[env-trinity] Dan Bacher: Peripheral tunnel water will go to agribusiness and oil companies/Karuk Tribe: Supreme Court says ESA trumps 1872 Mining Act

Tom Stokely tstokely at att.net
Tue Mar 19 08:54:01 PDT 2013

From: Dan Bacher [mailto:danielbacher at fishsniffer.com] 
Sent: Monday, March 18, 2013 5:23 PM
Subject: Peripheral tunnel water will go to agribusiness and oil companies/Karuk Tribe: Supreme Court says ESA trumps 1872 Mining Act
Photo of California Aqueduct courtesy of Food and Water Watch.

Peripheral tunnel water will go to agribusiness and oil companies 
by Dan Bacher 
Missed in the mainstream media coverage of the release of the revised Bay Delta Conservation Plan (BDCP) documents on March 14 was the alarming role the peripheral tunnels could play in increased fracking in California. 
Fracking, or hydraulic fracturing, is the controversial, environmentally destructive process of injecting millions of gallons of water, sand and toxic chemicals underground at high pressure in order to release and extract oil or gas, according to Food and Water Watch. 
The oil industry, represented by Catherine Reheis-Boyd, President of the Western States Petroleum Association and the former chair of the Marine Life Protection Act (MLPA) Initiative Blue Ribbon Task Force to create so-called "marine protected areas" in Southern California, is now pushing for increasing fracking for oil and natural gas in shale deposits in Kern County and coastal areas. 
However, Adam Scow, the California Campaigns Director of Food and Water Watch, hasn't missed the connection between fracking and Governor Brown's plan to build the tunnels - and urges Californians to speak out against the corporate water grab. 
"Governor Brown has proposed building two massive $50 billion water tunnels to divert the Sacramento River to corporate interests in the Central Valley," said Scow. "Most of the water will go to large agribusiness and oil companies while taxpayers will be stuck with the bill." 
"The Westlands Water District and Kern County Water Agency import water for the biggest agribusinesses and oil fields in the Central Valley," explained Scow. "Now they've gotten Governor Brown to approve a massive tunnels project to bring them even more water, which they will sell for an enormous profit. Even worse, much of this water will go to oil companies who will pollute our groundwater with fracking. Help put a stop to this corporate water grab by asking Governor Brown to protect our state's precious water." 
Scow emphasized that most Californians would see no benefit from this massive water project, but we will be left with the $50 billion price tag. Local water projects to rebuild our crumbling infrastructure and expand stormwater and rainwater systems would provide local jobs and better water security for much less. 
"It's absurd that Governor Brown wants to make us taxpayers pay to redirect the Sacramento River so that oil companies and huge agribusinesses can make even more profits," said Scow. "Not only would we spend billions on a wasteful project that serves only to pad the pockets of corporate interests, we would be helping oil and gas companies contaminate our already precious water with fracking. Stand up and tell Governor Brown that we won't pay the water bill for agribusinesses and oil companies." 
He urges people to speak out against the $50 billion tunnels today: 
How the BDCP will advance Big Oil's agenda 
Burt Wilson, Editor and Publisher of Public Water News Service (bwilson5404 [at] sbcglobal.net), also contends that the "hidden agenda" of the Bay Delta Conservation Plan to build twin tunnels is to provide water for the environmentally destructive process of fracking in California. (http://www.dailykos.com/story/2013/02/26/1189970/-The-BDCP-s-Hidden-Agenda-Water-for-Fracking) 
Wilson said the "hidden scenario" goes like this: "Gov. Brown wants twin tunnels in the Delta. He won't allow a public vote on a water bond, so six water agencies, headed by the Westlands Water District and the Metropolitan Water District have formed a business consortium called the State and Federal Water Contractors Association (SFWCA). These six will be the primary funders of the $14-16 billion revenue stream needed to build and initially operate the twin tunnels." 
"Is the SFWCA doing this as a service to the people of California? Of course not. Like all financiers, they expect to make a huge profit. Why else invest $14-billion?" asked Wilson. 
Wilson said the SFWCA will "make its money back through handling water transfers from northern California reservoirs, water banks and aquifers--or any way they can get it--to sell at auction the the highest bidder, in this case the oil/gas companies inflated prices to the oil companies who will pay any price to get it." 
