Laurence (“Laird”) J. Lucas
LAW OFFICES OF LAURENCE J. LUCAS, ESQ.
P.O. Box 1342
Boise, ID 83701
(208) 424-1466
William M. Eddie
Melinda K. Harm
LAND AND WATER FUND OF THE ROCKIES
P.O. Box 1612
Boise, ID 83701
(208) 342-7024
(208) 342-8286 (fax)
Attorneys for Plaintiffs Idaho Watersheds Project
and Committee for Idaho’s High Desert
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
IDAHO WATERSHEDS PROJECT)
and COMMITTEE FOR IDAHO’S)
HIGH DESERT,)Case No. ______
)
Plaintiffs,)
)
v.)COMPLAINT
)
JAMES R. BENNETTS, JO ANN)
BENNETTS, and 6 J’S RANCHES, )
LLC,)
)
Defendants.)
______)
INTRODUCTION
1.This case seeks injunctive and declaratory relief for ongoing violations of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., by Defendants James R. Bennetts et al., as a result of their operation of irrigation diversions and livestock grazing in the Lake Creek/Herd Creek area of central Idaho, which are causing “take” of Snake River Salmon, Steelhead and/or Bull Trout, all listed as “threatened” under the ESA.
2.Defendants annually divert water for irrigation from Lake Creek, a tributary of Herd Creek in the East Fork Salmon River drainage of Idaho. Defendants’ diversions are accomplished by the placement of rock, plastic, wood, or other materials in the natural stream channel, which causes water to flow into a ditch for several hundred yards, and then into a pipeline. No system is in place to prevent fish from being drawn or otherwise swimming into Defendants’ ditch, where they die or are trapped and unable to access the natural stream channel for feeding, growth, and migration. Defendants’ diversion structure also obstructs fish migration up and down Lake Creek and thereby further harms fish species. In addition, Defendants have allowed livestock grazing on their property upon Herd Creek to cause severe habitat degradation in and around Herd Creek, which also kills, injures or otherwise harms the threatened fish species.
3.Defendants’ operation of the Lake Creek diversion, as well as their management of livestock grazing on their Herd Creek property, thus has caused and will
continue to cause “take” of threatened Snake River spring/summer and fall Chinook Ssalmon, Snake River Steelhead, and/or Bull Trout, in violation of ESA Section 9 and rules promulgated by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service under ESA Section 4(d).
4.Pursuant to the ESA citizen suit provision, 16 U.S.C. § 1540(g), Plaintiffs seek injunctive and declaratory relief to halt Defendants’ ongoing and unlawful “take” the listed fish species in violation of ESA Sections 4(d) and 9 and regulations thereunder, and awarding Plaintiffs their reasonable attorney fees and other litigation costs in bringing this action.
JURISDICTION AND VENUE
5.The Court has jurisdiction over this matter pursuant to the ESA citizen suit provision, 16 U.S.C. § 1540(g), because this action seeks to enjoin Defendants from further violations of the ESA and regulations promulgated thereunder. The Court also has jurisdiction over this matter by virtue of 28 U.S.C. § 1331 (federal question), § 2201 (declaratory judgment), and § 2202 (injunctive relief).
6.As required by the ESA, 16 U.S.C. § 1540(g)(2)(A)(i), Plaintiffs provided sixty days’ notice of intent to sue to Defendants and to the Secretaries of the U.S. Departments of Interior and Commerce prior to bringing this action.
7.Venue in this Court is proper under 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) because Defendants reside in this district and the events or omissions giving rise to the violations of law alleged herein occurred in this district.
