[env-trinity] Judge rejects agribusiness lawsuit over Trinity River flows - Tribes disagree about decision's implications

[Dan Bacher]

http://www.dailykos.com/story/2014/10/02/1333865/-Judge-rejects-agribusiness-lawsuit-over-Trinity-River-flows

https://www.indybay.org/newsitems/2014/10/01/18762297.php
Photo of Lewiston Dam on the Trinity River by Dan Bacher.

800_lewiston_dam.jpg
original image ( 5184x3456)

Judge rejects agribusiness lawsuit over Trinity River flows

Tribes disagree about decision's implications

by Dan Bacher

A federal judge in Fresno Wednesday dismissed almost all claims in a  
lawsuit brought by a coalition of corporate agribusiness interests  
seeking to block the protection of salmon in the Trinity and Klamath  
rivers, but the Yurok Tribe, Pacific Coast Federation of Fishermen's  
Associations (PCFFA) and Earthjustice disagree with the Hoopa Valley  
Tribe over the implications of the decision.

The Yurok Tribe, PCFFA and Earthjustice issued a joint news release  
stating that Judge Lawrence O’Neill "largely upheld" the Bureau of  
Reclamation’s ability to provide additional flows in the Trinity, the  
largest tributary of the Klamath, to prevent harm to salmon, but at  
the same time indicated that "different legal authorities need to be  
invoked."

"Straight up, if the Bureau of Reclamation did not make the decision  
to augment flows on the Klamath, we would be right now cleaning up  
thousands of salmon carcasses on the river,” said Thomas P. O'Rourke,  
Sr., Chairman of the Yurok Tribe. “We applaud Judge O'Neill's  
decision. We need to do everything possible to ensure in-basin fish  
needs are met and to prevent another heartbreaking tragedy on the  
Klamath River."

On the other hand, the Hoopa Valley Tribe said that the judge's  
decision actually "cut off water needed for salmon in the Klamath  
River."

"If the decision stands, it will gut a 60-year old federal law that  
protected Trinity River water use for tribal fisheries,” said Mike  
Orcutt, Hoopa Fisheries Director.

The San Luis and Delta-Mendota Water Authority and Westlands Water  
District, representing agribusiness interests that irrigate drainage- 
impaired land on the west side of the San Joaquin Valley, brought the  
case last year against the Bureau of Reclamation, the federal agency  
that controls water releases from the Trinity Reservoir to the Trinity  
and Lower Klamath rivers.

These rivers support huge runs of Chinook salmon that the commercial  
fishing industry and the Yurok and Hoopa Valley Tribes depend on for  
sustenance. These salmon runs also support an economically vital  
recreational fishing industry in the ocean and on the Klamath and  
Trinity rivers.

The water districts brought the case after the Bureau proposed in 2013  
to increase flow levels in the Trinity to avoid another massive fish  
kill in the Lower Klamath like the one that took place in September  
2002, when over 68,000 salmon perished.

The PCFFA, represented by Earthjustice, and the Hoopa and Yurok Tribes  
intervened in defense of the Bureau to protect salmon and the local  
fishing industry.

After an evidentiary hearing in August 2013, Judge O’Neill rejected  
the irrigators’ request to block the flow program. Judge O’Neill  
rejected a similar request with respect to the 2014 program. "Today’s  
ruling represents the final resolution of the legal issues in this  
case," according to Earthjustice.

"Ultimately this case is also about preserving the California salmon  
fishing industry,” said Glen Spain, NW Regional Director of the  
Pacific Coast Federation of Fishermen's Associations, which represents  
commercial fishing families coastwide. “It makes no sense to sacrifice  
thousands of fisheries jobs over 700 miles of coastline to provide  
just a little bit more water to a voracious California Central Valley  
agribusiness system that has already sucked up far more than its share  
in a major drought."

Spain said this ruling will impact the salmon populations, coastal  
fishing communities and tribes who rely on salmon. During drought, the  
Bureau’s water releases from the Trinity River to the Lower Klamath  
are critical to the survival of salmon as thousands of them return to  
the river to spawn in late summer.

“Any second-grader can tell you that fish need water,” said Jan  
Hasselman, an Earthjustice attorney based in Seattle. “The court  
largely affirmed the government’s ability to manage water in the basin  
to protect fish and the people who rely on them. We will continue to  
work to ensure that good science is the touchstone of water management  
in the Trinity basin.”

Hasselman said the court "rejected a wide number of claims brought by  
the irrigators in the case, but did find for the irrigators that the  
1955 statute that the government relied on as authority for  
supplemental flows did not actually provide such authority. The Bureau  
will need to invoke different legal authority if additional releases  
are required in the future."

