23G

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

give the Forest Service authority to maintain certain levels of flow in the rivers
and streams within the boundaries of the Okanogan National Forest to protect
endangered fish species
County of Okanogan, 347 F.3d at 1085 (emphasis added).
Like the Defendant - Intervenors here, the appellants in County of Okanogan argued that
the "savings clausesi of FLPMA is evidence that Congress did not intend to diminish any vested
water rights guaranteed under state law. The Ninth Circuit court dismissed this argument, noting
that the appellants' rights -of -way were always, by their written terms, revocable at the discretion
of the federal government. Moreover, the 1901 Act under which the permits had been earlier
granted provided that right -of -way permits did not grant vested property rights. Id. at 1085 -86.
4 Those clauses provide in pertinent part:
(a) Nothing in this Act ... shall be construed as terminating any valid lease,
permit, . . right -of -way, or other land use right or authorization existing on the date of
approval of this Act [October 21, 1976]
(g) Nothing in this Act shall be construed as limiting or restricting the power and
authority of the United States or —
(1) as affecting in any way any law governing appropriation or
use of, or Federal right to, water on public lands;
(2) as expanding or diminishing Federal or State jurisdiction,
responsibility, interests, or rights in water resources development or
control;
(4) as superseding, modifying, or repealing, except as
specifically set forth in this Act, existing laws applicable to the various
Federal agencies which are authorized to develop or participate in the
development of water resources or to exercise licensing or regulatory
functions in relation thereto;
(h) All actions by the Secretary concerned under this Act shall be subject to valid
existing rights.
FLPMA § 701(a), (g)(1,2,4) & (h), Historical Note, 43 U.S.C. § 1701.
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