Upper Salmon public land diversions

The US Forest Service and BLM each authorize dozens of irrigation diversions on public lands in the Upper Salmon basin of Idaho, which is critical habitat for threatened salmon, steelhead and bull trout.  These public lands diversions often are crude devices, lacking fish screens; and they harm the fish by dewatering streams, obstructing fish migration, and "entraining" fish into irrigation ditches. 

This ESA citizen suit challenges the agencies' failure to conduct Section 7 consultation over the direct, indirect and cumulative effects of these public land diversions on the listed fish species.  Because the Forest Service typically authorizes the diversions through special use permits -- obviously an agency "action" requiring ESA consultation -- it quickly reached a settlement with us, requiring watershed consultations across the Upper Salmon basin.

But because BLM views historic diversions on its public lands as being vested by operation of law under a Civil War-era "right-of-way" statute, it has opposed conducting Section 7 consultation.  After we prevailed in the district court, the US Court of Appeals for the Ninth Circuit agreed with BLM's reading, and held that no agency "action" exists under the ESA for the historic rights-of-way.  See WWP v. Matejko, 468 F.3d 1099 (9th Cir. 2006).

The case remains pending in district court over other arguments that BLM must engage in consultation.

Files: 

WWP v. Matejko, 9th decision