Federal Appeals Court Upholds Central Valley Steelhead Protections

Federal Appeals Court Upholds Central Valley Steelhead Protections

by Dan Bacher

The Ninth Circuit Court of Appeals in San Francisco on August 20 rejected an attempt by corporate agribusiness to strip protected status from wild steelhead rainbow trout in California’s Central Valley.

Six San Joaquin Valley irrigation districts - Stockton East, South San Joaquin, Merced, Modesto, Oakdale and Turlock - challenged the steelhead listing under the Endangered Species Act (ESA) by the National Marine Fisheries Service (NMFS). They argued that ocean-going Central Valley steelhead population should be removed from the endangered species list based on their opinion that freshwater rainbow trout might someday replace extinct steelhead populations.

The Court agreed with the federal agency and the conservation and fishing groups that NMFS may protect steelhead without including all freshwater resident rainbow trout in the protected population. Circuit Judges Mary M. Schroeder and Consuelo M. Callahan and District Judge Barbara M. Lynn heard the case, while Schroeder wrote the opinion.

Judge Schroeder concluded that “under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently.”

Fishing and environmental groups praised the decision as a key ruling protecting endangered steelhead, while agribusiness groups described it as a "setback."

"Steelhead and people need clean water, swimmable streams, and healthy habitat," said Steve Mashuda, an attorney with Earthjustice who represented the coalition of conservation and fish groups. "We all win when we protect and recover wild steelhead and their habitat."

Kevin Kauffman, general manager of the Stockton East Water District, told the Stockton Record on Friday, "This is a setback, certainly. We're really unsure at this point how the way we operate might have to change."

Steelhead, one of the most prized fish to recreational anglers, once returned from the ocean in the millions every year to the Sacramento and San Joaquin River systems in the Central Valley. Today, these fish have been lost from 95% of their historic habitat, and they continue to face threats from unchecked water use, blockage by dams, urban sprawl, and polluted rivers, according to a news release from Earthjustice.

“Anyone who’s ever been lucky enough to see or catch a steelhead in the wild knows they’re a special fish,” said Mark Rockwell of the Northern California Council of the Federation of Fly Fishers. “They wanted to add rainbow trout numbers to the few steelhead left, thus removing protections for steelhead, and allowing more water diversions from Central Valley rivers.”

The Court’s ruling represents the latest rejection of attempts by big agribusiness interests to take more water out of the imperiled Sacramento-San Joaquin River Delta ecosystem. It also follows an historic report issued earlier this month by the State Water Resources Control Board that found that greater flows and less water diversions were needed to restore the estuary and its imperiled fish populations.

"In its ruling, the Court cited evidence from several independent scientific reviews that all found even where some interbreeding may occur, freshwater rainbow trout cannot regenerate or replace a steelhead population if those sea-run fish are lost," according to Earthjustice.

Earthjustice represented the five conservation and fishing groups arguing on behalf of wild steelhead protection in these two cases, including the Northern California Council of the Federation of Fly Fishers, the Federation of Fly Fishers, Delta Fly Fishers, the Center for Biological Diversity and Trout Unlimited.

“It’s time to start working to restore this irreplaceable part of California’s natural heritage,” said Kate Miller of Trout Unlimited. “Today’s ruling helps put the focus back where it belongs – on efforts to restore clean water and healthy habitat in Central Valley streams.”

This court victory follows a huge defeat in Governor Arnold Schwarzenegger's campaign to build a peripheral canal and new dams to facilitate water exports from the Delta, the largest estuary on the West Coast of the Americas. On August 9, the California Senate and Assembly passed Assembly Bill 1265, a measure that would delay the controversial water bond, Proposition 18, until November 2012.

The water bond, a virtual festival of pork, funds the infrastructure to build an environmentally destructive and enormously expensive peripheral canal and new dams. The delay in the bond means that the campaign against the bond by fishermen, environmentalists, Delta farmers, California Indian Tribes and labor unions has largely succeeded in preventing Schwarzenegger from putting in place the infrastructure for the canal, estimated to cost $23 billion to $53.8 billion, before he leaves office.

The court decision also occurs in the larger context of the collapse of Central Valley steelhead, Sacramento River chinook salmon, Delta smelt, longfin smelt, southern resident killer whales, juvenile striped bass and other species, due to massive water exports from the Delta to west side San Joaquin Valley agribusiness interests and southern California water agencies.

I applaud Earthjustice and the other fishing and environmental groups for successfully thwarting the legal effort by the six irrigation districts to drive Central Valley steelhead over the abyss of extinction. Earthjustice, true to its name, has stood up for environmental justice yet another time.

Unlike some environmental NGOs such as the Nature Conservancy that have collaborated with Governor Arnold Schwarzenegger to greenwash his abysmal environmental legacy, Earthjustice lawyers have continually defended fish, fishermen and Indian Tribes in court in their many battles to restore our imperiled fish populations.

Read the decision here:
http://www.earthjustice.org/documents/legal-document/pdf/9th-cir-steelhead-opinion.

For more information, contact: Steve Mashuda, Earthjustice, (206) 715-4912 (cell); Kate Miller, Trout Unlimited, (503) 827-5700; or Mark Rockwell, Northern California Council of the Federation of Fly Fishers, (530) 432-9198.