Judge rejects Westlands bid to stop releases for Klamath salmon

Judge rejects Westlands bid to stop releases for Klamath salmon

by Dan Bacher

As members of the Hoopa Valley, Yurok, Karuk, Winnemem Wintu and other Tribes and their allies held a “Bring Our Water Home Rally” at Lewiston Dam Wednesday, a federal judge in Fresno rejected a motion by San Joaquin Valley agribusiness interests to block emergency water releases to avert a fish kill on the Klamath River.

U.S. District Judge Lawrence J. O'Neill denied the temporary restraining order (TRO) sought by Westlands Water and the San Luis and Delta-Mendota Water Authority after the U.S. Bureau of Reclamation increased releases on the Trinity River below Lewiston Dam on Saturday, August 23.

O’Neill ruled that potential harm to salmon facing low and warm water conditions at this time outweighs the potential harm to irrigators, who receive Trinity River water through the Central Valley Project, next year.

Tribal leaders, fishermen and scientists pressured the Bureau to release the water to prevent a fish kill like the one that took place in September 2002 on the lower Klamath, when over 68,000 salmon died of disease spurred by low and warm water conditions.

“The judge’s denial of the TRO made my day,” said Dania Colegrove, a member of the Hoopa Valley Tribe and organizer for Got Water? “The Bureau made their decision after weeks of us waiting to see if they were going to let the salmon die before releasing water. This is water that belongs in the river. Westlands is just going have to cut back because the health of the river needs to come first before the crops that get shipped out of the country."

The judge agreed with federal, state and Tribal scientists that conditions similar to those that preceded the fish kill of 2002 warranted the emergency releases.

“The flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary. There is no dispute—and the record clearly reflects—that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts," said Judge O'Neill.

Hoopa Valley Fisheries Department manager Mike Orcutt told the Two Rivers Tribune, “It's great for the tribes and a good example of the capabilities of the Hoopa Valley Tribe and others who have worked hard on the court case—the Yurok Tribe and commercial fishermen (Pacific Coast Federation of Fishermen's Associations). It’s also good that federal trust responsibility to the tribes is finally being acknowledged and mentioned federal court orders.”

In his ruling, O'Neill cited statements from Joshua Strange, tribal fisheries consultant, that the emergency water releases were needed to prevent an outbreak of disease from Ich (Ichthyophthirius multifiliis), that infects fish when they are crowded together in low, warm water conditions.

"Dr. Joshua Strange, who among the testifying experts appears to have the most relevant background, education and experience relative to the key issues, emphasized the importance of the flow component in light of the biology of the Ich parasite...Dr. Strange emphasized the importance of preventing an Ich outbreak before one occurs, given that it is very difficult to get ahead of the disease once it takes hold in a population."

The Judge also disagreed with the plaintiffs' expert, Dr. Charles Hanson, that the 2014 flow augmentation releases (FARs) would harm the winter-run and spring run Chinook on the Sacramento River by potentially impacting the pool of cold water available in the Upper Trinity River and Upper Sacramento River in 2015.

"Reclamation’s Mr. Milligan agrees that the 2014 FARs have the potential to impact the cold water pool, Milligan Decl. at ¶10, but this does not necessarily translate into an inability to protect fish runs in the Sacramento River Basin. Reclamation concluded that implementation of the 2014 FARs will not foreclose its ability to implement protective measures called for in the relevant ESA biological opinions governing listed species in the Sacramento River Basin. Plaintiffs have submitted no evidence to the contrary," O'Neill concluded.

Reclamation began increasing releases from Lewiston Dam at 7 a.m. on Saturday, Aug. 23, from approximately 450 cubic feet per second to approximately 950 cfs to achieve a flow rate of 2,500 cfs in the lower Klamath River.

At 7 a.m. on Monday, Aug. 25, the Bureau increased releases from Lewiston Dam to approximately 2,450 cfs to achieve a flow rate of approximately 4,000 cfs in the lower Klamath River.

That release was maintained for approximately 24 hours before returning to approximately 950 cfs and will be regulated at approximately that level as necessary to maintain lower Klamath River flows at 2,500 cfs until approximately Sunday, Sept. 14. "River and fishery conditions will be continuously monitored, and those conditions will determine the duration," the Bureau stated.