PNP comment: This trial was postponed until June 26, 2012. — Editor Liz Bowen

by TIM HEARDEN, Capital Press May 29, 2012

YREKA, Calif. – The trial to determine the Siskiyou County Farm Bureau’s water suit against the California Department of Fish and Game is expected to wrap up this week, but a decision may not come soon.

The group filed suit after the state said landowners need permits for simple water diversions.

The trial resumed May 29 after Superior Court Judge Karen Dixon heard testimony May 8-11 from farmers over the disputed Fish and Game Code Section 1602 dealing with water diversions before setting a recess.

Farm Bureau attorney Darrin Mercier said he planned to call several more witnesses before yielding to California Attorney General Kamala Harris’ office, which is defending the lawsuit for Fish and Game.

“I think it was a great chance for the farmers and ranchers of Siskiyou County to be able to tell their story to the court about how this change in a 50-year-old law truly affects their operations,” Mercier said.

Harris’ office did not respond to a message seeking comment about the trial.

It may be autumn before the litigants learn the outcome of the case. The two sides will file closing briefs and reply briefs and the court will have 90 days to make a decision once the briefs are filed, Mercier said. No closing oral arguments will be made, he said.

The suit asks the court to prevent the DFG from enforcing what the Farm Bureau calls its “new” interpretation of Section 1602, which the agency has argued requires landowners to obtain expensive permits for simple diversions.

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.

The suit was filed as San Francisco Superior Court Judge Ernest Goldsmith was set to invalidate a much cheaper watershed-wide permit the DFG offered to landowners in the Scott and Shasta valleys in 2010. Goldsmith ruled the agency didn’t prepare the permits in accordance with environmental laws.

The trial in the Siskiyou Farm Bureau suit was scheduled to begin May 1, but Dixon agreed to delay it a week after the state introduced more documents. During a hearing on pretrial motions April 30, Dixon also ruled that Mercier could enter evidence about how DFG’s interpretation of the Fish and Game Code is affecting water users.

During testimony, a trio of farmers said the DFG’s actions would add a new layer of requirements they’d have to meet to irrigate their crops, and a legislative history expert told the court the section in question had more to do with lake and stream alterations than water use, Mercier said.

The Siskiyou Farm Bureau has received several donations to help meet its legal costs, including $7,000 from the group Save Our Scott and Shasta and $5,000 from the Siskiyou County CattleWomen, according to a news release.

   http://www.capitalpress.com/california/TH-siskiyou-water-trial-w-infobox-060112

Online

Siskiyou County Farm Bureau: www.siskiyoucountyfarmbureau.com

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

By Liz Bowen

I was not able to attend the Trial this week, but received several reports.

This is a simple issue: Does opening a headgate to remove legal irrigation water create a physical alteration to the streambed and thus, through new language by the DFG, require a Streambed Alteration 1600 Permit?

Landowners in Siskiyou County claim that opening a headgate does NOT affect the streambed and a Permit is not needed. Siskiyou County Farm Bureau has sued the CA. DFG over this issue.

The TRIAL finally began last week in Siskiyou Superior Court. DFG attorneys previously tried to move the Trial to Sacramento or San Francisco, but Farm Bureau’s attorney Darrin Mercier prevailed. We agree. It is a Siskiyou issue and must be tried in Siskiyou Court.

DFG’s in-house attorneys were recently replaced by 3 attorneys from the State Attorney General’s office! Wow, a bit of high power brought in, huh?

Several points made this week as Attorney Mercier presented the Farm Bureau’s case.

1: An expert witness on the 1600 Permit stated that the Streambed Alteration Permit was never about “water” but about protecting the streambed and bank during specific projects. Originally these were big projects like bridge building, road building near creeks, streams and rivers, etc.

2: DFG officials from the Redding Regional Office, Mark Stopher and Neil Manji, can’t seem to remember previous statements they made in their depositions acting like air-heads! And these people are running government programs and agencies!

3: It looks like Mark Stopher, the previous Interim Regional Manager at the Redding office, is the designer of the NEW 1602 Permit. He wrote a NEW definition of requirements for water diversions (irrigators) and did NOT follow correct government procedure. He did not send the new language through the  required Administrative Procedures Act process, which is required by law. (Makes us wonder if Mark Stopher believes he is above the law!)

