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Thoughts on the River Keepers vs DFG decision
March 9, 2011 by Mike Duguay, CA Registered Professional Forester #2453 Pie'n'Politics,

The draft decision on the River Keepers lawsuit is being reported in the press as a win for the environmental community. I am not so sure. Yes, they got the ITP thrown out, but they do not realize that there is no way to enforce the ESA or the 1602 statutes under present law and budget constraints. The judge’s opinion contains several statements that agricultural diversions are currently illegal and are killing fish, and it is the CA Dept of Fish & Game’s (DFG) job to enforce the CA Endangered Species Act (ESA) and the stream bank alterations codes (1602). The issue is the ability of the DFG to issue watershed wide incidental take permits (ITP) as a way to force compliance with the ESA and the 1602 statutes.

In essence, the environmentalist’s won on purely technical grounds:

Since DFG failed to demonstrate proportional mitigation under CESA by not estimating take and failed to circulate any analysis of the jeopardy issue for comment, the Court finds there is not substantial evidence to support a “no jeopardy” determination. Thus, DFG abused its discretion by issuing the ITPs.

The DFG argued that there is not much that they can do to enforce water reductions in a fully adjudicated watershed. The arguments they gave the court was as follows:

Respondent (DFG) informed the Court that outside of the Programs, DFG would have to regulate agricultural operators under CESA on an “enforcement basis,” which would be difficult, if not practically impossible, to substantiate with evidence of an illegal take.

Respondent (DFG) argues the Programs (ITP) will bring agricultural operators into compliance with CESA and Section 1602 while implementing recovery tasks that will clearly benefit the Coho, in contrast to the illegal take that has occurred and will continue to occur regardless of the Programs.

Respondent (DFG) argues as justification for increased take under the Programs, the difficulty of detecting violations over a large geographical area and the uncertainty of follow through of prosecution. Nevertheless, the Programs must comply with the mandates of CESA and CEQA, which do not make exceptions for difficulties of enforcement, nor can the Programs relieve Respondent from its statutory enforcement duties.

At issue is the fact that they are defining “take” as diverting water. The less water, the less fish is the basic argument.

While water diversions themselves to not constitute “take” of a species, in the case of Coho that need adequate flow volume to survive, the EIRs recognize the causal link between water diversions and take. As a result, the EIRs acknowledge that “[a]gricultural activities have had effects (direct and indirect) on the geomorphology and water quality of the stream system and contributed to the decrease in the productivity of the Scott River’s anadromous fisheries.” Thus, the EIRs show that take of Coho are a foreseeable consequence of water diversions, which is why diversions trigger the need for a permit to cover incidental take (i.e. an ITP) in the first place.

The problem is, if the agricultural diverters are taking only their adjudicated amount, who will DFG prosecute? How can they prove a specific individual caused take? The Scott and Shasta Rivers adjudications are unique in that they are based on pre 1914 water rights, and are not part of a federal or State water project. One way to modify the existing adjudication would be for the State Water Quailty Control Board (WQ) to step in and reduce the adjudicated amounts through the use of the Public Trust Doctrine.

In the Mono Lake decision, the CA Supreme Court did not decide whether the state has authority to reconsider past water rights decisions under traditional water rights laws. Therefore, the state apparently has the right to modify water rights under traditional water rights laws at least under some circumstances, although the scope of the state’s authority to modify the rights is not clear. Neither the courts of California nor the courts of other states have modified existing water rights strictly under public trust principles. (National Audubon Society v. Superior Court,)

The other mechanism available would be to reopen the adjudication based on claims by the local Indian tribes that they are not included.

The quantification of reserved rights for Indian reservations poses particularly difficult questions that have never been fully resolved. Since Indian reserved water rights generally have an early priority date, and in many cases have not yet been quantified in adjudications or otherwise, the recognition and application of Indian reserved water rights may have a significant effect on state water rights laws, and on rights granted under such laws. In one case, the Ninth Circuit held that the reserved rights doctrine, as applied to Indian water rights, includes fishing rights, and, further, that the Indian tribal rights have a “priority date of time immemorial” and thus are paramount to virtually all other rights. Thus, the quantification of Indian reserved water rights remains an important topic in western water law.

Any reductions in water rights would more than likely result in a takings claim due to the fact that the agricultural diverters are bearing a disproportionate cost to individual landowners to recover an endangered species:

According to the Supreme Court, government regulation goes “too far” if property owners are required to “bear public burdens which, in fairness and justice, should be borne by the public as a whole.” The Supreme Court has never determined whether the Takings Clause applies to state regulation of water rights, nor whether the clause applies to federal regulations—such as the CWA and the ESA—that affect water rights granted under state laws.

I am a forester, not a lawyer, but it appears to me that the reduction in adjudicated water rights in the unique case of the Scott and Shasta Rivers appears to be without precedent. It would explain the inability of the State WQ or DFG to take decisive action to reduce consumption by agriculture. In other words, I don’t think they can pass regulations to diminish adjudicated water rights, which is why they are reduced to empty threats and political rhetoric.

Even as screwed up as the CA State Legislature is, I doubt they want to issue new laws damaging agriculture in the middle of a severe recession.

Mike Duguay

CA Registered Professional Forester #2453

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