County cites Constitution in water fight Okanogan officials plan lawsuit over irrigation limits

John Craig - Staff writer

OKANOGAN, Wash. _ Okanogan County commissioners plan to file in the next two weeks what may be a landmark lawsuit to determine whether federal agencies may continue restricting state-granted water rights in the name of salmon recovery.

The county will argue in its suit against the National Marine Fisheries Service that the agency improperly relied on the federal Endangered Species Act to usurp powers the U.S. Constitution grants to states, Commissioner Craig Vejraska said.

The fisheries service, in concert with other federal agencies, has shut down several irrigation ditches in the Methow River drainage at least temporarily for the past two years in an effort to protect chinook salmon. The Methow chinook run is classified as "endangered" under the Endangered Species Act.

"This, in essence, trumped Washington state water law and the state's right to set water rights, and we can't agree with that," Vejraska said.

Relying heavily on the agricultural industry, the county is assembling a $260,000 war chest for a court battle that could go all the way to the U.S. Supreme Court. Vejraska said Okanogan officials hope other counties and even state governments will join the fight.

All of that is causing some heartburn for the Colville Confederated Tribes, which is a partner with Okanogan County on some salmon recovery projects. Tribal officials fear the lawsuit will jeopardize millions of dollars in future federal funding for salmon restoration.

``It doesn't look good partnering with a group suing an agency we have to work with,'' tribal Fish and Wildlife Director Joe Peone told county officials last week.

He and tribal watershed planner Hilary Lyman suggested that commissioners designate the Okanogan County Conservation District to represent the county in salmon recovery projects to avoid the appearance of conflict. Lyman said a state official told her the county lawsuit could jeopardize future funding.

But Vejraska said the National Marine Fisheries Service and the state Department of Ecology have assured county officials the lawsuit won't affect salmon recovery grants. He said commissioners don't intend to give up their status as co-lead agency with the tribal government in salmon projects.

Vejraska said tribal officials ``have a legitimate concern,'' but ``Okanogan County is committed to the salmon recovery program.''

``I don't question that,'' Peone said. ``What I do question is whether that (lawsuit) is going to jeopardize us as a region.''

Peone said he is seeking independent confirmation that the suit won't dry up the salmon cash pipeline. If he gets that assurance from funding agencies, Peone said he will drop his call for commissioners to take a less visible role.

``But, if they ever turn down funding, we'll really question that,'' he added.

Vejraska said he thinks it's possible to rebuild the salmon run without choking the county's agriculture-dependent economy. But stream-flow decisions must respect the county's century-old agriculture industry, he said.

``They're endangering our tax base in Okanogan County,'' Vejraska said. ``Water rights and property rights go hand in hand. You take away water rights in Okanogan County and, basically, all you've got left is ground to walk on.''

Even tourism is affected. The Sun Mountain Lodge near Winthrop in the Methow Valley cited National Marine Fisheries Service water restrictions when it shelved a $6 million expansion plan.

Besides enough water to support the county's economy, commissioners want farmers and ranchers to be protected from private lawsuits under the Endangered Species Act if they implement required conservation measures. As things stand, environmentalists are free to seek court-imposed measures that exceed existing government requirements.

Vejraska said the county government put up $60,000 to retain a Seattle attorney, and required the agricultural industry to raise $100,000 before the lawsuit is filed in U.S. District Court in Spokane. The Washington Agriculture Legal Foundation, an offshoot of the Washington Farm Bureau, has collected about $80,000 in cash and pledges.

In addition to those donations, Vejraska said the foundation has pledged $100,000 of its own -- bringing the anticipated war chest to $260,000. Commissioners aren't sure how much the battle eventually will cost.

``It's a landmark case, so who knows how far it will go,'' Vejraska said.

He said other counties in Washington and other states have expressed interest in joining the lawsuit, ``and we hope that, down the road, the state of Washington will see fit to join our case.'' So far, though, he said state officials seem to be ``just trying to stay neutral.''

John Craig may be contacted at (509) 459-5429, or by e-mail at johnc@spokesman.com.

-- Anonymous, April 15, 2001