[env-trinity] Federal Court Rules for San Joaquin River Salmon Flows

[Tom Stokely]

Below is the website where you can obtain Judge Lawrence Karlton's decision on the Friant Division and the San Joaquin River flows.  I have also included numerous articles on the issue.  Since most CVP long-term contract renewals are on the fast track and they include use of Trinity River water, there is probably some relevance to the Trinity River in this case, but I have not yet read it.

Also, a bit of late breaking news- the plaintiffs in the Trinity Case- Westlands and NCPA (and probably the San Luis-Delta Mendota Water Authority), have apparently filed motions for reconsideration at the 9th Circuit Court of appeals.  They still have another 45 days from August 27 to file appeals at the Supreme Court.

Tom Stokely
530-628-5949



http://207.41.18.73/caed/DOCUMENTS/Opinions/Karlton/Naturalvspatterson.pdf

Judge rules on 16-year Friant Dam dispute
Associated Press - 8/28/04
By Terence Chea, staff writer
SAN FRANCISCO - A federal judge ruled Friday that the U.S. government violated California law when it built the Friant Dam near Fresno six decades ago, a decision that could settle a 16-year-old water dispute and restore water flows to the state's second longest river.

The U.S. District Court judge in Sacramento decided in favor of environmentalists who sued the U.S. Bureau of Reclamation and the Friant Water Users Authority in 1988 over the Friant Dam on the San Joaquin River. In the lawsuit, the Natural Resources Defense Council and other environmental groups charged that the defendants violated state law by failing to release enough water to sustain the surrounding environment and wildlife.

Agreeing with the environmentalists Friday, Judge Lawrence K. Karlton wrote, "There can be no genuine dispute that many miles of the San Joaquin River are now entirely dry, except during extremely wet periods, and that the historic fish populations have been destroyed."

The San Joaquin River supported thousands of spawning Chinook salmon and other fish before the Bureau of Reclamation built the Friant Dam, about 20 miles northeast of Fresno, in the 1940s. The water now collects in Millerton Lake and provides irrigation to about 15,000 farmers and one million acres of farmland east of the river. But the dam diverts so much water that long stretches of the river run completely dry most of the year.

Environmentalists argued that the river could be restored without hurting the region's farm economy, while opponents claimed restoring the river for salmon would take water away from farmers and residents.

In 1999, the water authority and environmental groups agreed to negotiate a plan to restore 267 miles of the San Joaquin River, but talks broke down last year, sending the dispute back to court.

NRDC officials said they were thrilled with Karlton's decision, which could send water through the Friant Dam for the first time in more than 50 years. Restoring the river will provide cleaner drinking water, more reliable irrigation water and salmon habitat, they said.

"The federal court has finally acknowledged that this dam is subject to the same rules as all the other dams," said Barry Nelson, a NRDC senior policy analyst. "We can look forward to bringing a dead river back to life. An enormous number of people will benefit from a healthy river."

The U.S. Bureau of Reclamation, which owns and operates the dam, wouldn't comment until its attorneys had a chance to review the judge's decision, said spokesman Jeff McCracken.

The Friant Water Users Authority, which provides Friant Dam water to Fresno, Kern, Madera, Merced and Tulare counties, was "very disappointed" in the ruling, said general manager Ron Jacobsma, adding that its attorneys were considering various legal options. He warned that water releases could hurt San Joaquin Valley farmers.

"Any loss of water to our service area would have a devastating effect," Jacobsma said. "This could have significant impact on the agricultural economy in the region and have economic consequences in the state."

But California fishermen were excited about the prospect of restoring the San Joaquin River's salmon fisheries.

"This has been a long time coming, but after 60 years, Judge Karlton has righted this wrong," said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations. "We have now started down the road to restore one of the West Coast's premier salmon runs, and along with it, fishing jobs in California's coastal communities."#




U.S. Illegally Dried River, Judge Rules
For more than 50 years, jurist finds, federal agency violated laws protecting fisheries by diverting most of the San Joaquin waterway's flow to farming.
Los Angeles Times - 8/28/04
By Mark Arax, staff writer
FRESNO - In a major decision that could affect farming and development in the state's vast middle, a federal judge ruled Friday that the U.S. government has illegally dried up California's second-biggest river, the San Joaquin, by diverting most of its flow to agriculture.

