In the Scott and Shasta valleys, what's changed?

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?

Testicle Festival 'still hangin''

The actual press release for the annual Rocky Mountain oyster-eating fundraiser for the cowboy museum and Rotary club in Oakdale, Calif.:

Some say that the Oakdale Testicle Festival Committee was plain nuts when they came up with the idea to have a slogan contest celebrating the event’s 30th Anniversary. Creative minds threw out witty suggestions, innuendos and otherwise to the events website. There were 129 entries that festival committee members sifted through before coming up with a catchy phrase that was submitted by Escalon resident Jenny Nahhas. A woman? Yes guys, a woman. Jenny coined the slogan “30 Years and Still Hangin!” She found out about the contest on the internet and being a witty person, came up with several suggestions. She has never attended the event where bovine love parts are part of the menu but she’s willing to give em’ a try! Jenny won two tickets to the event and event merchandise!

The Annual Testicle Festival is co sponsored by the Oakdale Rotary Club and the Oakdale Cowboy Museum and will be held on Monday, March 28 at the FES Hall in Oakdale. Tickets are $50 each and includes dinner and a hosted bar. This is a fundraising event for both organizations and a raffle and live auction will also be held. To see more of the slogans submitted, buy tickets and event merchandise go to the website at www.oakdaletesticlefestival.com.

No comment.

The judge's conclusion in the Scott-Shasta case

Here is San Francisco Superior Court Judge Ernest Goldsmith's conclusion in his opinion on the environmentalists' lawsuit against the California Department of Fish and Game over the watershed-wide permits in Siskiyou County.

Overview

The Court notes the record reflects DFG's good faith effort to enforce environmental regulations while accounting for economic realities through the Programs. Pursuant to its manifold mandate, DFG endeavored to manage the expectations of multiple stakeholders in the Klamath Basin while grappling with the harsh truth that water is a widely shared yet severely limited resource in the West. All stakeholders involved here at some point encounter Coho, which course through this shared resource. Consequently, the Coho's listing under CESA will impose hardship on water users, especially agricultural operators, some of whom have been diverting water independent of DFG oversight before and after Coho were listed as endangered. In effect, water users have to adjust from an irregularly enforced ITP and SAA setting to a much higher and stricter plateau set by CESA. Understandably, the Programs seek to lessen the shock of this adjustment and make compliance more economically feasible by lowering permitting costs.

However, while DFG may pursue streamlined permitting processes, it may not do so by attenuating the strict directives of CESA. Given that the legislative mandate is to preserve listed species, the environmental analysis should consider all factors that may jeopardize their existence, including their presently reduced population. Water management is the central element of DFG's efforts to effect the survival of the Coho through the Programs. Water management inevitably has an economic component and water usage will increase or decrease in relation to cost. In the case of Coho survival versus agricultural use, no analysis has considered the economic value of the water and the Coho because there is a legislative mandate to preserve the Coho as a listed endangered species. However, the Programs have a significant fiscal component by offering the incentive of reduced permitting costs while threatening water users with high fees under the old permitting system or the potential of even higher costs and penalties involved in the enforcement process. As most or all agricultural operators inevitably participate in the Programs, more permits will issue, and Coho are at greater risk. CEQA requires analysis of this foreseeable increase of ITPs while CESA requires full mitigation of the increased take that naturally follows an ITP.

Overall, the more lenient effect of the Programs relates back to DFG's enforcement responsibilities. DFG has pointed out the logistical and practical difficulties in fully enforcing illegal take under CESA. This explains DFG's emphasis in creating a more liberal permitting system even though it will result in higher take of Coho under the rationale that an imperfect regulatory program is preferable to the alternative of not fully enforcing against agricultural operators. Respondent 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.

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." (Citizens of Godea Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564). In enforcing these legislative mandates, the Court must bear in mind that "the Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Laurel Heights, supra, 47 Cal.3d at 390 (citation omitted).)

