Irrigation Interests Threaten Precious Hoopa Tribal Fisheries

Since time immemorial, the Trinity River of Northwest California has been the life blood of Hoopa Indian culture and subsistence. The Trinity is the largest tributary of the mighty Klamath River and it joins the Klamath about 45 miles from the Pacific Ocean. Preserving the fish and other aquatic life of those rivers is a constant struggle for the Hoopa Valley Indian Tribe. This page provides a summary and links to documents describing the tribe’s struggle to protect these resources.

1. The Battle to Restore the Trinity. In 1963, the Trinity River was dammed by the U.S. Interior Department and “surplus” water began to be pumped over to the Sacramento River from Lewiston, California, near Weaverville, in Trinity County. The 1955 law that authorized the dam prohibited excess water diversions because of the injuries that could cause to fish and people downstream along the Trinity River. Even in 1955, Congress knew that fish do poorly without water.

After 37 years of neglect of the Secretary’s duty to take “appropriate measures to ensure the preservation and propagation of fish and wildlife,” 69 Stat. 719, Congress grew impatient with the slow pace of fish protection efforts and in 1992 enacted Section 3406 (b)(23) of the Central Valley Project Improvement Act, Pub. L. 102-575. This new law was passed “to meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe.” In it, Congress ordered completion of the ongoing Fishery Flow Evaluation Study (large file) and implementation of its conclusions; it also set a minimum amount of 340,000 acre-feet to be allowed to flow down the Trinity River. This amount is equivalent to the third-lowest unregulated flow in the river.

On December 19, 2000, Interior Secretary Bruce Babbitt traveled to Hoopa California, where he and the Tribal Chairman signed a Record of Decision setting forth the plan for Trinity River restoration. The heart of that plan is increasing the water left in (released to) the Trinity River. The ROD also provided for a detailed Implementation Plan. The amount of water released to the River depends on the “water year type” (wet, dry, normal, etc.). The ROD also allows more than half of the Trinity’s flow at Lewiston to continue to be exported through tunnels into the Sacramento Valley.

Even before the Record of Decision (“ROD”) was signed, Westlands Water District, a huge San Joaquin Valley irrigation entity, sued to block Trinity River restoration. While the Westlands case delayed restoration for some time, the courts eventually sided with the Hoopa Valley Tribe, allowed increased water releases to the river and directed the Interior Department to carry out other restoration work.

In the first four years after the ROD was signed in 2000, water releases to the Trinity River were set by the federal courts. In 2001, District Court Judge Oliver Wanger ruled that the Interior Department must prepare a new Environmental Impact Statement on the restoration work effect, but he permitted the critically dry water amount, 369,000 acre-feet, to be released, which was appropriate under the ROD for that very dry year. In early 2002, the Hoopa Valley Tribe filed a motion to modify the preliminary injunction and the Court authorized release of 468,600 acre-feet of water to the Trinity River.

On December 10, 2002, Judge Wanger issued a Memorandum Decision and Order ruling that the Interior Department violated two environmental laws when it issued the 2000 ROD and directing that a revised Environmental Impact Statement be prepared. The Tribe appealed. In 2003, the Court authorized the Department to release 453,000 acre-feet of water for the Trinity River, plus use an additional 50,000 acre-feet if necessary for late summer conditions. In 2004, the Ninth Circuit Court of Appeals granted the Hoopa Valley Tribe’s request to use 647,000 af (the normal year volume) for water releases to the Trinity River.

In June 2004, Interior requested additional time to complete the Supplemental Environmental Impact Statement for Trinity River restoration. The Court granted that request and extended the time for completion of the SEIS. The District Court’s docket sheets show the details of the continuing litigation. The SEIS is available for review at http://www.usbr.gov/mp/mp150/envdocs/trinity_seis/index.html

On July 13, 2004, the Ninth Circuit Court of Appeals reversed all but one of Judge Wanger’s rulings. The court held that no SEIS is needed. The purpose and need statement and the range of alternatives examined in the 2000 FEIS were adequate. The use of power plant bypasses for temperature control was fully examined. The ROD’s effect on California’s energy reliability was insignificant and did not require supplementation. The court upheld the ruling that Fish and Wildlife’s Biological Opinion RPM which limited movement of the X2 point in the Bay Delta and NMFS’ RPM which required immediate implementation of ROD flows were invalid because they required major changes in the proposed restoration action. Those RPM are unenforceable but the Biological Opinions are otherwise valid.

