[env-trinity] Federal Judge Ruling A Huge Victory For San Joaquin
danielbacher at hotmail.com
Tue Aug 2 16:43:59 PDT 2005
Federal Judge Ruling A Huge Victory For San Joaquin Restoration
by Dan Bacher
A federal judge ruled in late July that the Bureau of Reclamation and other
agencies violated the Endangered Species Act by approving 25-year contracts
for water diverted from the San Joaquin River at Friant Dam.
The contracts continue to leave 60 miles of the river, once a key
contributor to the states ocean salmon fisheries, dry, dusty and lifeless
most of the year.
Karlton ruled last fall that the signing of the contracts violated state
Fish and Game codes, including the section (5939) requiring dam operators to
release enough waters below dams to keep the fisheries in good condition.
The Bureaus decision to sign long-term contacts perpetuates the
environmental disaster that occurred after Friant Dam was finished in the
late 1940s. The diversion of the river resulted in the extermination of the
historically large and vibrant San Joaquin River spring chinook run that
ascended the Sierra Nevada above the dam before Friant blocked upstream
The years of dewatering of the San Joaquin, combined with federal and state
diversions from other San Joaquin tributaries and the Sacramento River
system, have culminated in the Delta food chain crash that state and federal
scientists have documented over the past three years.
In his 78 page ruling, Judge Lawrence Karlton of the U.S. District Court in
Sacramento determined that the federal government failed to assess
adequately where the contracts would hard harm endangered salmon and other
threatened fish and wildlife, accusing the federal government of arbitrary
and capricious conduct. The Judge citied numerous violations of the law by
three federal agencies, the Bureau of Reclamation, U.S. Fish and Wildlife
Servive and the National Marine Fisheries Service.
While numerous examples may be found, perhaps the clearest example of
arbitrary contract was when the Bureau, knowing that the Fish and Wildlfie
Service bases its analysis on the full contract amount, nevertheless adopted
a no jeopardy finding, said Karlton. Because the Bureau failed to carry
out its duty to ensure against jeopardy and adverse modification, and
because the Bureau knew of the deficiency, the court must conclude that its
conduct was arbitrary and capricious.
The case, NRDC v. Rodgers, is a 17-year-old case challenging Bureau of
Recalmation operations at Friant Dam. Earlier in the case, a unanimous panel
of the Ninth Circuit Court of Appeals in San Francisco invalidated previous
long-tern contracts for violating the ESA, forcing the Bureau to continue
water deliveries to Friant farmers under short-term contacts while new
environmental review were undertaken.
This ruling documents the governments utter failure to consider the
wide-ranging impacts of Friant diversions on downstream fisheries and the
San Francisco Bay Delta, said Kate Poole, a senior attorney with the
Natural Resources Defense Council, who argued the case for a coalition of 14
fishing and conservation groups.
The plaintiffs include Trout Unlimited, California Striped Bass Association,
National Audubon Society, Stanislaus Audubon Society, California
Sportfishing Protection Alliance, United Anglers of California, California
Trout, Pacific Coast Federation of Fishermens Associations, Sierra Club,
Bay Institute, San Joaquin Raptor Rescue Center, Friends of the River and
the Nor-Cal Fishing Guides and Sportsmens Association.
Karltons decision was the correct one, said Zeke Grader, president of the
Pacific Coast Federation of Fishermens Associations. The Bureau is nuts
for going ahead with the contracts when the amount of water available is in
question. The Bureau should have done only 1 year renewals, when the water
available is uncertain, rather than locking in the contracts for 25 to 40
This ruling is enormously significant to the restoration of fish and
wildlife resources on the San Joaquin River and throughout California, said
Byron Leydecker, chair of Friends of the Trinity River and consultant to
California Trout. The key issue here is what three agencies are consulting
on under ESA: the actual or the potential amount of water contracted.
The judge ruled that it must analyze the potential (full contract), while it
only analyzed the recent historical deliveries in the case of Friant.
The implications of this are huge imagine analyzing full contract
deliveries for San Luis Unit, with its huge drainage and selenium problems,
explained Leydecker. Its impossible to believe that the Fish and Wildlife
Service could reach a no jeopardy conclusion under ESA with such a
The potential is that many, if not all, of the contract renewal
consultations the federal agencies have done so far may have authorized
full contract deliveries while not analyzing the impacts of these
questionable deliveries. This ruling also throws into doubt the joint state
and federal plans to export more water from the Delta which the signing of
the Central Valley Project contracts is based on.
It will be interesting to see how the Bureau and U.S. Fish and Wildlife
Service respond to the court ruling. At press time, neither a spokesman from
the Sacramento or Fresno office of the Bureau of Reclamation was available
for comment on the court ruling.
The massive Central Valley project is the largest water contact and the
largest federal reclamation project in the West. Congress enacted the CVPIA
to protect and restore Central Valley fish and wildlife, including the
doubling of anadromous fish populations, yet many of these species continue
Fisheries agencies have used many of the same defective approaches when
considering other long-term contracts, said Hal Candee, NRDC senior
attorney. Their inadequate approach fails to address how CVP operations
threaten the health of the entire bay delta ecosystem.
Faced with this legal precedent, I believe that the federal government
should review all of the long term contacts already signed or in the process
of being signed in the Sacramento and San Joaquin Valleys until the Bureau
determines how much water necessary for endangered species, including Delta
When a judge determines that the federal agencies designated to protect fish
and wildlife have engaged in arbitrary and capricious conduct, water
contracts signed in violation of the law should be held invalid until the
exact impact upon salmon, steelhead, Delta smelt and other endangered
species of the Friant and other Central Valley operations is determined.
Natural science must upheld over political science its the law!
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