DAILY JOURNAL NEWSWIRE ARTICLE

July 14, 2004

9TH CIRCUIT OKS TRINITY RIVER RESTORATION

The Hoopa tribe will benefit since for decades most of the water has been diverted to agricultural interests.

By Dennis Pfaff Daily Journal Staff Writer

SAN FRANCISCO - A federal appeals court Tuesday handed a major environmental victory to California Indian tribes in one of the state's longest-running water fights.

The decision by the 9th U.S. Circuit Court of Appeals clears the way for federal regulators to implement a Clinton-era plan that could lead to significant environmental improvements from increased amounts of water flowing down Northern California's Trinity River.

"It looks like a total victory," said attorney Thomas Schlosser, representing the Hoopa Valley Tribe in the case. "It looks like restoration of the river can go forward unimpeded."

The Hoopa had signed on to the river restoration plan along with Interior Secretary Bruce Babbitt in 2000. Schlosser, of Seattle's Schlosser, Jozwiak & McGaw, accused farming interests of trying to misuse environmental laws to block environmental improvements.

In its decision, the court rejected demands by agribusiness - supported by a federal district court judge - for further environmental studies. Farming interests, led by the giant Westlands Water District in the Central Valley, had hoped those reviews could lessen the amount of water needed to restore the river's environment.

Agribusiness interests contended that the government should study whether cutting the amount of sediment pouring into the river could reduce the flows needed to flush the material out, Daniel O'Hanlon, a Sacramento attorney for Westlands, said Tuesday.

The Northern California Power Agency, representing municipally owned utilities, joined Westlands in its opposition to the plan. The Yurok tribe joined the Hoopas in the litigation.

Because Tuesday's ruling "disposed of all of the issues ordered to be considered" in a supplemental environmental study, "nothing remains to prevent the full implementation" of the Clinton administration plan, wrote Judge Alfred T. Goodwin. That includes the "complete flow plan" for the river. Westlands Water District v. Department of Interior, 2004 DJDAR 8465.

The ruling reversed a decision by U.S. District Court Judge Oliver Wanger in Fresno, who had found that the federal government had inadequately studied the available alternatives for addressing the river's problems.

Wanger had also ordered a supplemental environmental impact statement on the federal government's plan.

In rejecting Wanger's conclusion that more alternatives had to be studied, Goodwin wrote that the National Environmental Policy Act "does not require the [environmental impact statement] to have considered every conceivable permutation of flow and non-flow measures."

Joining Goodwin were Judges A. Wallace Tashima and Richard R. Clifton.

Schlosser said the supplemental environmental statement was so wide-ranging it constituted an almost completely new study.

He said it could have produced even more delays in restoring the river as fights over its content ground on. Tuesday's decision noted that 20 years had gone by since Congress had passed the first major law to rehabilitate fish populations in the river. Jeff McCracken, a spokesman for the federal Bureau of Reclamation, which operates the giant Central Valley Project of which the Trinity diversion is a part, also reflected on the long fight.

"It's nice to come to some sort of conclusion, because this has been long and drawn out," McCracken said. "They've been working on the Trinity River for years."

Historically, as much as 88 percent of the Trinity's flow had been diverted to the Sacramento River, largely for the benefit of agriculture, since a series of dams was constructed in the 1960s. Those diversions were blamed for dramatic decreases in the river's once-plentiful populations of steelhead trout and salmon.

Under the plan, announced with great fanfare by Babbitt at the Hoopa Valley Indian Reservation in Trinity County, the amount of water allowed to flow down the Trinity, instead of being diverted to Sacramento River largely for the eventual benefit of agriculture, was greatly increased.

Prior to the 2000 plan federal law required only a minimum of 340,000 acre-feet of water per year to flow down the Trinity. The Clinton plan, however, required at least 647,000 acre-feet to remain in the river during "normal" rainfall years and as much as 815,000 during "extremely wet" years.

An acre-foot of water is about 326,000 gallons, equivalent to the needs of an average household for a year. Wanger had capped the amount of water that could be allowed to flow down the Trinity at about 450,000 acre-feet annually, a figure Schlosser said guaranteed the river would remain in a condition of "permanent drought."

Even as it stands, he said, more than half of the river's flow will continue to be diverted to agribusiness, power generation and municipal water supplies.

Any impact from the decision on the Trinity's flows is not expected to be felt until next year, those involved with the case said. O'Hanlon called the outcome "mixed." He noted the court upheld two of Wanger's rulings, including one that will preserve some water for agricultural uses.

But O'Hanlon, of Kronick, Moskovitz, Tiedemann & Girard, conceded that the decision would mean less water for farming.

The 9th Circuit remanded the case to Wanger. O'Hanlon said Westlands was studying the decision and had not yet determined its next legal step.

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