Westlands and NCPA petitioned for panel rehearing and rehearing en banc but, on November 5, 2004, the Ninth Circuit Court of Appeals rejected both petitions. The court noted that no judge requested a vote on the petitions for en banc review. No party petitioned for Supreme Court review so the Ninth Circuit ruling is the law of the land.

While the Ninth Circuit ruled that “nothing remains to prevent the full implementation of the ROD, including its complete flow plan for the Trinity River,” the ROD’s success depends on restoration work in the Trinity watershed as well as flows. The ROD permits the

Bureau of Reclamation’s Trinity River Division to export of over 50% of the Trinity flow at Lewiston, CA to the Central Valley, so successful restoration using the remaining water requires intensive habitat restoration work. Within the first three years after the ROD, the Trinity Management Council was to complete bank restoration work at 24 sites below Lewiston Dam. They actually completed zero. In 2004, the TMC appointed a subcommittee to examine its lack of progress and got a scathing report. Instead of rectifying the faults, Reclamation proposed to cut the fiscal year 2005 funds for restoration.

In 2005-08, the pattern of under-funding restoration work has continued. The Hoopa Valley Tribe and others have been assisted by Sen. Dianne Feinstein and Congressman Mike Thompson in adding funds to the inadequate amounts requested by the Bush Administration. In 2007, Congressman Thompson introduced H.R. 2733, a bill to assure that the funding promised in the ROD would be provided. The Bureau of Reclamation and its Central Valley agribusiness allies opposed the bill, and it failed. Lacking adequate funds, and hampered by Reclamation interference, the TMC has failed to restore key river sites, such as Vitzhum Gulch, to meet their potential. Thus, continuing problems of inadequate funding and poor restoration performance are of great concern to the Hoopa Valley Tribe and are the subject of continuing negotiations and discussions.

2. 2002--Largest Recorded Die-Off of Adult Salmon in the Klamath. Meanwhile, the Klamath River portion of the Trinity River fish migration path has become increasingly hazardous. In 1993, the Interior Department Solicitor ruled that when the United States set aside what are now the Hoopa Valley and Yurok Indian Reservations, it reserved for the Indians a federally protected right to sufficient fish to support a moderate standard of living. Implementation of that ruling was unsuccessfully challenged in Parravano v. Babbitt. The court upheld the Indian fishing right and the Supreme Court denied review in 1996.

The Klamath River, one of the largest rivers of the West Coast, has historically been a huge producer of salmon for ocean, tribal and recreational fishermen. Until recent years, salmon and steelhead returns to the main stem Klamath and its tributaries above the Trinity exceeded those returning to the Trinity itself. No more. The Bureau of Reclamation’s construction of the Klamath Irrigation Project near Klamath Falls, Oregon, and the subsequent construction of fish-blocking dams on the Klamath between there and Interstate 5 in California, spelled the demise of most main stem fish resources. Nevertheless, in 1995 and again in 1997, the Interior Department Solicitors ruled that the Bureau of Reclamation’s Klamath Irrigation Project (upstream of the Indian reservations) must ensure that its operations not interfere with the tribes’ rights to water for fishery purposes. However, the Bureau of Reclamation has not followed that direction.

In 2002, between 34,000 and 68,000 adult Chinook salmon died in the Lower Klamath River below the confluence with the Trinity. Analysis showed that most of those fish would have returned to the Trinity River but for the reduced flow of bacteria-laden water they met downstream. As a result, the Hoopa Valley Tribe intervened as a plaintiff in a suit by the Pacific Coast Federation of Fishermen’s Association against the federal agencies controlling Klamath River water releases. On July 14, 2003, Judge Armstrong ruled that the agencies had violated the Endangered Species Act by denying water to fish and assuming that others would provide enough water for Coho salmon to survive. (The agencies permitted water to be withdrawn from the Upper Klamath for irrigation purposes.)

