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Law
California tribe wins round in testy water fight


The Hoopa Valley Tribe claimed victory last week in a long-running water battle that has pitted non-Indians against Indians in northern California.

The tribe has been in litigation over the Trinity River for the past four years. In January 2001, an irrigation district and a power utility sued the Interior Department to prevent much-needed flows from being restored to the river that supplies fish and water to the tribe.

Victory emerged last July when the 9th Circuit Court of Appeals sided with the tribe and the federal government. In a unanimous decision, a three-judge panel cited "staggering" scientific evidence to support higher flows.

The ruling remained in limbo as the Westlands Water District, the largest irrigation district in the country, and the Northern California Power Agency weighed an appeal. In the lawsuit, they claimed the restoration would harm farmers and consumers hundreds of miles south of the tribe's reservation.

But with just two weeks left before the appeal deadline, the tribe learned last Thursday that the ruling would not be taken to the U.S. Supreme Court. "This now clears one of the last remaining legal hurdles and opens the way for full restoration of the Trinity River to begin," said Chairman Clifford Lyle Marshall.

Marshall said challenges remain before the tribe can declare a true end to the case. The "severely underfunded" restoration program is facing up to $10.8 million in cutbacks under the Bush administration, he said.

Without full funding of at least $13.5 million annually, Marshall said the long-overdue dream the tribe realized in December 2000 would not be fulfilled. That was when former Clinton administration Interior secretary Bruce Babbitt came to the reservation to announce final plans to restore water to the Trinity.

The decision came 45 years after the government authorized construction of a dam and other facilities on the river. Since then, an average of 70 percent of the water has been diverted in order to provide power to central California. As a result, some species of fish the tribe depends on for subsistence were down as much as 93 percent, according to Interior.

The situation is a common one for tribes whom make their home in the Klamath Basin, the area that straddles the California-Oregon border. Despite confirmation of their water rights in the courts, the tribes have gone without for decades.

During President Bush's first term, the debate rose to national prominence when non-Indian farmers protested decisions favoring the tribes. In one highly-publicized incident, Interior Secretary Gale Norton, who is staying on board for the second term, sided with the farmers who demanded more water for their use. Some tribal leaders say this led to massive fishkill in the summer of 2002.

"Last summer, 30-to-40,000 salmon died on my reservation at home due to bad water management decisions at the Department of the Interior," said Sue Masten, former chairwoman of the Yurok Tribe, in February 2003. The tribe also benefits from restored flows to the Trinity.

Throughout the dispute, the tribes have accused the government of shirking its trust responsibilities. In March 2004, Interior offered a settlement to the Trinity dispute but the Hoopa Valley Tribe rejected it as favoring non-Indians.

The issue was considered by U.S. District Judge Oliver Wanger, who concluded that Interior was "in breach of its general and specific independent federal trust obligation to the Hoopa and Yurok Tribes." He cited the government's responsibility to protect tribal water rights.

But in July 2004, the 9th Circuit said the statements "do not constitute a holding on the issue" so the court didn't act on them. In a separate case, a federal judge has thrown out the Yurok Tribe's trust-related lawsuit against Interior for the fishkill.

9th Circuit Decision:
WESTLANDS WATER DIST V HOOPA VALLEY TRIBE (July 13, 2004)

Relevant Links:
Hoopa Valley Tribe - http://www.hoopa-nsn.gov
Wetlands Water District - http://www.westlandswater.org/wwd/default2.asp
Northern California Power Agency - http://www.ncpa.com