Court Decision Lifts Endangered Species Act Threat to Rights of Way Across Federal Lands

(Boise) - A decision by a federal appellate court lifts a cloud of uncertainty for Idahoans who hold rights of way across federal lands, Attorney General Lawrence Wasden said.

The Ninth Circuit Court of Appeals held that six rights of way used to move water across federal lands are not subject to general regulation by the U.S. Bureau of Land Management (BLM). The court based its ruling upon the fact that the rights of way had been recognized by Congress under an 1866 statute. The case involved six rights of way across land managed by the BLM in the Upper Salmon River Basin. Thousands of similar rights of way exist elsewhere in Idaho and throughout the West.

Two environmental groups brought the case, Western Watersheds Project v. Matejko, against BLM in 2001. The groups contended that, under the Endangered Species Act, the BLM was required to “consult” on the ongoing use of the rights of way.

The State of Idaho entered the case because consultation could have resulted in a significant change in established law that would have disrupted state water rights and could have resulted in costly modifications as a condition for continued use of the rights of way on public lands.

In the latest ruling, the Ninth Circuit Court of Appeals unanimously reversed a March 2004 decision in which the Federal District Court held that consultation was required. The appeals court found no duty on BLM's part to engage in Endangered Species Act consultation because the federal agency had taken no action to fund, permit or use the rights of way and had no general ongoing regulatory responsibility with respect to their use.

"This case had the potential to be extremely disruptive to a significant portion of Idaho’s agricultural community,” Attorney General Wasden said. “As a result of this decision, holders of rights of way throughout Idaho can go on with their business without having to worry about losing the ability to move their water across public lands. The significance of the decision goes far beyond the few Upper Salmon rights of way involved in the case because the decision will protect thousands of similar rights of way in Idaho and elsewhere in the West."

Wasden noted that there are other issues still to be litigated in the case and that the plaintiffs may seek further review of the Ninth Circuit decision. The Attorney General said his office would continue to participate as an active litigant until the case is concluded.