Judge: Water for Klamath salmon legal — this time

Judge: Water for Klamath salmon legal — this time
Tribes split on reaction to federal ruling
By Juniper Rose and Jeff Barnard
Times-Standard and Associated Press

October 1, 2014

A federal judge ruled Wednesday that a federal water agency did not violate the law when it made special reservoir releases last year to help salmon in the Klamath River survive the drought, rather than save the water for farms.

But U.S. District Judge Lawrence J. O’Neill in Fresno wrote in his ruling Wednesday that the next time the U.S. Bureau of Reclamation wants to release Trinity Reservoir water for Klamath River salmon, it needs to cite a better legal authority.

The Westlands Water District and the San Louis & Delta-Mendota Water Authority in the San Joaquin Valley had sued the bureau to stop the releases, arguing the water should have been saved for farms facing the drought. Irrigation has been shut off to farms in the region this year.

The bureau again made special releases for Klamath salmon this year as the drought continued, which the judge also refused to stop, finding that the drought’s potential harm to salmon right now was greater than the potential harm to farms next year.

The Pacific Federation of Fishermen’s Associations and the Hoopa and Yurok Tribes share interests in keeping the water in the rivers to protect salmon and the local fishing industry.

“The effort by the Central California water users to take more water from the Trinity, regardless of how it affects the fish, have failed,” said Glen Spain, North West Regional Director of the Pacific Coast Federation of Fishermen’s Associations.

This is a success for private and commercial fisherman up and down the coast, Spain said.

“The Klamath is home to the third largest salmon run on the West Coast,” he said. “The loss of those fish can close down fisheries from the Oregon-Washington border to Monterey.”

The Trinity River is the biggest tributary of the Klamath River, where tens of thousands of adult salmon died from disease in low water conditions in 2002. Since the 1960s, a major portion of the water from Trinity Reservoir has been diverted to the Central Valley Project, where it helps to irrigate farms. The 1955 law authorizing the diversion contains a provision that the government maintain a minimum flow in the Trinity to sustain fish and wildlife.

In the 1984, another law was enacted to restore fish and wildlife in the Trinity to a level roughly equivalent to those before so much water was diverted to Central Valley farms.

O’Neill wrote that the bureau had not violated any laws in making the special releases for salmon, but the authority of the 1955 law — the only authority cited by the bureau — only applied to the Trinity River, and not the Klamath River downstream.

Danielle Vigil-Masten, chair of the Hoopa Tribal Council, said there are positives and negatives to the ruling.

“They reaffirmed our rights on the Trinity basin,” she said. “However, they shorted us on the Klamath.”

The solution is not complete without allowing emergency releases for the benefit of the salmon on the Klamath, Vigil-Masten said.

“The fish have to come through the mouth of the Klamath to get to the Trinity — it is all one river.”

The Hoopa tribe plans to appeal the decision, she said.

“If the decision stands, it will gut a 60-year old federal law that protected Trinity River water use for tribal fisheries,” said Mike Orcutt, Hoopa fisheries director.

Other tribes praised the positive aspects of the ruling.

“Straight up, if the Bureau of Reclamation did not make the decision to augment flows on the Klamath, we would be right now cleaning up thousands of salmon carcasses on the river,” Yurok Tribal Chairman Thomas P. O’Rourke said in a statement.

Westlands Water District public affairs representative Gayle Holman said that, in her understanding of the ruling, the claims made by Westlands had not been dismissed.

“We are pleased that the court agreed with us that Reclamation had no authority to make these releases,” she said.

The Westlands Water District had no further comment at this time, Holman said.

“We are still studying the ruling for its full implications.”

A lawyer for Westlands, the nation’s largest water provider, did not respond to a telephone call and email seeking comment.

Earthjustice attorney Jan Hasselman, who represented salmon fishermen and the Yurok Tribe as interveners in the case, said the lack of a specific authority for the releases was a technicality which the bureau should have no trouble overcoming in the future.

Bureau spokeswoman Erin Curtis said the agency had not reviewed the ruling, and had no immediate comment.