"Currently in Greely, CO, the water agencies are selling water to farmers for $30 an acre foot while oil companies are paying $3,300.00 an acre foot!" noted Wilson. "Given that water transfers from northern California total about 1,200,000 acre feet a year, the SFWCA, at that rate, would earn almost $4-billion a year! Not a bad return on investment!" 
"And here's how they'll do it: let's say some northern California water bank wants to sell 500 acre feet of water," he explained. "That water is then released into the Sacramento River north of the Capital City. At the same time, one or all three of the twin tunnel intakes on the Sacramento River near Hood will suck 500 acre feet out of the river and into the twin tunnels to be pumped south to the SFWCA." 
"Note that no 'additional' water has been taken out of the Delta and the transfer is consistent with the State Water Code which mandates that we 'reduce reliance on the Delta,'" said Wilson. 
The increasing power of big oil in California 
The drive by the oil and natural gas industry to frack California is highlighted by recent disturbing developments that reveal the enormous power of Big Oil in the state. 
In yet one more example of the revolving door between government and huge corporations that defines politics in California now, State Senator Michael Rubio (D-Bakersfield) on February 22 suddenly announced his resignation from office in order to take a “government affairs” position at Chevron. 
Rubio went to work for Chevron just two months after alleged “marine protected areas,” overseen by the President of the Western States Petroleum Association, a coastal real estate developer, a marina corporation executive and other corporate interests, went into effect on California’s North Coast. 
These “marine protected areas,” created under the privately funded Marine Life Protection Act (MLPA) Initiative, fail to protect the ocean from fracking, oil drilling, pollution, wind and wave energy projects, military testing and all human impacts other than fishing and gathering. 
In a big scandal largely ignored by the mainstream media, Catherine Reheis-Boyd, the President of the Western States Petroleum Association, not only chaired the Marine Life Protection Act Blue Ribbon Task Force to create so-called "marine protected areas" on the South Coast, but also served on the task forces to create “marine reserves” on the North Coast, North Central Coast and South Coast. 
"It's clear that government and petroleum officials want to 'frack' in the very same areas Reheis-Boyd was appointed to oversee as a 'guardian' of marine habitat protection for the MLPA 'Initiative,'" said David Gurney, independent journalist and co-chair of the Ocean Protection Coalition, in his report on the opening of new lease-sales for fracking. (http://noyonews.net/?p=8215) 
"What's becoming obvious is that Reheis-Boyd's expedient presence on the 'Blue Ribbon Task Force' for the MLPAI was a ploy for the oil industry to make sure no restrictions applied against drilling or fracking in or around so-called marine protected areas," Gurney emphasized. 
The current push by the oil industry to expand fracking in California, build the Keystone XL Pipeline and eviscerate environmental laws was made possible because state officials and MLPA Initiative advocates greenwashed the key role Reheis-Boyd and the oil industry played in creating marine protected areas that don’t protect the ocean. 
Reheis-Boyd apparently used her role as a state marine "protection" official to increase her network of influence in California politics to the point where the Western States Petroleum Association has become the most powerful corporate lobby in California. (http://www.californiaprogressreport.com/site/lawsuit-filed-against-fracking-oil-lobbyist-says-its-safe) 
Oil and gas companies spend more than $100 million a year to buy access to lawmakers in Washington and Sacramento, according to Stop Fooling California (http://www.stopfoolingca.org), an online and social media public education and awareness campaign that highlights oil companies' efforts to mislead and confuse Californians. The Western States Petroleum Association (WSPA) alone has spent more than $16 million lobbying in Sacramento since 2009. 
Now many of the same MLPA Initiative advocates who embraced Reheis-Boyd in her role as a "marine guardian" are supporting the fast-tracking of the most environmentally destructive project in California history under the Bay Delta Conservation Plan. 
As the oil industry expands its role in California politics and environmental processes, you can bet that they are going to use every avenue they can to get more water for fracking, including taking Delta water through the planned twin tunnels. 
"Why should we spend $50 billion to help the oil industry frack our state?" asked Scow.