Siding with environmentalists in a 16-year-old lawsuit, U.S. District Judge Lawrence Karlton ruled that for more than 50 years the U.S. Bureau of Reclamation has violated state and federal laws protecting fisheries by operating the river as an irrigation canal for farming. 

The violations occurred after the bureau dammed the San Joaquin River in the 1940s and shunted the flow to area farms, effectively destroying a historic salmon run and despoiling 80 miles of river from Friant Dam above Fresno to San Francisco Bay.

"This means we can look forward to bringing a dead river back to life," said Michael Wall, a senior attorney with the National Resources Defense Council, which brought the lawsuit in 1988. "It's a tremendous victory for all Californians who deserve a healthy, living river." 

In a state that has long been a battleground for water wars, the dispute pitting farmers against Bay Area environmentalists ranks among the longest and nastiest.

Kole Upton, a Chowchilla cotton and nut farmer who heads the Friant Water Users Authority, called the judge's decision a "big blow to the San Joaquin Valley."

"This is going to drive farmland out of production," he said. "This valley is going to look like it did in the 1920s and '30s." 

He said the river irrigates more than a million acres of farmland between Merced and Kern counties, a swath of state where the desert has been made to bloom into the world's most productive farming region. Because farmers along the river are also seeking to convert their water for use by suburbs, Upton said, the decision could affect the pace of development in the state's Central Valley.

"It's been 60 years since there was a Chinook salmon run on the San Joaquin River. The river is no longer in shape to sustain that old run," Upton said. "They're trying to turn back the clock. It's not unlike saying we need to go back to the way the Indians ran things." 

In his 41-page decision, Karlton wrote that before Friant Dam's construction, the salmon migrating up river made so much noise that they kept residents awake at night. He found that the Bureau of Reclamation's operation of the dam, which diverts more than 95% of the river's flow to farming, violated state fish and game laws.

One statue, he said, provides that "the owner of a dam shall allow sufficient water at all times to pass through a fishway . to keep in good condition any fish that may be planted or exist below the dam." 

The San Joaquin River, in contrast, has two long stretches that are bone dry for much of the year.

Karlton left open the question on a remedy. He could make a subsequent ruling or hand off to state officials or a state judge the question concerning how much water agriculture needs to give up to restore a healthy flow.

"How to make the dry parts of the river flow again has yet to be determined," said Barry Nelson, a senior policy analyst for the National Resources Defense Council. "But this is a real solid ruling, and we're confident that it will stand and the river will come back." #



Diversions ruined river, judge rules
Sacramento Bee - 8/28/04
By Denny Walsh, staff writer
The U.S. Bureau of Reclamation violated state and federal law by diverting most of the water from the San Joaquin River to agriculture for more than 50 years, a federal judge in Sacramento ruled Friday. 

U.S. District Judge Lawrence K. Karlton found, in effect, the bureau reduced the river to a pathetic remnant of its glorious past. A fisherman recalled in court papers, "One almost could have walked across the river on the backs of the salmon when they were running." 

The judge wrote in a 41-page order, "There can be no genuine dispute that many miles of the San Joaquin River are now entirely dry, except during extremely wet periods, and that the historic fish populations have been destroyed." 

The specific question before Karlton was whether the agency is legally liable for the decimation of Chinook salmon and other types of fish that were native to the upper reaches of the river before construction of Friant Dam in the early 1940s. 

Karlton's answer is a resounding yes. "The bureau, by its own admission, releases no water" for preservation of native fish, the judge wrote. 

"Failure to release water from Friant Dam has rendered many miles of fish habitat unusable, especially in the stretch between the dam and the river's confluence with the Merced (River), and has also adversely affected water quality along the whole course of the river." 

In addition, lack of releases "has increased the temperature of the water, reduced the ability of the river to assimilate agricultural runoff and other pollutants, and substantially degraded riparian vegetation," he wrote. 

Bureau spokesman Jeff McCracken said the agency will have no comment until its review of the decision is completed. 

"We're very disappointed," said Ron Jacobsma, manager of the Friant Water Users Authority, which represents 22 of the 28 bureau contractors along the Friant-Kern Canal that serves thousands of farmers in Fresno, Tulare, Kern and Madera counties. 

"Any more downstream releases will really tighten the screws on farmers already scrambling to cope with an ever-decreasing supply of water." 

The authority delivered 1 million acre-feet of water this year, down from 1.4 million last year. 

