Frostbite Enforcement Action – All Bark: No “Real” Protection for Salmonid Species in Sigh

FOR IMMEDIATE RELEASE: 19 May 2010

Contact Person: Patrick Porgans (415) 306-3317

Frostbite Enforcement Action – All Bark: No “Real” Protection for Salmonid Species in Sight

Recent “enforcement” action by the federal agents against Green Pastures Valley vineyard for the alleged killing and “taking” of endangered salmonid species in Felta Creek, a tributary to the Russian River, although commendable, is too little too late.

A fine of $150,000 was assessed against the vintner for allegedly killing coho salmon, on two separate occasions back in 2008 and 2009. The alleged kill resulted by sucking so much water out of the stream, during a frost event, to protect vines from frost bite (a common event in California’s “Wine Country”) leaving the salmon high and dry to die. http://www.nmfs.noaa.gov/ole/news/news_swd_051110.htm

The National Ocean Atmospheric Administration’s (NOAA’s) Office of the General Counsel for Enforcement and Litigation issued a press release, stating: “This penalty should send a strong message that we put a high priority on protecting species listed under the Endangered Species Act,” said Don Masters, Special Agent in Charge of the Southwest Division of NOAA’s Office of Law Enforcement (OLE). “But make no mistake, we would much rather work with landowners to find ways to protect these fish instead of issuing penalty assessments.”

Since the early 2000s Porgans, in unison with former clients, worked diligently with NOAA personnel to get them off the dime and into the field to salvage the remnants of what is left of a once legendary anadromous fisheries population in the Russian River watershed.

NOAA’s agents have been “investigating” the “take” of more than 300 coho salmon in the spring of 2008, with 31 of those fish dying, alleging “…the winery was aware of the existence of coho salmon in that Creek before the incident, and informed the vineyard that its frost protection practices were having adverse impacts on endangered species in the watershed. However, in the spring of 2009, the firm allegedly again used practices that killed an additional five fish.”

The agents’ claim that this enforcement action sends a clear signal to others in “Wine Country” about NOAA’s intent to prosecute water diversions that kill listed species sounds like more bark than bite. The deplorable decline in salmonid species in the Russian River watershed, and the Pacific Northwest, is a testament to NOAA’s “enforcement” track record. NOAA’s civil enforcement action is more about protecting what’s left of its toothless guard-dog reputation, then actually holding the politically-connected elite in “Wine Country” accountable; this is a classic case of going after the small “fry” and letting the King Fish off the hook.

Undoubtedly, NOAA’s two year investigation has been time consuming and expensive. Contact was made with NOAA’s Lesli Bales-Sherrod, to ascertain if criminal charges are to be filed, and to inquire as to how much the investigation cost the taxpayers to date. We are awaiting Ms. Sherrod’s reply regarding the costs. It would not be surprising if the investigation cost more than the $115,000 fine.

Critics contend that this is not about the killing or “taking” of a 37 endangered coho salmon. NOAA has spent billions of taxpayers’ dollars on salmon restoration efforts in the Pacific Northwest, and government officials, in concert with their legions of “experts” have and continue to expend billions more to double fish populations in California; which have been an abysmal failure.

The public has the right to know why the agents’ opted to go with just a civil action; and there are still questions about the hundreds of “threatened” steelhead that were killed during those two events, and in other instances where salmonids were killed due to frost protection activities throughout the watershed.

There is nothing wrong with OLE’s policy to make every effort to work with vintners to ensure compliance with the law; however, it must remain mindful of its role as a watchdog not a lap dog. Law enforcement agents conceded that the vintner has prior knowledge of the circumstances leading to the second killing; yet, no word about criminal charges.

It is important to keep the gravity of “kill/take” in perspective – if a fisherman was caught with an endangered coho salmon, he can be arrested and charged with a felony for possession. Likewise, if any person had a feather of a bald-headed eagle, which dropped out of the sky, they also could be charged with a felony.

NOAA’s action is symptomatic and is comparable to being bitten by a dog without teeth. The major problem facing the Russian River and other regions of the State is fish are being deprived water, which is purportedly afforded to them by law. NOAA personnel have essentially bent over backwards in their attempts to work with and appease the vineyard community. In so doing, they have suffered the “blowback” and the brunt of the criticism for this civil enforcement action. However, the real problem with the killing and “taking” of listed salmonid species, some of which are on the brink of extinction, is the result of government depriving fish water.
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Providing water for fish in California is the primary responsibility of the State Water Resources Control Board, which, if you can imagine, has even a worse enforcement record than NOAA. For example, the Board was aware of more than 1,771 illegal water diversions and/or reservoirs in the Russian River watershed, while the fish kill on Felta Creek and other streams were taking place. Those illegal diversions and reservoirs contribute to the depravation of water required for listed species survival, especially during frost events. However, the Board opted to take all of its enforcement personnel out of the basin to conduct investigatory work elsewhere in the state, relating to illegal water diversions, and, essentially have allowed the violations to go unabated.

If, NOAA is really interested in sending a message or sinking its “teeth” into an entity that deserves to be charged with violating the Endangered Species Act, then it should file charges against the Board, for aiding and abetting the ongoing take of endangered species, by failing to ensure water for the protection of Public Trust Resources. After all, that is neither the vintners’ nor NOAA’s responsibility.

Since 2004 efforts have been underway via the Board to adopt the North Coast Instream Flow Policy (as provided by California Assembly Bill 2121 (Water Code 1259.4) (2004). Coincidentally, on May 4, 2010 the Board adopted a policy for water quality control titled “Policy for Maintaining Instream Flows in Northern California Coastal Streams”. The policy purportedly contains principles and guidelines for maintaining instream flows for the purposes of water right administration and “protection” of fish. Here again, this protracted piece of legislation amounts to just another buy-time stall tactic, is fundamentally flawed, and watered down. The primary reasons is because no one seems to really know how much water is being illegally diverted from within the Russian River watershed, responsible for killing fish; and for the few that may know, they are not letting on. Lastly, it will take years before that type of quantifiable data will be gathered, if then. Here is the take on the Board’s policy by a “well-established” law firm:

• The Policy and supporting technical documentation is approximately 800 pages
• There is also a “functional equivalent” CEQA compliance document that is several hundred pages
• It appears the people most affected by the policy have been largely unaware that the policy even exists
• The Policy is so complex that affected individuals cannot read the policy and understand how it will be applied, and how they will be affected.

It is important to keep in mind that most of the data on stream flow and diversions will be gathered and provided by the vintners not the government. The question is, will the public continue to take the bait – while the fate of the salmonid species rest in the government’s hands, which continues to hand out hundreds of millions of dollars to “protect” fish.

FYI: NOAA OLE Contact Person is Lesli Bales-Sherrod, 301-427-2300 ext. 103