The TRIAL will reconvene on May 29 in the Siskiyou Superior Court.

P.S. Mark Stopher is also the lead for the CA. DFG on the Klamath Basin Restoration Agreement as a Stakeholder. The KBRA, if approved, will have a huge impact against our irrigation water in Siskiyou County. You guessed it, we don’t much care for Mark Stopher in Siskiyou.

Needed:    Concerned citizens to attend

Trial

of

Siskiyou Co. Farm Bureau

Vs

CA. Dept. of Fish and Game

Over the 1602   Streambed  Alteration Permit

9 a.m.

Wednesday — May 9, 2012

Siskiyou Co. Courthouse

Basement court room

Pre-trial motions today in Siskiyou Superior Court heard by Judge Karen Dixon

The State Attorney General told Judge Dixon and Siskiyou Co. Farm Bureau leaders that they will have another 25,000 documents for Discovery delivered Tuesday, May 1st.

Judge Dixon was not happy. This is difficult for the Farm Bureau’s leaders and attorney Darrin Mercier to read them before the Trial was to start on Tuesday, May 1st.

So Judge Dixon moved the trial one week to Tuesday, May 8, 2012

9 a.m. for the last two pre-trial motions, then the trial will begin.

Courtroom 2 – in basement of the Siskiyou County Courthouse — most likely in this room, if things do not get changed again.

The trial date is set for Tuesday, May 1, 2012 for the lawsuit to be heard by a Siskiyou Co. Superior Court Judge.

Siskiyou Farm Bureau claims that opening a headgate to remove legally adjudicated irrigation water does not alter a streambed and so does not need a 1602 Streambed Alteration Permit.

In the newest regulations stated by California Dept. of Fish and Game employees, the state officials claim a Permit is now needed when landowners use their legal Water Right allotment of water.

A Permit is costly as it comes with a FEE and also a FINE.

Time: 9 a.m.

Place: Siskiyou Co. Courthouse

Environmental groups’ request to join lawsuit denied

Posted: Wednesday, July 20, 2011 9:59 AM

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, Park 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 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 DFG’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/

2.  BUSINESS: Action Items 7:15

1. Approval of Minutes: June 1, 2011 – Regular Meeting

June 27, 2011 – Special Meeting

1. Recognition of 8 years of service upon Erich Yokel’s departure from Siskiyou RCD.

2. EDD Work Sharing Unemployment Insurance Program Renewal

3. Employee Job Review & Performance Evaluation for Danielle Yokel

4. Policy: Landowner Access

5. Possible New Grant Agreements – including, but not limited to:

   1. Fish Screen Maintenance Program funded by Cantara Trustee Council

   2. Fish Screen Maintenance Program funded by CDFG Adaptive Management Program

6. Notice to Fish Screen Owners

7. Letter of Credit for ITP Watershed-wide Program

8. Financial Report & Payment of Bills – District Manager

9. Preliminary FY 2011-2012 Budget

******************** 10 Minute Break*******************                                     8:00

3.  REPORTS: 8:10

1. Agencies:

   1. NRCS – Jim Patterson

   2. CDFG – Joe Croteau

   3. Others

2. Projects: Gary Black

3. SRWC: Danielle Yokel

4. District Manager: Carolyn

   1. Correspondence & Information

      1. i.            Response from CDFG regarding ITP $100 fee, 1600 permit & other costs

5. Directors:

4.  AGENDA ITEMS FOR NEXT MEETING: Thursday, August 4, 2011                                            8:55

5.  ADJOURN: President

DFG has sent out a new extortion letter demanding 1602 Permit and coho Incidental Take Permit from legal water right irrigators.

Learn more.

Attend the next

Scott Valley Protect Our Water

Meeting

Wednesday, June 29, 2011

At

Fort Jones Community Center

7 p.m.

Also find out what is happening with

the

Water Master Service fee HUGE increase

Also

Election Redistricting boundaries for

State Assembly, Senate and

Congressional Districts

We post letters sent to the Commission and to POW.

Send us your letter by June 28, 2011 !!!!