PARTIES
8.Plaintiffs in this action are:
A.IDAHO WATERSHEDS PROJECT (“IWP”) is an Idaho non-profit membership organization dedicated to protecting, conserving, and restoring Idaho’s public lands, streams and natural resources. IWP has over 850 members, most of whom live in the State of Idaho. IWP, as an organization and on behalf of its members, is concerned with and active in seeking to protect and improve the riparian areas, water quality, fisheries, wildlife, and other natural resources and ecological values of Idaho’s watersheds. IWP leases from the State of Idaho the parcel of land through which courses Lake Creek, and upon which Defendants’ point of diversion and associated ditch are located. IWP leases this land for the purposes of rehabilitating the riparian areas along Lake Creek, which have been degraded due to years of livestock grazing thereon, and improving fish habitat in Lake Creek for the benefit of threatened Salmon, Steelhead, and Bull Trout, as well as other aquatic species. Defendants’ operation of their irrigation diversion works on Lake Creek harms these fish species, and restricts IWP’s ability to use and enjoy its leasehold estate on this parcel. IWP lacks any lawful authority to modify or terminate Defendants’ use and operation of their diversion works and consequent harms to the listed species, except to enforce the requirements of the ESA.
B. COMMITTEE FOR IDAHO’S HIGH DESERT (“CIHD”) is an Idaho non-profit membership organization which is dedicated to protecting, conserving, and restoring Idaho’s public lands, streams and natural resources. CIHD has over 400 members, most of whom live in the State of Idaho. CIHD, as an organization and on behalf of its members, is concerned with and active in seeking to protect and improve the riparian areas, water quality, fisheries, wildlife, and other natural resources and ecological values of Idaho’s watersheds, including the Salmon River watershed.
9. Plaintiffs and their members use and enjoy the public lands, waters and other resources of the East Fork Salmon River watershed, including Lake and Herd Creeks, for many health, recreational, scientific, spiritual, educational, aesthetic, and other purposes, including fishing, wildlife viewing, hiking, camping, hunting, birdwatching, study, contemplation, and photography. Plaintiffs’ members also have particular interests in conserving, protecting, and recovering Idaho’s declining fish species, including Salmon, Steelhead, Bull Trout and their habitat in the Salmon River watershed. Plaintiffs and their members also participate in information gathering and dissemination, education and public outreach, commenting upon proposed agency actions, and other activities relating to the public lands management in the area. Plaintiffs’ members fish, or but for the threatened status of Snake River spring/summer and fall Chinook salmon, Snake River steelhead, and Bull Trout, would fish for these species in the East Fork Salmon River, Herd Creek, and Lake Creek.
10.The interests of Plaintiffs and their members have been and will continue to be injured and harmed by Defendants’ unlawful “take” of these threatened fish species. Unless the relief prayed for herein is granted, Plaintiffs and their members will continue to suffer on-going and irreparable harm and injury to their interests.
11. Defendants in this action are:
A.JAMES R. BENNETTS is an individual residing in Custer County, Idaho. Records of the Idaho Department of Water Resources indicate that Mr. Bennetts, along with his wife, owns or claims water right A72-07066 as filed in the Snake River Basin Adjudication, for diversions from Lake Creek. Records of the Custer County Clerk’s office indicate that Mr. Bennetts owns or controls private property along Herd Creek which is irrigated by this water right, and upon which livestock grazing occurs. Mr. Bennetts further owns or controls an easement across lands owned by the State of Idaho for the purpose of constructing and using the water ditch and pipeline for this water right. Mr. Bennetts is the registered agent for Defendant 6 J’s Ranches, LLC. Plaintiffs are informed and believed that Mr. Bennetts and/or his agents, employees, servants, beneficiaries, debtors, mortgagees, licensees, and/or other persons under his authority, control, or direction have been operating, and will continue to operate, diversions of water from Lake Creek under the claimed water right referenced above.
