Judge rejects Westlands lawsuit blocking Trinity River flows

Judge rejects Westlands lawsuit blocking Trinity River flows

Tribes and groups disagree about decision's implications

by Dan Bacher

A federal judge in Fresno Wednesday dismissed almost all claims in a lawsuit brought by a coalition of corporate agribusiness interests seeking to block the protection of salmon in the Trinity and Klamath river, but the Yurok Tribe, Pacific Coast Federation of Fishermen's Associations (PCFFA) and Earthjustice disagree with the Hoopa Valley Tribe over the implications of the decision.

The Yurok Tribe, PCFFA and Earthjustice issued a joint news release stating that Judge Lawrence O’Neill "largely upheld" the Bureau of Reclamation’s ability to provide additional flows in the Trinity, the largest tributary of the Klamath, to prevent harm to salmon, but at the same time indicated that "different legal authorities need to be invoked."

"Straight up, if the Bureau of Reclamation did not make the decision to augment flows on the Klamath, we would be right now cleaning up thousands of salmon carcasses on the river,” said Thomas P. O'Rourke, Sr., Chairman of the Yurok Tribe. “We applaud Judge O'Neill's decision. We need to do everything possible to ensure in-basin fish needs are met and to prevent another heartbreaking tragedy on the Klamath River."

On the other hand, the Hoopa Valley Tribe said that the judge's decision actually "cut off water needed for salmon in the Klamath River."

"If the decision stands, it will gut a 60-year old federal law that protected Trinity River water use for tribal fisheries,” said Mike Orcutt, Hoopa Fisheries Director.

The San Luis and Delta-Mendota Water Authority and Westlands Water District, representing agribusiness interests that irrigate drainage-impaired land on the west side of the San Joaquin Valley, brought the case last year against the Bureau of Reclamation, the federal agency that controls water releases from the Trinity Reservoir to the Trinity and Lower Klamath rivers.

These rivers support huge runs of Chinook salmon that the commercial fishing industry and the Yurok and Hoopa Valley Tribes depend for sustenance. These salmon runs also support an economically vital recreational fishing industry in the ocean and on the Klamath and Trinity rivers.

The water districts brought the case after the Bureau proposed in 2013 to increase flow levels in the Trinity to avoid another massive fish kill in the Lower Klamath like the one that took place in September 2002, when over 68,000 salmon perished.

The PCFFA, represented by Earthjustice, and the Hoopa Valley and Yurok Tribes intervened in defense of the Bureau to protect salmon and the local fishing industry.

After an evidentiary hearing in August 2013, Judge O’Neill rejected the irrigators’ request to block the flow program. Judge O’Neill rejected a similar request with respect to the 2014 program. "Today’s ruling represents the final resolution of the legal issues in this case," according to Earthjustice.

"Ultimately this case is also about preserving the California salmon fishing industry,” said Glen Spain, NW Regional Director of the Pacific Coast Federation of Fishermen's Associations, which represents commercial fishing families coastwide. “It makes no sense to sacrifice thousands of fisheries jobs over 700 miles of coastline to provide just a little bit more water to a voracious California Central Valley agribusiness system that has already sucked up far more than its share in a major drought."

Spain said this ruling will impact the salmon populations, coastal fishing communities and tribes who rely on salmon. During drought, the Bureau’s water releases from the Trinity River to the Lower Klamath are critical to the survival of salmon as thousands of them return to the river to spawn in late summer.

“Any second-grader can tell you that fish need water,” said Jan Hasselman, an Earthjustice attorney based in Seattle. “The court largely affirmed the government’s ability to manage water in the basin to protect fish and the people who rely on them. We will continue to work to ensure that good science is the touchstone of water management in the Trinity basin.”

Hasselman said the court "rejected a wide number of claims brought by the irrigators in the case, but did find for the irrigators that the 1955 statute that the government relied on as authority for supplemental flows did not actually provide such authority. The Bureau will need to invoke different legal authority if additional releases are required in the future."

