In a landmark decision greeted with jubilation by representatives of the Hoopa and Yurok tribes, the Ninth Circuit Court of Appeals ordered the release of flows mandated under the Trinity River Record of Decision (ROD) of December 2000.
“Nothing remains to prevent the full implementation of the ROD, including its complete flow plan for the Trinity River,” the Court ruled on Tuesday, July 13.
“We’re just elated,” said Clifford Lyle Marshall, chairman of the Hoopa Valley Tribe. “Hoopa is a very happy town. The timing of the decision surprised us, since we were told the decision could go either way.”
Marshall said the decision would compel the federal Bureau of Reclamation to release 47 percent of river flows for fish and 53 percent for agriculture and power. Prior to the ROD, up to 90 percent of the river had been diverted to agriculture and power users, resulting in dramatic declines in salmon and steelhead populations.
“This decision is awesome,” said Marshall. “The river is a vital part of the economy of our tribe and Northern California. The decision gives the river the priority it deserved in the first place. It means that the river will get water, salmon runs will come back, tourism will return, recreational fishermen will come back, people will be eating in the local restaurants, and the commercial salmon fishery may be sustained.”
Although Marshall said the court made its decision based on the law and over 20 years of scientific studies, the outpouring of support for Trinity River restoration by the public, newspapers and politicians through the state had a lot to do with the victory.
“It wasn’t a case of Indians versus farmers,” emphasized Marshall. “The people of California raised their voice to support the Trinity River. The river should be regarded as a national treasure. We had a great alliance of people, with lot of efforts on many fronts. Public opinion drives public policy – and the people of California decided that for a small price, the Trinity River could be restored.”
The Westlands Water District, in conjunction with the Northern California Power Association and SMUD, filed suit against the federal government in 2000 right after former Interior Secretary Bruce Babbitt issued his ROD. However, a broad coalition of Indian tribes, commercial fishermen, recreational anglers and environmental groups forced the SMUD and three members of the NCPA – Palo Alto, the Port of Oakland and Alameda – to pull out over the past 1-1-/2 years.
Whether Westlands, the largest federal irrigation project in the country, will appeal the case to the next step, the U.S. Supreme Court, is unknown at this time.
“We are still reviewing the decision,” said Tupper Hull, spokesman for the Westlands Water District. “It is a complicated decision, although it appears to overturn Judge Wanger’s decision on a number of grounds. We are looking at the overall impact of the decision on Central Valley Project water users.”
Hull noted that Westlands is continuing to pursue settlement talks with the Tribes, even though these talks have been unsuccessful in the past. “We believe that there is still an opportunity for people of goodwill from the different parties to protect their interests, including the Trinity River fishery,” said Hull.
Troy Fletcher, executive director of the Yurok Tribe, said he is “optimistically enthusiastic” about the decision, but noted that litigation could continue if Westlands decides to appeal.
“The bottom line is that the fish won in this round,” said Fletcher. “Now there is a need to defend this ruling and to make sure that the ROD is implementing the decision.”
Tom Stokely, senior resource planner for Trinity County, and Byron Leydecker, president of Friends of the Trinity River, were likewise optimistic about the outcome of the decision.
“It is is likely that the SEIS that Judge Oliver Wanger ordered will disappear and that the ROD will move ahead,” said Stokely. “We plan on finishing building the bridges that will be required to release more water down the river.”
Stokely said that the decision, when implemented, would result in an approximate doubling of the total volume of water released down the river. “Salmon need water to thrive, so this will have a very beneficial effect on the fishery,” he noted.
“After 39 years, the law has been finally upheld,” said Leydecker. “On this one issue, the Bureau of Reclamation can’t operate without regard to the law. We have a long way to go until we see full Trinity River restoration, but this is a major victory.”
Although this decision portends well for the future of salmon fisheries, the prospects for this year’s salmon runs on the Klamath and Trinity Rivers are looking dire because the Bureau of Reclamation granted 100 percent of contract flows to agricultural water users in the Klamath Basin of Southern Oregon this year, according to Troy Fletcher.
The Department of Interior, under pressure from Bush’s political strategist Karl Rove to curry favor among agribusiness for the reelection campaign of a Republican Senator in Oregon, decided to cut off flows for fish and divert them to subsidized agribusiness in the Klamath Basin in 2001. The change in water policy by the Bush administration resulted in the largest fish kill in U.S. history in September 2002 when over 34,000 salmon perished. The majority of these fish were destined for the Trinity River, the Klamath’s largest tributary.
“We are extremely concerned that we will see a repeat of the 2002 fish kill this fall because the federal government decided to give water to agriculture at the expense of fish,” said Fletcher. “After being classified as a below average year, 2004r was reclassified by the Bureau as a dry year in May. We need flows for fish throughout the year, but flows have been greatly reduced this summer.”
Hopefully, we will see a cooler-than-average summer and fall so an outbreak of disease among adult chinooks in warm water conditions doesn’t take place like it did in September 2002. Meanwhile, we can thank the Ninth Circuit Court for upholding the law and science in ordering the implementation of the Trinity River Record of Decision.
DAN BACHER can be reached at: danielbacher@hotmail.com