On October 18, 2005, the Ninth Circuit Court of Appeals affirmed the PCFFA ruling, noting that the agencies disregarded the life cycle of the species. The Court said, “all the water in the world in 2010 and 2011 will not protect the coho, for there will be none [then] to protect.” On remand, Judge Armstrong issued an injunction directing the Bureau of Reclamation to limit irrigation water diversions if they would cause the river to fall below 100% of the long-term flows required by the Biological Opinion to protect salmon.

In 2003, Judge Armstrong also ruled that a trial would be necessary to determine if the federal agencies violated trust obligations owed to the Hoopa Valley and Yurok Tribes by killing the returning fish. Michael Kelly, the lead biologist for National Marine Fisheries Service, had resigned in protest because of Reclamation’s interference with the 2002 Biological Opinion preparation, interference which led to the low water flows permitted that year by the BiOp (flows that the Judge later enjoined.) Nevertheless, scientific analysis of the 2002 fish die-off pointed to several causes besides the unnaturally low water flows, so the extent of culpability of the Bureau of Reclamation was unclear. As a result, the Hoopa Valley Tribe and the federal defendants entered into a settlement in October 2004 under which a technical consultation group will be created and crucial fisheries studies will be funded for a few years. The Yurok Tribe did not settle its claim but it was dismissed before trial on jurisdictional grounds. The Tribe’s appeal of that dismissal was settled in 2006.

3. Remove Klamath Dams to Restore Fish! In 2006, the 50-year federal license to operate six dams blocking the Klamath River expired. The Hoopa Valley, Klamath, Karuk and Yurok Tribes have all intervened in proceedings before the Federal Energy Regulatory Commission (FERC), P-2082, regarding whether and how that license should be reissued to the electric utility, PacifiCorp.

Several of the fish-blocking dams of the Klamath were built before the Federal Power Act was passed in 1920. While they generate little electricity, they also have few operating costs so they are popular with the utility. However, many new laws protecting the environment and tribal fisheries have been passed since the Klamath Project license issued in 1956 and no new license can be issued to the Project without satisfying current laws.

In March, 2006, the Interior Department and National Marine Fisheries Service issued federal land protection conditions and fish passage “prescriptions” as authorized by sections 4(e) and 18 of the Federal Power Act for the dams. (The three dams in the California portion of the Klamath River have no fish ladders or screens whatsoever!) These called for full volitional upstream and downstream fish passage. There are, of course, currently no salmon runs above Iron Gate Dam, the lowest structure in the Klamath Hydroelectric Project, since no fish passage was constructed when Iron Gate was built in 1961. See Cal. Ore. Power Co. 25 F.P.C. 579 (Mar. 27, 1961). PacifiCorp responded by invoking a new federal law, the Energy Policy Act of 2005, and demanding a hearing on disputed parts of those conditions and prescriptions, challenging the federal agencies’ authority. Orders, briefs and transcripts of that hearing are outlined and linked here. At the conclusion of a week of trial, in 2007 Judge McKenna upheld substantially all of the fish and water protection measures.

In November 2006, the California Energy Commission in cooperation with the Department of the Interior released a report on Klamath dam decommissioning costs, Economic Modeling of Relicensing and Decommissioning Options for the Klamath Basin Hydroelectric Project. PacifiCorp responded to the Report by retaining Christensen Associates Energy Consulting, LLC (“CAEC”) to review the Report. CAEC contended that it found several flaws and argued that, with their corrections to the CEC Report, relicensing the Klamath Hydro Project would cost $46 million less than decommissioning. The CEC replied by issuing an addendum to its original report. The CEC insists that relicensing, including mitigation costs, creates the highest risk for PacifiCorp rate payers. Id. The CEC Report has been subsequently reinforced by the Federal Energy Regulatory Commission Environmental Impact Study conclusions.

The FERC relicensing proceeding reached a plateau in November 2007 with issuance of the Final Environmental Impact Statement for Hydropower License, FERC/FEIS-0201F. The FEIS examined PacifiCorp’s application with the Commission for a new license for the Klamath Hydroelectric Project, which is located principally on the Klamath River in Klamath County, Oregon and Siskiyou County, California, between Klamath Falls, Oregon and Yreka, California. The Klamath Project has a capacity rating of 169 megawatts (MW), about 2% of PacifiCorp’s total capacity, and it generates about 1% (716,800 MWh) of PacifiCorp’s average electricity production. The current license expired on March 1, 2006, and the Project is operating under a third annual license.

