Wild Fish Conservancy’s Challenge to Federal Government’s Water Diversions in Columbia River Basin Dismissed by Ninth Circuit Court of Appeals Panel

The Ninth Circuit Court of Appeals dismissed an action by the Wild Fish Conservancy, which claimed the federal government was improperly diverting water needed by native fish populations to a Washington fish hatchery. In Wild Fish Conservancy v. Jewell, Case No. 10-35303 (Sept. 11, 2013), the three-judge panel ruled the Conservancy lacked prudential standing to bring one of its claims under the Administrative Procedure Act (APA). The court also ruled it lacked jurisdiction to consider the Conservancy’s two other related claims.

The Wild Fish Conservancy is a nonprofit based in Duvall, Washington. The dispute arose over waters being diverted from Icicle Creek, a tributary of the Wenatchee River, which is a tributary of the Columbia River. During certain times of year, federal officials divert water from Icicle Creek to serve the Leavenworth National Fish Hatchery. The diversions cause a segment of Icicle Creek to become significantly and sometimes entirely “dewatered.” This prevents fish from swimming up the channel to spawning grounds above the hatchery.

The Conservancy sued the U.S. Department of the Interior and other federal officials over the diversions. The United States District Court for the Eastern District of Washington granted summary judgment in favor of the hatchery officials. The Conservancy appealed.

The Conservancy’s first claim involved an APA challenge alleging the federal defendants are violating section 8 of the Reclamation Act of 1902 (43 U.S.C. § 383) by diverting water from Icicle Creek without a state permit under Washington’s water code. The APA requires a plaintiff to demonstrate not only constitutional standing, but also prudential standing, which the Ninth Circuit panel described as “an interest ‘arguably within the zone of interests to be protected or regulated by the statute . . . in question.’ [Citations.]” The Conservancy argued that an APA plaintiff generally need not show a property right in litigation to demonstrate prudential standing. The Court said this was correct. Section 8 of the Reclamation Act, however, ensures that federal reclamation projects within state borders do not interfere with a state’s sovereign authority to regulate the appropriation or use of state waters or the protected property interests of parties with vested water rights under state law. Because the Conservancy lacked enforcement rights under Washington law, the court held it lacked prudential standing to bring its claim.

The Conservancy also claimed the federal defendants violated Washington’s fishway law by failing to submit fishway plans to the state and failing to properly maintain fishways across hatchery structures. The court held that it lacked jurisdiction to hear this claim because the requirements were not incorporated into section 8 of the Reclamation Act. Finally the Conservancy claimed that federal officials failed to supply hatchery fishways with adequate water in violation of the Reclamation Act. Here too, the court ruled it lacked jurisdiction because the claim did not challenge a final agency action and thus was not reviewable under the APA.

This opinion contained an element not often found in judicial opinions: An illustration showing Icicle Creek, related channels and tributaries, and the diversion and intake structures serving the hatchery.

Although the court did not address the merits, the author, Circuit Judge Sidney R. Thomas, took note of the historic backdrop and conflicting issues represented by the case. He opened the opinion by briefly capturing the history of a river basin where modern engineering had transformed it into “the most hydroelectrically developed river system in the world” while also helping to reduce native salmon and steelhead populations “from levels of mythic abundance to the brink of extinction.”

Before concluding, he highlighted the “nuanced” nature of this particular dispute: “As we have often acknowledged, ‘[s]almon and hydropower are the two great natural resources of the Columbia River Basin,’ and ardent desires to promote one or the other have yielded a century of conflict. [Citation.] This iteration does not present the ‘classic struggle between environmental and energy interests,’ [citation], but instead a more nuanced conflict between two entities seeking to repair the damage that dams have done to the Basin’s fisheries. Unlike the many cases we have decided concerning the fate of fish in the Columbia River Basin, the claims before us are not susceptible to federal judicial review.”

(Written by Deb Kollars)