Our Stories

An Upstream Legal Battle

In Brief: West Coast salmon runs are again on the verge of collapse, 20 years after Earthjustice attorney Mike Sherwood led groundbreaking legal efforts to save winter-run Chinook salmon from the effects of Shasta Dam. In the context of today’s continuing battles, Mike recalls how he and Earthjustice first entered the fray.

One day early in 1988 my telephone rang. It was Cindy Williams, a fish biologist and president of the Northern California-Nevada chapter of the American Fisheries Society.

"We've got an emergency," she explained. "We're about to lose the Sacramento River winter-run chinook salmon." This used to be one of the most abundant and commercially valuable salmon runs on the west coast. Its numbers had declined from hundreds of thousands to a few thousand. I had been involved in some Endangered Species Act cases in Hawaii and Williams was hoping I could help.

The magnificent winter-run king or chinook salmon, which can grow to five feet in length and weigh as much as 130 pounds, had been devastated by the construction of Shasta Dam, which cut off access to spawning grounds in the high-altitude tributaries of the Sacramento River. The salmon were thus forced to spawn downstream from the dam where conditions were far from ideal. Among other things, water released from the dam was often too warm for eggs and baby fish to survive. Pumps that sucked irrigation water from the river worsened the problem, often irrigating rice fields with young salmon, which perished.

Williams had asked the National Marine Fisheries Service, the responsible agency, to lean on the Bureau of Reclamation, which operates the dam, to modify operations to help the salmon. The fisheries agency refused, saying it was powerless. So she came to us.

"Can we get help via the Endangered Species Act?" she asked. I said I'd see what we could do to help. It wasn't going to be easy. Courts are notoriously loath to second-guess natural resources agencies that employ scientists who are supposed to safeguard wildlife and other resources.

Still, the situation seemed dire enough that we decided to give it a try, and later that year we filed the first suit ever asking a court to order the listing of an imperiled species under the Endangered Species Act. Cindy Williams's organization was the plaintiff.

Photo of Shasta Dam

www.whitehouse.gov

We thought we had a strong case, but it was too novel and ahead of its time for the judge, who turned us down. So we took an appeal to the Ninth Circuit Court of Appeals. We were confident that we'd prevail on appeal -- the situation was a genuine emergency. Then fate intervened. In 1990, while the appeal was pending, the number of spawning fish plunged to about 200. The fisheries agency, which, thanks to the lawsuit, had finally begun to pay attention to this looming catastrophe, got the message. It voluntarily invoked its rarely used emergency powers and put the winter-run on the endangered species list. This was what we were asking for, and so we dropped the suit.

As a result of the listing, major changes were made on and near the river. At considerable expense Shasta Dam was retrofitted to release water cold enough for baby salmon to survive in. The Red Bluff diversion dam was ordered left open at the times most critical to salmon migration. The Iron Mountain Mine, which contributed acid and other lethal pollution to the river, was cleaned up. Two irrigation districts installed long-overdue fish screens. The winter-run's numbers began slowly to rebound.

Meanwhile, we discovered that -- because of loss of spawning habitat due to dams, logging, mining, and urban development -- many other chinook salmon, coho salmon, and anadromous steelhead runs in California, Oregon and Washington had also declined precipitously.

So, beginning in 1995, I brought a series of lawsuits against the federal agency with jurisdiction over anadromous species, the National Marine Fisheries Service (affectionately known as "NMFS") that ultimately resulted in more than 20 species of west coast salmon and steelhead being added to the Endangered Species List as either endangered or threatened, and their fresh-water habitat being protected as critical habitat. The suits weren't easy –- even though NMFS's own fisheries biologists knew that the salmon were imperiled and recommended that they be listed, NMFS's politically appointed managers were afraid that putting them on the list would mean that commercial activities such as logging and water diversions for Big Ag might have to be modified to protect the fish. So NMFS fought like crazy in court, but fortunately we had some good judges who ruled in favor of the salmon.

Chinook salmon

Photo by E.R. Keeley / WA Dept. of Fish and Wildlife

That was just the beginning of the fight, however. Placing the salmon under the protective umbrella of the ESA provided us with strong legal weapons to go after the irresponsible actions that were threatening the fish in the first place –- just what NMFS had feared!

One case in particular that I brought in 2005 and that is still on-going involves the operation of the Central Valley Project and State Water Project in California, two of the largest water projects in the world. Among other things, these water projects pump huge amounts of water out of the Sacramento-San Joaquin River Delta for export south to the Central Valley to irrigate water-thirsty crops such as cotton, and to Southern California for swimming pools and other municipal uses.

This pumping changes the natural flow of water through the Delta, sometimes even causing the San Joaquin River to flow in reverse. Juvenile salmon migrating downstream through the Delta on their way to the ocean are often shunted into diversion channels only to end up on croplands where they perish; or they become disoriented by the unnatural currents and become vulnerable to predators. Many get sucked directly into the pumps to die. Operation of the water projects also results in water temperatures in salmon spawning habitat being too hot, preventing successful hatching of salmon eggs.

In this suit, I represent a coalition of nine plaintiffs, including commercial and sportfishing groups, environmental groups, and the Winnemem Wintu Tribe against NMFS and the federal and state agencies that operate the projects. We hope to force operators of the projects to modify operations in order to protect the salmon. This could well mean reducing the amount of water pumped out of the Delta.

Water is political dynamite in California, and the suit has attracted a swarm of water districts and commercial water users who have intervened in the suit on the side of the government and against us. In a typical court hearing, I and my co-counsel sit on one side of the courtroom while some 10-15 lawyers are arranged on the other side -- so many that they overflow from the counsel table into the jury box.

In October 2007 I argued the case before federal judge Oliver Wanger in Fresno, California. After an all-day hearing, the judge took the case under advisement, and as of February 2008 we are still awaiting his decision. The fate of California's salmon and steelhead runs hangs in the balance.