Judge denies Westlands' request to block higher Trinity River flows

Judge denies Westlands' request to block higher Trinity River flows

by Dan Bacher

A federal judge today denied a request by the San Luis Delta Mendota Water Authority and Westlands Water District for a temporary restraining order and preliminary injunction against the higher supplemental flows from Trinity Reservoir being released to stop a fish kill on the lower Klamath River.

The releases that the U.S. Bureau of Reclamation began last week, resulting from requests by the Hoopa Valley and Yurok Tribe fishery scientists to release Trinity River water to stop a fish kill like that one that killed up to 78,000 adult salmon in September 2002, will continue. The two Tribes, the Pacific Coast Federation of Fisherman's Associations and the Institute for Fisheries Resources were intervenors for the defendant, Interior Secretary Sally Jewell and the U.S. Department of Interior, in the litigation.

In his decision, U.S. District Court Judge Lawrence O'Neill said, "The Court concludes that there is no clear showing of likelihood of success on the merits. Even if Plaintiffs are likely to succeed on the merits of at least one of their claims against Reclamation in connection with the 2015 FARs (FARs = Flow Augmentation Releases), the balance of the harms does not warrant an injunction at this time."

"The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 or 2016 does not outweigh the potentially catastrophic damage that 'more likely than not' will occur to this year’s salmon runs in the absence of the 2015 FARs," ruled O'Neill.

This denial of the request by corporate agribusiness interests to halt badly needly flows for the lower Klamath River is a big victory for the Hoopa Valley Tribe, Yurok Tribe and fishing groups. Both this year and last, Tribal activists held protests demanding the release of Trinity River to stop a fish kill.

"I'm very pleased with the decision in terms of the protection of fish and the preventive flows being released," said Mike Orcutt, Fisheries Director of the Hoopa Valley Tribe. "Humboldt County's annual right to 50,000 acre feet of water from Trinity Reservoir was a key part of the court's decision and reasoning. We're glad that court interpreted the use of that water, as we have advocated for years, for beneficial uses including protecting fish. We have never give up on this souce of water supply since 2003 and we have worked on securing that water for Humboldt County and downstream users."

“The most important thing is its good for fish,” Troy Fletcher, executive director of the Yurok Tribe, told the Asssociated Press. “It’s too many years we have had to worry about our fish, and we need to land on some long-term solutions that increase the health of the Klamath River.”

The 15 page decision is available here: http://mavensnotebook.com/wp-content/uploads/2015/08/15-1290Doc45DenyingTRO.pdf

The Bureau of Reclamation last week announced that it would release additional water from Trinity Reservoir for the lower Klamath River to help protect returning adult fall run Chinook salmon from a disease outbreak and mortality. Supplemental flows from Lewiston Dam began on Friday, August 21 and will extend into late September.

“In this fourth year of severe drought, the conditions in the river call for us to take extraordinary measures to reduce the potential for a large-scale fish die-off,” said Mid-Pacific Regional Director David Murillo.

Releases from Lewiston Dam were adjusted to target 2,800 cubic feet per second in the lower Klamath River starting last week. Flows from Lewiston could be raised as high as 3,500 cubic feet per second for up to five days if real-time monitoring information suggests a need for additional supplement flows as an emergency response.

Dan Nelson, executive director of the San Luis & Delta-Mendota Water Authority, explained the reasoning behind the lawsuit that they launched after Reclamation announced the flow release.

"As our state is faced with a water supply crisis affecting every sector of people, businesses, and communities, an action like this is unthinkable. This will cause irreparable damage to drought stricken communities already facing water restrictions,” said Nelson in a press released.

However, Judge O'Neill disagreed. "There will be those who credit the Court for this decision, and those who will discredit the Court for this decision. Let it be understood by both camps that the Court is obligated to follow the law as it is. That has occurred, regardless of the absence or presence of the popularity of the ruling," Judge O'Neill concluded.

Trinity River water is shipped, via a tunnel through the Trinity Mountains, to the Sacramento River watershed to Whiskeytown Reservoir and Clear Creek. The water is used by corporate agribusiness interests farming toxic, drainage-impaired lands on the west side of the San Joaquin Valley to grow almonds, pistachios, watermelons and other crops.

For more information about the the battle by the Tribes to get supplemental flows released, go to: http://www.indybay.org/newsitems/2015/08/05/18775808.php

The Judge made his decision as Governor Jerry Brown continues to rush the construction of his massive Delta tunnels, the California Water Fix, formerly named the Bay Delta Conservation Plan (BDCP). The giant project, estimated to cost up to $67 billion, would greatly imperil salmon and steelhead populations on the Trinity and Klamath rivers, as well as hastening the extinction of Sacramento River Chinook salmon, Central Valley steelhead, Delta and longfin smelt, green sturgeon and a host of other fish species.

A broad coalition of fishing groups, Indian Tribes, family farmers, conservationists, environmental justice advocates and elected officials throughout the state opposes the government boondoggle, potentially the most environmentally destructive project in California history. The tunnels would export Sacramento and Trinity River water to the same agribusiness interests that filed the lawsuit so they can continue growing almonds, pistachios, watermelons and other export crops on toxic, drainage-impaired land on the west side of the San Joaquin Valley.