[env-trinity] Federal Judge Ruling A Huge Victory For San Joaquin Restoration

[Daniel Bacher]

Federal Judge Ruling A Huge Victory For San Joaquin Restoration

by Dan Bacher

A federal judge ruled in late July that the Bureau of Reclamation and other 
agencies violated the Endangered Species Act by approving 25-year contracts 
for water diverted from the San Joaquin River at Friant Dam.

The contracts continue to leave 60 miles of the river, once a key 
contributor to the state’s ocean salmon fisheries, dry, dusty and lifeless 
most of the year.

Karlton ruled last fall that the signing of the contracts violated state 
Fish and Game codes, including the section (5939) requiring dam operators to 
release enough waters below dams to keep the fisheries in “good condition.”

The Bureau’s decision to sign long-term contacts perpetuates the 
environmental disaster that occurred after Friant Dam was finished in the 
late 1940’s. The diversion of the river resulted in the extermination of the 
historically large and vibrant San Joaquin River spring chinook run that 
ascended the Sierra Nevada above the dam before Friant blocked upstream 
migration.

The years of dewatering of the San Joaquin, combined with federal and state 
diversions from other San Joaquin tributaries and the Sacramento River 
system, have culminated in the Delta food chain crash that state and federal 
scientists have documented over the past three years.

In his 78 page ruling, Judge Lawrence Karlton of the U.S. District Court in 
Sacramento determined that the federal government failed to assess 
adequately where the contracts would hard harm endangered salmon and other 
threatened fish and wildlife, accusing the federal government of “arbitrary 
and capricious conduct.” The Judge citied numerous violations of the law by 
three federal agencies, the Bureau of Reclamation, U.S. Fish and Wildlife 
Servive and the National Marine Fisheries Service.

“While numerous examples may be found, perhaps the clearest example of 
arbitrary contract was when the Bureau, knowing that the Fish and Wildlfie 
Service bases its analysis on the full contract amount, nevertheless adopted 
a no jeopardy finding,” said Karlton. “Because the Bureau failed to carry 
out its duty to ensure against jeopardy and adverse modification, and 
because the Bureau knew of the deficiency, the court must conclude that its 
conduct was arbitrary and capricious.”

The case, NRDC v. Rodgers, is a 17-year-old case challenging Bureau of 
Recalmation operations at Friant Dam. Earlier in the case, a unanimous panel 
of the Ninth Circuit Court of Appeals in San Francisco invalidated previous 
long-tern contracts for violating the ESA, forcing the Bureau to continue 
water deliveries to Friant farmers under short-term contacts while new 
environmental review were undertaken.

“This ruling documents the government’s utter failure to consider the 
wide-ranging impacts of Friant diversions on downstream fisheries and the 
San Francisco Bay Delta,” said Kate Poole, a senior attorney with the 
Natural Resources Defense Council, who argued the case for a coalition of 14 
fishing and conservation groups.

The plaintiffs include Trout Unlimited, California Striped Bass Association, 
National Audubon Society, Stanislaus Audubon Society, California 
Sportfishing Protection Alliance, United Anglers of California, California 
Trout, Pacific Coast Federation of Fishermen’s Associations, Sierra Club, 
Bay Institute, San Joaquin Raptor Rescue Center, Friends of the River and 
the Nor-Cal Fishing Guides and Sportsmen’s Association.

“Karlton’s decision was the correct one,” said Zeke Grader, president of the 
Pacific Coast Federation of Fishermen’s Associations. “The Bureau is nuts 
for going ahead with the contracts when the amount of water available is in 
question. The Bureau should have done only 1 year renewals, when the water 
available is uncertain, rather than locking in the contracts for 25 to 40 
year.”

“This ruling is enormously significant to the restoration of fish and 
wildlife resources on the San Joaquin River and throughout California,” said 
Byron Leydecker, chair of Friends of the Trinity River and consultant to 
California Trout. “The key issue here is what three agencies are consulting 
on under ESA:  the actual or the potential amount of water contracted.”

The judge ruled that it must analyze the potential (full contract), while it 
only analyzed the recent historical deliveries in the case of Friant.

“The implications of this are huge – imagine analyzing full contract 
deliveries for San Luis Unit, with its huge drainage and selenium problems,” 
explained Leydecker. “It’s impossible to believe that the Fish and Wildlife 
Service could reach a ‘no jeopardy’ conclusion under ESA with such a 
scenario.”'

The potential is that many, if not all, of the contract renewal 
consultations the federal agencies have done so far may have “authorized” 
full contract deliveries while not analyzing the impacts of these 
questionable deliveries. This ruling also throws into doubt the joint state 
and federal plans to export more water from the Delta – which the signing of 
the Central Valley Project contracts is based on.

It will be interesting to see how the Bureau and U.S. Fish and Wildlife 
Service respond to the court ruling. At press time, neither a spokesman from 
the Sacramento or Fresno office of the Bureau of Reclamation was available 
for comment on the court ruling.

The massive Central Valley project is the largest water contact and the 
largest federal reclamation project in the West. Congress enacted the CVPIA 
to protect and restore Central Valley fish and wildlife, including the 
doubling of anadromous fish populations, yet many of these species continue 
to decline.

“Fisheries agencies have used many of the same defective approaches when 
considering other long-term contracts,” said Hal Candee, NRDC senior 
attorney. “Their inadequate approach fails to address how CVP operations 
threaten the health of the entire bay delta ecosystem.”

Faced with this legal precedent, I believe that the federal government 
should review all of the long term contacts already signed or in the process 
of being signed in the Sacramento and San Joaquin Valleys until the Bureau 
determines how much water necessary for endangered species, including Delta 
smelt.

When a judge determines that the federal agencies designated to protect fish 
and wildlife have engaged in “arbitrary and capricious conduct,” water 
contracts signed in violation of the law should be held invalid until the 
exact impact upon salmon, steelhead, Delta smelt and other endangered 
species of the Friant and other Central Valley operations is determined. 
Natural science must upheld over political science – it’s the law!