Hoopa Valley Tribe Testifies Against Westlands in Federal Court

Tribe Says BOR Has Authority to Release Trinity Water to Prevent Fish Kills on the Klamath River

By Allie Hostler, Two Rivers Tribune Contributing Writer

Published in the Two Rivers Tribune December 13, 2016-Volume 22, Issue 50

From left to right: Hoopa Valley Tribal Fisheries Director Mike Orcutt, Self-Governance Director Daniel Jordan, Chairman Ryan Jackson and Attorney Tom Schlosser.

From left to right: Hoopa Valley Tribal Fisheries Director Mike Orcutt, Self-Governance Director Daniel Jordan, Chairman Ryan Jackson and Attorney Tom Schlosser.

On Monday, the Hoopa Valley Tribe, the Yurok Tribe and an attorney representing the United States testified in front of a panel of three federal judges asking them to overturn a previous ruling in favor of San Luis and Delta Mendota Water Authority and Westlands Water District.

Westlands claimed that the U.S. Bureau of Reclamation did not have the authority to release additional water from the Trinity River to prevent a fish kill on the Lower Klamath River. Reclamation, at the urging of tribal and fisheries scientists, has ordered extra releases of Trinity River water for three consecutive years when river conditions reach certain thresholds and fish disease is detected.

In August when the weather’s hot and the rivers’ water is dangerously low and warm, fishermen and scientists begin to inspect Chinook salmon a bit more closely.

Why? To check for diseases such as Ich, a parasite that, if poor conditions exist, can cause a fish kill, like the one in 2002 when at least 34,000 adult fall run Chinook Salmon died in the Lower Klamath River. Some reports claim that more than 78,000 salmon were killed in the Klamath River that year due to a fish disease outbreak that was exacerbated by low water flows and warm water temperatures.

Each year, the deadly parasite has been detected earlier in the season, prompting the Hoopa and Yurok Tribes along with the Bureau of Reclamation to design a water release plan that would help prevent a catastrophic fish kill in the Lower Klamath River.

“The Trinity flow plan, as set forth by the 2000 Record of Decision, was never designed for bailing out the Lower Klamath River,” Hoopa Valley Tribal Chairman, Ryan Jackson said. “It’s helping, though. Along with the Central Valley Project Improvement Plan and the Trinity River Division Act of 1955.”

The Hoopa Valley Tribe bases its core argument on Proviso 2 of the 1955 Trinity River Division Act that requires “not less than 50,000 acre feet be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.”

Westlands claims that water in excess of what’s set forth in the 2000 Record of Decision should not be allowed to flow down the Trinity River.

According to Jackson, the Record of Decision flow plans are based on a Trinity River flow study conducted in the late 1980s and do not take into account now insufficient Klamath River flows that result in poor fish health throughout the entire Klamath-Trinity River system.

The 50,000 acre-feet of water promised in the 1955 Act, was reaffirmed with a hard-won U.S. Solicitor’s Opinion last year.

Fisheries Director Michael Orcutt noted his appreciation that the decision was based on “sound science and the law.”

Jackson said the tribe expects a ruling on the appeal within the next year.

Trinity River water is in demand for the San Luis Unit of the Central Valley Project, 400 miles south of the Hoopa Valley.

There, on the west side of the San Joaquin Valley, naturally occurring surface water is virtually nonexistent; agriculture depends on other sources, particularly imported water from the Trinity River and other Northern California sources.

But, federal law sets strict limits on the use of Trinity River water in the Central Valley. It forbids the Secretary from diverting any Trinity water that is needed for fish and wildlife or economic development in the Trinity River basin.

The next challenge, the next “right thing” for Secretary Jewell to do is to make sure that the Central Valley contractors live within those limits.

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