County of Trinity v. Andrus

• Citation: 438 F. Supp. 1368
• Decision Date: 13 October 1977
• Docket Number: No. S-77-343-PCW.,S-77-343-PCW.
• Court: U.S. District Court — Eastern District of California
• Parties: COUNTY OF TRINITY, a political subdivision of the State of California, by William R. Neill, its District Attorney, Plaintiff, v. Cecil D. ANDRUS, Secretary of the Department of the Interior, Keith Higginson, Commissioner of Reclamation, and B. E. Martin, Director of the Mid-Pacific Regional Office of the Bureau of Reclamation, Defendants, Hoopa Valley Tribe of Indians, Plaintiff-Intervenor.

438 F. Supp. 1368

COUNTY OF TRINITY, a political subdivision of the State of California, by William R. Neill, its District Attorney, Plaintiff, v. Cecil D. ANDRUS, Secretary of the Department of the Interior, Keith Higginson, Commissioner of Reclamation, and B. E. Martin, Director of the Mid-Pacific Regional Office of the Bureau of Reclamation, Defendants, Hoopa Valley Tribe of Indians, Plaintiff-Intervenor.

No. S-77-343-PCW.

United States District Court, E. D. California.

October 13, 1977.

COPYRIGHT MATERIAL OMITTED

William R. Neill, Dist. Atty., County of Trinity, Weaverville, Cal., Harold E. Rogers, Jr., San Francisco, Cal., for plaintiff.

Gary Widman, Professor of Law, Hastings School of Law, San Francisco, Cal., Sp. Counsel, for plaintiff.

Richard W. Nichols, Chief Asst. U. S. Atty., Sacramento, Cal., for defendants.

Wesley L. Barker, Mandich, Clark & Barker, Sacramento, Cal., Richard B. Collins, Jeanne S. Whiteing, Boulder, Colo., Native American Rights Fund, for plaintiff-intervenor.

MEMORANDUM OF OPINION

RENFREW, District Judge.^*

Plaintiff County of Trinity filed this action for injunctive relief on June 24, 1977, alleging that the planned operation of the Trinity River Division of the Central Valley Project in response to the 1976-1977 California drought is in violation of federal law. The action arises under the Act of August 12, 1955, entitled Central Valley Project — Trinity River Division ("Trinity Act"), Pub. L.No.84-386, 69 Stat. 719; the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. § 661 et seq.; and the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.

Plaintiff moved for a preliminary injunction and the Court heard evidence and the arguments of counsel on the motion of July 11, 1977. However, plaintiff's counsel conceded at the hearing that a preliminary injunction was unnecessary and the motion was accordingly denied. At the conclusion of the hearing, both parties agreed that no evidence remained to be presented on the merits. Accordingly, the Court ordered trial of the action on the merits advanced and consolidated with the hearing of the motion pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. In accordance with the arguments raised in its briefs and presented at the hearing, plaintiff filed an amended complaint on July 18, 1977, stating an additional claim arising from the same set of facts but based on California law, over which the Court has pendent jurisdiction. On July 29, 1977, defendants filed a supplementary memorandum setting forth their position on the amendment, to which plaintiff responded on August 10. On July 25, the Hoopa Valley Tribe of Indians moved to intervene in the action. The motion was granted on August 29, and briefs were filed, limited to the issues raised under the Trinity Act, on September 6. Having considered the evidence and the arguments of counsel for all parties, the Court concludes that judgment must be entered for defendants for the reasons set forth below.

I. FACTUAL BACKGROUND

Plaintiff is a political subdivision of the State of California, located in the northwestern portion of the state. Within its boundaries lie the headwaters and most of the length of the Trinity River, which has historically provided an excellent habitat for large numbers of king salmon and steel-head trout. The fishery attracts numerous sport fishermen and is an economic and recreational asset of importance to plaintiff's residents. Plaintiff-intervenor is an Indian tribe occupying, pursuant to statute and executive order, approximately 150 square miles of land located along the Trinity River near its junction with the Klamath. For generations, the tribe has used the Trinity River in the practice of its religion and as a principal source of food. More recently, its members have derived substantial revenues from fishermen and other tourists attracted by the river.

Defendants, the Secretary of the Interior ("Secretary") and officials of the United States Bureau of Reclamation ("Bureau"), are responsible for the administration of a system of dams, reservoirs, canals, and hydroelectric generating plants in the State of California known collectively as the Central Valley Project ("CVP"). The unit of the CVP at issue in this action is the Trinity River Division, which was constructed and is currently administered pursuant to the Trinity Act. The relevant features of the Division are as follows. The Trinity River is impounded by Trinity Dam into Clair Engle Lake. Water is released downstream from Clair Engle Lake and again impounded by Lewiston Dam, located about six miles south of Trinity Dam. From Lewiston Dam, water may be released in two ways: downstream into the Trinity River, which flows into the Klamath River and thus ultimately the Pacific Ocean; or by way of diversions and tunnels into Whiskeytown Reservoir and thence to the Sacramento River.