Jacobsma contends a lot of things are needed to improve the river's condition, not just more water. 

"We don't want to dump a bunch of water down the river, not see any benefits for the fish, and have a devastating impact on our economy." 

In January, the judge will hear arguments on other issues raised in the 16-year-old lawsuit. He will later tackle the question of whether to take water away from agriculture. 

He noted in Friday's order that any remedy will have to be compatible with the bureau's mandate under the law governing the Central Valley Project. 

"Farmers throughout the valley have dedicated their lives and fortunes to making the desert bloom," Karlton wrote. "They did so in reliance on the availability of CVP water. That reality most likely should be taken into account when the court comes to address a remedy." 

Philip Atkins-Pattenson, a San Francisco attorney who represents the 14 conservation and fishing groups challenging the bureau's policies, said Friday the ruling "means that we can look forward to bringing a dead river back to life. It's a tremendous victory for millions of Californians who deserve a living river." 

Hal Candee, an attorney with the suit's lead plaintiff - the Natural Resources Defense Council - predicts the ruling will lead to "one of the most important restoration projects in state history." 

"It will benefit downstream farmers, who will get cleaner, more reliable water supplies," he declared. "It will benefit 20 million people in the Bay Area and Southern California, who rely on the Delta for their drinking water. And restoring the river's once thriving salmon fishery will bring back more jobs to our state." 

Jennifer T. Buckman, one of Friant Water Users Authority's attorneys, said it appears to her Karlton "misconstrued" an 11-week-old U.S. Supreme Court decision. 

The judge, however, found the factual scenario of his case is dissimilar to the one in the high court's new opinion. 

Buckman also said it appears that Karlton "misread" the California Fish and Game Code. 

Coupled with the federal Reclamation Act of 1902, that state statute requires the bureau "to release sufficient water to re-establish and maintain the historic fisheries," according to Karlton. 

Buckman also complained that the judge "seems to have ignored all the evidence we presented showing fish below the dam have maintained in good condition." 

The San Joaquin is the main artery of California's second-largest river system. It originates high in the Sierra, on snowy peaks southeast of Yosemite, and tumbles west into the Valley. The San Joaquin finally merges with the Sacramento River to form the San Francisco Bay-Delta estuary. 

The bureau built Friant Dam across the upper San Joaquin northwest of Fresno as part of the Central Valley Project. The river's flow is stored behind the dam in Millerton Lake. 

The river's fall-run Chinook salmon were reported extinct in 1949. Spring-run Chinook disappeared after unsuccessful rescue attempts in 1949 and 1950.#




Ruling wins one for environment 
Modesto Bee - 8/28/04
By Mark Grossi, staff writer, Fresno Bee
In a historic ruling, a Sacramento U.S. District Court judge Friday decided the federal government violated the law more than half a century ago when it built Friant Dam on the San Joaquin River and destroyed two salmon runs. 

The decision in the 16-year-old lawsuit sets the stage for the state's second-longest river to be reconnected from just west of Fresno to the Sacramento-San Joaquin River Delta, 230 miles away. 

Environmentalists say the ruling reverses a decades-old government philosophy of sacrificing the downstream habitat and wildlife to save a dying east San Joaquin Valley farm belt. 

Though nobody is opening the flood gates at Friant anytime soon, the ruling is a heavy blow to 15,000 farmers who irrigate 1 million east Valley acres with the river's water. 

"We're not surprised, but we are very disappointed," said Ron Jacobsma, general manager of Friant Water Users Authority, representing the farmers. "We are considering all our options, including appeal." 

The Natural Resources Defense Council, representing 13 conservation and fishing groups, applauded the decision by U.S. District Judge Lawrence K. Karlton, who has been hearing the case since the 1980s. 

"The judge's decision brings a dead river back to life," said Hal Candee, senior attorney with NRDC. "Millions of people in this state deserve a healthy, living river." 

The next phase of the case will focus on how to fix the problem, Friant officials said. No one knows if Karlton will decide to rule on how to restore the river or turn the issue over to state officials. 

There is no date scheduled yet for that issue. With appeals and studies on the water requirements, it may be many years before a solution is found and the river is restored. Environmentalists believe it can be done without harming the farm economy. 

But since the beginning of the lawsuit, Friant officials have worried that a court might take a large portion of the irrigation water stored in Millerton Lake, northeast of Fresno, for restoration. 