In contrast, Danielle Vigil-Masten, Chairwoman of the Hoopa Valley Tribe, slammed Judge O'Neill's decision for not protecting the Trinity River and vowed to appeal the decision.

“With the stroke of a pen the court severed the Klamath River’s largest tributary and sutured it onto the Sacramento River. The lifeblood of our people will now flow south to industrial agriculture," said Vigil-Masten.

She said the court has "twisted the text and context of federal legislation to produce this tragic outcome."

“But this decision cannot stand and it will not stand,” said Council Member Ryan Jackson. “We will appeal. Ten years ago the Hoopa Valley Tribe persuaded the court of appeals in San Francisco to reverse another decision of this same federal court for these same plaintiffs that would have destroyed the Hoopa fishery."

“We fought and won then,” said Jackson, “ and we will win again.“

According to the Tribe, the judge blamed this outcome in part on the United States for its “refusal to invoke the trust responsibility as a reason to provide water for our fishery, which the United States holds in trust."

“We expect our trustee to be a much stronger advocate for our rights and resources on appeal than it was in this court,” said Hoopa Vice Chair Wendy George.

The Tribe also said "It is terribly ironic that just days ago, the United States paid a more than $500 million to the Navajo Nation for mismanagement of tribal trust resources. It is devastating to think that while some federal lawyers were putting the final touches on that settlement, others were filing papers in our case to perpetrate the same kind of mismanagement all over again."

“All should now be on notice,” said Chairwoman Vigil-Masten. “The Hoopa Valley Tribe will oppose any legislation that benefits the predatory and avaricious Central Valley Project contractors that brought this suit against us, including the pending California drought bill and the San Luis Drainage settlement that is expected to be introduced in the next Congress.”

The Tribe noted, "The people on the Klamath River in Oregon also are on notice: This decision creates a dilemma for the federal government. If the government does not appeal the court’s decision and win, the Secretary of the Interior may have no more Central Valley Project water available to protect and preserve fish in California’s lower Klamath River.

The only other sources of water now subject to federal regulation besides the CVP’s Trinity River Division are the Bureau of Reclamation’s Klamath Irrigation Project and the federally licensed PacifiCorp Dams in Oregon and Californian. The Klamath water rights settlement now pending in the U.S. Senate will have to be revised to take water from those facilities to protect lower Klamath tribal trust resources."

A phone call and email to Gayle Holman, Westlands Water District public affairs representative, about the district's position on the ruling hadn't been returned as of press time.

However, Holman told the Eureka Times Standard that in "her understanding of the ruling, the claims made by Westlands had not been dismissed."

"We are pleased that the court agreed with us that Reclamation had no authority to make these releases," she said. (http://www.times-standard.com/localnews/ci_26647663/judge-water-klamath-salmon-legal-this-time)

You can read the decision on the Earthjustice: http://earthjustice.org/documents/legal-document/court-decision-judge-dismisses-bulk-of-agribusiness-lawsuit-over-trinity-river-flows

BACKGROUND:

In 2013, there were extremely low flow conditions in the Lower Klamath occurring at the same time fisheries managers expected the second-largest run of Chinook salmon on record. Federal, state and tribal salmon biologists were concerned that the confluence of high runs and low flows would lead to another disaster like the Fish Kill of 2002.

In September 2002, Bush Administration’s water management policies in the basin that favored irrigators led to a fish kill of over 68,000 salmon in the Lower Klamath, the largest fish kill of adult salmon in U.S. history. The die-off resulted in coast-wide closures of commercial, recreational and tribal fishing, dealing a huge blow to the local economy, resulting in over $200 million in losses.

To avoid the projected die-off, the Bureau of Reclamation developed a plan to release extra water from dams along the Trinity River, a tributary of the Klamath, to improve the Klamath’s water conditions. In response, San Luis & Delta-Mendota Water Authority and Westlands Water District, serving the interest of powerful agribusiness, filed a lawsuit in an attempt to declare unlawful the Bureau’s authority to release water from the Trinity River.