*  Coordination projects with local governments

working with

attorney Fred Kelly Grant.

* Klamath dams removal situation up-date

Please attend.

Will try to keep it as short as possible.

See you there!

Liz Bowen, president

Mark Barid, vice president

By Barbara H. Peterson

Farm Wars

Check out this website: www.farmwars.info

Parts of California are drying up, such as areas of a once fertile, agricultural breadbasket in the San Joaquin Valley. What were lush, productive fields are now a distant memory. Why? Because the California Department of Fish and Game (CDFG) has decided to re-interpret the Lake and Streambed Alteration Program (DFG code, section 1600) to include the normal use of water as a “permitable” action.

Here is the vague wording that allows such a broad interpretation:

If DFG determines that the activity may substantially adversely affect fish and wildlife resources, a Lake or Streambed Alteration Agreement will be prepared. The Agreement includes reasonable conditions necessary to protect those resources and must comply with the California Environmental Quality Act (CEQA). The entity may proceed with the activity in accordance with the final Agreement. (DFG)

It is this agreement that in effect, transfers water rights from the property owner to the CDFG.

To keep this in perspective, let’s take a look at how water is allocated to see just how much water farmers really get as opposed to water used for environmental concerns. According to Cassandra Anderson of MorphCity:

The division of water is as follows:

• A whopping 48% goes to the environment (that means the federal government has control over it via the Endangered Species Act – ESA), and most of that water flows right into the Pacific Ocean!

• 41% Goes to Agriculture

• 11% Goes to Urban use

Does it make any sense at all to take more water from farmers in the guise of “saving the environment,” and turn a once booming agricultural community supplying precious food to our nation into a dust bowl just to let that precious water flow right into the Pacific Ocean?

The following is a letter from Mark Baird, Vice President of Protect Our Water, Scott Valley:

The California Department of Fish and Game (CDFG) is using the cloak of environmental concern to gain control of all surface Water Rights in the State. The CDFG has decided to “re-interpret” a sixty year-old water law, Section 1600,” to include the act of turning on the water as a permitable action.

If successful, these permits can cost as much as $30,000 per diversion. The goal is MONEY — (a self-funding agency that can raise fees at will); and POWER — (the ability to modify judicially decreed and appropriative water rights).

This program was suggested to CDFG by Cal Trout and the Natural Heritage foundation.

No one in this Siskiyou County watershed is stealing water. All of our Water Rights are recorded. All diversions are on California Dept. of Water Resource (DWR) maps. The DWR is receiving all the required reports.

I can prove with CDFG documents that the CDFG has been killing Wild Coho Salmon for 20 years. This is in violation of the federal listing in 1996 of coho salmon to the Endangered Species Act.

The CDFG is using threats and extortion to coerce ranchers and farmers into voluntarily signing contracts, which give control of surface Water Rights to CDFG.

Our group is refusing to sign. We will not submit, we will not sign our property over to CDFG. WE WILL FIGHT to protect our property. Water Rights are property rights under the State Constitution.

If the CDFG is successful here, the rest of California will be next.

On April 1, 2011,

About 150 people showed up to support Mark and Cyndi Baird when they officially and legally turned on their irrigation water diversion today, April 1, 2011. California Dept. of Fish and Game Warden told Mark that he could be cited for not having a Permit to do so. Mark stands on his Constitutional Right of property and states he does NOT need a Permit to use his Water Right.

In fact, Mark told the Game Warden to come to the Water Rally Protest and arrest him. No one from Fish and Game showed up. More than 20 folks made the one-lane road trip up to the mountain diversion and helped turn the crank on the diversion above the fish screen.

(Klamath Basin Crisis)

The Scott Valley Protect Our Water (POW) mission statement:

• We say NO to those regulations that are attempting to destroy our constitutional Rights.

• We will not submit, nor sign our rights away.

• We will stand on those Constitutional Rights with all our resources at our command.

