Judge lifts temporary restraining order blocking water releases on the Trinity River to protect migrating salmon
The significantly lower volume of water now projected to be involved and the potential and enormous risk to the fishery of doing nothing, the Court finds it in the public interest to permit the augmentation to proceed.” (Page 19.)
By Lloyd G. Carter
Fresno Federal Judge Lawrence O'Neill Thursday (Aug. 22) lifted a temporary restraining order blocking releases of cold water from Trinity River reservoirs intended to help migrating salmon avoid an Ich parasite infestation similar to one on the Klamath River in 2002 that killed over 34,000 adult salmon.
In a 19-page ruling, O'Neill, following two days of testimony from expert witnesses, lifted the temporary restraining order and denied a permanent injunction sought by Westlands Water District in Fresno County and by other federal irrigation districts north of Westlands.
The judge ruled:
"[A]all parties have prevailed in a significant, responsible way. All is being done that can reasonably occur to prevent a major fish kill. At the same time, due to environmental conditions and the delay of one week (with no adverse fiscal or biological consequences), the amount of water required has fallen by two-thirds."
The judge also said: "Defendants do point out, correctly, that federal defendants have a trust responsibility to the various Indian tribes that rely upon the fish populations in question. Both the Hoopa Valley and Yurok Tribes have federally protected fish rights in the Trinity and Klamath Rivers."
In his conclusion, O'Neill said "the significantly lower volume of water now projected to be involved and the potential and enormous risk to the fishery of doing nothing, the Court finds it in the public interest to permit the augmentation [flow increase] to proceed.”
Westlands Water District, the nation's largest federal irrigation district, and other western San Joaquin Valley federal irrigation districts filed a complaint earlier this month after the U.S. Bureau of Reclamation announced it intended to release water from Trinity Reservoir and the Lewiston Dam to diminish the threat of an Ich outbreak similar to the one on the Klamath River in 2002. Westlands wanted to make the temporary restraining order permanent and block the planned water release, claiming there wasn't enough scientific certainty to do it.
The lone witness for the irrigation districts Thursday morning was Charles Hanson, a Walnut Creek biologist with expertise in fishery issues. Several biologists from federal agencies or the Indian tribes had testified Wednesday that they had concluded it was necessary to release cold water from upstream reservoirs to reduce the chance of an Ich outbreak in the lower Klamath River, downstream from where the tributary Trinity River joins the Klamath River.
Westlands attorney Steven Sims of the Denver law firm/lobbying firm Brownstein Hyatt Farber and Schreck, contended it was not proven that the cold water release would actually have any beneficial effect at all.
Judge O'Neill sidestepped ruling on some issues, noting: "There are colorable arguments on both sides regarding Federal Defendants' authority to make these releases. Likelihood of success is a prerequisite to the issuance of injunctive relief; lack thereof is not a prerequisite to refusing said relief. Accordingly, the Court declines to issue definitive rulings on any of these complex, important issues on the present record."
Judge O'Neill asked Hanson, who listened to the testimony of the government experts, if they had said anything Hanson strongly disagreed with. Hanson said no. Hanson said it was "prudent" of the scientists to back the increased flow in the river during salmon migration.
Hanson said he agreed with the scientific conclusion that the 2002 fish kill was probably attributable to low flows in the Klamath River and warmer waters, creating conditions for the Ich parasite to thrive. When flows are insufficient and water temperature is high, salmon will halt their migration upstream and head for cold water pools in the river until conditions upstream improve. The fish crowded into the pools are easy targets for the opportunistic Ich parasite, which can be transmitted when salmon bump into each other. Current flow levels on the river are about 2,310 cubic feet a second (CFS). Scientists, including Hanson, said at least 2,500 CFS, and preferably 2,800 CFS, is required to prevent an Ich epidemic. Once the parasite invades a host fish, the fish almost always dies.
Hanson said he agreed with U.S. Fish and Wildlife experts that there was an adequate rationale for the planned preventive water releases. "The insurance may be worth it," Hanson said.
The government scientists had said that if an Ich outbreak occurred anyway at the 2,800 CFS flow level, they could increase flows to 5,600 CFS to try and flush the Ich parasites downstream past the salmon.
Members of the Hoopa and Yurok Native American tribes living near the Trinity River said another major fish kill would be catastrophic because salmon provide an essential food for the tribes.
Westlands officials said they were worried the fish rescue operation could consume up to 109,000 acre-feet of water (an acre-foot is 352,851 gallons) and this would be lost water that could have been stored in the dams for use by farming interests next year. Westlands received only 20 percent of its federal allotment this year and growers were scrambling for water supplies through trades or purchase of water from other irrigation districts. Sims said Westlands' federal water supply next year might be zero if drought conditions continue in California.
Anna Stimmel, a U.S. Justice Department attorney representing the federal agencies, said they planned to use only 20,000 acre-feet in the rescue operation. She noted that salmon are congregating below the mouth of the Klamath River and may begin their migration upstream "any day now."
In closing argument, Stimmel said there was clear case law authority that the Interior Department, parent agency of the Bureau of Reclamation, had a Trustee duty to provide the Indian tribes adequate water to sustain the fishery and that this duty superseded any duty to provide Westlands water.
Sims acknowledged that Westlands was "only a junior water rights holder" but did not concede the Indians had superior water rights to remove water from Central Valley Project (CVP) storage. The CVP, the nation's largest federally-built irrigation project, annually delivers several million acre-feet of water to farmers in the Sacramento and San Joaquin Valley.
Sims claimed Hanson's testimony showed a "lot of uncertainty" about the proposed water release but the judge made fairly clear he was not buying that argument.
Over 60 members of the Hoopa and Yurok tribes, wearing matching t-shirts and carrying protest signs, demonstrated outside the courtroom on Wednesday. On Tuesday, Hoopa tribe member Dania Colegrove spoke before a Westlands board of directors water policy committee meeting and asked that Westlands halt its efforts to block the fishery relief. She later spoke at a Westlands board of directors meeting and said board members would not look her in the eye and kept their heads down or looked away. Westlands general manager Thomas Birmingham told her that board members were precluded by the state's Brown Act from engaging in discussion with her.
John Corbett, an attorney for the Yurok Indians, said the tribe "lives off natural resources" and that salmon "are the very essence of their culture."
In the 2002 fish kill on the Klamath it was later determined that then Vice-President Dick Cheney had intervened and federal officials, under Cheney's pressure, took water intended for fishery flows and diverted it to growers in the Klamath Basin.