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Suits Target Idaho Ranchers, Irrigators for Killing Fish by Jennifer Langston Idaho Falls Post Register, January 21, 2001

On a sunny day last August, Stew Churchwell and two biologists dressed like frogmen were walking along a Salmon River tributary looking for dead fish.

The biologists were snorkeling in the irrigation ditches that cross central Idaho's high desert valleys, searching for salmon, steelhead and bull trout.

Those fish are protected under the Endangered Species Act, a law that makes it illegal to kill or harm them by altering their habitat.

The biologists came to a homespun dam made of logs and blue plastic that blocked Lake Creek and forced water into an irrigation diversion. The shallow ditch, which carries water to private pastures where cattle graze, was too small for snorkeling.

So the biologists followed it until it spilled into an underground pipe. Next to a metal screen across the pipe, they found two baby steelhead 6 inches long.

The fish, which had gotten stranded in the mud, had lost their iridescence and turned a sickly gunmetal gray.

"They were high and dry and lifeless," said Churchwell, central Idaho director for Idaho Watersheds Project, an 850-member conservation group that works to retire cattle from public grazing lands. "They were dead. They weren't even flopping."

The two dead steelhead are at the heart of three lawsuits filed against ranchers under the Endangered Species Act, which for the first time in Idaho seeks to force irrigators to leave water in streams and change century-old farm practices.

A new kind of lawsuit

The suits filed by Idaho Watersheds Project and The Committee for Idaho's High Desert shortly before Christmas argue that diversions are violating the law by blocking fish migrations, drying up streams, and spilling fish into irrigation ditches and fields.

It's an aggressive use of the law. It's the kind of suit that people who make a living from the land have dreaded and that advocates of private property rights have warned about.

The groups aim to set new legal precedents and settle a question that clouds disagreements about fish and crops and cattle: How much clout does the Endangered Species Act carry to make irrigators change the way they use water?

Environmental groups have been squeamish about forcing that issue, particularly in Idaho, where water has turned wide swaths of the state from desert to green fields and longtime neighbors have been known to shoot each other over an irrigation ditch dispute.

"Water rights are like God and apple pie," said Jon Marvel, head of Idaho Watersheds Project. "We want to test this fabled water law against the Endangered Species Act. I think it's going to be interesting."

The suits are also on the cutting edge of endangered species litigation - which no longer targets only federal agencies for failing to consider how their actions affect listed animals or follow administrative procedures.

Federal agencies and environmental groups are now suing irrigators, power companies and other water users, arguing their actions constitute a "take" - an illegal killing or injury - under the law.

The federal National Marine Fisheries Service sued an irrigation district in Washington state's Methow Valley last June, arguing that crude irrigation diversions and inadequate fish screens were illegally killing salmon.

The Bureau of Reclamation was forced last summer to leave water in the Rio Grande, normally used by New Mexico farmers and cities, to protect the endangered silvery minnow in a settlement with environmental groups.

This month, environmentalists threatened to sue Puget Sound Energy if it refused to release enough water from dams to maintain spawning grounds, under new salmon recovery rules in the Northwest and California.

"You're starting to see cases throughout the West," said Laird Lucas, Marvel's attorney. "People are starting to recognize when you're diverting water in ways that are killing fish ... it's a take, and no private person or federal agency can do that."

Lawsuits hard to try

Lawsuits arguing that endangered species have been harmed, based on changes to their natural habitat, have been rare because they're difficult to prove, said Idaho Deputy Attorney General Clive Strong, who heads that office's natural resource division.

First you have to demonstrate the fish live there. Then it's difficult to establish at what point changing a stream's flow or grazing cattle nearby actually injures the fish.

"That is an area that hasn't been explored legally, and ... the science is very gray," Strong said. "When you're out fishing and you hook a fish, it's easy to tell you've killed a fish."

Under the Fifth Amendment, it's illegal for the government to take private property without compensating the owner. But whether limiting the way someone uses water qualifies in that context is a gray area, Strong said.

"There are interesting questions that will likely have to be wrestled with," he said. "It's not clear whether they will be wrestled with in these suits. Whether these three cases actually present the right set of facts to do that is a good question."

The groups have distributed more than 50 notices of intent to sue ranchers and other individuals in the Salmon River watershed. They allege there's widespread abuse of the law by rural residents and property-rights advocates unwilling to adapt to modern times.

