Section 9, Endangered Species Act Lawsuit Planned


In an exclusive front page article in its Sunday October 8th edition the Twin Falls, Idaho Times-News covered the following news release (see the actual article at:

On Tuesday, October 3, 2000,Two Idaho conservation groups mailed over 50 notification letters of the groups' intention to sue under Section 9 of the Endangered Species Act to ranchers and farmers as well as state and federal agencies to legally force the restoration of stream flows and fish habitat in the Upper Salmon River watershed.

Idaho Watersheds Project, based in Hailey, and the Committee for Idaho's High Desert of Boise announced that 60 day notice letters are going to ranchers and agencies that divert water and dry up streams in watersheds ranging from the Sawtooth Valley to the Lemhi River. The targeted streams also include the Pahsimeroi River, East Fork Salmon River, and many smaller tributaries to the Upper Salmon River which are critical habitat for salmon, steelhead and bull trout. Most of the notice letters name ranchers who use diversions on public lands to water their cattle, or divert water to private lands to grow livestock forage.

Jon Marvel, executive director of Idaho Watersheds Project, stated: "Today we are bringing the Endangered Species Act home to central Idaho. For too long, our salmon and steelhead spawning streams have been de-watered and destroyed by livestock. For these fish to survive, they must have flowing streams and good quality habitat in the Upper Salmon River watershed, and we intend to ensure that happens. From this day forward, ranchers or farmers who dry up streams and kill fish in central Idaho will be held responsible for their actions under the ESA."

Snake River salmon were listed as threatened species under the Endangered Species Act in the early 1990s, and steelhead and bull trout-- two other native fishes -- were listed more recently. The Upper Salmon River and its many tributary streams have been designated as "critical habitat" under the ESA for salmon and steelhead spawning. In July, the National Marine Fisheries Services also announced new rules under Section 4(d) of the Endangered Species Act, which establish that de-watering streams which are habitat for these fish can result in liability for "take" of the species in violation of the Act.

"Our litigation is focused on abuses that have violated laws in this hidden landscape for a hundred years," said Pamela Marcum, head of the Committee for Idaho's High Desert. "In the past, enforcement priorities on these public and private lands have hit a political brick wall. Illegal practices continue to eliminate habitat, kill imperiled fish, and de-water our streams. It is time for the irresponsible to do the right thing. " "The ESA is very clear that nobody -- including private property owners, as well as the State of Idaho or federal agencies -- can continue land management activities that harm endangered species," said Laird J. Lucas, an attorney for the groups who sent the notice letters. "Federal agencies are complicit in the killing of these fish through stream diversions and de-watering across the state on lands they manage, so it is up to us to initiate corrective action as required by law."

Marvel added: "Our biologists have found threatened and endangered fish caught in ditches and canals throughout the Upper Salmon basin, doomed to die. It's shocking to realize that with all the talk about protecting these fish, practices like bulldozing gravel diversions in streams and rivers to divert their water are still going on. We are putting people on notice that the wanton destruction of our rivers and fish will not be tolerated any longer."

Several notice letters name Governor Kempthorne and other State Land Board officials for tacitly allowing state lands to be used for diversions without fish screens or water measuring devices, in violation of state law as well as the ESA. "The Idaho Code for years has required that adequate fish screens be installed on all diversions to prevent killing fish, but even the Land Board is not actively following the law in this regard," said Lucas. "The state seems to think it is immune from the Endangered Species Act, and we hope this acts as a wake up call to encourage them to get serious about protecting Idaho's endangered fish."