ELR Citation: ELR 20877
No(s). Civ. S-91-1074 DFL JFM (E.D. Cal. Jan 9, 1992)

The court enjoins a California county irrigation district from pumping activities that kill or harm the Sacramento River winter-run salmon, a threatened species under the Endangered Species Act (ESA), as a taking in violation of ESA §9. The California Fish and Game Commission ordered the irrigation district to install a fish screen in 1920 due to problems caused to marine life in the river by the district's water diversion activities, but spring floods in 1921 washed the screen away. The state successfully sued the district to compel it to install a fish screen meeting the Commission's requirements or cease operating its pumping activities. The district installed a fish screen in 1935 but it washed away within three years due to floods. The district did nothing more and the California Department of Fish and Game finally installed a new screen in 1972. However, the district's pumping velocity continued to cause the loss of winter-run salmon, and the U.S. Fish and Wildlife Service notified the district that it was liable for incidental takings of the winter-run salmon under ESA §9 without first obtaining an incidental take permit. The district failed to apply for a permit and the United States sought to enjoin the district from further pumping activities.

The court holds that the district's pumping, not the presence of the fish screen, causes the taking of winter-run salmon in violation of ESA §9. Evidence shows that the district's pumping harms fish in the absence of a fish screen. Further, even though the current fish screen is not now effective to protect the migrating salmon fry, the screen itself presents no hazard to the salmon. It is because of the pumping that the screen is needed and the screen becomes hazardous because of pumping velocity exerted by the district's pumps. Moreover, it is because of the district's stubborn resistance to its obligations that California undertook to install the screen.

The court finds that it has not been established that California's law of proximate cause is applicable to the interpretationof the ESA, and it is doubtful that Congress intended the ESA to apply differently in different states depending on state law definitions of proximate cause. Moreover, California case law has held that the test for causation is whether the defendant's conduct was a "substantial factor" in bringing about the injury. Because the district has the power and authority over the operation of its own pumps, it is responsible for taking the salmon irrespective of whether the ESA's or the state's definition of "taking" is applied. The court holds that although the ESA provides that federal agencies should cooperate with state and local authorities to resolve water resource issues regarding the conservation of endangered species, the provision does not require that state water rights should prevail over the restrictions set out in the Act. The ESA provides no exemption from compliance to persons possessing state water rights and the district's state water rights do not provide it with a special privilege to ignore the ESA.

Finally, the court holds that because enforcement of the ESA prohibition on taking a protected species is not dependent on the U.S. Environmental Protection Agency's adoption of a recovery plan, an injunction is appropriate. Interpreting the ESA to require that enforcement occur only after critical habitat is designated could render the listing of an endangered or threatened species moot, since a species may not survive promulgation of a recovery plan without relief from activities that jeopardize its existence. Moreover, enforcement of the ESA is not dependent on compliance with the National Environmental Policy Act (NEPA), because the effort to enforce compliance is not a major federal action triggering NEPA. The decision of a law enforcement agency whether to go forward with an action or forbear from action would otherwise require a NEPA analysis.

Counsel for Plaintiff
Eileen Sobeck
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Paul Minasian
1681 Bird St., P.O. Box 1679, Oroville CA 95965
(916) 533-2885