JUDICIAL DEVELOPMENTS

January 2004

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Ninth Circuit Denies Appeal Challenging Decision of the U.S. Fish and Wildlife Service to Protect Endangered Species by Requiring Reduction In Water Use
County of Okanogan; Early Winters Ditch Company et al. v. National Marine Fisheries; U.S. Fish and Wildlife Service

On October 29 the Ninth Circuit Court of Appeals upheld a lower court ruling denying the Washington State County of Okanogan’s challenge of a decision by the U.S. Forest Service to restrict the use of water from ditches to maintain instream flow levels for the protection of endangered fish under the Endangered Species Act (ESA). The court was unpersuaded by appellants claim that the Forest Service lacked the authority to restrict their water rights under a special use permit because such restrictions denied them their vested water rights under state law.