Complaint says Fish and Game violates water rights by requiring permits

By TIM HEARDEN

Capital Press

A new lawsuit has been filed against the California Department of Fish and Game over its controversial water diversion policies in two rural valleys near the Oregon state line.

In its complaint filed March 25 in Siskiyou County Superior Court, the county's Farm Bureau asserts that DFG is violating Scott and Shasta valley landowners' water and property rights by requiring permits for diversions.

The suit asks the court to prevent the state agency from enforcing its "new" interpretation of Fish and Game Code Section 1602, which the agency has argued requires landowners to obtain expensive permits for simple diversions.

"Farmers and ranchers in Siskiyou County are now in the impossible position of either complying with (DFG's) new interpretations of the Fish and Game code, or continuing to extract water pursuant to their water rights under the longstanding application, meaning, interpretation and enforcement of the code and thereby risking civil and criminal prosecution," the lawsuit states.

The suit asserts that farmers need declaratory relief or they could face misdemeanor charges and civil and criminal penalties of more than $25,000 per violation.

To obtain streambed alteration and incidental take permits on their own, landowners would have to pay fees and environmental review costs that could fall between $11,000 and $28,000, a water official said last spring.

Last month, San Francisco Superior Court Judge Ernest Goldsmith issued a preliminary ruling invalidating a much cheaper watershed-wide permit the DFG offered to landowners in the two valleys. Goldsmith ruled the agency didn't prepare the permits in accordance with environmental laws.

In legal filings, the DFG has argued it would be virtually impossible to fully enforce illegal takings in the two valleys, and the blanket permits provided a way to protect imperiled coho salmon as required under the state Endangered Species Act.