[env-trinity] Ninth Circuit Court Trinity Decision - revised

[Daniel Bacher]

There were a few typos in the last article, so here's the revised and 
corrected version

thanks

dan


Court Orders Restoration of Trinity River Flows!

By Dan Bacher

In a landmark decision greeted with jubilation by representatives of the 
Hoopa and Yurok tribes, the Ninth Circuit Court of Appeals ordered the 
release of flows proscribed under the Trinity River Record of Decision (ROD) 
of December 2000.

“Nothing remains to prevent the full implementation of the ROD, including 
its complete flow plan for the Trinity River,” the Court ruled on Tuesday, 
July 13.

“We’re just elated,” said Clifford Lyle Marshall, chairman of the Hoopa 
Valley Tribe. “Hoopa is a very happy town. The timing of the decision 
surprised us, since we were told the decision could go either way.”

Marshall said the decision would compel the federal Bureau of Reclamation to 
release 47 percent of river flows for fish and 53 percent for agriculture 
and power. Prior to the ROD, up to 90 percent of the river had been diverted 
to agriculture and power users, resulting in dramatic declines in salmon and 
steelhead populations.

"This decision is awesome," said Marshall. "The river is a vital part of the 
economy of our tribe and the Northern California economy. The decision gives 
the river the priority it deserved in the first place. It means that the 
river will get water, salmon runs will come back, tourism will return, 
recreational fishermen will come back, people will be eating in the local 
restaurants, and the commercial salmon fishery may be sustained."

Although Marshall said the court made its decision based on the law and over 
20 years of scientific studies,  the outpouring of support for Trinity River 
restoration by the public, newspapers and politicians through the state had 
a lot to do with the victory.

"It wasn't a case of Indians versus farmers," emphasized Marshall. "The 
people of California raised their voice to support the Trinity River. The 
river should be regarded as a national treasure. We had a great alliance of 
people, with lot of efforts on many fronts. Public opinion drives public 
policy - and the people of California decided that for a small price, the 
Trinity River could be restored."

The Westlands Water District, in conjunction with the Northern California 
Power Association and SMUD, filed suit against the federal government in 
2000 right after former Interior Secretary Bruce Babbitt issued his ROD. 
However, a broad coalition of Indian Tribes, commercial fishermen, 
recreational anglers and environmental groups forced the SMUD and three 
members of the NCPA- Palo Alto, the Port of Oakland and Alameda to pull out 
over the past 1-1-/2 years.

Whether Westlands, the largest federal irrigation project in the country, 
will appeal the case to the next step, the U.S. Supreme Court, is unknown at 
this time.

“We are still reviewing the decision,” said Tupper Hull, spokesman for the 
Westlands Water District. “It is a complicated decision although it appears 
to overturn Judge Wanger’s decision on a number of grounds. We are looking 
at the overall impact of the decision on Central Valley Project water 
users.”

Hull noted that Westlands is continuing to pursue settlement talks with the 
Tribes, even though these talks have been unsuccessful in the past. “We 
believe that there is still an opportunity for people of goodwill from the 
different parties to protect their interests, including the Trinity River 
fishery,” said Hull.

Troy Fletcher, executive director of the Yurok Tribe, said he is 
“optimistically enthusiastic” about the decision, but noted that litigation 
could continue if Westlands decides to appeal.

“The bottom line is that the fish won in this round,” said Fletcher. “Now 
there is a need to defend this ruling and to make sure that the ROD is 
implementing the decision.”

Tom Stokely, senior resource planner Trinity County, and Byron Leydecker, 
president of Friends of the Trinity River, were likewise optimistic about 
the outcome of the decision.

“It is is likely the SEIS that Judge Oliver Wanger ordered will disappear 
and that the ROD will move ahead,” said Stokely. “We plan on finishing 
building the bridges that will be required to release more water down the 
river.”

Stokely said that the decision, when implemented, would result in an 
approximate doubling of the total volume of water released down the river. 
“Salmon need water to thrive, so this will have a very beneficial effect on 
the fishery,” he noted.

“After 39 years, the law has been finally upheld,” said Leydecker. “On this 
one issue, the Bureau of Reclamation can’t operate without regard to the 
law. We have a long way to go until we see full Trinity River restoration, 
but this is a major victory.”

Although this decision portends well for the future of salmon fisheries, the 
prospects for this year’s salmon runs on the Klamath and Trinity Rivers are 
looking dire because of U.S. Bureau of Reclamation’s granted 100 percent of 
contract flows to agricultural water users in the Klamath Basin of Southern 
Oregon, according to Troy Fletcher.

The Department of Interior, under pressure from Bush’s political strategist 
Karl Rover to curry favor among agribusiness for the reelection campaign of 
a Republican Senator in Oregon, decided to cut off flows for fish and divert 
them to subsidized agribusiness in the Klamath Basin in 2001. The change in 
water policy by the Bush administration resulted in the largest fish kill in 
U.S. history in September 2002 when over 34,000 salmon perished. The 
majority of these fish were destined for the Trinity River, the Klamath’s 
largest tributary.

“We are extremely concerned that we will see a repeat of the 20002 fish this 
fall because the federal government decided to give water to agriculture at 
the expense of fish,” said Fletcher. “After being classified as a below 
average year, the year was reclassified by the Bureau as a dry year in May. 
We need flows for fish throughout the year, but flows have been greatly 
reduced this summer.”

Hopefully, we will see a cooler-than-average summer and fall so an outbreak 
of disease among adult chinooks in warm water conditions doesn’t take place 
like it did in September 2002. Meanwhile, we can thank the Ninth Circuit 
Court for upholding the law and science in ordering the implementation of 
the Trinity River Record of