In contrast, Danielle Vigil-Masten, Chairwoman of the Hoopa Valley  
Tribe, slammed Judge O'Neill's decision for not protecting the Trinity  
River and vowed to appeal the decision.

“With the stroke of a pen the court severed the Klamath River’s  
largest tributary and sutured it onto the Sacramento River. The  
lifeblood of our people will now flow south to industrial  
agriculture," said Vigil-Masten.

She said the court has "twisted the text and context of federal  
legislation to produce this tragic outcome."

“But this decision cannot stand and it will not stand,” said Council  
Member Ryan Jackson. “We will appeal. Ten years ago the Hoopa Valley  
Tribe persuaded the court of appeals in San Francisco to reverse  
another decision of this same federal court for these same plaintiffs  
that would have destroyed the Hoopa fishery."

“We fought and won then,” said Jackson, “ and we will win again.“

According to the Tribe, the judge blamed this outcome in part on the  
United States for its “refusal to invoke the trust responsibility” as  
a reason to provide water for our fishery, which the United States  
holds in trust."

“We expect our trustee to be a much stronger advocate for our rights  
and resources on appeal than it was in this court,” said Hoopa Vice  
Chair Wendy George.

The Tribe also said "It is terribly ironic that just days ago, the  
United States paid a more than $500 million to the Navajo Nation for  
mismanagement of tribal trust resources. It is devastating to think  
that while some federal lawyers were putting the final touches on that  
settlement, others were filing papers in our case to perpetrate the  
same kind of mismanagement all over again."

“All should now be on notice,” said Chairwoman Vigil-Masten. “The  
Hoopa Valley Tribe will oppose any legislation that benefits the  
predatory and avaricious Central Valley Project contractors that  
brought this suit against us, including the pending California drought  
bill and the San Luis Drainage settlement that is expected to be  
introduced in the next Congress.”

The Tribe noted, "The people on the Klamath River in Oregon also are  
on notice: This decision creates a dilemma for the federal government.  
If the government does not appeal the court’s decision and win, the  
Secretary of the Interior may have no more Central Valley Project  
water available to protect and preserve fish in California’s lower  
Klamath River.

The only other sources of water now subject to federal regulation  
besides the CVP’s Trinity River Division are the Bureau of  
Reclamation’s Klamath Irrigation Project and the federally licensed  
PacifiCorp Dams in Oregon and Californian. The Klamath water rights  
settlement now pending in the U.S. Senate will have to be revised to  
take water from those facilities to protect lower Klamath tribal trust  
resources."

A phone call and email to Gayle Holman, Westlands Water District  
public affairs representative, about the district's position on the  
ruling hadn't been returned as of press time.

However, Holman told the Eureka Times Standard that in "her  
understanding of the ruling, the claims made by Westlands had not been  
dismissed."

"We are pleased that the court agreed with us that Reclamation had no  
authority to make these releases," she said. (http://www.times-standard.com/localnews/ci_26647663/judge-water-klamath-salmon-legal-this-time 
)

You can read the decision on the Earthjustice website: http://earthjustice.org/documents/legal-document/court-decision-judge-dismisses-bulk-of-agribusiness-lawsuit-over-trinity-river-flows

BACKGROUND:

In 2013, there were extremely low flow conditions in the Lower Klamath  
occurring at the same time fisheries managers expected the second- 
largest run of Chinook salmon on record. Federal, state and tribal  
salmon biologists were concerned that the confluence of high runs and  
low flows would lead to another disaster like the ‘Fish Kill of 2002.

In September 2002, Bush Administration’s water management policies in  
the basin that favored irrigators led to a fish kill of over 68,000  
salmon in the Lower Klamath, the largest fish kill of adult salmon in  
U.S. history. The die-off resulted in coast-wide closures of  
commercial, recreational and tribal fishing, dealing a huge blow to  
the local economy, resulting in over $200 million in losses.

To avoid the projected die-off, the Bureau of Reclamation developed a  
plan to release extra water from dams along the Trinity River, a  
tributary of the Klamath, to improve the Klamath’s water conditions.  
In response, San Luis & Delta-Mendota Water Authority and Westlands  
Water District filed a lawsuit in an attempt to declare unlawful the  
Bureau’s authority to release water from the Trinity River.





-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20141002/c9f50385/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 800_lewiston_dam.jpg
Type: image/jpeg
Size: 399494 bytes
Desc: not available
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20141002/c9f50385/attachment.jpg>