On August 26, 2015, the federal district court for the Eastern District of California, Fresno Division, rejected a motion for a temporary restraining order (TRO) in a lawsuit filed by Westlands Water District (Westlands) and San Luis and Delta Mendota Water Authority (Authority), who were seeking to block water releases from a Trinity River reservoir to the lower Klamath River.  San Luis & Delta-Mendota Water Auth. v. Jewell, No. 1:15-CV-01290-LJO-GSA (E.D. Cal. Aug. 26, 2015).  This case is the latest in a series of lawsuits over the past few years that have challenged the U.S. Bureau of Reclamation’s (Reclamation) late-summer releases from Lewiston Dam on the Trinity River that have been made to reduce the risk of disease and mortality for salmon in the lower Klamath River.

The Trinity River is a tributary of the Klamath River, joining the Klamath approximately 44 miles upstream of where the Klamath reaches the Pacific Ocean.  Lewiston Dam is a feature of the Trinity River Division, which is a portion of Reclamation’s Central Valley Project (CVP) completed around 1960.  Some water impounded in Trinity Basin facilities and Lewiston Dam is conveyed, via the Clear Creek tunnel, to the Sacramento River watershed and ultimately to CVP contractors, including Westlands and the Authority’s members.  In 2000, implementing a provision of the Central Valley Project Improvement Act, Reclamation issued the Trinity River Record of Decision (TRROD), which sets forth the amount of water to be released from Lewiston Dam to maintain instream flows in various types of water years in the Trinity River basin.

In each of the years 2012-2015, Reclamation decided to make supplemental releases from Lewiston Dam to increase flows in the lower Klamath River in order to reduce incidence ofIchthyophthirius multifiliis (commonly known as Ich) and the associated risk of fish mortality.  The actions are controversial for legal, technical, and policy reasons, and litigation by affected CVP contractors has ensued in federal district court over these releases.  In late 2014, in response to motions for summary judgment, the court held that the flow prescriptions in the TRROD operated as maximum allowed releases for actions taken within the TRROD’s scope, but the scope did not include lower Klamath River fisheries.  Thus, water beyond the TRROD maximums could be released from the Trinity River Division if the extra releases were intended to benefit interests outside of the Trinity River basin and were otherwise authorized.  However, the court also found that Reclamation did not establish that it was authorized to make the additional releases to benefit fish in the lower Klamath River.  San Luis & Delta-Mendota Water Auth. v. Jewell, 52 F. Supp. 3d 1020 (E.D. Cal. 2014).  The 2014 decision is being appealed to the Ninth Circuit.

Triggering this year’s litigation, Reclamation made a determination to release flows for the lower Klamath beginning on August 21.  On the same day, the plaintiffs sued Reclamation over the releases and simultaneously filed their application for a TRO.  The complaint alleged that by implementing the releases, Reclamation violated reclamation law, the National Environmental Policy Act, the Endangered Species Act, and the Magnuson-Stevens Fishery Conservation and Management Act.  The plaintiffs argued in their TRO motion that they were likely to win on these claims and they would suffer irreparable harm without injunctive relief, because Reclamation’s ability to provide water supplies to various CVP water users would be impacted.  The court rejected the TRO, stating that it was not convinced of either position.

In determining that it was not clear the plaintiffs would succeed on the merits of their case, the court found that, in 2015, Reclamation relied on authorities in support of its releases that appeared to be more persuasive than those cited in past years.  The court also found that, based on the current record, it could not agree with plaintiffs that Reclamation should have prepared an environmental impact statement for the releases.  Thus, the court determined it was not clear that plaintiffs would succeed on the merits of their claims.

The court next turned to the potential harm to the plaintiffs caused by the releases compared to the harm suffered if the releases were enjoined.  The plaintiffs’ primary argument was that the releases affected Reclamation’s ability to augment supplies to various CVP water users.  The court recognized the plaintiffs’ dire situation regarding water, but concluded that, even if the releases were enjoined, there is no guarantee the plaintiffs would actually receive the additional water because of Reclamation’s extensive legal and contractual obligations.  On the other hand, the court concluded that Reclamation’s releases would highly decrease the likelihood of a disease outbreak in the lower Klamath River’s salmon population and resulting mortality, and also reduce the likelihood that emergency flow releases would be required later in the year.  The court found that the balance of the harms weighed in favor of not enjoining Reclamation’s releases.

When discussing whether the public interest weighed in favor of enjoining the releases, the court re-stated text from an order from a preceding year, to the effect that both fisheries restoration and Central Valley agriculture represent important interests and investments, and that “[n]either side holds veto power over the other.”

Because the court did not think the plaintiffs clearly showed their likelihood of success and found the potential harm to plaintiffs did not outweigh the risk of damage to salmon in the absence of releases in this year’s circumstances, the court rejected the plaintiffs’ motion for a TRO.

In the meantime, Reclamation also has released a Draft Long-Term Plan for Protecting Late Summer Adult Salmon in the Lower Klamath River.  This plan proposes a long-term approach characterized as being intended to help avoid fish die-offs.  Reclamation will prepare an Environmental Impact Statement to evaluate the plan’s impacts.  The agency held scoping meetings in Northern California and Oregon in August 2015 and the comment period for scoping ended on August 20, 2015.  The disputes over underlying legal authority and technical reasons for the releases will likely affect the future of that plan as well.

For additional information please contact Lauren Bernadett at lbernadett@somachlaw.com.

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