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Idaho Conservation League v. U.S. Forest Service

United States District Court, D. Idaho

June 17, 2019

IDAHO CONSERVATION LEAGUE, Plaintiff,
v.
U.S. FOREST SERVICE, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL, U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it cross-motions for summary judgment. The Court heard oral argument on June 4, 2019, and took the motions under advisement. For the reasons explained below, the Court will grant summary judgment on Count One and require the Forest Service to engage in formal consultation pursuant to § 7 of the Endangered Species Act. The Court will deny defendant's cross motion for summary judgment.

         FACTS

         Plaintiff Idaho Conservation League (ICL) claims that the Forest Service is violating the Endangered Species Act (ESA) by failing to consult with other agencies to protect listed fish species that are being harmed by irrigation ditches that divert water - and these fish - from the Salmon River in Idaho's Sawtooth National Recreation Area. The Forest Service responds that agency inaction does not trigger the ESA's consultation requirement under existing Ninth Circuit law.

         The Sawtooth National Recreation Area (“SNRA”), located in central Idaho, is administered by the Sawtooth National Forest. The SNRA encompasses the headwaters of the Salmon River and some tributaries of the Salmon River. Several fish species listed as endangered or threatened under the ESA are located in this region, including (1) the Snake River sockeye salmon, (2) the Snake River spring/summer chinook salmon, (3) the Snake River Basin steelhead trout, and (4) the Columbia River bull trout.

         Ranchers and farmers have built irrigation ditches that divert water from the Salmon River and its tributaries. These ditches entrain water and fish, often resulting in injury or death to the fish. Following a 1994 study of these diversions in the Sawtooth NRA, Forest Service Hydrologist and Anadromous Fish program Coordinator Mark Moulton wrote a memo - dated January 5, 1995 - discussing the diversions' effects on listed fish. Moulton estimated that there were 118 active diversions in the SNRA on public lands in the Salmon River drainage. See AR000256. He identified the multiple ways diversions harm listed fish and habitat, and concluded that diversions were “by far, the most significant effect on designated critical habitat within the [S]NRA.” See AR000256. Moulton warned that without addressing diversions “we must anticipate continued decline in our aquatic species and their habitats, ” describing the effects as “catastrophic.” See AR000258.

         About eight months after Moulton's memo, SNRA Area Ranger Paul Ries wrote a letter to the ranchers and farmers diverting water in the SNRA, notifying them that they did not have Forest Service approval and needed to apply for a Ditch Bill Easement (DBE) or other authorization such as a Special Use Permit (SUP). See AR000288. By February 1997, the Forest Service received approximately 50 applications for DBEs and/or SUPs for 36 discrete ditches in the SNRA. See AR000415.

         The Forest Service noted that 17 of these diversions adversely affect ESA-listed species by limiting downstream flows and found that imposing bypass flow restrictions in the diversions' operation and maintenance plans would be necessary. See AR000416. The Forest Service then devised an application processing strategy. See AR000432-33. The Forest Service determined it could process at least half of the applications in 1997 and 1998, most of the remaining applications in 1999, and the “most complex cases” by 2000. Id.

         In developing this processing strategy, Forest Service officials contemplated the potential for Section 7 consultation. In 1997, the Forest Service's Director of Lands sent guidelines to Western Regional Forest Supervisors, including the Sawtooth Supervisor, to provide guidance for processing DBE applications requiring ESA consultation. See AR000460. In April 1997, Ries wrote letters to applicants for diversions acknowledging receipt of their applications and informing them the Forest Service was processing their applications. See, e.g., AR003238 (S39).

         Rather than evaluate each DBE/SUP application separately, the Forest Service was evaluating environmental impacts for all diversions together to “rectify this longstanding problem.” See AR000744. With regard to Section 7 consultations, SNRA officials and their superiors at Region 4 of the Forest Service agreed that ESA consultations needed to occur and that the effects of diversions were cumulative and interrelated. See AR000748-51.

         In 2000, the Forest Service had still not reached decisions on the pending DBE applications, prompting environmental groups to serve the Forest Service with an ESA Notice of Intent to Sue for failing to engage in Section 7 consultation. See AR000871. Forest Supervisor Levere responded by committing to initiate ESA consultation for all diversions in the Sawtooth Valley. Id. He further promised the Sawtooth National Forest would update its Aquatics Biological Assessment (BA) on the SNRA before the next irrigation season. Id. Finally, he committed that “[u]pon completion by the Forest Service, this updated BA will be submitted to NOAA Fisheries Service and Fish and Wildlife Service for consultation.” Id. He would follow through on these three promises.

         In the 2001 Sawtooth Valley All Aquatics BA, the Forest Service determined that every diversion at issue here “may affect” at least one listed fish species or its critical habitat. The Forest Service sent this BA to NMFS and FWS on May 31, 2001, requesting initiation of ESA consultation. See AR000930-31 (Forest Service letter to NMFS); Hurlbutt Decl., Ex. 4 (letter to FWS). For each of the diversions at issue here, the BA stated that the proposed action was to issue “interim” SUPs, “not to exceed 5 years, ” until such time as sufficient information was available to “issue” permanent easements. See, e.g. Hurlbutt Decl., Ex 5 (BA), pp. 83.

         NMFS found the BA insufficient and listed additional information about each diversion, the associated water right, and potential impacts the Forest Service needed to provide. See AR000943-44. It is unclear whether FWS ever responded, but Forest Service briefing notes from June 26, 2001 indicate that the Forest Service planned to ...


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