B.JO ANN BENNETTS is an individual residing in Custer County, Idaho. Records of the Idaho Department of Water Resources indicate that Ms. Bennetts, along with her husband, owns or claims water right A72-07066 as filed in the Snake River Basin Adjudication, for diversions from Lake Creek. Plaintiffs are informed and believe that Ms. Bennetts owns, controls, or retains an interest in property along Herd Creek which is irrigated by this water right, and upon which livestock grazing occurs. Plaintiffs are informed and believe that Ms. Bennetts further owns, controls, or retains an interest in an easement across lands owned by the State of Idaho for the purpose of constructing and using the water ditch and pipeline for this water right. As of July 1999, records of the Idaho Secretary of State indicate that Ms. Bennetts was co-manager of Defendant 6 J’s Ranches, LLC. Plaintiffs are informed and believed that Ms. Bennetts and/or her agents, employees, servants, beneficiaries, debtors, mortgagees, licensees, and/or other persons under her authority, control, or direction have been operating, and will continue to operate, diversions of water from Lake Creek under the claimed water right referenced above.
C.6 J’S RANCHES, LLC, is a limited liability company incorporated in the State of Idaho. Records of the Idaho Secretary of State indicate that Defendant James R. Bennetts is the company’s current registered agent. Records of the Custer County Clerk’s office indicate that 6 J’s Ranches, LLC, owns or controls private property upon Herd Creek which is irrigated by the water right referenced above, and upon which livestock grazing occurs. Plaintiffs are informed and believed that 6 J’s Ranches, LLC, and/or its agents, employees, servants, beneficiaries, debtors, mortgagees, licensees, and/or other persons under its authority, control, or direction have been operating, and will continue to operate, diversions of water from Lake Creek under the claimed water right referenced above.
GENERAL ALLEGATIONS
12.Salmon and Steelhead historically lived in, migrated from, and returned to the Snake River basin from the Pacific Ocean in massive numbers. According to the Idaho Department of Fish and Game, as recent as the 1960’s the Snake River supported wild runs of adult spring/summer Chinook and Steelhead on the order of 120,000 fish (approximately 60,000 each). The Snake River above Lewiston historically produced about 55% of the summer Steelhead trout, and between 40% and 45% of the spring/summer Chinook Salmon in the Columbia River. For anadromous fish, the Salmon River remains the single most productive tributary of the Snake River.
13.Populations of these fish are now declining at an alarming rate. The National Marine Fisheries Service (“NMFS”) listed Snake River spring/summer and fall Chinook Salmon as a threatened species in 1992, see 57 Fed. Reg. 14,653 (April 22, 1992); and Snake River steelhead as a threatened species in 1997, see 62 Fed.Reg. 43,937 (Aug. 18, 1997). Snake River Sockeye Salmon were listed as endangered in 1991; Snake River Coho Salmon are extinct.
14.As required under the ESA, NMFS has designated critical habitat for threatened Snake River spring/summer and fall Chinook Salmon and Snake River Steelhead, including the East Fork Salmon River, Herd Creek, and Lake Creek. 65 Fed. Reg. 7764 (February 16, 2000).
15.The causes of the declines of Snake River Salmon and Steelhead are multiple, including loss of habitat and disruption of migration due to dams for irrigation and power supply; loss and degradation of habitat from logging, mining, grazing, irrigation, and industry; commercial and recreational harvest; and competition or genetic alteration from hatchery-raised fish. However, according to a salmon recovery proposal issued by nine federal agencies in July 2000, a central aspect of Salmon and Steelhead recovery is restoration of habitat in tributary streams such as Lake Creek and Herd Creek, including by increasing in-stream water flows, improving water quality and riparian area conditions, and removing barriers to fish movement and migration.
16.Bull Trout (Salvelinus confluentus) also once thrived in the waters of the larger Columbia basin, but like Salmon and Steelhead, their populations are now declining at an alarming rate. The U.S. Fish and Wildlife Service (“USFWS”) listed Columbia River Bull Trout as a threatened species in 1998. See 63 Fed.Reg. 31,647 (June 10, 1998). Bull Trout declines have been caused by habitat loss, degradation, and fragmentation from logging, grazing, irrigation, and dams.
