A long defunct fish ladder on an historic dam on the Merced River is the focus of a public trust lawsuit by advocacy group Water Audit California.
The lawsuit, filed in late September, demands the Merced Irrigation District repair and properly maintain a fish ladder on the Crocker-Huffman Dam, about 30 miles northeast of the City of Merced.
The fish ladder was possibly built around the same time as the dam back in the 1910s. A photo showing a man standing alongside what is labeled as a fish ladder on the dam in 1920 can be found on a Mariposa County genealogy website.
But sometime in the 1970s, the Department of Fish and Wildlife recommended closing the fish ladder and instead trying to move native Chinook salmon, steelhead and other fish around the dam in an experimental “spawning channel,” according to a 2009 letter from Fish and Wildlife that is included in exhibits attached to the lawsuit.
The spawning channel failed and Fish and Wildlife directed Merced Irrigation District to reopen the Crocker-Huffman fish ladder, according to the 2009 letter.
That never happened and the irrigation district has been derelict in its obligation to protect the public trust, the lawsuit alleges.
The public trust doctrine means that the state of California holds all natural resources “in trust” for the most beneficial use for the public. That includes waterways and fisheries.
Water Audit is asking a court to require Merced Irrigation District to reopen the Crocker-Huffman fish ladder and keep it in good operational repair.
Both Water Audit and Merced Irrigation District declined to comment.
“We just got a copy of the lawsuit and are still in the process of going through it,” said Phil McMurray, general counsel for the irrigation district.
In an August 29 letter to the district, Water Audit attorney Bill McKinnon asked not only that the fish ladder on the Crocker-Huffman dam be repaired, but also another fish ladder further upstream on the Merced Falls dam.
The Merced Falls dam, however, is part of a hydropower facility that is undergoing relicensing by the Federal Energy Regulatory Commission, which would have authority over the fish ladder on that dam.
The Crocker-Huffman dam doesn’t have a hydropower function so comes under state court jurisdiction, McKinnon argues in his lawsuit.
In his Aug. 29 letter to the Irrigation District, McKinnon also requested that the district provide enough water to support fish in “good condition.”
In the lawsuit’s exhibits, McKinnon also included a 2010 letter and technical memorandum from the National Oceanic Atmospheric Administration that demanded the Crocker-Huffman and Merced Falls fish ladders be repaired as part of a “near-term, interim measure toward habitat restoration and recovery of Merced River’s anadromous fish populations.”
All of which could mean this lawsuit is gearing up as a replica of the successful San Joaquin River lawsuit that invoked California Fish and Game Code 5937, which states in part: “The owner of any dam shall allow sufficient water at all times to pass through a fish way…to keep in good condition any fish that may be planted or exist below the dam.”
That lawsuit, filed in 1988, reached an historic settlement in 2006 that established the San Joaquin River Restoration Program and required water contractors in the Friant Division of the Central Valley Project to give up a portion of their water.
Water Audit has also threatened to sue the City of Bakersfield for allegedly ignoring its public trust obligations in regards to Kern River operations.
The organization demanded the city conduct a detailed study of those operations. The city said that it had begun outlining such a study and is in talks with Water Audit.
No details of exactly what that study will entail have emerged so far.