P R E S S  R E L E A S E

 Karuk Tribe

For Immediate Release:  March 18, 2013

For More Information:  Craig Tucker, Klamath Coordinator, Karuk Tribe: 916-207-8294; ctucker at karuk.us


·       Supreme Court Denies Miners’ Challenge to Ruling that Endangered Species Act Trumps 1872 Mining Act 

·       Ruling Strikes Down U.S. Forest Service Approvals of Mining Projects Across the West

Washington, D.C. – Today the Supreme Court let stand a decision from the En Banc panel of 11 judges of the federal Ninth Circuit Court of Appeals in San Francisco that essentially establishes that the Endangered Species Act (ESA) trumps the 1872 Mining Act. Recreational mining groups had filed a petition with the Supreme Court asking that they overturn the lower court decision, but the petition was denied.
“This decision is a great victory for the Karuk Tribe and everyone else who believes that federal agencies must act to protect our natural resources and fisheries,” according to Buster Attebery, Chairman of the Karuk Tribe.
The Appeals Court ruling last June stemmed from a lawsuit filed by the Karuk Tribe in Northern California in 2004 alleging that the U.S. Forest Service had violated the federal Endangered Species Act (ESA) when the agency approved a slew of mining operations in ESA listed coho salmon habitat in and along the Klamath River in northern California. 
The Tribe filed the lawsuit to protect salmon which are cornerstone of the Tribe’s culture and traditional diet.  Beginning in the early 1990s, a flood of smaller-scale recreational mining operations, primarily suction dredging operators, invaded the Klamath River system to search for gold in and along the banks of these rivers and streams.  As described by the Appeals Court’s decision, “These miners use gasoline-powered engines to suck streambed material up through flexible intake hoses that are typically four or five inches in diameter.  The streambed material is deposited in a tailings pile in or beside the stream.  Dredging depths are usually about five feet, but can be as great as twelve feet.”  The Appeals Court detailed the scientific studies that found that suction dredging in critical species habitat “can directly kill and indirectly increase mortality.”
Beginning in 2003 and 2004, the Forest Service allowed suction dredging and related practices known as highbanking and power sluicing on more than 35 miles of the Klamath River and its tributaries, without conducting any public environmental reviews, without subjecting its actions to any public notice, and, importantly for this case, without any compliance with the ESA.  The Tribe’s lawsuit challenged the agency’s failure to protect the salmon and its habitat, which have been determined by the National Oceanic and Atmospheric Administration (NOAA) to be threatened with extinction.  The agency had approved all of the mining via its “Notice of Intent” (NOI) process, which the agency argued exempted itself from compliance with federal environmental and wildlife protection laws.
The Appeals Court rejected that claim, concluding that: “We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.”
“This decision sets a major precedent across the western states,” said Roger Flynn, lead attorney representing the Tribe, and the Director and Managing Attorney of the Western Mining Action Project, a Colorado-based non-profit environmental law firm specializing in mining issues in the West.  “The government and miners had argued that the archaic 1872 Mining Law, which is still on the books today, overrides environmental laws such as the Endangered Species Act.  The Appeals Court flatly rejected that untenable position and today the Supreme Court refused to overturn that ruling.” said Flynn.
Although focused on the mining in northern California, the Forest Service’s practice of failing to consider the ESA when approving smaller-scale mining projects such as suction dredging occurs throughout the West.  “Today’s decision sets the proper balance between mining and the protection of clean water and wildlife habitat across the West,” noted Flynn.  “The law requires that the federal agencies ensure that mining is responsible and reasonable, and protects communities and the environment.  The Court today re-affirmed this guiding principle of federal public land management.” said Flynn.
A copy of the decision from the En Banc panel of the federal Ninth Circuit Court of Appeals can be found on the Court’s website at:
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