Water Diverted to Hatchery Survives Circuit’s Inspection

     (CN) – The Wild Fish Conservancy cannot challenge the diversion of water from a Columbia River tributary to a federal fish hatchery, the 9th Circuit ruled Wednesday.
     Uncle Sam built the Leavenworth National Fish Hatchery on Icicle Creek in Washington over 70 years ago to help native fish populations recover from the shock of the Grand Coulee Dam.
     Wild Fish Conservancy claims, however, that diverting water to the hatchery is hampering its efforts to reform the creek into “a high-altitude pristine refuge for native and migratory fish.”
     The group sued the U.S. Fish and Wildlife Service under the Administrative Procedures Act (APA) and various state laws.
     U.S. District Judge Lonny Suko dismissed the challenge in Spokane, and a three-judge federal appeals panel affirmed on Wednesday, finding that the group has no standing to sue the government under the APA and Section 8 of the Reclamation Act.
     “The conservancy correctly argues that an APA plaintiff need not, as a general rule, establish a property interest in the litigation in order to demonstrate prudential standing,” Judge Sidney Thomas wrote for the unanimous panel. “But the issue here is not the conservancy’s lack of property rights as such, but its lack of enforcement rights. Washington law does not give the conservancy a right to the relief it seeks in this litigation. While a lack of state law rights is generally immaterial to establishing APA standing, it is highly relevant where, as here, the plaintiffs assert standing by virtue of a federal statute predicated on cooperative federalism and respect for separate sovereignty. The language and purpose of section 8 make clear that Congress did not intend to permit private parties who lack water rights a private right of action to compel enforcement of state law against federal agencies. Therefore, the conservancy lacks prudential standing.”
     Jurisdiction is furthermore lacking for the panel to consider the group’s other claims, which are not related to a final agency action.

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