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Environment: How Green Was My Valley?

Angry at the feds for putting fish before cattle, an Oregon rancher takes his case to the Supreme Court
By John Brant

Five years after a ravaging drought struck Oregon’s Langell Valley, only subtle signs of the damage linger on Glenn Barrett’s cattle ranch: bleached husks of dead, downed cottonwoods; a once-lush pasture left piebald by wildfire; a decimated flock of flitting gray quail that Barrett can no longer bring himself to hunt. The reminders, it seems, are faint enough for the
drought to be but a faded memory for most of the 200 ranching families in this scoop of high desert just north of the California border. But it’s not. At the height of the dusty pox, the federal government made a fateful decision to suspend water delivery from nearby Gerber Reservoir to area ranchers in order to comply with the Endangered Species Act. Two endangered species of
fish, it turned out, made their homes on the lake bottom.

Needless to say, the decision didn’t go over well down on the ranch. The ranchers rapidly sued, and half a decade later the case has finally ended up in the U.S. Supreme Court. At issue is the crucial question of court access under the Endangered Species Act. Arguing that resource users–such as cattle ranchers–should enjoy the same right to sue the government for
overenforcement of the law that environmentalists have employed to protest underenforcement, the suit seeks to reverse 25 years of judicial history. A decision, expected this spring, could reverberate far beyond this valley, fundamentally changing the complexion of the struggle for environmental justice.

“Our suit doesn’t ask for one penny in damages,” stresses the 37-year-old Barrett. A towering, rawboned, second-generation rancher who still herds his cattle on horseback, he’s the driving force in this landmark case. “We’re only suing so that our case can finally be heard, so that the law is administered fairly.”

At the height of the drought in 1992, U.S. Fish and Wildlife Service biologists determined that the Lost River sucker and the shortnose sucker, two species of native fish listed as endangered, would be in jeopardy if the reservoir continued to be drawn down. The Bureau of Reclamation duly ceased water delivery, forcing many ranchers to fire-sale their stock. Outraged, ranchers
charged that the government had upset a decades-old balance between the environment and the local economy. Not only did the damage done to the citizenry far outweigh the benefit of saving the two species, they argued, but the government hadn’t even proved that such radical measures were needed to save the fish.

“For 70 years, all the life in this valley flourished because of the water from that system,” Barrett says, pointing across the valley to the bluffs cupping Gerber Reservoir. A light dusting of snow graces the junipers and ponderosa pines. Magpies and red-tailed hawks hunt the sloughs. “Then came the Endangered Species Act and single-species management. Washington took water
that we’d paid for, that belonged to us.”

Environmental activists scoff at Barrett’s tidy sound bites. According to Wendell Wood of the Oregon Natural Resources Council, Langell Valley ranchers were granted preferential treatment throughout the drought. “The government only cut the ranchers off after they’d taken 90 percent of the water available for all uses in the valley,” Wood says. “And nearby Clear Lake National
Wildlife Refuge was totally drained so that the ranchers could keep getting their deliveries. The fact is that no matter how much water the ranchers get, they always want more.”

It’s a classic water-rights confrontation, but this time resource-users hit upon a new, seemingly brazen tactic. Citing a citizen-suit provision within the Endangered Species Act that permits “any person” to sue officials for failing to carry out their responsibilities under the law, the ranchers tried to seize the Act as their own. The federal district and appeals courts both
quickly rejected the suit. But Barrett and his lawyer, a water-rights specialist from California named Greg Wilkinson, persevered, recognizing that the more rightward-tilting Supreme Court might be more sympathetic. Last November 13, to the consternation of the environmental community, Barrett gained his audience with Rehnquist, Thomas, et al. The plaintiffs were supported by
friend-of-the-court briefs filed by groups such as the National Association of Home Builders, which hope that a pro-rancher decision would throw open the courts for loggers, developers, and other resource users to sue the government under the Act.

“This suit is about private-property rights, but it’s also about common sense,” insists Barrett. “Ranchers are the key to ecosystem management in this valley. We’re not saying get rid of the Endangered Species Act. Just interpret the law the way it was written.”

Both Barrett and Wilkinson admit the odds are long to turn back 25 years of history with this case, but they did leave the echoing halls of the Supreme Court upbeat, and with environmentalists more than a little edgy. “It seemed like Justice Kennedy agreed with our logic,” Wilkinson says. “And since he’s usually the swing vote on close decisions, I’d say we have a
chance.”