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WWP Online Messenger
#76
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)
Western Watersheds
Project Wins Court Ruling on Upper Salmon Basin
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.
Copies of the court ruling
will be available on WWP's website at
www.westernwatersheds.org.
[Non-text portions
of this message have been removed]
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