The Executive Summary of the FEIS shows the possibility of retiring the Copco No. 1 and Iron Gate Dams, as well as retirement of J.C. Boyle, Copco I, Copco II and Iron Gate developments. Table ES-1, summarizes the effects of various alternatives, showing that complying with the mandatory fishway conditions produces a net annual loss of $20.2 million, retirement of Copco I and Iron Gate Dams would produce a net annual loss of $6.6 million benefit; and retirement of all of the dams, a net annual loss of $13.2 million.

4. Hijacking Dam Removal Negotiations and the KBRA. The deeply negative economic “benefits” of relicensing the Hydroelectric Project while complying with the Clean Water Act, the Endangered Species Act, and Indian fishing rights, created an opportunity for the parties to negotiate concerning retirement and removal of some or all of the dams. Unfortunately, under the pro-agribusiness Bush Administration, this fit nicely into the Bureau of Reclamation’s and irrigation interests’ (led by the Klamath Water Users Association) plan to establish priority for their water rights over those of the Indian Tribes in Oregon and downstream in California. (The tribes currently have senior, and thus priority, water rights.) What has followed is a long series of negotiation sessions, at first presided over by the Interior Department’s representatives, but later by a mediator hired by the Department.

On January 15, 2008, approximately 20 negotiating parties (not including the dam licensee, PacifiCorp) released Draft 11 of the Proposed Klamath River Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities (“KBRA”). That partial agreement proved both incomplete and highly controversial. It was incomplete because it depended for its effectiveness upon completion of a Klamath Hydroelectric Project Settlement Agreement, a document which did not then exist (see below).

The proposed KBRA was controversial because it guaranteed water to irrigation and refuge users but did not guarantee water for Upper Klamath Lake or instream flow of the Klamath River downstream of the irrigation project. Analysis of the water flows projected below the irrigation diversions showed that despite enlargement of Upper Klamath Lake and some planned water efficiencies in the Upper Basin, in approximately 40% of water year types, the river levels would not satisfy the flows required by the National Marine Fisheries Service’s Biological Opinion regarding the Bureau of Reclamation’s Klamath Project operations from June 1, 2002, through March 31, 2012. Table 9 of that document (BiOp at 70) prescribes the recommended long-term Iron Gate Dam discharge levels by water year type, a set of requirements made mandatory by Pacific Coast Federation of Fishermen’s Ass’n v. U.S. Bureau of Reclamation, U.S.D.C. N. Cal. No. C-02-2006 SBA, Order Granting Motion for Injunctive Relief following Remand (Mar. 27, 2006). Thus, the proposed KBRA will frequently fail to meet the needs of fish.

The proposed KBRA also calls for federal appropriations of $985 million and confers many benefits on Klamath Project irrigators including $41 million in power subsidies; $92.5 million to implement their own water plan that they develop without public oversight; preferential Columbia River hydro-system power rates; debt forgiveness on disputed Klamath Project capital costs owed to the United States; special contracts on project operation, maintenance and pumping costs that need legislative exemptions from the cost sharing provision of the Reclamation Reform Act of 1982; support for continuing commercial leaseland farming on national wildlife refuges for 50 years; 80% of the revenue paid for farming refuge lands goes back to their benefit by payments of 10% of the revenue to Tulelake Irrigation District, 10% of the revenue to Klamath Drainage District, and approximately 60% to the Bureau of Reclamation to reduce capital costs of the Klamath Project that would otherwise be recoverable from the Project irrigators; U.S. Fish & Wildlife Service picking up a greater percentage of the pumping costs for operating the D plant that drains Tule Lake for farming; Reclamation assuming all costs for operating Link River Dam and Keno Dam for Project diversion, a substantial portion of which costs should be paid by Project irrigators under current cost-sharing laws; and finally regulatory assurance benefits, intended to shield activities from the Endangered Species Act.

