Judge Lifts Order Blocking Increased Trinity River Releases
Written By: Dan Bacher, September 10, 2013
In a significant victory for salmon, a federal judge in Fresno on August 22 issued a decision lifting a temporary restraining order blocking increased releases of Trinity Reservoir water into the Trinity River to prevent a fish kill on the lower Klamath River.
The decision by U.S. District Judge Lawrence O'Neill came after a two-day court hearing and days of protests from a large group of Hoopa Valley Tribal members. Over 60 Tribal members protested in Fresno, California at the Westlands Water District board meeting on Tuesday and outside the Fresno courtroom and in Sacramento outside a fisheries hearing at the California State Capitol on Wednesday.
The protesters in Fresno held signs proclaiming, "Westlands Sucks the Trinity Dry," "Remember the Fish Kill 2002," "Save the Trinity," Save the Fish - Release the Dam Water," and "Un Dam the Klamath." Wearing bright green shirts stating, "Save the Trinity River," the Tribal members traced chalk outlines of salmon and people on the pavement showing what would happen to fish and people if the flows weren’t released.
Judge O'Neill concluded “...on balance, considering 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.)
The Court also noted, “...the 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, tribal fishing rights, and the ecology, and that another fish kill would likely have similar impacts.” (Page 16.)
Under flows from Judge Lawrence O'Neill's ruling, releases from Lewiston Dam will vary from around 850 to 900 cubic feet per second until approximately September 19, when flows will gradually be reduced to 450 cfs.
"The Trinity River is our vessel of life and the salmon are our lifeblood," stated Hoopa Valley Chairwoman, Danielle Vigil-Masten. "We applaud the decision to release this water to avert a fish disaster, but this lawsuit demonstrates the need for long term solutions to the fisheries crisis in the Klamath and Trinity rivers."
The Court rejected demands by San Joaquin Valley corporate agribusiness interests to block the releases that were supposed to have started August 13.
The Trinity River, the Klamath River's largest tributary, is the only out of basin diversion into the Central Valley Project. Westlands and the San Luis and Delta-Mendota Water Authority filed a lawsuit against a government decision to release water for fish on August 7. The Hoopa Valley Tribe and Pacific Coast Federation of Fishermen’s Associations intervened in the case on the side of the federal government.
After hearing from half a dozen fisheries experts who all agreed that the water release program was supported by the science, the Court ruled for the water release program to move forward.
"Judge O'Neill seemed to be pressing Tribal and Federal scientists for answers to what salmon need to survive in the Klamath River this year," said Hoopa Valley Tribal biologist Mike Orcutt. "We did our best and hoped and prayed for this decision. The fate of the fish was in the judge’s hands and he made the right decision."
“Commercial fishermen and Indian Tribes explained to the Court how another large-scale fish kill would devastate the coastal economy,” said Glen Spain of the Pacific Coast Federation of Fishermen's Associations (PCFFA). “This decision is wonderful news for a California native salmon run and all the coastal communities who depend on the salmon for their sustainable livelihoods.”
Attorney Jan Hasselman of Earthjustice, who intervened on behalf of PCFFA, said, “The decision to protect salmon also protects the Northern California coastal communities. Salmon runs can provide jobs forever if managed correctly. The science is clear that additional releases are needed to protect this priceless resource.”
The Judge relied heavily on Yurok tribal science in his decision. The Yurok Tribe presented key science to the court with the testimony of its two witnesses, Senior Fisheries Biologist Michael Belchik and Dr. Joshua Strange. The key to the decision was the testimony of Dr. Josh Strange, a former tribal fisheries biologist.
Judge O’Neill cited research completed by Dr. Josh Strange for the Yurok Tribe and noted his experience and background regarding the issues. Strange testified that the Ich parasite, which devastated Klamath salmon populations in September 2002, is a poor swimmer, so the water flows wash away the parasite. Yurok scientist Mike Belchik also testified about the disruptive effect of water energy on salmon parasites.
This year, 272,000 fall-run salmon are expected to return to the river, nearly 1.7 times the number of fish that returned in 2002. The water release came just before the majority of the Klamath River salmon begin to migrate upriver to spawn.
“The flows, scientifically justified by written declarations and oral testimony from both of the Yurok Tribal expert witnesses, are nearly identical to those initially proposed by the federal government earlier this month,” said Yurok Fisheries Manager Dave Hillemeier.
Federal, state and tribal salmon biologists were gravely concerned that this confluence of high runs and low flows will lead to another mass fish kill like the one that occurred in 2002.
The 2002 fish kill led to coast-wide closures of commercial, recreational and tribal fishing, leading to serious harm to the economy, according to a joint statement from the PCFFA and Earthjustice. Congress ultimately appropriated $60 million in disaster assistance to help coastal communities, an amount that was widely regarded as a fraction of what was needed.
"This decision is great news for the Trinity River, its salmon, its people and the rule of law and science," summed up Tom Stokely, Water Policy Analyst/Media Contact for California Water Impact Network (C-WIN).
Dan Nelson, Executive Director of the San Luis & Delta-Mendota Water Authority, also claimed victory in response to Judge O'Neill's order lifting the temporary restraining order, noting that the order reduced the total amount of water slated for release to 20,000 acre feet.
"Today's decision by Judge O'Neill to lift the temporary restraining order which prevented the release of water from Trinity Reservoir results in a significant decrease in the harm originally expected to occur," said Nelson. "Yesterday, the United States reduced their stated need of up to 109,000 acre-feet of water, which they claimed just last week was the amount necessary, to now only 20,000 acre-feet. Clearly the scientific justification they provided last week just couldn't hold up."
"We appreciate Judge O'Neill's understanding of the urgency and importance of this matter. We also recognize the burden he placed upon himself by setting aside his heavy caseload to allow for the careful consideration of the question at hand. In his decision, Judge O'Neill stated that, 'all parties have prevailed in a significant, responsible way.'"
While this is a victory, the future of salmon and steelhead on the Sacramento, Klamath and Trinity rivers is threatened by Governor Jerry Brown's rush to build the peripheral tunnels under the California Delta. The twin tunnels would deliver massive amounts of northern California water to corporate agribusiness to irrigate toxic, drainage-impaired land on the west side of the San Joaquin Valley and to oil companies to expand fracking in Kern County and coastal areas. The $54.1 billion boondoggle would hasten the extinction of Central Valley Chinook salmon, steelhead, Delta and longfin smelt, green sturgeon and other fish species.Back To Articles