DAILY JOURNAL ARTICLE

Water Battle Ends In Central Valley

S.F. Daily Journal - Jan 25, 2005

By Dennis Pfaff

Daily Journal Staff Writer

SAN FRANCISCO - A huge Central Valley irrigation district, concluding its chances of a U.S. Supreme Court review were "extraordinarily low," has brought to an end one of the state's fiercest water battles. In deciding to abide by a 9th U.S. Circuit Court of Appeals ruling upholding most elements of a plan to restore the Trinity River in Northern California, the Westlands Water District preserved a major environmental victory for American Indians.

Lawyers for Westlands and its legal ally, the Northern California Power Agency, notified U.S. District Judge Oliver Wanger in Fresno of the decision Friday. In so doing, they removed a legal cloud from a 2000 agreement between the Clinton administration and Indian tribes to retain water in the river, rather than diverting it for irrigation. Federal law guaranteed the Hoopa Valley Tribe a role in developing plans to restore the Trinity.

"This now clears one of the last remaining legal hurdles and opens the way for full restoration of the Trinity River to begin," Hoopa Valley Tribal Chairman Clifford Lyle Marshall said in a written statement. But he noted that challenges remain, including threatened cuts to federal spending for river restoration. The Bush administration had always said it would abide by the restoration plan. But according to an attorney for the Hoopa, the government did not challenge the substance of a 2002 Wanger ruling that would have delayed its implementation by requiring further environmental studies.

Thomas Schlosser, a Seattle attorney representing the Hoopa, said the Indians' involvement was critical. "The tribes were fighting for the [2000 plan] and against unnecessary environmental analysis," said Schlosser, a lawyer with Morisset, Schlosser, Jozwiak & McGaw. "We were the only party arguing that on appeal."

The Yurok Tribe, which, like the Hoopa, historically depended on the river's salmon runs for sustenance, had joined in the legal defense of the restoration agreement.

The restoration plan, announced with great fanfare near the end of the Clinton administration, cut water exports from the Trinity by an average of about 28 percent. That was meant to preserve flows for such species as salmon and steelhead trout.

Historically, as much as 88 percent of the Trinity's flow had been diverted to the Sacramento River for use in the federal government's giant Central Valley Project. Most of the water from that system of dams and canals goes to agricultural interests, such as Westlands.

The Trinity diversions have been blamed for dramatic reductions in fish populations.

The 9th Circuit in July unanimously rejected demands by plan opponents to conduct further environmental studies. Westlands Water District v. Department of Interior, 376 F.3d 853 (2004).

Detractors, led by Westlands, had hoped that those reviews would reduce the amount of water needed to restore the river's environment.

The 9th Circuit reversed Wanger's determination that the federal government had not adequately studied the available alternatives for addressing the river's problems. However, the appeals court upheld some elements of Wanger's ruling, which Westlands General Manager Thomas Birmingham said would potentially reduce the amount of water lost to irrigation.

Birmingham said Westlands decided not to continue the court fight for practical reasons. He cited the "extraordinarily low probability" that the Supreme Court would grant a writ of certiorari. "I certainly don't agree with the 9th Circuit decision. I think there are many problems with its logic," Birmingham said. However, he concluded, "We will just have to live with it."

He said the Interior Department, which runs the Central Valley Project, had been working to find other sources of supplying water to the district.

Jeff McCracken, a spokesman for Interior's Bureau of Reclamation, said officials next will measure precipitation and other factors used to determine how much water can be released for irrigation. A panel including government and tribal officials will recommend the timing of the releases from Trinity reservoirs. "There is nothing now that stands in the way of implementing" the restoration plan, he said.

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