Judge rejects a Trump-era water contract in a win for tribes in California

A bid to benefit agribusiness has stalled again, leaving the Hoopa Valley Tribe hopeful that the next contract follows the law.

 

On Oct. 27, in a victory for tribes in Northern California, Fresno County Superior Court Judge D. Tyler Tharpe rejected a Trump-era water contract between the federal Bureau of Reclamation and Westlands Water District, the public entity in charge of distributing water to farms in California’s San Joaquin Valley.  

David Bernhardt, a former Westland Water District lobbyist who was serving as secretary of the Interior at the time, oversaw the drafting of the agreement, which critics say clearly favored agricultural interests.  

At one point, some 90% of the Trinity River’s water was diverted to Central Valley agriculture.
Courtesy of Bureau of Reclamation

The contract would have given Westlands permanent access to 1.15 million acre-feet of water from the Trinity River. However, according to a coalition of fishing and conservation groups and tribal nations, led by the Hoopa Valley Tribe in the Klamath Basin, it would have done so without ensuring that Westlands paid an estimated sixth of the $400 million it owed the Bureau of Reclamation for ecosystem restoration. 

“The guys that are benefiting from the water are supposed to be, by law, paying money for restoration,” says Michael Orcutt, the director of the Fisheries Department for the Hoopa Valley Tribe. “They were going to be let off the hook.” 

The judge’s decision, which also cited the lack of public notice regarding the contract and its incomplete financial details, sends the water district back to the drawing board. Meanwhile, the tribes are hopeful that a new contract under the Biden administration will successfully secure the restoration funds.

For over half a century, water has been taken from the Trinity River in Northern California and sent nearly 300 miles away to irrigate industrial farms in the San Joaquin Valley. At one point, 90% of the river was diverted south, contributing to dramatic declines in chinook and coho salmon. Since then, steps have been taken to restore salmon populations and mitigate the impacts that the dams and diversions have had on wildlife and river ecosystems. The Central Valley Improvement Act of 1992, for example, mandated that restoration costs be covered by Central Valley water contractors, with the money being administered by the Bureau of Reclamation.

The Trinity River Division of the Central Valley Project is composed of: the Trinity Dam, a large storage reservoir; Lewiston Dam, which controls the water released into Trinity River; and Clear Creek Tunnel, which transports water from Lewiston Dam into Whiskeytown Lake in the Sacramento River Basin.
Courtesy of the Trinity River Restoration Project

The Hoopa Valley Tribe argued that the federal government had abdicated its trust responsibility by failing to hold the district accountable for restoration payments. “We’re a federally recognized tribe with reserved fishing rights,” Orcutt said. “Those rights are meaningless if the fishery isn’t what we’ve historically experienced. They’ll never be able to fully acknowledge and reciprocate these impacts to the Hoopa people, but we have this fish restoration stuff.”

People don’t realize how important the Trinity River is to the survival of Klamath salmon, said Regina Chichizola, the co-director of Save California Salmon. “If there’s going to be a fish kill in the Klamath, releases of cold water from the Trinity stop it. It’s why we haven’t had a fish kill since 2002.”

But unless the Hoopa Valley Tribe fights for it, Chichizola said, good management is hard to come by. The tribe has been forced to deal with the problem since 1955, when the dams went in. “Unfortunately, we’re just constantly having to deal with Westlands fighting for more water,” she said. “They’ve always been the one pushing for more diversions out of the Trinity River.” 

Westlands maintains that it received no special treatment from the federal government and that it paid for restoration costs, according to The Associated Press. For now, however, the district faces an invalidated contract. A hearing has been scheduled on Dec. 2, and Westlands says that if its case is dismissed, it will appeal.

Constructed in the 1950s, the Trinity Dam is part of the infrastructure that sends water from the Trinity River to farms in California’s Central Valley.
Courtesy of Bureau of Reclamation

“In a way, we kind of dodged a bullet,” said Orcutt. If the permanent contract had been authorized, the federal government would have forfeited the right to collect restoration payments. “Their obligations should be to make that contract as solid as we can get in the future, including the obligation for restoration costs in the Central Valley Improvement Act,” he said.

Now that the Interior Department is headed by Secretary Deb Haaland (Laguna Pueblo), Orcutt is optimistic that she’ll push for a contract that upholds the law. “Ideally, this could be a cornerstone of Secretary Deb Haaland’s policy. It’s a federal statute to meet the trust responsibility to the Hoopa Valley Tribe. What we’re saying is, ‘Pay attention to what that law says, interpret it.’ ”

Theo Whitcomb is an editorial intern at High Country News. We welcome reader letters. Email him at [email protected] or submit a letter to the editor. See our letters to the editor policy.

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