<HTML style="FONT-SIZE: x-small; FONT-FAMILY: MS Sans Serif"><HEAD>
<META http-equiv=Content-Type content="text/html; charset=windows-1251">
<META content="MSHTML 6.00.2600.0" name=GENERATOR></HEAD>
<BODY>
<P>
<DIV>Hoopa Valley Tribe Fisheries Department</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>Introduction</DIV>
<DIV> </DIV>
<DIV>On March 2, Bennett W. Raley, the Department of the Interior's Assistant Secretary<BR>for Water and Science convened a meeting in the Sacramento, California, headquarters<BR>of the Bureau of Reclamation with California Nevada Operations Manager Steve Thompson<BR>of the Fish and Wildlife Service, Bureau of Reclamation Regional Director Kirk Rodgers,<BR>and Counselor to the Assistant Secretary for Indian Affairs Michael Olsen.</DIV>
<DIV> </DIV>
<DIV>Department of Justice Attorney Charles Shockey participated in a portion of the<BR>meeting by telephone. Representatives of the Hoopa Valley Tribe attended the meeting,<BR>including Tribal Chairman Clifford Lyle Marshall, Tribal Council members, <BR>Hoopa Fisheries Department Staff, legal counsel and a tribal consultant.</DIV>
<DIV> </DIV>
<DIV>The meeting was convened so that Mr. Raley could present a proposal to settle pending<BR>litigation that has blocked implementation of the Trinity River Record of Decision <BR>(ROD) issued by the Secretary of the Interior with the concurrence of the<BR>Hoopa Valley Tribe on December 19, 2000, pursuant to section 3406(b)(23) of the<BR>Central Valley Project Improvement Act, Public Law 102-575.</DIV>
<DIV> </DIV>
<DIV>This is the third time since the ROD was issued that an alternative to the<BR>ROD restoration decision has been proposed. An earlier proposal by the<BR>Sacramento Municipal Utilities District was rejected after an independent<BR>scientific review by the Geological Survey found it unworkable. </DIV>
<DIV> </DIV>
<DIV>Subsequently, the Westlands Water District and San Luis & Delta-Mendota Water<BR>Authority made a proposal that also was rejected by the Tribe and the Department. </DIV>
<DIV> </DIV>
<DIV>Both proposals failed because they could not accomplish the restoration objectives <BR>or meet the scientific standards established by the Congress for the Trinity River.</DIV>
<DIV> </DIV>
<DIV>The Proposal</DIV>
<DIV> </DIV>
<DIV>Mr. Raley's proposal (Proposal) would adjust the flows in the ROD in Normal, <BR>Dry and Critically Dry years by substituting a range of flow allocations in <BR>place of the fixed flows identified in the ROD. Flow allocations for<BR>Wet and Extremely Wet year types would not change from those in the ROD. </DIV>
<DIV> </DIV>
<DIV>See following Table. </DIV>
<DIV> </DIV>
<DIV> Water Year<BR> ROD Flow (acre-feet)<BR> Proposed Flows (acre-feet)<BR> Percent Change<BR> <BR> Normal<BR> 649,900<BR> 575,000-701,000<BR> (-12% to +8%)<BR> <BR> Dry<BR> 452,600<BR> 400,00-504,000<BR> (-12% to +11%)<BR> <BR> Critically Dry<BR> 368,600<BR> 340,000-396,000<BR> (-8% to +7%)<BR> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>The allocation in each year would be at the low end of the range and <BR>would be subject to adjustment within the year up to 20,000 acre-feet. </DIV>
<DIV> </DIV>
<DIV>The 20,000 acre-feet would be purchased from water users and banked in <BR>federal reservoirs to be used for in-season adjustments. </DIV>
<DIV> </DIV>
<DIV>An additional water bank account of 50,000 acre-feet of purchased water<BR>would be held in reserve for use as needed to protect the fishery <BR>in the Klamath River below the Trinity confluence. </DIV>
<DIV> </DIV>
<DIV>Further adjustments between years would be made as discussed in <BR>paragraph 3 below.</DIV>
<DIV> </DIV>
<DIV>Analysis</DIV>
<DIV> </DIV>
<DIV>The following analysis was prepared by the Hoopa Fisheries Department <BR>at the direction of the Hoopa Valley Tribal Council with input from<BR>policy officials, technical staff, and legal counsel.</DIV>
<DIV> </DIV>
<DIV>1) Although the proposal purports to present a "range", it in fact <BR>diminishes the ROD flows by eight to twelve percent as described <BR>in the table. </DIV>
<DIV> </DIV>
<DIV>2) The "range of flows" proposal is not supported by any scientific analysis. <BR>In addition, the adoption of a range is based on a misunderstanding of how <BR>mathematical probability analyses should be applied in determining accurately <BR>and reliably the flow releases required for Trinity River restoration.</DIV>
<DIV> </DIV>
<DIV>3) The managers of the restoration program could adjust the minimum flow in <BR>one of two ways.</DIV>
<DIV> </DIV>
<DIV>a) Intra-annual adjustment In the event restoration managers observe a need <BR>for more water than the base allocation in a Normal Year, there would be <BR>authority to release an additional 20,000 acre-feet from the "Ready Reserve Water Bank". </DIV>
<DIV> </DIV>
<DIV>(The maximum reserve volume appears to be based on political considerations, not sound science.) <BR>There is no process or standard identified for determining the need for additional <BR>intra-annual releases. </DIV>
<DIV> </DIV>
