Federal Court Ruling Halts Diversion To Protect Bull Trout

In a decision with implications throughout Idaho and other parts of the West, a federal judge has ordered an Idaho rancher to stop using a decades-old irrigation diversion that poses harm to bull trout, a threatened species under the Endangered Species Act.

U.S. District Judge B. Lynn Winmill issued a permanent injunction that bars rancher Verl Jones from taking water out of Otter Creek, a tributary to Panther Creek in the Salmon River Basin of central Idaho. Jones uses the water for his livestock operation near Challis, Idaho.

The decision, issued Thursday in favor of plaintiffs Western Watersheds Project and the Committee for the High Desert, marks one of the few times a court has halted water diversions to prevent harm to ESA-listed fish.

"This decision affirms that farmers and ranchers cannot violate the Endangered Species Act," said WWP executive director Jon Marvel. "If listed fish continue to be harmed by irrigators, they either have to change their ways or risk losing use of their diversions."

The order prohibits Jones from diverting any water until he installs a new "fish gate" to prevent bull trout from being sucked into an irrigation ditch to die. A "head gate" must also be installed to allow the fish to migrate past the diversion in order to spawn.

"The Endangered Species Act applies to everybody, and it prohibits private actions that kill or harm listed fish," said Laird J. Lucas, a Boise attorney who represents the conservation groups. "It's important for all water users to understand that they must comply with this law."

In December 2000 WWP and CHD sued Jones under ESA, claiming the rancher's crude rock diversion caused unlawful "take" of bull trout. ("Take" is defined under ESA to mean "harass, harm . . . wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.")

In 2001, the groups sought and won a preliminary injunction barring Jones' diversions. Last year leased his water right to the U.S. Forest Service for $20,000. The ruling issued Thursday made the earlier injunction final, but noted that Jones could continue to lease his water rights to federal agencies until he installs a new diversion.

"We are seeing a growing awareness across the West that these kinds of diversions are deadly to fish and have to be modernized," said CHD conservation director Katie Fite. "We hope Idaho ranchers and farmers will hear the warning in this case and make improvements without waiting to be dragged into court."

"The day is long past when farmers and ranchers can simply block up streams to divert water into unscreened ditches," added Marvel. "We are talking about practices developed in the 19th century, which must be updated for the 21st century. Times have changed, and so must the people who use our public lands and waters."

This court victory is due in large part to the hard work of WWP's attorney, Laird Lucas, but thanks are also due to WWP'S expert witness, biologist Kaz Thea, and WWP's central Idaho Director Stew Churchwell, who knows the Morgan Creek-Panther Creek area like the back of his hand.

Although as of this posting on Friday morning November 15, Judge Winmill's decision is not yet posted online, interested readers will be able to access the ruling in a day or two at the following URL: http://www.id.uscourts.gov/