On November 13, 2008, Interior Secretary Dirk Kempthorne announced an Agreement in Principle with PacifiCorp. The Agreement in Principle (“AIP”) defines “a path forward” from which there are many exits for the utility. Each exit (right to withdraw from the Agreement) ends the non-binding plan for removing four dams and restarts the FERC licensing process. Under the AIP, no decision whether to remove a dam can be made before March 31, 2012, at the earliest. Thus the main effect of the AIP now is to halt and delay the water quality certification analysis (required by the Clean Water Act) which was underway in California and Oregon, and suspend the FERC relicensing process.

The AIP envisions negotiation toward a Final Agreement in late 2009. The affected Indian tribes are not parties to the AIP and were permitted to observe the subsequent negotiations only if they accepted the AIP as the basis of negotiations and refraied from seeking “to reopen resolved” issues. Enactment of federal legislation is a condition of the “path forward;” it must ratify a separate agreement, the Klamath Basin Restoration Agreement (“KBRA”), authorize the United States to conduct studies, and direct the United States to make a determination, by March 31, 2012, of whether the benefits of dam removal justify the potential costs, risks, liabilities, etc. § 3, p. 6. The states of Oregon and California may exercise a right of withdrawal within sixty days if they disagree with the United States’ 2012 determination.

In the interim between now and approximately 2021, the licensing process and water quality evaluations are stalled and the Project continues generating power without necessary conditions to protect fish health, habitat, or water quality. The AIP also requires Oregon and California each to secure by legislation a total state contribution toward dam removal of $200 million from power customer rate increases. In addition, the State of California must obtain voter approval of a general obligation bond for an additional $250 million for dam removal. Failure of any of these pieces of legislation will end the Agreement.

The federal legislation required by the AIP will direct the United States to designate a dam removal entity, which must be a non-federal entity qualified to remove the dams, defend any litigation, pay all damages, and provide complete protection from liability for PacifiCorp. § 4, p. 7, § VIII, p. 15. Having a non-federal entity perform these functions, if a qualified entity can be found, will lead to higher insurance and defense costs than if the federal government took the responsibility.

Under the AIP, PacifiCorp will operate the dams pursuant to the annual extensions of its 1956 license until decommissioning of each individual dam, which would begin, at the earliest, in 2020. Interim conditions on operations may be included in the Final Agreement to be negotiated. Also, PacifiCorp, the National Marine Fisheries Service and U.S. Fish and Wildlife Service have approved an Interim Conservation Plan (a subset of the minimal interim measures mentioned in the AIP) which will be added to PacifiCorp’s annual license. The Interim Conservation Plan utterly fails to meaningfully address the significant threats to fish health and water quality that plague the river.

On September 30, 2009, PacifiCorp and other parties reached a tentative Klamath Hydroelectric Settlement Agreement, (“KHSA”) prepared along the lines of the Agreement in Principle. As with the AIP, performance of this agreement requires separate federal and state legislation to be passed, and it ensures that PacifiCorp may continue to operate the ancient hydroelectric project for many years to come. The KHSA blocks the FERC relicensing proceeding and instead prescribes a planning process which might, but might not, result in removal of some or all of the dams that block Klamath River fish. A slightly modified version of the KHSA was released for public review on January 8, 2010.

Also on January 8, 2010, the parties released a new version of the KBRA, discussed above. The KBRA, although revised from the January 15, 2008 version, continues to have the following short-comings: (1) No guaranteed river flows for fish; (2) Requires non-federal parties' support of continued leaseland farming on NWRs for at least 50 more years, creating a political gridlock for progress; (3) Provides more water for irrigators than is currently allowed under the existing BiOp/ESA; (4) Requires non-federal parties to support changing the Biological Opinion protecting coho salmon to enable the irrigators to divert desired water; (5) Provides nearly $50 million in subsidies for irrigators; (6) Does not have a ready drought or climate change plan; (7) Limits the water rights of all Klamath basin tribes without all tribes' consent.

On February 18, 2010, slightly revised versions of both the KBRA and the KHSA were signed by many parties. Federal agencies did not sign the KBRA because of the need for new legislative authority.

The road is long, but the continuing efforts of the Hoopa Valley Tribe and its local and environmentally conscious allies will lead slowly, but ineluctably, to the restoration of one of California’s most beautiful and precious rivers, the Trinity, and the Klamath River basin.

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