<DIV>And any administrative decision would be subject to judicial review with its attendant <BR>costs and delays. The nature and extent of NEPA and ESA compliance that might be <BR>required in the intra-annual adjustment are not addressed. Note that in any event, <BR>the water bank account has only 20,000 acre-feet. Thus, in Normal, Dry or Critically Dry Years <BR>the water bank would be insufficient to bring flow releases up to the mid-range, <BR>that is ROD flow release, levels. </DIV>
<DIV> </DIV>
<DIV>Intra-annual adjustments could only occur pursuant to a process requiring several steps:<BR>recognition of needs, assessment of potential adjustments, and then a decision to implement <BR>a change in flows. Consequently, flows made available through this process could not timely <BR>address early-season fishery needs relating to geofluvial processes or temperature conditions <BR>during smolt outmigration, both of which are critical to restoration.</DIV>
<DIV> </DIV>
<DIV>b) Inter-annual adjustment At the end of each water year, an assessment would be made <BR>as to whether the flow release for that year had been adequate for fishery restoration <BR>and propagation. If it is proven to be inadequate, an adjustment would be made in the <BR>next occurrence of the same water year type, which could be several years later. </DIV>
<DIV> </DIV>
<DIV>But by that time the circumstances may not be comparable and the benefit of an <BR>increased allocation would be difficult to assess. By the same token, if an excess of water <BR>is deemed somehow to have been allocated then there would be a debit in the future water year <BR>that under the circumstances of that year could prove harmful to the fishery and the harm <BR>would not be assessed until the end of the year. </DIV>
<DIV> </DIV>
<DIV>As with the intra-annual adjustment, there is no provision for a process or standard by which <BR>the inter-annual adjustment would be made, or environmental reviews would occur.</DIV>
<DIV> </DIV>
<DIV>4) Whatever process and standard are established for adjustment of fishery flow releases <BR>may require diversion of personnel and resources of the adaptive management team. <BR>Instead of being able to rely on a constant volume of water as determined in the <BR>Trinity River Flow Evaluation Study, Final Report (June 1999) (TRFES), restoration program <BR>scientists and managers will be required annually to work with a reduced and variable <BR>water supply for each of three possible water year types. </DIV>
<DIV> </DIV>
<DIV>The Proposal's introduction of "debits" or "credits" in the fishery flow releases could affect <BR>the ability of restoration scientists to test adaptive management hypotheses. </DIV>
<DIV> </DIV>
<DIV>This could fundamentally alter the nature of the adaptive management program whose purpose is <BR>to conduct "a formal, systematic, and rigorous program of learning from the outcomes of <BR>management actions, accommodating change, and improving management," TRFES Appendix N, June 1999.</DIV>
<DIV> </DIV>
<DIV>5) There is a 20,000 acre-feet cap on any intra-annual increase. That cap is further dependent <BR>on timely funding and availability of water for purchase in the Ready Reserve Water Bank. <BR>The Proposal would make the Ready Reserve Water Bank Account "top water"; that is, <BR>the first water spilled from CVP reservoirs.</DIV>
<DIV> </DIV>
<DIV>6) There is a second "Emergency fall reserve" water account under the Proposal. <BR>This account in the amount of 50,000 acre-feet would be established to ensure the protection of <BR>the Klamath River fishery below the Trinity River confluence. This water would be purchased <BR>by the Department and would also be "top water." The proposal ignores the fact that the authorizing <BR>legislation for the Trinity River Division and the associated state permits require that the <BR>Secretary release 50,000 acre-feet of water annually and make it available to Humboldt County <BR>and downstream water users. </DIV>
<DIV> </DIV>
<DIV>The Bureau of Reclamation entered into a contract with Humboldt County to implement that <BR>provision in 1959. Humboldt County has informed the Secretary that it intends to use the <BR>water for restoration and maintenance of the lower Klamath fishery. </DIV>
<DIV> </DIV>
<DIV>To date the Secretary has failed to honor the contract.</DIV>
<DIV> </DIV>
<DIV>7) The Proposal estimates that there would be a recurring $5 to 7 million cost to purchase the <BR>water to maintain the Ready Reserve Water Bank and the Emergency Fall Reserve. However the <BR>federal reclamation law pertaining to the construction and operation of the Trinity River Division, and <BR>the State permit conditions to which the operation of the TRD is subject, establish a first priority <BR>of use for Trinity River in-basin fishery needs over exports of water to the Central Valley. <BR>In view of the reduced federal budgets for Reclamation and the already keen competition for appropriated <BR>funds, there can be no reasonable expectation of readily available funding for this purpose. <BR>Any funding that is provided is almost certainly to come from other CVP operation, maintenance or environmental <BR>restoration programs.</DIV>
