Judge Puts Fish Death Trial on Ice Thursday
By Dylan Darling, K-Falls Herald & News
September 10, 2004

Tribes, government debate blame for massive fish die-off

The courtroom debate about what caused 34,000 salmon to die on the Klamath River in Fall 2002 was delayed again Thursday.

A trial pitting the Yurok Tribes against the federal government and the Klamath Water Users Association, set to start on Sept. 20 in Oakland's District Court, was postponed, said Judge Saundra B. Armstrong's court clerk.

No new trial date has been set because motions to dismiss the case, submitted by both the U.S. Bureau of Reclamation and the water users, will be considered in a hearing on Oct. 26, said Lisa Clark, court clerk. Depending on what Armstrong decides, a new trial date could be set or the case could be thrown out of court.

At the heart of the potential trial is determining whether the Bureau's Klamath Project contributed to the die-off of salmon on the lower Klamath River in 2002. The Bureau and the water users have moved to have the case dismissed because they say the court doesn't have proper jurisdiction and because the plaintiffs, who have a reservation on the river, are asking for relief that doesn't match any damages.

"They are asking for a future specific requirement that the government gives them more water, even though this is trying to redress something that happened in 2002," said Andrew Lloyd, an attorney which is representing the water users in the case.

The Yuroks have said they want more water to flow down the river from the Klamath Project to prevent another fish kill caused by infection and disease like that seen in September 2002.

Federal officials routinely don't comment on pending litigation.

The potential trial is an off-shoot of an overarching case that was set for the courtroom in Spring 2003. In that case, the Pacific Coast Federation of Fishermen's Associations and other downstream interests, along with they Yurok Tribe, sued the federal government to release more water down the Klamath River from Iron Gate Dam.

The water users entered the case as interveners on the side of the defendants.

The trial for the original case was canceled the day it was set to begin in May 2003 and Armstrong said she would come out with a written decision, except for the issue of what caused the death of the salmon. For that, she said, a trial was needed.

In her written decision made in July 2003, Armstrong said the Bureau needed to tweak two parts of its biological opinion, or guiding document for the management for the river, to bring the Project into compliance with the Endangered Species Act.

She didn't give a time frame on when the changes needed to be made. The Bureau has made one of them and is still working on the other.

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