High Court To Hear Argument
Over Who Can Use Species Act

BONANZA, Ore. —(AP)— During a drouth in 1992, the government cut off irrigation water to farms and ranches near Oregon's Lost River to help preserve an endangered species of sucker fish.

Without water, ranchers had to sell off cattle they couldn't feed, and farmers watched as hay, grain and sugarbeets withered and died in the fields. The damage was put at $75 million, for which the government insists it is not responsible and will not pay.

"People tried drilling wells, but they turned out not to be reliable," said rancher Glenn Barrett. "There were several bankruptcies in the area. Without water, you don't have a business."

Now these farmers and ranchers are trying to open a crack in the powerful Endangered Species Act, the 1973 law that was invoked to protect the sucker fish.

They hope to convince the U.S. Supreme Court that people who stand to suffer economic losses from measures taken to protect endangered species should be able to sue the government to modify those steps.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled previously that only environmental activists and others who claim they want to increase protection for wildlife — not those who are negatively affected by that protection — can sue under the Endangered Species Act. The ESA, in the appeals court’s view, is something like a broken ratchet, which can only turn one way.

This week the Supreme Court will hear arguments on this narrow legal question. The outcome could affect environmental disputes around the country, which has seen conflicts between gnatcatchers and housing developments, kangaroo rats and pipelines, and logging and spotted owls.

"Really, all we want is the government to work with us. We aren't in it for money," said Barrett, who serves on the steering committee for the Horsefly and Langell Valley irrigation districts, which brought the lawsuit.

The dispute, he said, is not a choice between agriculture and suckers. Instead, Barrett said, they can coexist just as they have for generations.

Bonanza is a town of about 600 people on the dry east side of the Cascade Range about 15 miles north of the California state line. It was named for the abundance of springs along Lost River, which early settlers hoped would make the high desert area prosperous.

In 1905, the federal government built the Klamath Project, a series of reservoirs and lakes on both sides of the state line that capture the winter rains and snow runoff in spring so ranchers and farmers can tap the water during the dry summer and fall.

The Lost River sucker and the short-nosed sucker were once so plentiful that they were a primary food source for the Indian tribes in the Klamath Basin. But agriculture took its toll.

Most of the marshes around the lakes were drained for farmland, wiping out places for young suckers to hide from predators. In 1988, the fish were listed as endangered species, and environmental activists pressed the U.S. Fish and Wildlife Service to set minimum water levels for the lakes. When Clear Lake in California hit that minimum in 1992, the U.S. Bureau of Reclamation shut off irrigation to about 150 ranches and farms.

In their lawsuit, the water districts argued the suckers were reproducing in Clear Lake without the extra water. And they claimed that Fish and Wildlife failed to follow consultation requirements under the Endangered Species Act or consider the economic effects.

After both a federal trial court and the appeals court dismissed the case for lack of standing, the irrigators were going to drop it. But a Riverside, Calif., law firm that represents a number of water districts decided to take the case at no cost to the Oregon farmers and ranchers.

"The Endangered Species Act is by and large the most powerful environmental statute on the books," attorney Zachary Walton said. "It's not clear if this ruling were to stand whether other courts might extend it to any number of other environmental laws."

The water districts argued on appeal that anyone can challenge the government over the way the Endangered Species Act is applied.

In court papers, the U.S. Justice Department argued that the farmers and ranchers have no legal standing to sue and that, in any case, they should have sued the Bureau of Reclamation.