Big Win for Salmon & Tribes: Westlands Won't Appeal Trinity River Legal Victory

Big Win for Salmon & Tribes: Westlands Won't Appeal Trinity River Legal Victory

February 4, 2005

by Dan Bacher

The Hoopa Valley Tribe won a huge victory in the legal battle to restore Trinity River fisheries when the Westlands Water District announced that they won't take their attempt to block a restoration plan to the U.S. Supreme Court.

The massive Central Valley district and the Northern California Power Agency (NCPA) told U.S. District Judge Oliver Wanger on January 20 that neither party would seek review of last July's 9th Circuit Court of Appeals ruling in favor of the Hoopa Valley Tribe concerning Trinity River restoration. The official deadline for petitioning the Supreme Court is Feb. 3.

Clifford Lyle Marshall, Hoopa Valley Tribal Chairman, hailed the plaintiff's decision not to seek additional legal review of the Trinity River Record of Decision (ROD). "This now clears one of the last remaining legal hurdles and opens the way for full restoration of the Trinity River to begin," said Marshall, although he cautioned there are still challenges to be resolved.

"Westlands continues to believe that there are significant errors in the decision, including the legality of the environmental review conducted to justify the flows," stated Tupper Hull, spokesman for the Westlands Water District. "However, it is unlikely that the Supreme Court would review the case."

The announcement by Westlands completes the July legal victory in the U.S. Ninth Circuit Court for the tribe and the U.S. Department of Interiors four-year legal fight against the plaintiffs, who sued to prevent the restoration of the river. The ROD, signed in December 2000 by then Interior Secretary Bruce Babbitt, allocates 47 percent of the river's flow to fish and the other 53 percent to agricultural, hydroelectric and other water users.

This victory is the culmination of decades of legal and political battles by Indian Tribes, fishing groups and environmental organizations to restore the once vibrant salmon and steelhead fisheries on the Trinity River, the largest tributary of the Klamath River. A grassroots campaign over the past several years pressured many members of the NCPA, including the City of Palo Alto, Healdsburg, Alameda and the Port of Oakland, to withdraw from the litigation.

These cities pulled out after SMUD already withdrew from the litigation because of massive opposition by a coalition of groups, including Environmental Defense, Friends of the River, Friends of the Trinity River, United Anglers of California, the California Federation of Fly Fishers, the Pacific Coast Federation of Fishermen's Associations and the Hoopa Valley Tribe.

Environmental Defense played a key role, including writing 10 expert declarations on behalf of the Hoopa Tribe for the district and appellate courts and taking the lead in asking SMUD, Palo Alto, Alameda and the Port of Oakland to withdraw from the lawsuit.

"Westlands and the NCPA saw the writing on the wall," said Craig Tucker, outreach director of Friends of the River, who calls the Westlands Water District the "Darth Vader of California Water Policy." "They finally realized that they can't win in court."

However, Tucker said that there is no doubt that Westlands will look to for other ways to "quench their thirst for water." These include the raising of Shasta Dam, the building of offshore storage reservoirs and sites through the Cal-Fed program and increasing the pumping capacity from the Delta.

"I think they will be working all of the angles that they can," he said, "but there is no doubt that this was a significant battle won by the Hoopa Tribe and the coalition of organizations working for steelhead and salmon restoration."

Tupper Hull confirmed that the district will be seeking other ways to get their water than from the Trinity. "We don't contemplate any other actions on the Trinity River. The ROD will cover the management of the Trinity River," he stated. "However Westlands is engaging in collaborative discussions with the Department of Interior and other water users to achieve our goals."

Judge Wanger agreed with the Hoopa Valley Tribe that the Ninth Circuit Court ruled the National Environmental Policy Act was not violated. He will enter an amended judgment supporting the plaintiffs' elimination of two of the Reasonable and Prudent Measures (RPMs) of the two biological opinions regarding the ROD. However, removal of these RPMs shall not affect implementation of the ROD.

"The federal government now needs to step up to the plate with renewed commitment to implement the Trinity ROD," added Marshall. "The Trinity River restoration program is severely under funded."

Marshall said that the program faces a federal cutback of $1.4 million from $10.8 million in the next several weeks. A key component of the program is the removal of four bridges and the modification of one bridge by this summer so that the larger flows required for restoration can be released.

Marshall noted that the program needs at least $13.5 million annually for full implementation of the Trinity. Failure to achieve full funding shall result in further delays with ROD implementation, which includes an adaptive management element.

"The water will now be available for fishery restoration and the federal government should now fully fund all aspects of the ROD," Marshall stated.

In the short term, the decision by Wetlands to not appeal is "very positive," added Byron Leydecker, chair of Friends of the Trinity River. However, Leydecker cautioned that the restoration program, which requires Trinity River naturally spawned salmon and steelhead to be recovered to 60 percent of pre-dam populations, is well behind schedule.

"The river now has only 10 to 12 percent of its historical steelhead and king salmon populations and even less of the historical coho salmon numbers," said Leydecker. "I'm afraid that if we don't make significant progress towards natural fish restoration in the next six to seven years, our opponents may revisit the ROD in court, claiming that Clair Engle, the Congressional sponsor of Trinity Dam, was right: the water is just being wasted to the sea."



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