Norm Semanko, executive director of the Idaho Water Users Association, which works on behalf of irrigators, disagrees.

If irrigation diversions are indeed leaving endangered fish high and dry, that's a problem that should and will be addressed, he said. Lawsuits threatening to shut off water, however, will only inflame tensions, he said.

There are more constructive avenues - such as recent federal legislation to help install costly fish screens and a collaborative effort on the Lemhi to leave water in the river to benefit fish - to address endangered species concerns.

"They're trying to change the landscape up there that's existed for 100 years," Semanko said. "When you start firing guns in court ... it just really entrenches people and makes it hard to find resolution."

Suits complicate existing law

Ray Rigby, a water attorney in Rexburg who has represented irrigators for 50 years, said fish listed under the Endangered Species Act in the last decade have thrown a new wrinkle in the state's long-standing water allocation system.

"Most of those years we never talked about what would happen if we dried up the streams," he said. "Because they owned a water right and water right was king, if it meant drying it up, it meant drying it up."

He said the courts ultimately would have to balance the interests of the parties - those who want water for fish and those who, in some cases, have been guaranteed water for more than a century so they can make a living.

Creating a water bank in which willing ranchers and farmers would sell their water could help solve some of the salmon, steelhead and bull trout problems, he said.

"If society needs it, come and pay for it," he said. "It's just like the highway department: If they need land for a road, they just don't take it."

But if the suits ask the court to order an irrigator to leave water in the stream, and the irrigator needs all that water, that brings laws regarding private property squarely in conflict with the Endangered Species Act, he said.

"That's stability. People pay thousands of dollars for land, and that land is not worth anything without water," Rigby said. "If somebody passes a law or makes a decision that you don't have that water right anymore, that would upset a society. It's hard to believe in a democratic country that a court ... would do that."

Judd Whitworth, a defendant in one of the lawsuits, said attorneys he and others have consulted with estimate it will cost $150,000 to $300,000 to fight the suits.

"We have water rights that are older than Marvel, but this endangered species law is written to where we can hardly live with it," he said.

Some ranchers in the area have pooled their money to form the Salmon River Coalition, a nonprofit group through which they have hired an attorney.

"These groups, they are dedicated to their purpose," said Jerry Hawkins, a Challis rancher who was instrumental in forming the coalition. "I hope people around here can band together and form a group that's as dedicated to preserving their rights."

Changes could be coming

Regardless of the lawsuits, central Idaho ranchers who depend on cold, mountain-fed streams to grow feed and water their cattle may get more scrutiny.

The federal agency responsible for enforcing the Endangered Species Act and for making sure salmon and steelhead don't go extinct is already investigating fish kills and pressuring irrigators to stop drying up streams.

The National Marine Fisheries Service has decided not to immediately remove four dams on the Lower Snake River that kill fish as they migrate. The agency has said it will step up efforts to improve habitat, reduce harvests and change hatchery practices to help restore the struggling fish.

"Our No. 1 is to get water back into our dried-up streams," said Edmond Murrell, team leader for NMFS' habitat conservation division in Idaho. "That would mean that associated take would be high on the list for investigations."

The agency already is negotiating with irrigators on the Lemhi River, where stretches of the river where salmon and steelhead migrate have run dry because of irrigation.

The agency's first choice is to find a collaborative solution with ranchers to prevent that from happening again, said NMFS biologist John Volkmann. The two sides are trying to agree on a plan that would leave enough water in the river before the next irrigation season begins.

Lucas said his plaintiffs were hoping the suits would convince irrigators to voluntarily change their outdated practices. He said federal help and money likely would have to be part of the solution. But the bottom line is that if ranchers don't take those steps, more suits will follow.

"They've been doing it this way for 100 years, but times are changing," Lucas said. "I believe we can have irrigation with healthy streams, but you can't do it with inefficient methods."

The lawsuits target crude irrigation diversions made of gravel, wood and plastic that almost or completely block a stream.

That wide-open, rural country is crisscrossed with leaky irrigation ditches, with unused water running down the middle of dirt roads rather than watering fields. With more efficient delivery methods, such as pipes and wells and sprinklers, wasted water could be put back into the streams to keep fish alive, Lucas said.

"It will take some money, and it will take some people wanting to make these changes. What we have found is a lot of people don't want to make that change," Lucas said. "In the short term, I think federal law trumps state water law and the ESA can require people to leave water in the stream."