Court upholds Bureau of Reclamation’s authority to protect fish by managing water flow

When a federal agency released Trinity River water from California’s Lewiston Dam in 2013 to help prevent a mass die-off of salmon in the lower Klamath River, it was fulfilling its legal mandate to protect fish and not violating federal or state law, the U.S. Court of Appeals for the 9th Circuit held today.

In a 3–0 decision authored by Judge N. Randy Smith, the Bureau of Reclamation prevailed in San Luis & Delta-Mendota Water Authority vs. Haugrud by showing Congress had provided the Secretary of the Interior with broad power and responsibility to protect fish in the region when authorizing construction of the Trinity River division in 1955. The bureau is part of the Department of the Interior.

The plaintiffs were water contractors who objected to the release of water for environmental objectives rather than domestic and commercial uses. Though the court acknowledged the principal purpose of the statutory scheme was to provide water to the residents and businesses in California’s Central Valley, Smith’s opinion noted the law also provided express authority for “appropriate measures to insure the preservation and propagation of fish and wildlife, including . . . the maintenance of the flow of the Trinity River below the diversion point.”

Smith, an appointee of President George W. Bush, therefore concluded: “The broad language of the 1955 Act gave BOR the authority to implement the 2013 flow augmentation release to protect fish in the lower Klamath River.”

In addition, the plaintiffs didn’t have standing to assert a claim under the Endangered Species Act, even though they claimed a “concrete economic interest in ensuring the continued delivery of water to their members.” The court held the asserted economic harm was speculative and based on conjecture.

Smith and his colleagues, Judges Alex Kozinski and Sharon Gleason, also found the bureau complied with applicable state law in releasing water to protect salmon. The California Fish & Game Code “not only allows, but requires BOR to allow sufficient water to pass the Lewiston Dam to maintain the fish below the Dam,” he wrote.

The case was argued on Dec. 12 by Obama Administration attorneys. One may wonder if the Trump Administration will take a different view of the case, if the plaintiffs seek further review by the 9th Circuit or the Supreme Court or in settlement negotiations.

The new administration is expected to take new positions on a number of matters involving the Department of the Interior, as many attorneys have observed. Indeed, PBS NewsHour today reported on the president’s promise to change California water policies to favor Central Valley farmers and ranchers.

David Raatz is a writer and lawyer in Wailuku, Hawai`i.

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