Judge Won't Pull Coho Protections
By John Driscoll, Eureka Times-Standard
January 12, 2005

An Oregon judge on Tuesday denied a request by the Pacific Legal Foundation to remove protections for coho salmon in the Klamath River Basin.

With roots in the wrangling over water for fish and farms in the basin, it's the second case of its kind recently brought against the federal government. The ruling is being hailed as a victory for American Indian tribes and fishing interests in the lower basin.

Judge Michael Hogan ruled from the U.S. District Court bench in Eugene, Ore., that although the Endangered Species Act listing of the region's coho salmon was legally deficient, the protections should remain until the federal government issues its new policy on hatchery born salmon.

That final decision is expected this summer. The National Oceanic and Atmospheric Administration has recommended reinstating protection for the coho.

Yurok Tribe Executive Director Troy Fletcher said he believes the tribe's attorneys were able to show that the Indian fishery in the Klamath would be harmed by removing protection for the coho.

"The judge properly left the listing in place, partly because of the effect it would have on tribal fisheries," Fletcher said.

He said the Endangered Species Act protections are an important tool in holding the line against further degradation of the river.

The Yurok Tribe intervened in the case.

The U.S. Bureau of Reclamation operates its central Oregon-California border irrigation project in a balancing act between endangered species, irrigators and wildlife refuges.

In 2001, the bureau for the first time shut off water to many of the Upper Klamath Basin's farms to provide water to salmon and endangered suckers, prompting protests from irrigators. The following year the bureau crimped water to the river to deliver full supplies to farms, and 34,000 to 68,000 salmon died -- including some coho.

Glen Spain with the Pacific Coast Federation of Fishermen's Associations -- which also intervened -- called the suit an attempt by irrigators to grab more water from the river without regard to threatened fish.

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Upstream Swim for Salmon Species
By Darby Patterson, The Sacramento Union
January 14, 2005

A federal judge declared this week that coho salmon have been illegally listed as threatened under the Endangered Species Act. The decision, by Judge Michael Hogan, was hailed by the Pacific Legal Foundations as a victory - saying it reverses a policy that reduced the delivery of irrigation water to protect a species that was never threatened.

At the same time the Pacific Coast Federation of Fishermens’ Associations, the lead party supporting the listing of the coho, is also claiming itself a winner in the case. The group that represents commercial fishing families on the West Coast said the decision will have no real impact because, by this June, the federal government will re-list the coho.

The National Marine Fisheries Service had, in the late 1990s, done an assessment of the coho population in the rivers mentioned in the lawsuits. Based on those studies, the coho was listed as a threatened species. The flaw, according to PLF, was that the government only counted naturally spawned salmon and ignored hatchery-bred salmon. Judge Hogan agreed.

“This victory comes too late for the farmers who were pushed into bankruptcy and the businesses that were forced to close to protect fish that were never endangered,” said PLF attorney Russ brooks.

According to Brooks, the same judge had ruled in favor of PLF in a 1999 lawsuit over the same issue on the Oregon coast. In late 2002, PLF filed its Southern Klamath action, anticipating a similar decision. At the same time, environmental and industry groups sued over the Oregon Coast decision and the whole issue came to a legal standstill while the courts considered the objections.

But, the Ninth Circuit Court of Appeal didn’t resolve the issue until February 2004. “When they cut off the water, they did hundreds of millions of dollars of harm,” Brooks said, “not just to the Klamath River but also the Trinity in Northern California.”

The federation representing fishermen calls this statement a diversion from what they see as the real motivation. “The case was a water grab in the Klamath,” said Glen Spain, northwest regional director for PCFFA. “It overturned protections in the Klamath [River] so they could take more water out of the river.” Spain said large agricultural concerns had wanted increased water for irrigation – and that diverting water from the river would severely impact the coho. “The coho population in the Klamath is down to two percent of historic numbers,” he said.

But PLF asserts that organizations supporting the listing of coho were keeping issues tied up in litigation while farmers suffered. “Our streams and rivers area teeming with salmon, yet the Klamath community was practically destroyed because of environmental policies run amok,” Brooks said.

Even though Judge Hogan ruled the listing of coho salmon was in violation of the Endangered Species Act, the NMFS continues to review West Coast salmon listings – a count that will now include hatchery-bred coho.

Brooks says he is confident this will result in the formal de-listing of the coho and the return of irrigation waters. Spain, on the other hand, is expecting to see coho salmon make a return trip to the list of threatened species - meaning more water in rivers and less for irrigated lands.

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2 Claims of Victory in Coho Ruling
By Paul Boerger, Mt. Shasta Herald
January 19, 2005

With both sides of the issue claiming a measure of victory, reaction to a ruling in the Oregon US District Court on listing coho salmon as an endangered species has met with enthusiasm in some quarters and cautious optimism in others.

The ruling was closely watched by Klamath Basin groups including irrigators and fishing interests.

The Klamath Basin has been a focus of the issue in recent years as the federal government has alternately cut off water to farmers to save fish and then gave the water to farmers that some groups claim resulted in massive fish die-offs.

In suit brought by the Pacific Legal Foundation, that claims in part that hatchery salmon should be counted along with wild salmon in determining numbers, judge Michael Hogan ruled January 11th that listings the coho salmon as an endangered species was "legally deficient." He kept in the listing in place, however, until the federal government completes studies regarding hatchery salmon this summer.

The PLF suit contended, among other issues, that the US Fish and Wildlife Service and the National Marine Fisheries Service erred in distinguishing between hatchery and spawned fish in counting numbers to determine endangered status.

The PLF saw the ruling as vindication of the suit.

"This victory came too late for the farmers who were pushed into bankruptcy and the businesses that were forced to close to protect fish that were never endangered," said Pacific Legal Foundation attorney Russ Brooks. "Our rivers and streams are teeming with salmon, yet the Klamath community was practically destroyed because of environmental politics run amok."

"This ruling should send a message to NOAA Fisheries that they cannot continue to circumvent the Endangered Species Act to keep salmon listed when the prolific number of hatchery fish means salmon are not endangered." Brooks continued.

Klamath Waters Users Association executive director Dan Keppen was a cautious in his response to the ruling. The KWUA represents Klamath Basin farming interests.

"The judge ruled the hatchery fish need to be counted with the wild fish, but he left the listing in place," Keppen said. "Hopefully this might give the government a cover to count both kinds of fish. A fish is a fish."

Glenn Spain of the Pacific Coast Federation of Fisherman's Association says the ruling was a "pyrrhic victory at best" for the PLF and what the judge ruled on was a "minor technical flaw."

"They won a technical battle, but not the war," Spain said. "The judge saw through that it is just a water grab by some disgruntled landowners to remove federal protection and let the fish in the lower river go extinct."

Spain said that regardless of the ruling, the fish are endangered.

"It's beside the point," Spain said. "Hatchery or wild, they are likely to die because of too little water."

Spain said fish losses in recent years have run into "tens of millions of dollars."

"They are just trying to knock out the endangered species listing," Spain said. "The judge saw through that."

A report on the issue from the National Oceanic and Atmospheric Administration is expected this summer.

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.