The water supports a multi-billion-dollar farm economy from Chowchilla to southern Kern County. Many small cities, such as Lindsay and Strathmore in Tulare County, depend on the farm economy. 

"If we get a negative remedy, it's not just the farmers who will suffer," said Kole Upton, farmer and president of the Friant Water Users Authority. "We'll be obligated to tell city councils and boards of supervisors that they will have to talk about downsizing their areas, not growing." 

Officials for the U.S. Bureau of Reclamation, which built and operates Friant Dam as part of the federal Central Valley Project, have not yet seen the decision and declined comment. The bureau is the main defendant in the case. 

In most summers since the bureau built Friant, the San Joaquin goes dry in two places -- Gravelly Ford east of Fresno and again on the Valley's west side beyond Sack Dam. The San Joaquin's channel refills at the confluence of the Merced River for its final 118-mile run to the delta. 

The environmental case for the river is more than a choice between fish and farms, said NRDC's Candee. The 350-mile river affects a huge slice of Central California and has an impact on water quality in the delta, which provides water for 20 million people in the state. 

Dante Nomellini of the Central Delta Water Agency, near Stockton, said: "Our people in the delta have been dramatically impacted by the Bureau of Reclamation's disgraceful management of the river. The plight of the San Joaquin needs to be remedied and this is a good first step." 

Candee added: "Restoring the river will be one of the most important restoration projects in state history."#




Fear, hope flow from water ruling 
Restoration of San Joaquin River promises to be complicated process. 
Fresno Bee - 8/29/04
By Mark Grossi, staff writer
Even before a 16-year-old lawsuit to restore the San Joaquin River took a major turn on Friday, state and federal officials had waited long enough to see more science on reviving the river. 

Officials last month took control of a publicly funded draft study to restore salmon runs on the 350-mile San Joaquin because feuding environmentalists and farmers kept it private for 17 months. The study was at a standstill.

"A lot of people are interested up and down this river -- cities, farms, businesses," said state Department of Water Resources Director Lester Snow. "We want to move this into a classic public process." 

Snow's comments Wednesday on the $3.7 million study seemed prophetic by Friday when a federal court in Sacramento moved the restoration one step closer on the legal front.


U.S. District Judge Lawrence K. Karlton in a 41-page decision wrote that the U.S. Bureau of Reclamation, which built Friant Dam on the river, violated a state fishery protection law by not allowing a flow of water to keep the salmon alive. Farmers whose irrigation water comes from Millerton Lake at Friant are considering an appeal, saying the state decided in the 1950s that the fishery law did not apply to Friant. They fear the loss of irrigation supplies if water is released for salmon.

"The evidence submitted by the defendants was largely ignored," said General Manager Ron Jacobsma of the Friant Water Users Authority, representing 15,000 east San Joaquin Valley farmers.

But the environmental community, which filed the lawsuit in 1988, cheered.

"This ruling will help restore one of the two great rivers that sustain the health of San Francisco Bay," said Grant Davis, executive director of The Bay Institute. "It is now time to begin restoring this vital resource for future generations."

Karlton left open the question of how much water would be needed, but he gave farmers some hope:

"Farmers throughout the valley have dedicated their lives and fortunes to making the desert bloom. They did so in reliance on the availability of [federal] water. That reality most likely should be taken into account when the court comes to address a remedy."

The science currently snagged in the draft study may influence details of any remedy. Since 1999, scientists working with both the farmers and the environmentalists have been studying and performing tests on the river.

The basic restoration strategy would involve releasing water from Friant Dam. But the river has run dry most years in two places since the dam was built in the 1940s, causing dramatic changes in vegetation and the channel. Restoring the flow will be complicated.

State and federal officials believe they can review and release the restoration draft study by the end of the year.

So what has been the holdup? It's a basic difference of viewpoints between farmers and environmentalists.

In general, Friant farmers worry that the restoration would take too much of their river irrigation supplies, close down farms and undermine the economy of the farm belt from Chowchilla to Bakersfield.

Friant officials believe the numbers in the unreleased draft study support those fears. But they also believe the study strategies do not go far enough in explaining what needs to be done.

Environmentalists, represented by the Natural Resources Defense Council, say the alternatives in the draft study overstate the amount of water needed for restoration. They need peer review, NRDC says.

State and federal officials put up public money and allowed NRDC and Friant take the lead in the study a few years ago as the two foes cooperated on a possible settlement to the 16-year-old lawsuit in federal court.

