Judge Wanger Affirms Flows to Protect Central Valley Salmon

Judge Wanger Affirms Flows to Protect Central Valley Salmon

by Dan Bacher

Environmentalists, fishermen and the Winnemem Wintu Tribe scored a legal victory on March 31 when a federal judge affirmed restrictions on Delta pumping to protect imperiled Central Valley salmon populations.

In a rebuke to junior water rights holders, Judge Oliver Wanger of the Eastern District of California refused to grant the Westlands Water District and its co-plaintiffs a temporary restraining order on the biological opinion of the National Marine Fisheries Service (NMFS). The opinion includes seasonal water flows required to protect Sacramento River endangered spring-run Chinook salmon and Central Valley steelhead in the California Delta, according to the Planning and Conservation League (PCL).

Despite claims to contrary from the plaintiffs, the Judge found that the NMFS opinion, expressed in written comments to the Delta Flow Criteria Proceeding as the absolute "…minimum flows necessary to avoid jeopardy," was based on the best available science and takes the human impacts of seasonal flow regimes into account.

"The Court found that plaintiffs had not met their burden of proving that this action was not based on the best available science," said Doug Obegi, NRDC staff attorney. "While this is only one of many challenges to the BOs that will be heard this and next week, it is very good news for fishermen, the Winnemem Wintu Tribe, and all of us who value California’s native salmon and the health of the Delta."

Wanger found that, "the economic pain and hardship has been no less to the fishing industry that relies on salmon than has been the economic consequence to the Central Valley agricultural community.”

The Court also recognized the significant harm to the Tribe and its spiritual and cultural foundations, finding that these interests are irreparable and protected, and that there are extreme hardships on all sides.

"This is a significant acknowledgement of the impacts that fishermen and the Tribe have faced," said Obegi. "This is why our organizations worked together to file the original lawsuits in 2005 that led to these biological opinions that we are now in court defending."

In addition, Obegi said the Court recognized that the economic impacts in the Valley are at least in part caused by drought, the recession, the foreclosure crisis, and other larger financial impacts, and are not solely caused by pumping restrictions. The Court also acknowledged that NMFS had considered alternatives and attempted to minimize water supply impacts in crafting the RPA.

"Today is a good day for the fish, for the fishermen, and for all of us who care about them," emphasized Obegi.

Mark Franco, headman of the Winnemem Wintu (McCloud River) Tribe, also praised the ruling. Franco and 29 other members of the tribe on April 2 returned from a trip to New Zealand to conduct ceremonies with the Maori people to pray for the return of winter Chinook salmon, now thriving in New Zealand rivers, to the McCloud River.

"We're grateful that the judge has recognized that the Winnemem Wintu's rights have been also been impacted in this case," said Franco. "Hopefully, there will be a positive result from this case so that all of our relatives receive the water they need to survive. Our relatives include not only our human relatives, but the fish, the birds, the plants and all things that depend on the water."

Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations (PCFFA), said his organization is "extremely pleased with Wanger's acknowledgement that there is an economic value associated with these fish and that they represent food and jobs. In both cases, it's a better food and a better job."

On the other hand, Westlands general manager Tom Birmingham told the Fresno Bee, "I am disappointed in the court's ruling, but I understand the basis for it."

Wanger's ruling has confirmed the immediate necessity of spring flows, but the dispute over the comprehensive fisheries management plans will continue, according to PCL. This week Judge Wanger will hear further arguments from Westlands and its co-plaintiffs as they seek a complete injunction on the biological opinions that provide protective flow regimes for salmon, steelhead and smelt.

The case before Judge Wanger is being litigated by federal attorneys and a team of attorneys from Earthjustice with assistance from two attorneys from NRDC. Earthjustice has contributed the legal services of four attorneys,Trent Orr, Erin Tobin, George Torgun and Mike Sherwood, to defend the two biological opinions at question before Judge Wanger.

"The significance of this ruling is that it recognized the substantial interest of the commercial fishing industry and the Winnemen Wintu Tribe in the continued survival of salmon," summed up Erin Tobin, Earthjustice attorney. "There was substantial evidence and testimony demonstrating that the biological opinion for Central Valley steelhead, Sacramento River winter and spring run Chinook salmon, green sturgeon and southern resident killer whales contains necessary protections based on sound science."

DWR Uses Snow Survey Announcement to Push for Canal, Dams

The Department of Water Resources (DWR) didn't comment specifically on the Wanger ruling, but DWR Director Mark Cowin did use the announcement about the results of Sierra Nevada snow survey on April 1 to blame drought and restrictions on pumping to protect salmon and Delta smelt for the "far below normal" State Water Project water allocation of 20 percent this year. He also used the announcement to push for the "need to implement long term solutions to water supply" - building a peripheral canal and new dams.

“As the water picture for this year becomes clearer, we can increase our deliveries to farms and communities throughout the state,” said DWR Director Mark Cowin. “But the aftermath of three years of drought and regulatory restrictions on Delta pumping to protect fish species will keep this year’s allocation far below normal. This underscores, once again, the need to implement long-term solutions to improve water supply reliability.”

Manual and electronic snow survey readings today indicate that statewide, snowpack water content is 106 percent of normal for the date. This time last year, the reading was 81 of normal, according to Cowin.

Governor Arnold Schwarzenegger is an outright foe of the biological opinions protecting salmon and Delta smelt. "This federal biological opinion puts fish above the needs of millions of Californians and the health and security of the world's eighth largest economy," claimed Schwarzenegger last June, in responding to Judge Wanger's ruling on the Delta smelt biological opinion. "The piling on of one federal court decision after another in a species-by-species approach is killing our economy and undermining the integrity of the Endangered Species Act."'

Rather than defending the biological opinions as he should, Schwarzenegger has instead pushed for weakening Endangered Species Act (ESA) protections for imperiled fish populations as he campaigns for a peripheral canal and new dams. Ironically, in spite of Schwarzenegger's unprecedented war on fish and fishermen, Robert F. Kennedy Jr., Vice Chair and Chief Prosecuting Attorney for the Riverkeeper and Chairman of the Waterkeeper Alliance, and the Hudson Riverkeeper will honor Schwarzenegger for his "environmental advocacy" at the "Fishermen's Ball" in New York City on April 13 (http://www.counterpunch.org/bacher03222010.html).