CEQA's most meaningful impact, however, is as an accountability mechanism to ensure informed decisionmaking and informed public participation. The EIR, such as the ones at issue in the instant case, is

[A]n environmental 'alarm bell' whose purpose is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return. The EIR is also intended to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. Because the EIR must be certified or rejected by public officials, it is a document of accountability. (Laurel Heights, 47 Cal 3d at 392 (citation omitted).)

In the midst of conflicting opinions as to whether the Programs are proper, "[t]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA." (San Joaquin Raptor, supra, 149 Cal. App. 4th at 721-22.) Ultimately, the Court must protect the public interest by upholding CEQA, which "protects not only the environment but also informed self-government." (Laurel Heights, 47 Cal.3d at 392.)

Despite DFG's good faith efforts and potential hardship to water users, the Court must uphold the legislature's mandate to preserve listed species and conduct environmental review of all foreseeable consequences under CEQA and CESA.

McClintock on the Reclamation budget

Rep. Tom McClintock, R-Calif., who chaired yesterday's House Ways and Means subcommittee hearing on the U.S. Bureau of Reclamation, made the following opening statement:

With today’s hearing, the Water and Power Sub-Committee will begin the process of restoring abundance as the principal objective of America’s Federal water and power policy. We meet today to receive testimony from the Bureau of Reclamation and the U.S. Geological Service on their plans for the coming year. We do so in conjunction with our responsibility under the Federal Budget Act to provide guidance to the House Budget Committee as it prepares the 2012 budget and with our responsibility under House Resolution 72 to identify regulations and practices of the government that are impeding job creation and burdening economic growth.

In my opinion, all of these hearings and all of the actions stemming from them must be focused on developing the vast water and hydro-electric resources in our nation. The failure of the last generation to keep pace with our water and power needs has caused chronic water shortages and skyrocketing electricity prices that are causing serious economic harm.

In addition, willful policies that have deliberately misallocated our resources must be reversed.

California’s Central Valley, where 200 billion gallons of water were deliberately diverted away from vital agriculture for the enjoyment and amusement of the 2-inch Delta Smelt is a case in point. These water diversions have destroyed a quarter million acres of the most fertile farmland in America, thrown tens of thousands of farm families into unemployment and impacted fruit, vegetable and nut prices in grocery stores across America.

In Northern Arizona, 1,000 megawatts of hydroelectricity – enough to power a million homes – has been lost due to environmental mandates for the humpback chub.

In the Klamath, the federal government is seeking to destroy four perfectly good hydroelectric dams at the cost of more than a half billion dollars at a time when we can’t guarantee enough electricity to keep refrigerators running this summer. The rationale is to save the salmon, but the same proposal would close the Iron Gate Fish Hatchery that produces 5 million salmon smolt each year.

Meanwhile, funds that ought to be going to water and power development are instead being squandered on subsidizing low-flow toilets, salmon festivals, tiger salamander studies and grants to private associations whose principal activity is to sue the federal government.

We have also thrown hundreds of millions of taxpayer dollars into wildly expensive conservation programs that do little or nothing to develop new water and power resources.

Those days are over.

It is the objective of this sub-committee to restore the original – and as yet unfulfilled -- mission of the Bureau of Reclamation – to develop and utilize our nation’s vast water and hydroelectric resources to build a new era of abundance and prosperity for our nation.

And, I might add, to complete the greening of the west, to tame the environmentally devastating cycle of floods and droughts and to assure the perpetuation and propagation of all species through expansion of fish hatcheries and other cost-effective means.

We will seek to inventory all of our potential water and power resources, establish and apply a uniform cost-benefit analysis to prioritize financing for those projects that produce the greatest benefits at the lowest costs, and to restore the “beneficiary pays” doctrine that assures those who benefit from these projects pay for these projects, protecting general taxpayers of one community from being plundered for projects that exclusively benefit another.

With these policies in place, we can fulfill the Bureau’s original mission, to make the desert bloom and to open a new era in America where water and power shortages – and the policies that created them -- are a distant memory.

