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Tribe, Fishermen, and Conservationists Join Court Battle Over Water Diversions

Groups seek to protect salmon in Scott and Shasta Rivers
June 23, 2011
Oakland, CA  — 

Today the Karuk Tribe, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Klamath Riverkeeper filed a motion to intervene in a Siskiyou County court case challenging the authority of the California Department of Fish and Game (DFG) to regulate water diversions for farmland irrigation. The outcome of this lawsuit could impact the recovery of depleted salmon populations across the state. Earthjustice is representing the tribal, fishing, and environmental groups in the Siskiyou County case.

Water taken from the Scott River is used to water hay fields, leaving the river dry and killing salmon.
Water taken from the Scott River is used to water hay fields,
leaving the river dry and killing salmon.

At issue is the authority of DFG to regulate excessive irrigation diversions from all California streams, including the Shasta and Scott rivers in northern California. These two key headwater tributaries of the Klamath River historically hosted healthy salmon runs that have steeply declined in recent years because of increased farm irrigation. Both rivers often run dry in summer months due to excessive water diversions.

The Siskiyou County Farm Bureau filed its lawsuit on March 25, alleging that water diverters are not legally obligated to inform DFG of their water diversions and that DFG has no authority to regulate these diversions—even when they kill federally protected salmon and harm communities downstream that are dependent on the water and the fish.

“These guys think we’re still living in the old west,” according to Leaf Hillman, Director of Natural Resources for the Karuk Tribe. “In today’s world we have laws designed to balance the needs of agriculture with the needs of fishing communities. Like it or not, they have to share the water, air, and Earth with other people.”

The Farm Bureau’s key argument is that the word ‘divert’ in Section 1602 of the Fish and Game Code refers not to water diverted for irrigation, but to the physical diversion of the natural flow to a new watercourse. The Farm Bureau insists that landowners taking water from the rivers to water their hay fields are not ‘diverting’ but ‘extracting’ water and are therefore exempt from the law. This is a convoluted interpretation that the California Department of Fish and Game rejects.

“The law is written in plain English,” Hillman asserted, “and it should be enforced just as it’s written.”

Wendy Park, attorney for the public interest law firm Earthjustice, also challenged the Farm Bureau’s interpretation. “Whatever they call it, this rampant dewatering of California streams is leaving threatened species such as coho salmon no chance of survival. Indeed, coho are now at the brink of extinction in the Scott and Shasta Rivers, because in the past the state department of Fish and Game did very little to control diversions in these watersheds. Now that the coho are almost gone, Fish and Game needs every tool in its box to give them a shot at recovery.”

“One thing all salmon need to survive is enough water left in their rivers,” commented Glen Spain, of the Pacific Coast Federation of Fishermen’s Associations (PCFFA), a commercial fishing industry group intervening in the Farm Bureau’s action. “The law is very clear—farmers have no right to dewater an entire river and drive other water-dependent or fish-dependent industries and communities like ours into financial ruin.”

Last April, Earthjustice won a separate ruling in another case aimed at protecting salmon in the same rivers. In that ruling a San Francisco judge invalidated DFG’s proposed irrigation permitting program because it failed to uphold “the mandate to preserve listed species.” The Siskiyou County Farm Bureau filed its challenge even as the previous case was under consideration. In light of that recent decision and the urgent need to implement effective permitting programs that will protect threatened and endangered salmon, Earthjustice is seeking to defend DFG’s authority in this case to regulate water withdrawals from salmon-bearing rivers across the state.

“Eliminating these legal protections will jeopardize the continued existence of endangered salmon populations and cost millions of dollars annually in economic benefits from sport, tribal and commercial salmon fishing throughout California,” noted Konrad Fisher with Klamath Riverkeeper.

Read the intervention memorandum.


Contact:
Wendy Park, Earthjustice, (510) 550-6725
Craig Tucker, Klamath Coordinator, Karuk Tribe, (916) 207-8294
Glen Spain, Pacific Coast Federation of Fishermen's Associations, (541) 689-2000
Erica Terence, Klamath Riverkeeper Director, (530) 340-5415