17.Section 9 of the ESA prohibits the “take” of any species listed as endangered. 16 U.S.C. §1538 (a)(1)(B). Under § 4(d) of the ESA, the federal government may promulgate regulations extending this protection against “take” to species listed as threatened. 16 U.S.C. § 1533(d). Such regulations have been promulgated with respect to the threatened species at issue in this matter. See 65 Fed.Reg. 42422 (July 10, 2000) (“take” prohibition extended to numerous threatened runs of Salmon and Steelhead, including Snake River spring/summer and fall Chinook Salmon and Snake River Steelhead); 50 C.F.R. §§ 17.31(a) and 17.44(w) (“take” prohibition extended to all threatened species under USFWS jurisdiction, which includes Bull Trout); 63 Fed.Reg. 31647 (June 10, 1998) (Bull Trout listing rule invoking “take” prohibition).
18.The term “take” is defined in the ESA as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §1532 (19).
19. Federal regulations promulgated by NMFS and USFWS further define the term “harm” (as listed in the statutory definition of “take”) as including “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” 64 Fed. Reg. 215 (November 8, 1999) (amending 50 C.F.R. § 222.102); 50 C.F.R. § 17.3.
20.Federal rules recently promulgated by the NMFS under § 4(d) of the ESA for Snake River Salmon and Steelhead further establish that “take” may result from diversion of water and dewatering of streams which are habitat for listed species. 65 Fed. Reg. 42422 (July 10, 2000). NMFS also indicated that unless diversions are equipped with approved and adequate screening devices which are properly installed, operated and maintained, “take” of the listed fish species may also occur through “entrainment” of fish in the diversions and/or ditches. Id.
SPECIFIC ALLEGATIONS
21.Defendants own, operate, and control private property along Herd Creek known as the 6J’s Ranch (hereinafter, “ranch” or “Defendants’ ranch”). The upper end of the ranch begins near the confluence of Lake Creek and Herd Creek, and continues downstream along Herd Creek. Plaintiffs are informed and believe that Defendants use this property, as well as associated public lands leases, chiefly for livestock operations as a “hobby” ranch.
22. In order to grow forage crops for their livestock, Defendants divert water from Lake Creek and Herd Creek and spread the diverted water over the ranch and associated public lands through a system of pipes and ditches. According to records of the Idaho Department of Water Resources, Defendants James R. and Jo Ann Bennetts have claimed the following water rights as appurtenant to their ranch along Herd Creek:
A.From Lake Creek, a diversion of 1.08 cubic feet per second (cfs) for irrigation (water right No. A72-07066);
B.From Herd Creek, diversions of 4.0 cfs and 1.85 cfs for irrigation and stock watering (water right Nos. A72-16275 and A72-00218).
23. Defendants’ diversion of water from Lake Creek occurs approximately 1 1/2 miles from Defendants’ ranch at T09N, R19E, Section 16 (Boise Meridian) which is a section of land owned by the State of Idaho. In 1979, Defendant James R. Bennetts acquired an easement from the State of Idaho to construct, operate, and maintain the irrigation diversion and water transport works across this section of land.
24.As hereinbefore alleged, Plaintiff IWP recently obtained a lease from the State of Idaho for grazing upon this section of state land, which IWP intends to use in order to restore riparian and other habitat conditions that have been degraded through excessive livestock grazing in the past. However, IWP’s state grazing lease does not permit it to regulate or restrict the Defendants’ diversion and transport of water out of Lake Creek.
25.Defendants’ diversion of water out of Lake Creek is accomplished by the placement of gravel, rock, wood, plastic, and/or other materials in the natural stream channel of Lake Creek, causing the water upstream from this obstruction to be diverted and flow into a ditch. Water diverted from the natural stream channel of Lake Creek by means of this diversion then flows down an unlined ditch for approximately 1/4 mile until it terminates at a hole in the ground, which is covered by a metal grate. Water flows through the grate and into the hole, and is then apparently funnelled into a buried pipe, which transports the diverted water to Defendants’ property along Herd Creek for irrigation.
26.Excess water in Defendants’ ditch flows over the metal grate and spreads onto a grass and shrub-covered meadow. The natural stream channel of Lake Creek lies approximately 100 yards down slope (across dry land) from the metal grate at the termination of Defendants’ ditch.