Westlands Water Dist. v. U.S. Dept. of Interior
| Decision Date | 10 December 2002 |
| Docket Number | No. CIV.F-00-7124 OWW DLB.,CIV.F-00-7124 OWW DLB. |
| Citation | 275 F.Supp.2d 1157 |
| Court | U.S. District Court — Eastern District of California |
| Parties | WESTLANDS WATER DISTRICT, San Luis & Delta-Mendota Water Authority, and San Benito County Water District, Plaintiffs, Sacramento Municipal Utility District, Plaintiff-Intervenor, Northern California Power Association, Plaintiff-Intervenor v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Defendants, Hoopa Valley Tribe, Defendant-Intervenor, Yurok Tribe, Defendant-Intervenor. |
Daniel J O'Hanlon, Kronick, Moskovitz, Tiedemann and Girard, Sacramento, CA, for Westalnds Water District, San Luis & Delta Mendota Water Authority and San Benito County Water District.
Steve Saxton, David Lindgren, Sacremento, CA, for Sacramento Municipal Utility District.
T. Ronald Lapheimer, for Northern California Power Association.
Charles Shockey, United States Department of Justice, Environment and Natural Resources Div, Sacramento, CA, for United States Department of the Interior and all other named Federal defendants.
Thomas P Schlosser, Morisset Schlosser Ayer and Jozwiak, Seattle, WA, for The Hoopa Valley Tribe.
Scott W Williams, Law Offices of Scott W Williams/Mary Louise Frampton, Berkeley, CA, for The Yurok Tribe.
Before the court are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument was heard August 20, 2002.
Plaintiffs Westlands Water District, San Luis & Delta Mendota Water Authority and San Benito County Water District were represented by Daniel O'Hanlon, Esq. Plaintiff Intervenor, Sacramento Municipal Utility District, was represented by Steve Saxton, Esq., and David Lindgren, Esq. Northern California Power Association, Plaintiff Intervenor, was represented by T. Ronald Lapheimer, Esq. Defendant United States Department of the Interior and all other named Federal defendants,1 were represented by Charles Shockey, Esq. The Hoopa Valley Tribe, Defendant-Intervenor, was represented by Thomas Schlosser, Esq. The Yurok Tribe was represented by Scott Williams, Esq.
This suit involves the United States Department of Interior's ("Interior") administration of the Trinity River Division ("TRD")2 of the Central Valley Project ("CVP") and Interior's implementation of Section 3406(b)(23)3 of the Central Valley Project Improvement Act ("CVPIA"),4 to restore and maintain the Trinity River fishery.
The TRD was authorized by an Act of Congress on August 12, 1955.5 Among the purposes of the TRD Act are that the Secretary provide necessary and beneficial services such as water supply and power and that the Secretary operate the TRD to effectuate the fullest, most beneficial and most economic utilization of the River and adopt appropriate measures to protect fish and wildlife in the Trinity River basin. Trinity River Act of 1955 § 2. Construction of the TRD was completed and operations commenced in 1964. The TRD transfers water from the Klamath River Basin, which includes the Trinity River, in Trinity County, California, to the Sacramento River Basin. Its primary function is to store Trinity River water for regulated diversion to California's Central Valley for agricultural, municipal, and industrial uses. It also produces electrical power. The TRD accounts for twenty-five percent (25%) (500 megawatts (Mw)) of the 2000 Mw of CVP-generated electric power.
The Trinity River Basin is home to protected fish species:
The native anadromous salmonid species of interest in the mainstem Trinity River and its tributaries include chinook salmon, coho salmon, and steelhead. Of the three species, there are two spawning populations of chinook salmon (spring and fall) and two spawning populations of steelhead (winter and summer). All anadromous species begin their life in fresh water, then migrate to the ocean to mature, and return to spawn in fresh water.
DEIS at 3-151 to 3-152. The spring-run chinook migrates in the spring to summer, spawns in the early fall, rears in winter-spring-summer, and makes its habitat for feeding in shallow, slow-moving waters adjacent to higher water velocities. The fall-run chinook migrates in the fall, spawns in the fall, rears in winter-spring-summer, and makes its habitat in the same areas as the spring-run chinook. The winter steel-head migrates in the fall to winter, spawns between February and April, rears year-round, and makes its habitat in areas of clean cobble where there is refuge from high river flow velocities. The summer steelhead migrates in the spring to summer, spawns between February and April, rears year-round, and makes its habitat in the same area as its related species.
