Irrigation Interests Fight Trinity River Restoration

Since time immemorial, the Trinity River of Northwest California has been the life blood of Hoopa Indian culture and subsistence. In 1963, the 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. This new law was passed “to meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe.” Congress ordered completion of the ongoing Fishery Flow Evaluation Study 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 releases 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 has delayed restoration, and appeals are still pending, the courts have also allowed increasing water releases to the river and have directed the Interior Department to carry out other restoration work.

In each year since the ROD was signed in 2000, water releases to the Trinity River have been 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 retain 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.

On June 14, 2004, Interior requested additional time to complete the Supplemental Environmental Impact Statement for Trinity River restoration. On June 21, 2004, the Court granted that request and extended until December 23, 2004, 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. 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. 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. These two problems are of great concern to the Hoopa Valley Tribe and are the subject of intensive negotiations and discussions.

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. Also, in 1995 and again in 1997, the Solicitor’s office ruled that the Bureau of Reclamation’s Klamath Irrigation Project upstream of those 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 case originally brought 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. On October 18, 2005, the Ninth Circuit affirmed, noting that the agencies disregarded the life cycle of the species, and saying, “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 granted an injunction directing the Bureau of Reclamation to limit irrigation diversions if they would cause the river to fall below 100% of the long-term flows of the Biological Opinion.

In 2003, Judge Armstrong also ruled that a trial would be necessary to determine if the agencies violated trust obligations owed to the Hoopa Valley and Yurok Tribes by killing the returning fish. 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. 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.

On February 28, 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) regarding whether and how that license should be reissued to the electric utility, PacifiCorp. Many new laws protecting the environment and tribal fisheries have been passed since the Klamath Project license issued. In March, 2006, the Interior Department and National Marine Fisheries Service issued federal land protection conditions and fish passage prescriptions for the dams. (The three dams in the California portion of the Klamath River have no fish ladders or screens whatsoever!) 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, to challenge the federal agencies’ authority. Orders, briefs and transcripts of that hearing are outlined and linked here.

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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