23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

in reaching a decision on the Long Draw Reservoir.
Plaintiffs failed to raise the issues addressed in their Second, Fifth, Ninth and Thirteenth
Claims for relief in their administrative appeal. Accordingly, those claims must be dismissed for
failure to exhaust their administrative remedies.
B. FOREST SERVICE'S AUTHORITY TO IMPOSE BYPASS FLOWS
Defendant - Intervenors, as well as certain amicus parties, assert that the issue at the heart
of this case is whether Congress has authorized the Forest Service to prohibit historic diversions
of water by non - federal parties in order to make water available for downstream use by the Forest
Service for fish and wildlife habitat protection. Intervenors contend that Congress has not
granted to the Forest Service the authority to impose bypass flow conditions in order to reallocate
water from existing uses to unmet National Forest needs. In support of their contention,
Intervenors assert, first, that the exercise of this authority by the Forest Service would contradict
the repeated and explicit decisions by Congress to defer to and respect state authority over water
allocation and use. Second, Intervenors assert that the imposition of bypass flow requirements
on existing water uses would be contrary to Congressional intent to authorize the National Forest
system principally to enhance the quantity of water that would be available for nonfederal water
users. Third, Intervenors argue that the statutes upon which Plaintiffs rely for a grant of bypass
flow authority to the Forest Service do not support this claim, and in fact explicitly and broadly
disclaim any agency authority to affect existing nonfederal uses of water or to interfere with state
3 Defendants contend that Plaintiffs' Thirteenth Claim is moot because the Madigan directive
was repealed well before this lawsuit was even filed. Although Plaintiffs argue throughout their briefing
that the Madigan directive is evidence of the arbitrary and capriciousness of the Defendants' decision,
their Thirteenth Claim challenges the procedures in allegedly adopting this binding rule as violative of
the APA. Such a claim is moot because the Madigan directive no longer affects agency decision - making.
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