County of Okanogan v. National Marine Fisheries Service

Appellants, plaintiffs below, challenge a decision by the United States Forest Service requiring reduced use of water from ditches in time of low flow, intended to protect certain endangered species of fish. The plaintiffs include Okanogan County, the Early Winters Ditch Company, and several other plaintiffs. The district court granted summary judgment in favor of the federal defendants. We affirm.

BACKGROUND

Plaintiffs use water from the Skyline Irrigation Ditch and the Early Winters Ditch. These ditches traverse the Okano-gan National Forest and divert water to plaintiffs for agricultural and other purposes. The Okanogan National Forest was originally set aside as the Washington Forest Reserve in 1897.

The Skyline Irrigation Ditch can be traced to 1903 when the Skyline Ditch Company applied to the Secretary of Interior for a permit to construct and maintain a ditch to take water from the Chewuch River. The permit was granted in July 1903, subject to a contract, which stated:

There followed a special use permit which provided: “Terminable at the discretion of the Forester of the U.S. Department of Agriculture.” In 1971, the permit was renewed with a “revocable and…