Federal Court Denies Government Request to Delay Hearing on Plan to Break 22 Year-Old Fishery
Restoration Agreement Slams Department of Justice for “Hiding the Ball” on Interior Department’s
Attempt to Terminate Hoopa Valley Tribe’s Sovereignty and Property Rights Bureau of Reclamation’s Pre-Holiday Scheme Backfires, for now. On Friday, December 23, 2022, in a rare and scathing rebuke, Federal Judge Jennifer L. Thurston rejected the Justice Department’s request to postpone judicial review of the Bureau of Reclamation’s alleged breach of tribal sovereignty and property rights in a 22 year-old Trinity River fishery restoration agreement. “The Court has received and reviewed the United States’ request for a ten-day extension of time to respond to the Plaintiff’s [Hoopa Valley Tribe] pending motion for reliminary injunction,” (PI) Judge Thurston wrote. “This is not reasonable or justified”, she concluded in denying the request. Hoopa Valley Tribal Chairman Joe Davis welcomed the decision, “Our Tribe asked for the injunction after the Government broke our 2000 agreement with the United States to restore the Trinity River fishery that had been damaged by decades of Bureau of Reclamation mismanagement.” “We opposed the extension of time because of the immediate threat to our fishery that the government’s action means for our people,” said Vice-Chairman Everett Colegrove. The Court explained that “[w]hat the Government does not acknowledge is that the urgency alleged by Plaintiff . . . appears . . . to be almost entirely of the Government’s own making. First, the Government has had notice of the central legal issue since late October 2022. Second, though the Government has committed to giving Plaintiff 15-days’ notice prior to implementation of proposed flow regime changes on the Trinity River, this still amounts to a “gotcha” implementation strategy in the context of litigation. The Government thus far has not committed to hold off on implementing the flow changes until the PI motion is fully briefed and the Court has even a modest time to rule on the matter. Nor has the Government explained why it is either unsure of or is hiding the ball as to the timing of its implementation plans. Instead, the Government proposes to have the reply brief due at 11:59 pm the day before the scheduled hearing, giving the Court essentially no time to consider the full record before the hearing date.” (Emphasis added.) Tribal Council Member Jill Sherman Warne added that “just before we made the final decision to seek an injunction, I asked the government attorneys directly whether they had told Secretary Haaland, herself, what was being done in her name to terminate our sovereign rights. They wouldn’t answer me. But I cannot believe Secretary Haaland would tolerate this conduct by government attorneys if her senior staff kept her informed.”
“We are grateful to the Court for hearing our plea and feel for the first time that we are on a path to
justice in this case,” said Hoopa Fisheries Director, Michael W. Orcutt. Below is the Court’s order: The following transaction was entered on 12/23/2022 at 11:37 AM PST and filed on 12/23/2022 Case Name: Hoopa Valley Tribe v. United States Bureau of Reclamation et al Case Number: 1:20-cv-01814-JLT-EPG Document Number: 115 (No document attached) Docket Text: MINUTE ORDER (TEXT ENTRY ONLY) The Court has received and reviewed the United States’ request for a ten-day extension of time to respond to the pending motion for preliminary injunction (PI), (Doc. [112]), which is opposed by Plaintiff, (Doc. [114]). Counsel for the United States cites other professional obligations, the complexity of the legal issue in dispute, and the delays inherent in internal Department of Justice reviews as justifications for the requested extension. What the Government does not acknowledge is that the urgency alleged by Plaintiff in its PI motion appears, at least on the present record, to be almost entirely of the Government’s own making. First, the Government has had notice of the central legal issue since late October 2022. Second, though the Government has committed to giving Plaintiff 15-days’ notice prior to implementation of proposed flow regime changes on the Trinity River, this still amounts to a 3 “gotcha” implementation strategy in the context of litigation. The Government thus far has not committed to hold off on implementing the flow changes until the PI motion is fully briefed and the Court has even a modest time to rule on the matter. Nor has the Government explained why it is either unsure of or is hiding the ball as to the timing of its implementation plans. Instead, the Government proposes to have the reply brief due at 11:59 pm the day before the scheduled hearing, giving the Court essentially no time to consider the full record before the hearing date. This is not reasonable or justified, particularly given the Court’s own extraordinary resource constraints. The request is DENIED. Notwithstanding the above, the Court will entertain a reasonable stipulation related to the pending deadlines signed by District Judge Jennifer L. Thurston on December 23, 2022. (Munoz, I)