All of the salmonid species in Idaho’s Salmon River are either endangered or threatened species under the Endangered Species Act. Chinook and Red Salmon; Steelhead. No to mention Bull Trout. Some of the best spawning habitat is in the headwaters of the Salmon River, in the Sawtooth National Forest, and especially the Sawtooth National Recreation Area.
Back in 1995, the folks at the Sawtooth National Forest determined that the diversion of Salmon River waters for irrigation was causing death and injury to those fish. It happened in two ways: sometime the diversions lowered the water too much for the fish to be able to migrate upstream to their spawning bed. And the smolts, juvenile fish, migrating back to salt water would wind up in dead end irrigation channels, where they would die.
The Forest Service identified 118 active diversions in the Salmon River Recreation Area on public lands in the Salmon River drainage. The Forest Service identified multiple ways the diversions harmed listed fish and habitat, and concluded that diversions were “by far, the most significant effect on designated critical habitat within the [S]NRA.” The Forest Servce warned that without addressing diversions “we must anticipate continued decline in our aquatic species and their habitats,” describing the effects as “catastrophic.”
Based on those conclusions, the Forest Service required the persons making diversions of river and tributary water to submit applications. The Forest Service, after receiving the applications, recognized that under the Endangered Species Act it would have to consult with other federal agencies. But it never did. Apparently its fellow federal agencies, the National Oceanic and Atmospheric Agency’s Fisheries Service and U.S. Fish & Wildlife Service “demanded too much information.” So the Forest Service did nothing.
For fifteen years. Never mind that the populations of the endangered and threatened species continued to decline, inpart because of the Forest Service’s inaction on hazards it had recognized were “catastrophic.” Passive-aggressive, indeed.
Finally, in 2017, the Idaho Conservation League (ICL) had had enough.1 ICL sought an order mandating that the Forest Service perform its statutory duty and consult with its sister agencies about the catastrophic water diversions. After all,
Under section 7 of the Endangered Species Act, an agency is required to consult with either the Fish and Wildlife Service (FWS) or theNOAA Fisheries Service (NMFS) if an agency “action” may affect a listed species.
The Forst Service’s defense was lame: it pointed out that it hadn’t taken action, that it had taken inaction, and claimed that its inaction in the face of a known, catastrophic – the Forest Service’s term – risk to endangered and threatened species didn’t trigger a duty to consult. As the U.S. District Court Judge put it,
The Forest Service is essentially arguing that because it has sat on the [water diversion] applications for over two decades without taking any action to resolve them, the agency cannot be compelled to consult over harm to listed species of fish.
The judge’s comments were pointed:
This is an odd argument, attempting to turn delay into a legal defense, something akin to spinning straw into gold. This argument certainly cannot be advanced by counsel with pride. In fairness, the argument takes on some legitimacy when viewed in light of the Forest Service’s struggle with low budgets and high demands. Regardless, the Court is left to determine whether the ESA allows an agency to get away with such conduct.
And the court concluded that the Forest Service could not use its own inaction to excuse a grave threat it had acknowledged existed and had permitted to continue to exist:
IT IS FURTHER ORDERED, that the defendant Forest Service shall engage in formal consultation with the appropriate agency under § 7 of the Endangered Species Act.
Anadromous fish and native Bull Trout face enough threats and challenges navigating the Columbia and Snake Rivers, eight manmade dams and degraded water quality without having their spawning beds turned into a death trap, too. They shouldn’t have to deal with foot-dragging federal bureaucrats, too.
- Disclaimer: WC is a member of the board of directors of the Idaho Conservation League. But the limit of WC’s involvement on this issue was to vote in favor authorizing the instant lawsuit; a vote that was, by the way, unanimous. And the opinions here are WC’s own, not those of ICL or its Board of Directors. ↩