Western Watersheds Project v. Matejko
Decision Date | 24 July 2006 |
Docket Number | 05-35208.,No. 05-35178,05-35178 |
Citation | 468 F.3d 1099 |
Parties | WESTERN WATERSHEDS PROJECT; Committee for Idaho's High Desert, Plaintiffs-Appellees, v. George MATEJKO, Supervisor, Salmon-Challis National Forest; United States Forest Service; Renee Snyder, BLM Challis Field Office Manager; Bureau of Land Management; David Krosting, BLM Salmon Field Office Manager, Defendants, and State of Idaho, Defendant-Intervenor-Appellant. Western Watersheds Project; Committee for Idaho's High Desert, Plaintiffs-Appellees, v. George Matejko, Supervisor, Salmon-Challis National Forest; United States Forest Service; Renee Snyder, BLM Challis Field Office Manager; Bureau of Land Management; David Krosting, BLM Salmon Field Office Manager, Defendants-Appellants, and State of Idaho, Defendant-Intervenor. |
Court | U.S. Court of Appeals — Ninth Circuit |
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David C. Shilton, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for the defendants-appellants.
Clay R. Smith, Deputy Attorney General, Natural Resources Division, Boise, ID, for the defendant-intervenor-appellant.
Laurence J. Lucas, Boise, ID, for the plaintiffs-appellees.
L. Michael Bogert, Perkins Coie, Boise, ID, for amicus curiae Western Urban Water Coalition, Denver Water Board, Metropolitan Water District of Southern California, and City of Tucson Water Department.
Robin L. Rivett, Sacramento, CA, for amicus curiae Pacific Legal Foundation.
Before: B. FLETCHER and McKEOWN, Circuit Judges, and KING,* District Judge.
The opinion filed on July 24, 2006, slip opinion at 8183 456 F.3d 922 and published at 456 F.3d 922 (9th Cir.2006) is amended as follows:
Page 8188 of the slip opinion 456 F.3d at 924, fourth line of the first full paragraph:
replace "Fish and Wildlife Service (FWS)" with "United States Forest Service"
Page 8188 of the slip opinion 456 F.3d at 924, footnote one:
replace "FWS" with "Forest Service"
Pages 8196-97 456 F.3d at 928-929, footnote five:
Add "These post-decision amendments are not part of our review." to the end of the footnote.
With these amendments, the panel has voted to deny the petition for rehearing.
No further petitions for rehearing or rehearing en banc may be filed.
Section 7(a)(2) of the Endangered Species Act (ESA), codified at 16 U.S.C. § 1536(a)(2), requires consultation with the Secretary of the Interior or Secretary of Commerce if there is "any action authorized, funded, or carried out by" a federal agency (here, the Bureau of Land Management (BLM)) that could jeopardize any endangered or threatened species, or destroy or adversely modify habitat of such species. This appeal presents the question of whether the BLM's failure to regulate certain vested rights-of-way held by private landowners to divert water for irrigation uses constitutes "action authorized, funded, or carried out" by the BLM so as to require consultation. The district court required the BLM to consult; it found the BLM had discretion to regulate the diversions and that its failure to exercise such discretion constituted "action." We conclude that the duty to consult is triggered by affirmative actions; because there was no such "action" here, there was no corresponding duty to consult. Accordingly, we reverse.
Western Watersheds Project and Committee for Idaho's High Desert (collectively, Western Watersheds) filed this action in 2001 against the BLM and its regional officials, as well as the United States Forest Service, seeking declaratory and injunctive relief regarding hundreds of river and stream "diversions" (e.g., dams and pipes) on public lands in the Upper Salmon River basin of central Idaho.1 Western Watersheds challenges the BLM's acquiescence in selected diversions for agricultural and other irrigation uses by private parties holding vested rights-of-way to divert water. It appears undisputed for purposes of this appeal that the diversions could jeopardize threatened species of fish.
Only count four (violation of section 7(a)(2) of the ESA) of the first amended complaint against the BLM is at issue on appeal; the parties agreed to litigate a set of six "test-case" diversions and focus on the legal issue of whether the BLM has a duty to consult under section 7(a)(2). The State of Idaho intervened and, along with the BLM, is an appellant.2
At issue are rights-of-way held by private parties to access and use water as "recognized and acknowledged by the local customs, laws, and the decision of courts" pursuant to the Act of July 26, 1866, 14 Stat. 253, codified at 43 U.S.C. § 661 (repealed in part Oct. 21, 1976) (the 1866 Act). Section 9 of the 1866 Act ( ) provides in pertinent part as follows:
Id. (emphasis added).
The 1866 Act embraced a doctrine of prior appropriation and a general policy of deference to state and local law regarding water rights. See Hunter v. United States, 388 F.2d 148, 151 (9th Cir.1967).
Similarly, the Act of March 3, 1891, 26 Stat. 1095, codified in pertinent part at 43 U.S.C. § 946 (repealed Oct. 21, 1976) (the 1891 Act), provided for a vested federal right-of-way for irrigation upon approval of a map by the Secretary of the Interior. Utah Power & Light Co. v. United States, 243 U.S. 389, 406-07, 37 S.Ct. 387, 61 L.Ed. 791 (1917). Like the 1866 Act rights-of-way, rights vested under the 1891 Act are perpetual unless the use changes. See Kern River Co. v. United States, 257 U.S. 147, 151-52, 42 S.Ct. 60, 66 L.Ed. 175 (1921) () (citations omitted).
Hunter, 388 F.2d at 152(quoting California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-55, 55 S.Ct. 725, 79 L.Ed. 1356 (1935)). That is, rights-of-way could be acquired well after 1866 and 1891. See, e.g., Grindstone Butte Project v. Kleppe, 638 F.2d 100, 101(9th Cir.1981) ( ); Adams v. United States, 3 F.3d 1254, 1256 & 1260 (9th Cir.1993) ( ).
The six test-case diversions at issue here are on three streams or rivers in central Idaho: two on Big Timber Creek, three on the Pahsimeroi River, and one on Mahogany Creek. The Big Timber Creek's diversions are a "pipe diversion" and a "Carey Act diversion." The "pipe diversion" was established under the 1866 Act. The "Carey Act diversion" was apparently established under the 1891 Act. The three diversions on the Pahsimeroi River were vested under the 1866 Act. The diversion on Mahogany Creek is also from the 1866 Act. So, of the six test-case diversions, five were acquired under the 1866 Act and one under the 1891 Act. The district court assumed the diversions were 1866 Act rights-of-way for purposes of making its legal rulings.3
In 1976, Congress changed the statutory regime regarding rights-of-way by enacting the Federal Land Policy Management Act (FLPMA), 43 U.S.C. §§ 1701-1784 (1976). Effective October 21, 1976, the FLPMA replaced a "tangled array of laws granting rights-of-way across federal lands," with a single method for establishing a right-of-way over public lands. United States v. Jenks, 22 F.3d 1513, 1515(10th Cir.1994). Most important for present purposes, however, Congress specifically chose to preserve vested rights such as those under the 1866 and 1891 Acts. Section 509(a) of the FLPMA provides:
Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use hereto-fore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this subchapter.
43 U.S.C. § 1769(a). See also 43 U.S.C. § 1701 historical note (a) ("Section 701 of the FLPMA provided that Nothing in this Act . . ., or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act . . .") and (h)("All actions by the Secretary concerned under this Act shall be subject to valid existing rights.").
In turn, the BLM issued a policy statement in 19834 declaring that "Ditches and canals constructed on public lands on or before October 21, 1976, under the authority of the 1866 Act will be recognized as an authorized use of the...
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