Government Defends Actions in River Preservation Case

On May 18, the Bureau of Reclamation and National Marine Fisheries Service filed a brief in the Northern District of California opposing the Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources’ motion to vacate a settlement agreement between the parties governing how to manage the Klumuth River water levels in order to protect suckers and Coho salmon as required under the Endangered Species Act (ESA). The plaintiffs claimed the defendants failed to follow the agreement and sought a temporary restraining order preventing the defendants from pursuing water projects that would lessen the river’s water height below 4,142 feet, the benchmark necessary to prevent further endangerment to said species.

The plaintiffs alleged that the defendants removed five million more gallons of water from the river for irrigation projects than allotted by the agreement. The defendants stated that while the amount removed potentially violated the agreement, that the court must refuse the plaintiffs’ requested TRO because the ESA required a project proposer to make water allocation projections (provided to show that the water project would conserve any habitats of nearby endangered species) based on the “best available science” at the time of project proposal. Given that the parties determined water amounts in the agreement before an unforeseeable drought occurred, the defendants claimed ESA violations did not occur as the “best science standard” does not “require an agency to conduct new tests or make decisions on data that does not exist.”

The defendants further averred that the plaintiffs failed to meet the standards for a TRO given that the plaintiffs desired the additional water to accommodate a summer tribal festival and not to preserve the endangered species due to the scientific evidence proving that even with the extra water expended, the species future mortality rate “is estimated to have been around 0% (zero percent).” Finally, the defendants claimed that any over-expenditure of water shall be returned by the end of June (the time that the defendants proffered is allowed for mitigation efforts by the agreement) rendering additional judicial relief unnecessary.