[env-trinity] Rep. Huffman Letter on Solicitors Opinion for Humboldt County 50k AF

[Tom Stokely]

>From Rep Huffman:



Here is the full text of my letter yesterday to the U.S. Bureau of Reclamation regarding their poor management and inadequate defense of the Klamath and Trinity Rivers in the face of continuous litigation by Westlands Water District:
Dear Acting Commissioner Pimley:
It is my understanding that the Bureau of Reclamation is now developing long-term plans to protect salmon in the Klamath River Basin. This planning is essential and long overdue. Even after three years of drought, my office has learned that this long-term plan will not be released until late winter, and that Reclamation has so far failed to engage the National Marine Fisheries Service and other agencies with jurisdiction over affected fisheries. This delay is unacceptable.
Moreover, I am concerned that your agency is using a long-term planning process as an excuse to avoid making necessary decisions in the immediate term. As you know, the authority for emergency water releases to the Trinity River like those provided in recent years has needlessly been brought into question during litigation from Central Valley water interests. It is imperative that Reclamation release the Interior Solicitor’s opinion regarding Humboldt County’s contract for 50,000 acre feet of water annually from Trinity Reservoir, which dates to the same 1955 Act authorizing the Trinity River division. Continuing to withhold that legal opinion – and continuing to be silent or coy on the subject, even in the face of litigation where this water contract can and should be raised as part of a vigorous defense -- threatens the success of any long-term plan for the watershed. Your position has essentially invited the assertion in the court’s most
 recent ruling that “the statutory text is ambiguous as to Federal Defendants’ asserted authority.”
It is past time for USBR to acknowledge, and to fully and vigorously assert, its legal obligation to make that 50,000 acre-feet of Trinity River water available for the benefit of Humboldt County and downstream interests, including salmon fisheries in the Trinity and Lower Klamath Rivers.
This is clear from the law authorizing the Central Valley Project’s Trinity Division (P.L. 84-386), which requires the Secretary of the Interior to release annually from the Trinity Reservoir and make available to Humboldt County and downstream water users not less than 50,000 acre-feet of water. It is also clear from the inclusion of that mandate in the State Water Board’s permit No. 11968 issued in 1959 for construction and operation of the Trinity Division. And it is clear from the contract, executed by the United States and Humboldt County on June 19, 1959, for permanent delivery of that water.
In December of 2013, I sent a letter to you concerning the water contract between Humboldt County and Reclamation. In April, Reclamation’s Regional Director David Murillo acknowledged that the Office of the Solicitor had issued a legal opinion, but declined to release it even though the department is apparently using the legal opinion to inform the development of a long-term plan for managing water and protecting fish in the lower Klamath River.
In a Natural Resources Oversight Committee hearing in September, Interior Solicitor Hilary Tompkins acknowledged to me that her office had provided Reclamation with legal advice regarding the 1955 Act in a written format, but noted she could not waive the attorney-client privilege to provide that memo without your approval. Only Reclamation can make this legal reasoning public and help put to rest the legal authority question posed by the court.
Accordingly, I ask that you immediately advise the Solicitor that you intend to waive the privilege and make the legal advice publicly available. Numerous legal opinions from the Office of the Solicitor pertaining to the Trinity Division have been made public over the years. Members of Congress and federal courts need to understand the department’s legal views if we are to make informed and effective decisions affecting our citizens and natural resources. Under the current circumstances in the Klamath River basin, and given California’s broader water struggles, continuing to maintain secrecy on this issue simply makes no sense. You should exercise your authority to release this opinion and resolve the confusion and uncertainty that is putting the Klamath and Trinity River salmon fisheries at risk and costing Reclamation and other parties substantial legal fees.
Moreover, since the solicitor’s opinion is being used in long-term planning for fisheries flows, that opinion should be shared with the National Marine Fisheries Service, which has jurisdiction over commercial fisheries and regulatory authority of salmon and steelhead listed under the ESA. If Reclamation has provided this opinion to another department, the attorney-client privilege no longer applies and the opinion should be made available. If, on the other hand, Reclamation is refusing to share both the opinion and the long-term plan with agencies whose collaboration is required, then it would appear that Reclamation is not on a path to developing a serious and viable plan for fisheries flows.
As this drought continues, powerful San Joaquin Valley interests will continue to file legal challenges against the necessary and legally mandated water releases that protect tribal and other fishery obligations in the Trinity and lower Klamath Rivers. Failure to develop the record and authority regarding the 50,000 acre feet for Humboldt County and downstream users leaves the Bureau of Reclamation open to continual litigation, and inhibits the federal government’s ability to respond to and prevent fish kills.
We have been waiting too long for clarity and leadership on this issue. I respectfully request your expeditious reply, and look forward to reviewing the Solicitor’s Opinion.
Sincerely,
JARED HUFFMAN
Member of CongressCC: Hilary Tompkins, Solicitor, U.S. Department of the Interior
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