23G

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

principal purpose of securing favorable conditions of water flow." Id. at 715.
While finding that Congress did not, in enacting the Organic Act and MUSYA, intend to
reserve water rights for wildlife preservation purposes when it set aside lands for national forests,
U S v New Mexico did not address the power of the Forest Service to restrict the use of rights-
of-way over federal land for fish and wildlife purposes County of Okanogan v Nat'l Marine
Fisheries Sery , 347 F.3d 1081, 1086 (9 Cir. 2003). In County of Okanogan, the appellants
argued that the Forest Service did not have the authority to condition the use of the rights -of -way
in a national forest on the maintenance of instream flows because such restrictions denied them
their vested water rights under state law. The Ninth Circuit Court of Appeals rejected that
argument, finding that the imposition of such restrictions in the right -of -way permits was within
the authority of the Forest Service. The Ninth Circuit found such authority in FLPMA, NFMA,
the Organic Act, and MUSYA.
The Federal Land Policy and Management Act of 1976 (FLPMA) authorizes the
Secretaries of the Interior and Agriculture to "grant, issue, or renew rights -of -way
over, [upon, ... or through such lands f o r reservoirs, canals, ditches, ... and other
facilities and systems for the impoundment, storage, transportation, or distribution
of water. "] 43 U.S.C. § 1761(a)(1). Such rights -of -way "shall contain ... terms
and conditions which will ... minimize damage to ... fish and wildlife habitat
and otherwise protect the environment" and that will "require compliance with
applicable ... water quality standards established by or pursuant to applicable
Federal or State law." Id. § 1765(a). In addition, the National Forest
Management Act requires the Forest Service to specify guidelines for land
management plans that "provide for ... watershed, wildlife, and fish" and
"provide for diversity of plant and animal communities." 16 U.S.C. §
1604(g)(3)(A) & (B). The Organic Administration Act, 16 U.S.C. § 475, provides
that "[n]o national forest shall be established, except to improve and protect the
forest within the boundaries, or for the purpose of securing favorable conditions
of water flows ...." The Multiple Use Sustained -Yield Act of 1960 (MUSYA),
16 U.S.C. § 528, provides that "[i]t is the policy of the Congress that the national
forests are established and shall be administered for outdoor recreation, range,
timber, watershed, and wildlife and fish purposes." These statutes, in our view,
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