I also want to acknowledge the past work of the U.S. Geological Survey that produced accurate and reliable data necessary for sound resource policy and management. Today I will merely express the expectation that it will take stronger steps to resist efforts to politicize or compromise its work. I especially endorse Mr. Werkheiser’s statement that “the public deserves to know whether its investments are having tangible results.”

I hope that this administration will become a partner in this new era of abundance rather than an obstacle. The rationing of shortages has never solved a shortage – only a policy of abundance can do that. We have wasted not only money but time, and we can afford to waste no more of either.

As we reported in the Capital Press, McClintock sponsored the amendments stripping nearly $2 million in funding for the Klamath River dam removal studies.

California walnuts keep making gains

California walnut growers this season have turned out a record yield for the third straight year, producing nearly 502,000 tons. The current season’s crop – an increase from the 436,013 tons harvested and processed in 2009-10 – continues a fairly consistent decade-long trend of increases.

Here are some updated statistics, courtesy of the California Walnut Board.

California walnut production
2010-11: 501,446 tons
2009-10: 436,013 tons
2008-09: 434,301 tons
2007-08: 323,082 tons
2006-07: 344,334 tons
2005-06: 354,218 tons

Top varieties
Here are the leading varieties of walnuts harvested in California in 2010:
Chandler: 208,086 tons (41.5 percent)
Hartley: 70,420 tons (14.04 percent)
Howard: 54,780 tons (10.92 percent)
Tulare: 46,812 tons (9.34 percent)
Serr: 36,367 tons (7.25 percent)
Vina: 35,796 tons (7.14 percent)
Others: 49,185 tons (9.81 percent)
Total: 501,446 tons (100 percent)

Top 10 counties
Here are the top 10 California counties in terms of walnut production in 2010:
San Joaquin County: 88,225 tons
Butte County: 73,570 tons
Tulare County: 63,820 tons
Stanislaus County: 50,225 tons
Sutter County: 46,345 tons
Tehama County: 39,399 tons
Glenn County: 31,110 tons
Yuba County: 23,154 tons
Kings County: 16,547 tons
Yolo County: 13,167 tons

For more details on the state of the walnut industry, check CapitalPress.com soon.

Governor calls for GIPSA withdrawal

From the National Chicken Council:

Georgia Governor Nathan Deal is right to recommend that the U.S. Department of Agriculture withdraw its proposed rule on the production and marketing of poultry and livestock because it would be “costly and disruptive” and goes beyond the intent of Congress, the National Chicken Council said today.

“Governor Deal’s comments are right on target and should be considered seriously by the Agriculture Department,” said NCC President George Watts. “The proposed rule should be withdrawn and reworked.”

In a letter to Secretary of Agriculture Tom Vilsack, Deal said the rule proposed by USDA’s Grain Inspection, Packers & Stockyards Administration (GIPSA) would “drastically change” the long-standing contractual relationships between poultry companies and the farmers who work with them to raise birds.

“Such a change would undoubtedly create a very costly and disruptive situation in Georgia and across the country where poultry is grown,” Deal wrote.

Deal, an attorney who served in Congress for 18 years before being elected Georgia’s governor last fall, said the GIPSA rule “goes well beyond” the intent of Congress when it directed the agency to make certain changes in its regulations as part of the 2008 Farm Bill. He said Congress had already considered the issue of what is called “competitive injury” and decided that it was being handled appropriately by the courts.

“It would be not only inappropriate but an action exceeding the Department’s regulatory authority to not honor Congress’ mandate on this issue,” Deal said. He said USDA should craft a final rule that “more closely adheres” to Congressional intent.

“Permit me to suggest that the best way to do this is to withdraw the current proposal and reissue a much more acceptable, pragmatic rule,” he wrote.

USDA is in the processing of considering the thousands of comments that were filed on the proposed rule. The agency has set no deadline for finalizing its process.

The National Chicken Council represents integrated chicken producer-processors, the companies that produce and process chickens. Member companies of NCC account for more than 95 percent of the chicken sold in the Unite