William Perry Pendley

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.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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