Native Americans protest Westlands Water District water grab
By Lloyd G. Carter
Around 100 Yurok and Hoopa Indians living near the Trinity River in Northern California protested Wednesday (Aug. 21) outside a federal courtroom in Fresno where federal judge Lawrence O'Neill must decide whether to risk a repeat of a massive 2002 fish kill on the Klamath River.
Following a complaint filed by the gigantic Westlands Water District, O'Neill issued a temporary restraining order blocking a Department of Interior plan to use Trinity River water stored behind dams to help salmon reach their spawning grounds without being infected by a fatal parasite called Ich, which wiped out at least 34,000 salmon on the Klamath River. The Bureau of Reclamation and the U.S. Fish and Wildlife Service (both Interior Department agencies) announced Aug. 5 they would use up to 109,000 acre-feet of stored water to reduce the risk of an Ich outbreak similar to that which happened in September of 2011. Releases of cold water were set to begin Aug. 13
Westlands attorneys argued in the complaint that "it is unthinkable that the Defendants [Interior] would unlawfully release water from [Central Valley Project] storage to the ocean instead of delivering that supply to water users who desperately need it. Westlands received only 20 percent of their contract water this year and growers worry that it may be reduced to near zero next year if drought conditions continue. Water kept in storage this winter could be sent to Westlands next Spring.
At the start of the hearing, to determine whether the temporary restraining order should be made permanent, O'Neill noted that "complicated scientific matters" were involved in the case. O'Neill promised he would rule in a "very short period of time" after the hearing, which is expected to end Thursday (Aug. 22). The federal government planned on calling five expert witnesses and Westlands one expert.
Federal attorneys told Judge O'Neill the amount of water to be diverted would probably only be around 20,000 acre-feet (an acre-foot is 325,851 gallons or enough water to cover an acre a foot deep) and not the 109,000 acre-feet Westlands feared.
On Tuesday (Aug. 20) a small contingent of Native Americans, led by Hoopa tribe member Dania Colegrove, showed up at the Westlands' Fresno Office during a meeting of the board of directors of Westlands. She told directors a giant fish kill on the Trinity River would spiritually damage her tribe. Salmon have been at the center of Hoopa and Yurok tribal life for centuries. Colegrove later said Westlands directors would not look her in the eye and kept their heads down as she asked them to halt their opposition to the water release. Westlands general manager Thomas Birmingham said they were precluded by the state's open meeting law from engaging her in discussion.
The first witness at the hearing, Interior fish biologist Nicholas Reck, testified about the 2002 Klamath River salmon die-off and said three follow-up studies in 2003, by the U.S. Fish and Wildlife Service, the California Department of Fish and Wildlife, and the Yurok Tribe, all concluded that "remarkably low flows" of water in the Klamath River were a major contributory factor in the fish kill, along with crowded conditions and stalled migration. The Trinity is a tributary river of the Klamath River. When salmon move out of the ocean into the Klamath River system, some fish turn right and go up the Trinity River to spawn, others turn left to spawn in the Klamath River.
Experts say when river temperatures heat up beyond 75 degrees Fahrenheit, fish become sluggish and hole up in crowded pools, which are cooler, and do not continue their upstream migration to spawn until conditions improve. The overcrowded conditions make it easy for the Ich parasite to invade the salmon, burrowing into their flesh or gills. The salmon spread the parasite when they bump into each other.
Steven Sims, representing Westlands, asked numerous questions of the government's expert witnesses about flow and velocity of a river, which may influence fish behavior. Government witness Reck said the expected fall salmon run this year is the second largest in history on the Trinity/Klamath river system, increasing scientific concern about a Ich parasite mass fish kill in overcrowded and stressed fish.
Nicholas Hetrick of the U.S. Fish and Wildlife Service said the concept of a "thermal barrier" is very important. When water temperatures reach about 24 degrees Celsius (about 75 degrees centigrade) salmon become sluggish, causing a "traffic jam" on the river as fish try to crowd into colder pools along the river. They will not advance into warmer water.
Hetrick said because scientists cannot control the weather or air temperatures the only tool they have to retrigger salmon migration out of the cold pools is to add more cold water to the river by releases from the dams on the upper Trinity.
Flow in the Trinity River this week was measured at 2,310 cubic feet per second (CFS). The scientists said at least 2,500 CFS is needed to avoid an Ich parasite disaster and they would prefer 2,800 CFS because this year's fall salmon run is so large.
The Westlands attorney, Steven Sims, is a member of the Denver law firm of Brownstein, Hyatt, Farber and Schreck, which also does lobbying in Washington, D.C. Westlands, a public agency, is paying Brownstein $20,000 a month. It is unknown if Sims is being paid in addition to the $20,000 a month.
The final expert witness Wednesday was fishery biologist Joshua Strange, who has extensively studied the Klamath River salmon fishery. Strange, who has been a consultant to the Yurok Tribe for the last decade, said the Ich parasite is "very opportunistic." He said Ich is one of the most studied pathogens in the world. It can take the parasite about 7-10 days to kill a large salmon. Strange said biologist working in the Klamath system describe infested fish as "the swimming dead."
Judge O'Neill noted the Interior proposal called for doubling the water releases to 5,600 CFS if there was an actual outbreak of Ich infestation. He said he wanted to know the scientific basis for doubling water releases in an effort to head off a major die-off. Why, he asked, was it double and not a 40 percent increase or 10 percent increase? Strange said it was the "professional judgment" of the federal scientists to double releases in order to make sure an Ich infestation was halted. O'Neill seemed unsatisfied with the answer.
At one point in the questioning of Strange, Westlands attorney Sims complained repeatedly that Strange was not answering his questions. Judge O'Neill interrupted Sims and told him he was not to "lecture" the witness. Strange said the similarities between the 2002 fish kill on the Klamath and conditions this year on the Trinity River were "phenomenal" and that releasing cold water from the dams was the best chance of preventing a Trinity River salmon die-off.
Strange admitted that Ich had not been found in salmon on the Trinity River this year but said the pest was "endemic" in the Klamath/Trinity system and would survice on other host fish until presented with an opportunity to attack salmon in crowded conditions that are present this year.
A number of Native American protesters periodically entered the court room during the hearing, wearing protest t-shirts and native head garb. Colegrove's confrontation at the Tuesday Westlands board meeting was the first time Westlands growers have ever faced the people they take water away from. Colegrove wept during her initial comments to the Westlands board.