But the cooperation dissolved last year, and the two went back to Karlton's court. Neither would release the contents of the draft because both would have to sign off on it.

State and federal officials said the cooperation resulted in a lot of progress and further information about the river. But even after the study is reviewed and released, it would not determine a preferred restoration approach.

"Our interests are broader," said Kirk Rodgers, regional director for the U.S. Bureau of Reclamation, owner of Friant Dam. "We're not here to resolve the points of difference. We want to know what constitutes restoration and what it will cost. We want to move on to the next phase of study."#



Judge: Friant Dam broke law
Ruling in long legal fight could lead to restoration of San Joaquin River 
San Joaquin Record - 8/28/04
By Audrey Cooper, staff writer
The federal government destroyed thriving salmon runs and created severe water-

pollution problems in the Delta and San Joaquin County because of the illegal way it dried up portions of the San Joaquin River, according to a federal court decision released Friday. 

The ruling by U.S. District Court Judge Lawrence Karlton clears the way for the restoration of the San Joaquin River below Friant Dam, a 319-foot monolith that water officials and environmentalists say is at least partially to blame for nearly every water-supply and water-pollution problem in San Joaquin County. The dam and accompanying canals divert more than 90 percent of the river's natural snowmelt to farms and towns located as far south as the Tehachapi Mountains. 

Under the decision, more water will almost certainly have to be released from Friant, although how much water will be released is still undetermined, attorneys said. 

Local environmentalists and water officials cheered the decision, which comes after 16 years of legal fights over the river. Farmers who rely on the water held at Friant Dam said they are studying their legal options, adding that the ruling could severely damage the southern San Joaquin Valley economy. 

There are plenty of reasons for local residents to care about what happens to the San Joaquin River: More water in the river could dilute pollution in San Joaquin County waterways. Higher flows could cut the algae that turn local waterways an unusual shade of bright green. East-county farms could get more water. More salmon might spawn in the river, and more water could put an end to the frequent fish kills in the Stockton Deep Water Channel. 

Also, Delta farmers could get irrigation water that is cleaner and less damaging to crops. And more water in the river could improve the taste of Stockton's drinking water because the city's fresh Sierra supplies are often shunted down the Stanislaus River and instead used to dilute the San Joaquin's meager flow. 

"This is fantastic news. The way the river has been managed up until this has been disgraceful and those of us downstream and in San Joaquin County have paid for it," said Dante Nomellini, manager for the Central Delta Water Agency. 

In the 41-page decision, Karlton ruled the U.S. Bureau of Reclamation was liable for destroying a thriving salmon fishery when the agency built Friant Dam in the 1940s. Friant Dam holds back so much water that in places the river dries up completely. The riverbed is wetted upstream by inflowing tributary rivers like the Merced and Stanislaus. ::: Advertisement ::: 


Officials with the Bureau of Reclamation declined to comment on the decision. 

Residents who lived along the upper stretches of the San Joaquin River before Friant was built reported they would lie awake on some nights, unable to sleep amid the crashing, waterfall-like sounds of Chinook salmon fighting to find the best spawning sites. Today, those salmon runs are extinct. 

That violates state law, which says dams must release enough water to protect fish populations, Karlton ruled. 

Attorneys for the Friant Water Users Authority had argued that state and federal governments made a deal when they built the dam. That deal reserved the bulk of the river for agriculture, they argued. 

Karlton ruled those farmers' needs should be taken into consideration. 

But that didn't reassure Kole Upton, a farmer and chairman of the Friant Water Users Authority. 

"If they release more water, we're going to have big problems. We'll have to tell cities to cut back, and we will lose some farms. This will be drastic. We just won't be able to continue life like we have in the past because we simply won't have any water," he said. 

The lawsuit to get more water out of Friant Dam was led by the Natural Resources Defense Council and 13 other groups. Senior NRDC attorney Hal Candee said he was confident the river could be restored without harming Valley farms. 

Ronald Jacobsma, the consulting general manager of Friant Water Users Authority, said he felt Karlton ignored his agency's arguments. 

To John Banks, a self-described river rat who learned to fish on the river about 60 years ago with his grandfather, the court ruling was a victory. 

"We really had lost our river until this. There used to be salmon everywhere. Not anymore. If it ends up that more water is released from Friant, it will be a great day for all Californians," said Banks, a Stockton resident. #
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