Prosecutor says fishery officials stress enforcement

With state authorities vowing to enhance enforcement to protect fish along the Russian River and its tributaries this winter and spring, the local official who would prosecute such cases provided farmers with insights about how he determines what cases to pursue—and what farmers can do to avoid becoming a target of prosecutors.

Sonoma County Deputy District Attorney Jeffrey Holtzman came to a recent Russian River frost protection workshop, where he told winegrape growers his purpose was not to "antagonize or demonize" them, but to give them a straightforward representation of what risks there are for growers with respect to environmental laws that his office enforces.

The issue has become crucial in the Russian River watershed, as the State Water Resources Control Board develops regulations on water diversions for frost protection. State biologists charged that the diversions from the river and its tributaries stranded salmon and other protected fish during a cold snap in the spring of 2008. Any new regulation would not take effect until 2011, and water board officials—under pressure from federal fishery agencies and the threat of a lawsuit by environmental groups—have pledged to step up enforcement of existing laws in the region this year.

Holtzman, who has been prosecuting environmental crimes for 20 years, told the standing-room-only assembly of growers that officials of the national fisheries service, the state Department Fish and Game and other agencies have made it clear to him and his office that there will be heightened enforcement this frost season.

"I am here today to let you know that our office is duty bound to enforce the law. We don't write the laws, we don't create the regulations, and we're not involved with the regulatory process that is now under way in Sacramento," he said.

He stressed that regardless of whether the water board issues new regulations for frost protection, growers remain subject to the federal Endangered Species Act and the state Fish and Game Code, which protects state-listed species.

Further, the Fish and Game Code requires that if a grower substantially diverts water or wants to work in the waterway, he must first contact Fish and Game to reach an agreement as to whether it can be done and in what manner it can be done. Failure to do so is a violation.

He said no one in the state has the right to use water in an unreasonable manner, "whatever right you may claim to water, whether it is riparian right, appropriative right, pre-1914 right or post-1914 right."

For a person to avoid running afoul of the Fish and Game Code, he or she must take any and all reasonable steps that can be identified in order to prevent a violation, Holtzman said.

"That is your legal defense," he said. "You don't ordinarily see prosecutors telling you what your legal defense is to a particular crime, but our goal is not to get notches in our belt with respect to enforcing cases. Our goal is to prevent any violations from occurring and to best protect the salmon species. We want you to know what you can do to protect yourselves."

The more a farmer does to demonstrate that he is acting responsibly, the better position he is in if there is an inadvertent violation of the law, Holtzman said.

"If there are five things that you can do to identify and prevent a violation and you do three of them, don't be so quick to pat yourself on the back, because the law says for it to be an actual legal defense, you have to take each and every step that you can that is reasonable to identify and prevent a violation," he said.

Holtzman said that once a case reaches his desk, he reviews it to determine whether an enforcement action is appropriate. He said he asks himself the following questions: Was there harm? If so, how much? What was the nature of the harm? What actions were taken by the individual to see that the harm didn't occur? How did this happen and who was involved?

There are both civil and criminal sanctions that can be used by the district attorney's office, he said. Criminal cases can be either misdemeanors or felonies. A civil case could result in fines or a court-ordered injunction that would require a farmer to conduct his business in a certain way and prohibit him from taking certain measures.

Holtzman added that authorities "are very much mindful" of efforts grape growers have undertaken to help resource agencies assess the salmon population and determine what types of restoration work can be done. He described his office as "acutely aware of the extremely high risk for extinction faced by coho salmon in Sonoma County."

"While it might not be clear what has caused the significant decline in salmon populations, particularly coho salmon, in Sonoma County, one thing that is absolutely clear is that you as grape growers can play a major role in helping to protect the species," he said.

"Our goal at the end of the day is that there be no fish kills and no grape growers prosecuted. If we end up at the end of the frost season with that, we will declare that a victory," he said.

Chris Scheuring, managing counsel of the California Farm Bureau Federation Natural Resources and Environmental Division, said Farm Bureau urges government agencies to take a collaborative approach with farmers in working to protect species.

"Farmers strive to do the right thing in protecting their crops from frost while avoiding harm to fish," Scheuring said. "A lot of facts surrounding the Russian River watershed remain uncertain, but there's at least one thing we can be sure of: It's in farmers' best interest to stay in full compliance with the law."

(Steve Adler is associate editor of Ag Alert. He may be contacted at sadler@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.