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High Court Declines Appeal of Water Diversion for Fish by Staff Lewiston Tribune, May 4, 2004

SPOKANE -- The U.S. Supreme Court declined Monday to hear an appeal of a lower court decision that the government can close irrigation ditches crossing U.S. Forest Service land to provide additional water to help endangered fish runs.

The Supreme Court, without comment, let stand a decision by the 9th U.S. Circuit Court of Appeals that was a setback for groups seeking to limit federal control over state waters.

"We consider this a great victory for protecting wild salmon," said Michael Mayer, a lawyer for the environmental group Earthjustice in Seattle.

Irrigators argued that the Forest Service did not have the right under the Endangered Species Act to deny long-standing water rights to farmers. They claimed the state, and not the federal government, had the authority to set in-stream flow requirements for fish.

"It does remain a very hotly contested issue across the Western states," said Russ Brooks, managing attorney of the Pacific Legal Center in Bellevue, Wash., which advocates for private property rights and pursued the case on behalf of the Early Winters Ditch Co., Okanogan County and four irrigators.

The Supreme Court's decision ends this case, but "I'm sure there will be other opportunities to bring the issue before the court," Brooks said.

Mayer said the case reaffirmed federal efforts to protect the survival of salmon runs.

"We think this is a decision of huge importance, given the resources involved and the amount of Forest Service land," Mayer said.

U.S. District Judge Robert Whaley of Spokane sided with the Forest Service, which denied the use of irrigation ditches running through the Okanogan National Forest to take water from area rivers.

Whaley ruled that flow rates are set so the Forest Service complies with the Endangered Species Act, which is carried out by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. His decision was upheld by the 9th Circuit.