The short answer is, we don't know yet. There seems to be an assumption out there that, because of judge Ernest Goldsmith's smackdown of the California Department of Fish and Game's watershed-wide permits in the Scott and Shasta valleys, ranchers and other water users there are in big trouble. This may turn out to be the case, but for now, the focus is not on them but is on the DFG.
From my story Friday:
"With the lawsuit what we basically wanted to do was have (the DFG) go back to the drawing board and do the proper studies they needed to do to authorize more take in these watersheds," said Wendy Park, an attorney for Earthjustice. "It's really in the agency's hands."
Park declined to say whether the groups would begin targeting individual landowners.
In the interview, Park noted that the ruling was tentative and that Earthjustice is waiting for a final decision, which could take another month. She said it's up to the DFG to do the proper studies to authorize more "take" and come up with mitigation measures to restore coho salmon.
"We are hopeful that if they do have to go back to the drawing board, they will take that seriously and will do the proper science and do the proper studies," Park told me. "We would be watching that process all the way."
If anybody at Earthjustice or another environmental group is thinking, "Those farmers better watch out because we're coming after them," nobody is saying it. And rancher Jeff Fowle isn't assuming such a witchhunt would be successful, although he notes that farmers have faced the threat of individual lawsuits since the coho salmon were listed.
From my story:
Etna, Calif., rancher Jeff Fowle acknowledged there's a risk of such suits, but he said landowners have taken many measures to protect fish and have only diverted water in accordance with their adjudicated rights.
He expressed hope that Goldsmith's decision will cause Fish and Game to take a closer look at water-saving measures taken by landowners, such as replacing old wells with new ones in more strategic places and installing wheel and pivot irrigation devices.
Ranchers have put in Fish and Game-designed fish screens and permanent rock weir structures so they don't have to use push-up dams, Fowle said.
"Is it any higher risk now than it was a year ago? I really don't know," Fowle told me. "From my personal knowledge of a majority of the diversions in the Scott Valley, we have done everything that the Department of Fish and Game has requested when it comes to mitigating for impact on salmonids.
"In order for a third-party lawsuit to come about, the burden of proof is a dead fish," he said. "They have to prove it was a direct action by a landowner that caused the death of that fish and there's always a risk. We have a risk when we get out of bed in the morning. I don't think this necessarily increases that risk any."
Certainly the DFG has the authority to increase scrutiny on irrigators, but what shape that takes is yet to be seen. And judge Goldsmith isn't telling the agency how to go about protecting the fish; he only ruled that the agency's current effort -- the blanket permits -- weren't set up according to state environmental laws. From his decision:
In adjudicating the instant case, the Court does not and should not seek a particular result. Rather, the court's primary goal is to protect the public and ensure all legal and legislative mandates are followed by informed public policy makers. The Court may not "substitute [its] judgment for that of the people and their local representatives. [It] can and must, however, scrupulously enforce all legislatively mandated CEQA requirements."
For his part, Neil Manji, the DFG's regional manager in Redding, said even before the ruling there was no timetable for enforcement actions and that taking "the legal route" with each landowner would be "a no-win." From
my story on Dec. 9:
A determination of whether a landowner is violating the state's fish and game code is "not really cut and dry," Manji said, adding there are "several things the department needs to look at to determine whether or not a permit is required."
Some diversions in the Scott and Shasta valleys may not be considered significant, although most agricultural operations there "fall within the category of needing to at least consult with Fish and Game," he said.
For one thing, local law enforcement has shown a reluctance to go along with prosecutions of farmers. I'm told Manji went to Siskiyou County last Thursday to talk with law enforcement officials and the meeting did not go well. And of course there's Assemblyman Jim Nielsen and Sen. Doug LaMalfa, who've taken up the landowners' cause and could persuade other lawmakers to come down on the DFG.
In court, the DFG "pointed out the logistical and practical difficulties in fully enforcing illegal take under CESA," according to judge Goldsmith, who was unmoved by the agency's argument. Now that the tentative ruling has come down, Manji appears ready to come to landowners with hat in hand.
"Our concern is we know and have known that fish are out there," he told me. "We need to rally with the landowners (to protect the fish). Part of that will be trying to incorporate a fix with some consensus with landowners who were engaged ... It would not be in our best interests to make decisions ... without fully vetting the landowners."
So the bottom line is this: At least some of the landowners who were cooperating with DFG may continue to do so. The ones who weren't, aren't about to start. And environmentalists appear to be waiting for the DFG to make its next move, which could take awhile. So again, what's changed, really?