The Hoopa Valley and Yurok Reservations were established in those Tribes' aboriginal lands in the Klamath and Trinity River basins. Since prehistoric times, the fishery resources of the Klamath and Trinity Rivers have been the mainstay of Native American culture and life in the area.
The TRD's construction and operation resulted in the diversion of up to ninety percent (90%) of the average annual discharge into the Trinity River at Lewiston Dam (1,234,000 AF of the 1,396,000 AF inflow), and blocked access to 109 miles of steelhead and salmon spawning and rearing habitat. In response to declining fisheries and degraded habitat conditions, Interior decided in 1981 to increase flows into the Trinity River ranging from 140,000 AF to 340,000 AF annually.6 In addition, the United States Fish and Wildlife Service ("USFWS") was directed to under-take a Flow Evaluation Study to assess fish habitat at various flows, summarize the effectiveness of other instream and watershed restoration activities, and recommend appropriate flows and other measures necessary to better maintain favorable habitat conditions. The study began in October 1984 and was completed by a June 1999 report.
In October 1984, Congress enacted the Trinity River Basin Fish and Wildlife Management Act7 ("1984 Act") to restore fish and wildlife populations to pre-TRD levels. The 1984 Act found that the TRD had contributed to a "drastic reduction in the anadromous fish populations." Public Law 98-541, Section 1(1). It directed that the restoration program include:
(1) The design, construction, operation, and maintenance of facilities to —
(A) rehabilitate fish habitats in the Trinity River between Lewiston Dam and Weitchpec;
(B) rehabilitate fish habitats in tributaries of such river below Lewiston Dam and in the south fork of such river; and
(C) modernize and otherwise increase the effectiveness of the Trinity River Fish Hatchery.
(2) The establishment of a procedure to monitor (A) the fish and wildlife stock on a continuing basis, and (B) the effectiveness of the rehabilitation work.
(3) Such other activities as the Secretary determines to be necessary to achieve the long-term goal of the program.
Public Law 98-541, Section 2(a).
In 1991, the Secretary of the Interior increased the minimum flows in the Trinity River to 340,000 AF/year until the Trinity River flow study was completed. The 340,000 AF number was the third-lowest unregulated flow on record.
In 1992, Congress enacted the CVPIA to annually redirect part of the CVP's water to the environment. CVPIA § 3406(b)(23) specifically authorizes and directs Interior to restore the Trinity River. It requires that not less than 340,000 AF of water be released into the Trinity River each year for water years 1992-1996 in order to meet federal trust responsibilities to the Hoopa Valley Tribe and to meet the restoration goals of the 1984 Act. CVPIA § 3406(b)(23). It directs the Secretary of the Interior ("Secretary"), after consultation with the Hoopa Valley Tribe to complete the Trinity River Flow Evaluation Study ("TRFES"), which had already begun pursuant to the January 14, 1981 Secretarial Decision, no later than September 30, 1996. CVPIA § 3406(b)(23)(A). The TRFES was to be performed "in a manner which insures the development of recommendations, based on the best available scientific data, regarding permanent instream fishery flow requirements and Trinity River Division operating criteria and procedures for the restoration and maintenance of the Trinity River fishery." Id. Section 3406 then directs the Secretary to forward the TRFES recommendations to several congressional committees no later than December 31, 1996. CVPIA § 3406(b)(23)(B). If the Secretary and the Hoopa Valley Tribe concurred in the TRFES recommended increases for Trinity River instream fishery flow releases established under CVPIA § 3406(b)(23)(B), such restoration flows were to be implemented accordingly. Id. If they did not concur, the 340,000 AF minimum flows must remain in effect unless increased by an act of Congress, appropriate judicial decree or agreement between the Secretary and the Hoopa Valley Tribe. Id.
In 1996, Congress amended the 1984 Act by the Trinity River Basin Fish and wildlife Management Reauthorization Act of 1995, Pub.L. No. 104-408, 110 Stat. 1338 (1996). The TRFES was not timely completed. Congress directed that Trinity River restoration be measured not only by returning adult anadromous fish spawners, but also by the ability of dependant tribal, commercial, and sport fisheries to participate fully, through in-river and ocean harvest opportunities, in the benefits of the restoration. Pub.L. No. 104-408. Congress also included language amending the activities to be undertaken by the Secretary. Id. The original language directed the Secretary to "modernize and otherwise increase the effectiveness of the Trinity River fish hatchery."...
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