Russell “Buster” Attebery
Appeals Court rules against Siskiyou County Farm Bureau
HAPPY CAMP, CALIFORNIA – Recently, the California Court of Appeal overturned a superior court ruling from Siskiyou County in northern California that would have dramatically undermined a key means to protect fisheries from water diversions. The decision was filed June 4, 2015.
“This ruling a strong affirmation of the State’s obligation to ensure that our rivers are not completely dewatered by agricultural diversions,” said Karuk Tribal Chairman Russell ‘Buster’ Attebery.
The court found that the California Fish and Game Code section 1602 clearly requires irrigators to notify the California Department of Fish and Wildlife when installing and operating stream diversions. For years, diverters have been offering notifications which often result in ‘Streambed Alteration Permits.’ The permits themselves often require certain mitigations to ensure that the diversion does not harm fisheries.
The Siskiyou County Farm Bureau’s case against the state agency offered a tortured argument by claiming that section 1602 of the California Fish and Game Code does not, in fact, mean what it says. Cobbling together snippets of old legislative reports and selective quotes from agency memos, the farm bureau argued that accepting the code’s language at face value would lead to “absurd results.” The bureau claimed the law was meant only to apply to diversions that require physically changing the streambed, not to those that just involve pumping out water.
“I meant what I said, and I said what I meant,” concluded the court, echoing the words of Horton, an elephant in Dr. Suess’ Horton Hatches an Egg. In the story Horton is determined to keep his word to sit on an egg while the mother bird is away.
With this ruling, the court overturned a previous ruling, by a local Siskiyou County superior court judge which essentially handed local farmers a free pass to divert water from the county’s rivers and streams without considering the harmful effects on endangered salmon and other native fish.
Earthjustice filed a friend-of-the-court brief on behalf of the Karuk Tribe, the Pacific Coast Federation of Fishermen’s Associations, and Klamath Riverkeeper, each a staunch advocate for healthy rivers and the recovery of the region’s once-abundant salmon runs.
The California Department of Fish and Wildlife appealed, and Earthjustice again filed a friend-of-the-court brief on behalf of our clients and in support of the state.
The three-judge panel ruled unanimously for the state. The appellate court went further and carefully reviewed the documents the farm bureau had offered. The court found no “latent ambiguity” about what the statute meant and that following the plain language of the reporting requirement didn’t produce any “absurd results.”