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Westlands asks Court to block releases for Klamath River salmon
by Dan Bacher
Tuesday Aug 26th, 2014 10:03 PM
Mike Orcutt, Hoopa Valley Tribe Fisheries Director, said, "Hopefully, logic will prevail as the Judge has the same issue that he will be issuing a ruling on from last year's case."

"A New TRO (Temporary Restraining Order) would only be issued if plaintiff can show 'irreparable' harm from BOR's action and they are already getting maximum deliveries from Trinity anyway. Moreover, BOR has already established its water deliveries so they won't be harmed by reductions in their water deliveries. We hope for best and that good will prevail," said Orcutt.

Photo of "Westlands Sucks The Trinity Dry" banner by Regina Chichizola.
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Westlands asks Court to block releases for Klamath River salmon

by Dan Bacher

As many had expected, corporate agribusiness interests on the west side of the San Joaquin Valley have filed litigation to block increased flows from Lewiston Dam to save salmon from a devastating fish kill on the lower Klamath River.

The San Luis & Delta-Mendota Water Authority and the Westlands Water District filed a motion for a temporary restraining order and preliminary injunction against the Bureau of Reclamation's release of water from Trinity Reservoir that began on Saturday, August 23. The legal memorandum spells out the details of their districts' case.

"All spring and summer, San Joaquin Valley farmers have pleaded with Reclamation for water and have been told that there is no water to spare," the memorandum states. "They have been told that it cannot be helped, that their trees and crops, their livelihoods, their communities, cannot be spared from the consequences of a terrible drought, that sending them even 10,000 acre-feet would be “irresponsible.”

"Even Reclamation’s mandatory obligations to exchange contractors and wildlife refuges are going unfulfilled,” the document continues. “But it turns out there is stored CVP water available for release this year after all, just not for them.”

On Friday, August 22 Reclamation reversed their previous decision and announced it would release 30,000 AF of water or more to increase flows in the lower Klamath River to protect against possibility of a fish die-off, "an event that has only happened once in recorded history," the memo claims.

“The risk to endangered salmon in the Sacramento River that for months has been cited by Reclamation as the primary bar to using any more water from storage for farmers is somehow no impediment at all for this speculative use,” the document states.

The memorandum says that while the Court ultimately allowed similar releases to proceed last year, there are "key differences" this year.

Ironically, the same water districts that have fought salmon restoration on the Sacramento and Trinity rivers for decades criticized the decision for "threatening" the cold water pool needed for listed salmon. They also criticized the Bureau's decision for "violating" Central Valley Project Improvement Act (CVPIA) and the Endangered Species Act (ESA), both lows that these corporate agribusinesses have fought for decades.

"The projected run size of the salmon returning to the river is about a third of what was projected last year, and new data collected within the last weeks shows that there is enough water currently to disrupt the spread of disease," the document claims. "With the continued drought, CVP carryover storage will be even lower than it was last year, threatening the cold water pool needed for listed salmon species."

The memorandum alleges that the releases of water are "unlawfull as they violate sections of the Central Valley Project Improvement Act (CVPIA) and section 8 of the Reclamation Act, as well as failing to comply with the National Environmental Policy Act (NEPA) and section 7 of the Endangered Species Act.

The releases “will cause irreparable harm by denying water users 20k,000 acre-feet or more of desperately needed water. The balance of hardships favors injunctive relief, especially given certain harm from water shortages compared to the speculative necessity of releases to prevent disease in the lower Klamath River," the water contractors concluded.

The Court said the Government will have until 3pm TODAY pacific standard time to file a response.

"The Court is particularly interested in the Government's position regarding the need for the flow augmentation this year and the potential water supply impact, assuming that any potential injunction would issue Wednesday or Thursday of this week. Also, the Court believes it will be issuing a ruling on the merits, as opposed to a ruling on the likelihood of success on the merits," according to the Court.

"Assuming, arguendo, that any such ruling will result in judgment for the Plaintiffs, the parties should be prepared to address how such a result would impact the injunctive relief analysis. Plaintiffs and Federal Defendants are authorized to each file a separate brief no longer than 4 pages in length addressing the latter issue no later than 10 am pacific standard time Wednesday, August 27, 2014," the Court said.

Mike Orcutt, Hoopa Valley Tribe Fisheries Director, said, "Hopefully, logic will prevail as the Judge has the same issue that he will be issuing a ruling on from last year's case."

"A New TRO (Temporary Restraining Order) would only be issued if plaintiff can show 'irreparable' harm from BOR's action and they are already getting maximum deliveries from Trinity anyway. Moreover, BOR has already established its water deliveries so they won't be harmed by reductions in their water deliveries. We hope for best and that good will prevail," said Orcutt.

After members of the Hoopa Valley, Yurok and Karuk Tribes and their supporters held a protest at the Bureau of Reclamation Reclamation offices in Sacramento on August 19, the Bureau decided to release supplemental flows from Lewiston Dam to avert a fish kill.

Reclamation began increasing releases from Lewiston Dam at 7 a.m. on Saturday, Aug. 23, from approximately 450 cubic feet per second to approximately 950 cfs to achieve a flow rate of 2,500 cfs in the lower Klamath River.

At 7 a.m. on Monday, Aug. 25, releases from Lewiston Dam were increased to approximately 2,450 cfs to achieve a flow rate of approximately 4,000 cfs in the lower Klamath River.

That release from Lewiston Dam was maintained for approximately 24 hours before returning to approximately 950 cfs and will be regulated at approximately that level as necessary to maintain lower Klamath River flows at 2,500 cfs until approximately Sunday, Sept. 14. "River and fishery conditions will be continuously monitored, and those conditions will determine the duration," according to the Bureau.