The following is taken from “Civil Disobedience, the Right of Revolution:”

Our government enacts laws that intend to subjugate and enslave. We are hit from all sides with programs that invade our privacy, take away our rights as free citizens, and make chattel of us. Our government is out of control, and its laws do not stand for what is right. Therefore, it is our duty as citizens to question its authority. It is our duty as citizens to revolt. Thoreau states: “All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist the government when its tyranny or its inefficiency are great and unendurable.” This revolution is not one to eliminate the government, but to make it better. “I ask for, not at once no government, but at once a better government” (Thoreau, 1849).

© 2011 Barbara H. Peterson

(John McCamman is the California state-wide Director of the Dept. of Fish and Game.  Neil Manji is the Regional Manager based in the Redding, California office of DFG.)

By Mark Baird

McCamman and Manji were in attendance at four venues this week in Siskiyou County.  By all reports, I have recieved, the meetings did not go well for CDFG.  I was not present but was able to gain reports from people in attendance.

First appearance was at the Board of Supervisors during a regular Board meeting.  Mr. McCamman spoke for three minutes during the public comment period after which he left the chamber without answering any questions.  This was viewed as very disrespectful by the Board.  Board was not notified in advance that he was coming.  Had no idea why he was there.

Second meeting with “stakeholders”.  Stakeholders were people who had signed up for the original Water shed Wide Permit.  (Farm Bureau was NOT invited, but Rex Houton attended as one of the signees). CDFG informed the people that they would no longer be able to issue 1602 permits at all.  The people in attendance were very upset with fish and game.  Minimum in stream flows were discussed with no conclusion.  ( CDFG does not know its own regulations, ie Code section 6020, which outlines maximum bypass flows).  Meeting attendees reminded CDFG they oversee fish and not water.  When asked if CDFG intended to play “Hardball” over flows,  McCamman responded, ” Hardball? Oh you people will know when we play hardball, because a lot of you will be in jail”.  That was not well received.

Third Meeting  Between CDFG and RCD board members.  Bill Krum (siskiyou rcd) and Gary Black (siskiyou rcd) accused CDFG of decimating the RCD with the lies and extortion and devision caused within the community as a result of CDFG’s activities.  RCD claims they may be finished in the Scott Valley as landowner trust has been effectively destroyed.  Another Board member ( not sure who this was) accused CDFG of leaving the RCD to “twist in the wind” and is worried about personal liability for RCD’s part in an illegal program.

Fourth Meeting.  CDFG and Protect Our Water.  Sheriff Jon Lopey present as well as several Protect Our Water Board Members.  Sheriff Lopey was not pleased with the uncivil, disrespectful, uncooperative and decietful methods with which CDFG interacts with not only the citizens, but also with his office.  He informed McCamman that he has made repeated attempts to communicate with CDFG with almost no response.  Nancy Carver relayed the threatening situation she was placed in by Game Wardens, started to cry a couple of times but got through it.  No response from McCamman.  Jim Mcfadden asked how we were supposed to get in creek if CDFG would no longer issue 1600 permits for any reason.

No substantive response from McCamman or Manji.  John Menke cited the absolute lack of genetic difference between hatchery and wild fish and called for an immediate de-listing.  No response from McCamman or Manji.  Craig Chenoweth testified that the landowners in this water shed know the answers to problems in the watershed but will not cooperate in any way unless CDFG agrees in writing to respect the Constitutional Rights and Water Rights of the Landowners. McCamman claimed that he was ignorant of the harsher provisions of the program.  Mr Chenoweth pointed out that we have all of the documentation with Mr. McCammans name on it and not being truthful would not help the situation going forward.  My wife Cyndi commented that from the moment they entered the building they were looking at their watches and really had nothing of substance to say.  She said it seemed to her that Mr McCamman and Mr. Manji were more fufilling an annoying obligation than trying to achieve any result.

My opinion from what information I was able to gather.  I am not sure what they hoped for, but as usual, they went about it badly.  I cannot imagine circumstances under which any one would trust anything Fish and Game has to say for a very very long time.

Our next battle is already shaping up to be a big one.  The North Coast Regional Water Quality Control Board and the Federal EPA  thinks they are going to impose another Draconian Water Plan (TMDL) upon the Water Right Owners of our watershed.  April 20th and 21st are the “informational” meetings.  Both are in Fort Jones.

WE WILL FIGHT TO PROTECT OUR PROPERTY.   WE WILL NOT SUBMIT.