Mountain States Legal Foundation, 11/29/06

In 1998, ranchers in northern Colorado and southern Wyoming  were told by the U.S. Fish and Wildlife Service (FWS) that,  under the Endangered Species Act (ESA), they had to give up  238,000 acre-feet of water annually to "save" species along  the North Platte River in Nebraska.  Not that they had  anything against the ESA-listed fish and birds, covetous FWS  bureaucrats, or downstream Cornhuskers; but, to ensure their  economic survival, they needed the water themselves.  Their  ancestors had long ago put that water to "beneficial use"  growing crops and watering livestock; therefore, they had  the right to use it in perpetuity.  There must be a better  way, thought the ranchers.    The ranchers learned that the U.S. Forest Service had  reported  that as much as 396,000 acre-feet of new water  could be generated annually if the Forest Service increased  the timber harvested from the national forest land that  surround the ranchers and serve as the watershed for the  North Platte River-more than enough to meet the purported  needs of the Nebraska species.  Even though the new water  could be generated without any diminution in water quality,  the Forest Service rejected the ranchers' proposal,  rejoining that it had no obligation to comply with the ESA.    The ranchers sued in Wyoming federal district court arguing  that:  the federal government said federally protected  species needed more water; the federal government could meet  those water needs by harvesting more timber-all the while  protecting water quality, creating both jobs and revenue,  and ensuring forest health; thus, the federal government  should be required to generate that water and leave private  landowners alone.    Scores of federal lawyers-for  the Forest Service, the FWS,  and the Department of Justice-jumped into the case raising a  host of defenses, prime among them that the Forest Service  had no obligation to take action to save species.  Environmental groups intervened, not to demand that the  Forest Service protect species, but to defend the agency  against any requirement that it fulfill its primary job-as  ordained by Congress-of harvesting timber and providing  water supplies.  Undaunted, the ranchers spent $50,000  gathering evidence, such as an expert report that  environmentally sound timber harvesting would yield 249,000  acre-feet of new water annually to the benefit of the  downstream species.    Then, in 1999, five weeks before trial, the federal judge  dismissed the case.  It was not "ripe," he ruled, because  Wyoming, Colorado, and Nebraska were negotiating on how, by  2001, they could agree to cough up the water the FWS  demanded and, the Forest Service was revising a forest plan  and might,  when it made its 2001 decision, agree with the  ranchers to harvest timber to provide water for the species.  In 2001, the U.S. Court of Appeals for the Tenth Circuit  agreed that the matter should be left to the "experts."  Meanwhile, federal-state negotiations and Forest Service  planning continued.    Days ago, five years after the district court envisioned,  the three-state agreement went final.  The cost:  a whopping  $317 million; $157 million will be paid by U.S. taxpayers,  the rest by the three states in cash, land, and water.  The  water yield:  130,000 to 150,000 acre-feet annually, short  of the 238,000 acre-feet the FWS said the species needed and  far less than the 249,000 to 396,000 acre-feet of water that  would have been generated had the ranchers' courtroom pleas  been heeded.  As to the Forest Service experts, in December  2003, two years after the district court assumed, they  rejected, without any detailed consideration,  recommendations by the  ranchers, the State of Wyoming, and  others to increase timber harvesting and maximize the water  yield.    Thus, a win-win proposal, which would have generated more  than enough water for the species, created jobs and  revenues, preserved forest health, and secured local  economics, at no additional cost, was rejected.  In its  place is a multi-million dollar scheme that creates losers  all around, beginning with those ranchers in Colorado and  Wyoming.

Mountain States Legal Foundation 

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