A Million Here; A Million There; Soon, We're Into Real Money

William Perry Pendley
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Posted: Nov 30, 2006 10:58 AM

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.