In a ruling with Westwide importance, Idaho Federal Court Judge B. Lynn Winmill has ruled that the Bureau of Land Management has the authority and the obligation under the Endangered Species Act to determine whether private water diversions that originate on or cross BLM managed lands affect listed fish species.
WWP owes thanks to our attorneys Laird Lucas and his staff at Advocates For The West in Boise (http://www.advocateswest.org/) for this win.
Here is a copy of the WWP news release that was sent out today (3/29/04)
An Idaho federal judge has ruled that the Bureau of Land Management is violating the Endangered Species Act by failing to ensure that irrigation diversions on BLM lands in the Upper Salmon River basin do not harm salmon, steelhead or bull trout.
In his ruling, U.S. District Judge B. Lynn Winmill rejected the BLM's arguments and held that the agency's refusal to impose conditions on diversions to protect all three fish species violates the ESA. Salmon, steelhead and bull trout are listed as "threatened" under the ESA.
"Under the Endangered Species Act the BLM is required to consult with the appropriate fish and wildlife agency when BLM action may affect endangered or threatened species," Winmill noted in his ruling.
He added that "BLM has the discretion to impose conditions on the operation of [the] diversions."
"This ruling confirms that the BLM cannot allow private parties to degrade our public lands and streams simply because they have been doing that for decades," said Jon Marvel, executive director of WWP.
WWP brought the issue to light in June 2001, alleging that hundreds of diversions on public lands in the Upper Salmon basin harm fish species by blocking and dewatering streams, and by allowing fish to enter irrigation ditches where they die.
In its lawsuit, WWP noted that 26 separate tributaries of the Lemhi River, one of the most important salmon spawning streams in Idaho, are dried up every summer by diversions which irrigate low-value forage crops such as grass hay and alfalfa.
The BLM argued that it has no duty to consult with other agencies, claiming that it lacks legal authority to regulate historic diversions on the public lands and cannot order irrigators to modernize their diversions with fish screens, pumps and other installations that could better protect fish. The agency relied on statutes enacted as long ago as 1866 to defend its position.
To resolve the legal dispute, WWP and BLM identified six "test case" diversions on three streams in the Lemhi and Pahsimeroi watersheds: Big Timber Creek, the Pahsimeroi River and Mahogany Creek. The court established that all six diversions are harming the listed fish species, particularly bull trout.
"The Upper Salmon river is the heart of the recovery area for Idaho's salmon, steelhead and bull trout, and these archaic irrigation diversions on public lands are killing fish every year," said Marvel. "This situation cannot go on, and we are pleased that the court has ruled that the BLM must take action now."
"The BLM's position has been to ignore how irrigation diversions are harming our endangered fish species and then claim they can do nothing about the situation, even though Congress has charged the agency with responsibility for managing millions of acres of public land," said Boise attorney Laird J. Lucas, representing WWP. "It's so unfortunate that we have to keep dragging BLM into court to force it to obey the law."
Marvel said WWP will request that the BLM quickly comply with the ESA by immediately conducting reviews of all diversions on BLM lands in the Upper Salmon basin to determine how they may be harming fish and how the diversions can be improved.
"The time is long past for BLM to require private parties who want to use federal lands for their own profit to protect our endangered species and natural resources," he said.