A federal judge today refused a request by a coalition of California Central Valley agribusiness and irrigators to turn off the water in northern California’s Trinity River. The Trinity is a tributary of the Klamath River, where major salmon runs are currently facing the threat of a major fish kill due to the drought. U.S. Judge Lawrence O’Neill, based on Fresno, California, ruled that the risks from shutting down a federal program to release additional reservoir water to protect the salmon were too great, and the potential benefit to irrigators too uncertain.
In a 15-page decision, the Court found that the plaintiffs’ legal claims were weak and that “the balance of the harms tips strongly in favor of allowing” the flow program to proceed. “[T]he flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary. There is no dispute—and the record clearly reflects—that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts.”
The ruling represents the third time in three years that Judge O’Neill has rejected requests to cut off increased late-summer flows in the Trinity, in each case finding that doing so created a serious risk of a devastating fish kill in the lower Klamath like the one that happened in 2002.
The agribusiness-dominated San Luis & Delta-Mendota Water Authority and Westlands Water District brought its initial lawsuit in 2013 against the Bureau of Reclamation, which controls water releases from the Trinity Reservoir to the drought-stricken Trinity and Lower Klamath rivers in Oregon. These rivers support huge runs of salmon, on which commercial fishing industries and local Indian tribes depend. The goal of the irrigators’ lawsuit was to shut down a program to provide supplementary late summer water to the Trinity in drought conditions to ensure that the fall Chinook could survive long enough to spawn.
The Pacific Federation of Fishermen's Associations (“PCFFA”), represented by Earthjustice, and the Hoopa and Yurok Tribes, intervened in defense of the Bureau of Reclamation 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, but later ruled that the Bureau needed to invoke separate statutory authorities to justify the program. That ruling is on appeal to the U.S. Court of Appeals for the Ninth Circuit.
Undeterred, the same agribusiness plaintiffs brought a new lawsuit late last week, once again challenging the government’s authority to provide additional flows as well as the science behind the approach. The Court took only a few hours to reject the latest request after reviewing legal briefs from Earthjustice, the federal agencies, and the Tribes.
"This is a Central Valley water grab, pure and simple, that would have put the entire California salmon fishing industry at risk,” said Glen Spain, NW Regional Director of the Pacific Coast Federation of Fishermen's Associations (PCFFA), 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 used far more than its share during a major drought."
In 2002, the Bush Administration’s water management policies in the Klamath Basin led to a fish kill of more than 70,000 salmon in the Lower Klamath, the worst in U.S. history:
The disaster resulted in coast-wide closures of commercial, recreational and tribal fishing which dealt a huge blow to the local economy and hundreds of millions of dollars in economic losses. Federal, state and Tribal scientists are in agreement that without additional flow from the Trinity reservoir this year, conditions are ripe for a similar catastrophe.
“Healthy salmon runs are the sustainable lifeblood of Northern California coastal communities,” said Jan Hasselman, Earthjustice attorney based in Seattle. “Salmon runs can provide jobs forever if managed correctly. But without enough water in the river for salmon and steelhead to survive, they will disappear.”