[env-trinity] Trinity River Victory Article (Revised)

[Daniel Bacher]

Westlands Won’t Appeal Trinity River Legal Victory

by Dan Bacher

The Hoopa Valley Tribe won a huge victory in the legal battle to restore 
Trinity River fisheries when the Westlands Water District announced that 
they won’t take their attempt to block a restoration plan to the U.S. 
Supreme Court.

The massive Central Valley district and the Northern California Power Agency 
(NCPA) told U.S. District Judge Oliver Wanger on January 20 that neither 
party would seek review of last July’s 9th Circuit Court of Appeals ruling 
in favor of the Hoopa Valley Tribe concerning Trinity River restoration. The 
official deadline for petitioning the Supreme Court is Feb. 3.

Clifford Lyle Marshall, Hoopa Valley Tribal Chairman, hailed the plaintiff’s 
decision not to seek additional legal review of the Trinity River Record of 
Decision (ROD). “This now clears one of the last remaining legal hurdles and 
opens the way for full restoration of the Trinity River to begin,” said 
Marshall, although he cautioned there are still challenges to be resolved.

“Westlands continues to believe that there are significant errors in the 
decision, including the legality of the environmental review conducted to 
justify the flows,” stated Tupper Hull, spokesman for the Westlands Water 
District. “However, it is unlikely that the Supreme Court would review the 
case.”

The announcement by Westlands completes the July legal victory in the U.S. 
Ninth Circuit Court for the tribe and the U.S. Department of Interiors 
four-year legal fight against the plaintiffs, who sued to prevent the 
restoration of the river. The ROD, signed in December 2000 by then Interior 
Secretary Bruce Babbitt, allocates 47 percent of the river’s flow to fish 
and the other 53 percent to agricultural, hydroelectric and other water 
users.

This victory is the culmination of decades of legal and political battles by 
Indian Tribes, fishing groups and environmental organizations to restore the 
once vibrant salmon and steelhead fisheries on the Trinity River, the 
largest tributary of the Klamath River. A grassroots campaign over the past 
several years pressured many members of the NCPA, including the City of Palo 
Alto, Healdsburg, Alameda and the Port of Oakland, to withdraw from the 
litigation.

These cities pulled out after SMUD already withdrew from the litigation 
because of massive opposition by a coalition of groups, including 
Environmental Defense, Friends of the River, Friends of the Trinity River, 
United Anglers of California, the California Federation of Fly Fishers, the 
Pacific Coast Federation of Fishermen’s Associations and the Hoopa Valley 
Tribe.

Environmental Defense played a key role, including writing 10 expert 
declarations on behalf of the Hoopa Tribe for the district and appellate 
courts and taking the lead in asking SMUD, Palo Alto, Alameda and the Port 
of Oakland to withdraw from the lawsuit.

“Westlands and the NCPA saw the writing on the wall,” said Craig Tucker, 
outreach director of Friends of the River, who calls the Westlands Water 
District the “Darth Vader of California Water Policy.” “They finally 
realized that they can’t win in court.”

However, Tucker said that there is no doubt that Westlands will look to for 
other ways to “quench their thirst for water.” These include the raising of 
Shasta Dam, the building of offshore storage reservoirs and sites through 
the Cal-Fed fiasco and increasing the pumping capacity from the Delta.

“I think they will be working all of the angles that they can,” he said, 
“but there is no doubt that this was a significant battle won by the Hoopa 
Tribe and the coalition of organizations working for steelhead and salmon 
restoration.”

Tupper confirmed that the district will be seeking other ways to get their 
water than from the Trinity. “We don’t contemplate any other actions on the 
Trinity River. The ROD will cover the management of the Trinity River,” he 
stated. “However Westlands is engaging in collaborative discussions with the 
Department of Interior and other water users to achieve our goals.”

Judge Wanger agreed with the Hoopa Valley Tribe that the Ninth Circuit Court 
ruled the National Environmental Policy Act was not violated.  He will enter 
an amended judgment supporting the plaintiffs' elimination of two of the 
Reasonable and Prudent Measures (RPMs) of the two biological opinions 
regarding the ROD. However, removal of these RPMs shall not affect 
implementation of the ROD.

“The federal government now needs to step up to the plate with renewed 
commitment to implement the Trinity ROD,” added Marshall. “The Trinity River 
restoration program is severely under funded.”

Marshall said that the program faces a federal cutback of $1.4 million from 
$10.8 million in the next several weeks. A key component of the program is 
the removal of four bridges and the modification of one bridge by this 
summer so that the larger flows required for restoration can be released.

Marshall noted that the program needs at least $13.5 million annually for 
full implementation of the Trinity. Failure to achieve full funding shall 
result in further delays with ROD implementation, which includes an adaptive 
management element.

“The water will now be available for fishery restoration and the federal 
government should now fully fund all aspects of the ROD,” Marshall stated.

In the short term, the decision by Wetlands to not appeal is “very 
positive,” added Byron Leydecker, chair of Friends of the Trinity River. 
However, Leydecker cautioned that the restoration program, which requires 
Trinity River naturally spawned salmon and steelhead to be recovered to 60 
percent of pre-dam populations, is well behind schedule.

“The river now has only 10 to 12 percent of its historical steelhead and 
king salmon populations and even less of the historical coho salmon 
numbers,” said Leydecker. “I’m afraid that if we don’t make significant 
progress towards natural fish restoration in the next six to seven years, 
our opponents may revisit the ROD in court, claiming that Clair Engle, the 
Congressional sponsor of Trinity Dam, was right: the water is just being 
wasted to the sea.’”