United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
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.
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
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.
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.
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.
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.
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).
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.
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.
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.
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 ...