Matejko

BACKGROUND

I.

Western Watersheds Project and Committee for Idaho’s High Desert (collectively, Western Watersheds) filed this action in 2001 against the BLM and its regional officials, as well as the United States Forest Service, seeking declaratory and injunctive relief regarding hundreds of river and stream “diversions” (e.g., dams and pipes) on public lands in the Upper Salmon River basin of central Idaho.1 Western Water- sheds challenges the BLM’s acquiescence in selected diver- sions for agricultural and other irrigation uses by private parties holding vested rights-of-way to divert water. It appears undisputed for purposes of this appeal that the diversions could jeopardize threatened species of fish.

Only count four (violation of section 7(a)(2) of the ESA) of the first amended complaint against the BLM is at issue on appeal; the parties agreed to litigate a set of six “test-case” diversions and focus on the legal issue of whether the BLM has a duty to consult under section 7(a)(2). The State of Idaho intervened and, along with the BLM, is an appellant.

At issue are rights-of-way held by private parties to access and use water as “recognized and acknowledged by the…