<DIV> </DIV>
<DIV>8) The CVPIA expressly requires the Secretary to "operate the Central Valley Project . . . to meet <BR>all obligations under State . . . law . . . and all decisions of the California State Water Resources Control Board <BR>establishing conditions on . . . permits for the [Central Valley] project" Pub. L. 102-575 §3406(b)). <BR>The Proposal effectively would abandon the priority and entitlement to no-cost Trinity River Division water and <BR>undertake a permanent, recurring obligation to purchase water. Such a fundamental deviation from the <BR>law governing the Trinity River cannot be reconciled with the express federal trust obligation established in the <BR>CVPIA to protect and restore the Trinity River fishery for the benefit of the Hoopa Valley Tribe.</DIV>
<DIV> </DIV>
<DIV>9) The Proposal closely resembles arguments made and rejected in the litigation brought to challenge the ROD, <BR>Westlands Water District, et al. v. United States, 275 F.Supp.2d 1157 (E.D. Cal. 2002) Civ. No. F-00-7124 <BR>(Memorandum Decision and Order, December 10, 2002). Essentially, the plaintiffs argued that there was <BR>uncertainty in the underlying science and so it would be arbitrary and capricious for the Secretary to have <BR>"locked in permanent fixed amounts of water that are to be released in each water year type, even though the <BR>science that purports to measure the necessity of those amounts was not certain." Id. at 128. The Court went <BR>on to state that "An agency decision is not arbitrary or capricious because the agency recognizes the limitations <BR>of the information upon which it bases a decision. The fact that Interior has acknowledged it will learn new facts <BR>in the future, that river flow management is dynamic, and climatic conditions, upon which CVP water supply depend, <BR>uncertain, are indicative of a reflective decisionmaking process, not arbitrariness." Id. at 129.</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> The Court pointed out that best available scientific data is not exact and concluded "To the contrary, <BR>the certainty Plaintiff's seek could prevent the mandated statutory goal of flow restoration from ever being <BR>implemented" (emphasis added) Id. at 130.</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> On page 131 of the opinion, Judge Wanger squarely confronted the problem with the approach that the <BR>Proposal takes. (The difference between the March 2 Proposal and the plaintiffs' argument rejected by Judge Wanger <BR>is that the former would arbitrarily limit what the adjustment could be, so in that respect the March 2 proposal <BR>is even more restrictive than the plaintiffs' failed argument to Judge Wanger). </DIV>
<DIV> </DIV>
<DIV>Judge Wanger states:</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>[P]laintiffs propose that the flows proceed "on a yearly basis to posit necessary flows, test those in accordance <BR>with the adaptive management plan and make necessary yearly adjustments." They argue that Section (b)(23) <BR>does not require the Secretary to actually implement the permanent instream flows. </DIV>
<DIV> </DIV>
<DIV>Section (b)(23) has two subsections. The first mandates that the TRFES be completed <BR>and that it make recommendations regarding permanent instream flows <BR>[emphasis in original]. The second mandates that the recommendations be <BR>forwarded to Congress no later than December 31, 1996 and that if the <BR>Secretary and the Hoopa Valley Tribe concur, that those recommendations be implemented. </DIV>
<DIV> </DIV>
<DIV>The term `permanent' in the first section combined with the mandate that the recommendations <BR>actually be implemented upon the occurrence of finite events, forecloses plaintiffs' interpretation. <BR>Plaintiffs proposal that the instream flows for the Trinity River continue to be studied on a <BR>yearly basis and be changed, annually, based upon new information in perpetuity derogates the <BR>statute's use of the term "permanent". "Permanent" is defined as "existing perpetually; <BR>everlasting, especially without significant change" and "intended to exist or function <BR>for a long, indefinite period without regard to unforeseeable conditions."</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>Citations omitted, id. at 131-132.</DIV>
<DIV> </DIV>
<DIV>Thus, Judge Wanger's ruling made it clear that the science of the ROD is sound and legally sufficient. <BR>Yet, it is this significant judicial victory for the Tribe's trust resource that the March 2 Proposal <BR>would negate.</DIV>
<DIV> </DIV>
<DIV>Conclusion</DIV>
<DIV> </DIV>
<DIV>Because the Proposal cannot accomplish the restoration objectives or meet the scientific<BR>standards established by the Congress for the Trinity River, the Tribe respectfully requests <BR>that the Proposal be withdrawn.</DIV>
<DIV> </DIV>
<DIV><BR> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<P></P></BODY></HTML>