Tribe, others do not have compelling interest in water case, judge says

By TIM HEARDEN

Capital Press

YREKA, Calif. -- A motion by a tribe and environmental groups to intervene in a local Farm Bureau's water lawsuit against the California Department of Fish and Game has been denied.

Siskiyou County Superior Court Commissioner JoAnn Bicego ruled July 19 that the Karuk Tribe, Klamath Riverkeeper and two other groups don't have a compelling interest in the case.

The Siskiyou County Farm Bureau is seeking a legal interpretation of the Fish and Game Code relating to whether irrigators must notify the state before they draw water.

Wendy Park, the environmental groups' lead attorney, argued that a decision in the case could affect the health of fisheries from which her clients make their livelihoods. But Bicego said the issues being discussed in the case are more narrow in scope.

"The proposed intervenors have not met the burden" of having a direct interest as defined in case law.

The other plaintiffs were the Pacific Coast Federation of Fishermen's Associations and Earthjustice. Park, who represents Earthjustice, said afterward the groups will consider whether to appeal Bicego's ruling.

"We're disappointed because our clients feel that this issue does strongly affect them in getting more stream flows in the Shasta and Scott rivers," she said. "Those are necessary for the protection of salmon and other fish that our clients rely on."

Darrin Mercier, the Farm Bureau's attorney, opposed the group's intervention and said after the hearing he's "excited to get to the substantive issues of this case so we can get our members' issues resolved."

The suit contends Fish and Game is violating Scott Valley and Shasta Valley landowners' water and property rights by requiring special permits for irrigation. The California Farm Bureau Federation withdrew a similar case earlier this year after failing to get it decoupled from environmental groups' suit against the department.

That suit, which was filed by Earthjustice, Klamath Riverkeeper and others, was resolved this spring as San Francisco Superior Court Judge Ernest Goldsmith invalidated the department's watershed-wide permits in the two valleys.

In this case, the Farm Bureau is focusing on Fish and Game Code Section 1602, which Mercier argues applies to people who alter a streambed by installing a pier or water diversion system rather than existing irrigators.

"This water user already has his water right," Mercier said at the July 19 hearing. "The diversion point has already been installed, and at a certain point in time he's going to go and open the valve."

To gain entry into the lawsuit on the department's behalf, Park cited a 1983 case in which an appellate court allowed the Sierra Club to intervene to challenge a pesticide ordinance it believed would have a negative environmental effect.

But Bicego said the Sierra Club was representing members who might have been directly affected by pesticides.

"I don't see the same interest in this case," she said, adding the environmental groups' interest "is more consequential than direct."

Bicego also voiced concerns that the groups' entry would broaden the scope of the case. As it is now, the case involves "a fairly narrow issue of statutory construction," she said.

Online

Siskiyou County Farm Bureau: www.siskiyoucountyfarmbureau.com

Pacific Coast Federation of Fishermen's Associations: http://www.pcffa.org/

Karuk Tribe: http://www.karuk.us/karuk2/index.php

Earthjustice: http://earthjustice.org/

Klamath Riverkeeper: http://www.klamathriver.org/

California Department of Fish and Game: http://www.dfg.ca.gov/