In 1998, ranchers in northern Colorado and southern
Wyoming were told by the U.S. Fish and Wildlife Service
(FWS) that, under the Endangered Species Act (ESA), they had to give up 238,000
acre - feet of water annually to "save" species along the North Platte River in
Nebraska. Not that they had anything against the ESA - listed fish and birds,
covetous FWS bureaucrats, or downstream Cornhuskers; but, to ensure their
economic survival, they needed the water themselves. Their ancestors had long
ago put that water to "beneficial use" growing crops and watering livestock;
therefore, they had the right to use it in perpetuity. There must be a better
way, thought the ranchers.
The ranchers learned that the U.S. Forest Service had
reported that as much as 396,000 acre - feet of new water could be generated
annually if the Forest Service increased the timber harvested from the national
forest land that surround the ranchers and serve as the watershed for the North
Platte River —more than enough to meet the purported needs of the Nebraska
species. Even though the new water could be generated without any diminution in
water quality, the Forest Service rejected the ranchers’ proposal,
rejoining that it had no obligation to comply with the ESA.
The ranchers sued in Wyoming federal district court
arguing that: the
federal government said federally protected species needed
more water; the federal government could meet those water needs by harvesting
more timber — all the while protecting water quality, creating both jobs
and revenue, and ensuring forest health; thus, the federal government should be
required to generate that water and leave private landowners alone.
Scores of federal lawyers — for the Forest Service,
the FWS, and the Department of Justice — jumped into the case raising a
host of defenses, prime among them that the Forest Service had no obligation to
take action to save species. Environmental groups intervened, not to demand
that the Forest Service protect species, but to defend the agency against any
requirement that it fulfill its primary job — as ordained by Congress
— of harvesting timber and providing water supplies. Undaunted, the
ranchers spent $50,000 gathering evidence, such as an expert report that
environmentally sound timber harvesting would yield 249,000 acre - feet of new
water annually to the benefit of the downstream species.
Then, in 1999, five weeks before trial, the federal judge
dismissed the case. It was not "ripe," he ruled, because Wyoming, Colorado, and
Nebraska were negotiating on how, by 2001, they could agree to cough up the
water the FWS demanded and, the Forest Service was revising a forest plan and
might, when it made its 2001 decision, agree with the ranchers to harvest
timber to provide water for the species. In 2001, the U.S. Court of Appeals for
the Tenth Circuit agreed that the matter should be left to the "experts."
Meanwhile, federal - state negotiations and Forest Service planning continued.
Days ago, five years after the district court envisioned,
the three-state agreement went final. The cost: a whopping $317 million; $157
million will be paid by U.S. taxpayers, the rest by the three states in cash,
land, and water. The water yield: 130,000 to 150,000 acre - feet annually,
short of the 238,000 acre - feet the FWS said the species needed and far less
than the 249,000 to 396,000 acre - feet of water that would have been generated
had the ranchers' courtroom pleas been heeded. As to the Forest Service
experts, in December 2003, two years after the district court assumed, they
rejected, without any detailed consideration, recommendations by the ranchers,
the State of Wyoming, and others to increase timber harvesting and maximize the
water yield.
Thus, a win - win proposal, which would have generated
more than enough water for the species, created jobs and revenues, preserved
forest health, and secured local economics, at no additional cost, was
rejected. In its place is a multi - million dollar scheme that creates losers
all around, beginning with those ranchers in Colorado and Wyoming.
William Perry Pendley is President and
Chief Legal Officer at the Mountain States Legal
Foundation.