA is also the public-lands feedlot for some of the country's biggest ranchers and ranching corporations, including Brackett Ranches and J.R. Simplot, the potato billionaire.

The current condition of native rangelands in Jarbidge is no secret even to the BLM. The agency has acknowledged that 84 percent of the resource area is in "poor" or "recently burned" condition.

Livestock grazing under such conditions profoundly impacts rangeland hydrology and health by removing vegetative cover, compacting soils, reducing infiltration and increasing erosion.

The Jarbidge RMP requires the BLM to improve rangelands in poor condition; improve sage grouse nesting; protect bighorn sheep habitat; and protect and enhance sage grouse habitat to maintain or increase sage grouse populations.

Since 1985, when the Jarbidge RMP was completed, the resource area has suffered significant impacts from grazing. Bull trout were listed under the Endangered Species Act. Slickspot peppergrass was proposed for listing. The U.S. Air Force expanded its military training facilities in the area. Sage grouse populations have plummeted while exotic weed populations and off-road vehicle use has soared.

"BLM, however, has turned a blind eye to the changed ecological conditions within the Jarbidge Resource Area," Tucci said. "Instead, BLM continues to treat our public lands as the private stamping grounds for politically-powerful livestock corporations."

"The BLM continues to subsidize the destruction of our treasured public lands," said Katie Fite, director of CHD. "In fact, ranchers acknowledge that if they were required to pay fair market value for the forage used on public lands, the costs would be nearly 10 times what they presently pay the BLM. This massive federal subsidy is a giveaway that is turning our public lands into feedlot wastelands."

An Invitation

WWP extends a year end invitation to Online Messenger readers to join Western Watersheds Project. Many supportive readers of this email newslist are not currently members of Western Watersheds Project, and because WWP's budget is dependent on the tax-deductible support of our members, new members will assist WWP in expanding our already substantial accomplishments in restoring all western watersheds.

Consider joining yourself or enrolling a friend with a gift membership. Joining is easy at WWP's secure online membership page.

WWP Board Meeting Scheduled

The Board of Directors of Western Watersheds Project will be meeting at WWP's Greenfire Preserve November 23 and 24, 2002 for the purpose of adopting a budget for 2003. All WWP members are invited to attend. Please call the Hailey Office (208-788-2290) until noon Friday November 22 for a more precise time schedule for the Board meeting over the weekend.