The Division was completed in 1963, and since that time approximately 85-90 percent of the annual historic flow of the Trinity River has been diverted to the Sacramento River to increase the water supply available in other parts of the state, principally to provide irrigation water for agriculture in the Central Valley in accordance with the statutory purposes and contractual obligations of the CVP. The remaining flow has been released into the Trinity River for fish conservation purposes. Amounts released have varied from year to year but have generally been equal to or greater than those required by the minimum monthly release schedule set forth in a 1959 agreement with the California Department of Fish and Game ("CDFG"), as modified in 1968. The agreed minimum releases total approximately 120,000 acre feet each year, and the mean total annual discharge from 1961 to 1972 has been 227,000 acre feet.¹ It is not disputed, however, that since the inception of operations the quality of the fish habitat has deteriorated, and the number of anadromous fish ascending the river to spawn each year has significantly declined.

The works of the Division made inaccessible 59 miles of king salmon and 109 miles of steelhead spawning and nursery grounds upstream from Lewiston Dam. To compensate for this loss, the Trinity River Fish Hatchery was constructed immediately below Lewiston Dam and began operations in 1963. Nevertheless, of the three major annual runs, or migrations of fish from the ocean to the spawning grounds, only the spring run of king salmon has increased. The fall run of king salmon has declined from an estimated 12,000 in the mid-1950's to an average of 6,526 returning to the hatchery in the seven-year period 1968-1975. Overall, however, the downward trend in total numbers of king salmon appears to have been reversed since 1970. The main area of concern is currently the steelhead run, which has declined drastically: from approximately 10,000 in the mid-1950's to a six-year average (1971-1976) of 215.

The precise causes of this deterioration have yet to be identified. In 1973, a CDFG biologist, Mr. Paul Hubbell, prepared an extensive report enumerating possible factors and recommending a series of studies to identify the problems and propose remedies. The Trinity River Basin Fish and Wildlife Task Force, composed of representatives of eleven federal, state and local agencies including the Bureau, was formed in 1974 to pursue those objectives. In the interim, however, the CDFG concluded that the reduced flow of water in the river was the "most likely area of suspicion." Therefore, by letter of October 24, 1973, the CDFG recommended to the Bureau that annual flows be increased on an experimental basis to a total of 315,000 acre feet, with most of the increase concentrated in the months of May and June to simulate natural snowmelt conditions.² A concurrent monitoring and evaluation program was also recommended with a view to reassessing the quantity and timing of releases necessary to restore the fishery. In response, the Bureau agreed to a three-year flow increase experiment and increased total flows to 245,000 acre feet in 1974 and 265,000 acre feet in 1975. The experiment was interrupted in 1976 due to the onset of drought conditions, and only 126,000 acre feet were released in that year. Although the CDFG monitored the experimental releases, the results are as yet inconclusive. Scientists from both the CDFG and the United States Fish and Wildlife Service ("USFWS") agree, however, that some level of increased streamflow would improve fish habitat in the river.

In anticipation of a second consecutive year of below normal rainfall, the Bureau announced the CVP operating policy for the 1976-1977 water year (ending October 1, 1977) in a Dry Year Operations Policy report published in January, 1977, and amended February 15, 1977. Based on the assumption that there would be no significant precipitation after February 1st, the report as amended announced a rationing plan under which CVP users would be subject to deficiencies ranging from 25 to 75 percent depending on their contractual rights, and showing that virtually all of the reservoirs in the system would be drawn down to unprecedented lows in order to meet that level of commitment. Carryover storage in Clair Engle Lake on October 1st was projected at 200,000 acre feet, or approximately 7 percent of capacity, in contrast to the normal year drawdown of 1.8 million acre feet. A projection of 204,000 acre feet on October 1 was presented to the Trinity County Board of Supervisors on March 14, 1977. By letter of March 17, 1977, Mr. William R. Neill, the District Attorney of Trinity County, protested that plan, demanding that the Bureau retain 837,600 acre feet in the lake to provide for local usage and for a two-year reserve for fish releases. On April 7, the Bureau responded with a letter refusing to change the projected drawdown but assuring the County that the 120,000 acre feet of releases required by the 1959 agreement, as...