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Court Tosses Bush Plan for Klamath Water
By Michael Milstein, The Oregonian
October 19, 2005

Water A federal judge says the irrigation plan for farmers doesn't help threatened fish

A federal appeals court on Tuesday threw out the Bush administration plan to deliver irrigation water to Klamath Basin farmers, saying it does not do enough for threatened coho salmon in the Klamath River.

The ruling probably will mean more water must be shifted from farmers to fish in the basin's emotional tug of war over the precious resource.

"This clearly could be a worse picture for us than what we had in terms of water for irrigation," said Greg Addington, executive director of the Klamath Water Users Association.

The 9th U.S. Circuit Court of Appeals ruled that a federal government strategy to phase in higher river flows for salmon over 10 years was arbitrary and capricious because it overlooked the immediate needs of the fish under the Endangered Species Act.

"It is not enough to provide water for the coho to survive in five years, if in the meantime, the population has been weakened or destroyed by inadequate water flows," the appeals court, based in San Francisco, ruled.

The government plan pledged to provide the fish with all the water they need in the final two years of the 10-year span -- 2010 and 2011. But the fish may not have enough water to complete their lifecycles in the meantime, the judges said.

"If that happens, all the water in the world in 2010 and 2011 will not protect the coho, for there will be none to protect," they wrote.

They sent the case back to a district court to impose corrective measures, which could include more water for fish.

The case resulted from a lawsuit filed by the Pacific Coast Federation of Fishermen's Associations, the Oregon Natural Resources Council, Waterwatch of Oregon and other conservation groups. They argued that the government strategy left salmon to struggle in a low river while water flowed to farms.

The Klamath Basin entered the national spotlight in 2001 when irrigation water to farms was restricted during a severe drought so it would be available to salmon and endangered suckers in area lakes.

The Bush administration later routed more water for farms under a plan that promised eventually to increase water dedicated to fish. Government agencies argued it was their best judgement as to how to protect the fish in the face of scientific uncertainty over how much water they require.

But judges said the government did not fully explain how it would avoid harming fish in the early years of the plan.

Farmers said the ruling was evidence that the Endangered Species Act has gone too far and must be reformed. But tribes countered that it was evidence the act serves as a final line of defense for families and tribal cultures that depend on salmon.

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.

Appeals Court Drains Klamath River, Coho Plan
By John Driscoll, Eugene Times-Standard
October 19, 2005

An appeals court tossed out vital components of a federal plan meant to protect threatened coho salmon on the Klamath River, saying there may be no coho left if the plan stands.

A three-judge panel of the 9th Circuit Court of Appeals ruled Tuesday that the measures don’t account for the coho salmon’s life cycle, and that the fish may founder before the end of the 10-year plan.

”If that happens, all the water in the world in 2010 and 2011 will not protect the coho,” wrote Judge Dorothy W. Nelson for the panel, “for there will be none to protect.”

The ruling was the second to find that the U.S. Bureau of Reclamation and National Marine Fisheries Service plan falls short of safeguarding the coho. In 2003, Judge Saudra Armstrong ruled that Reclamation’s plan to balance water use between coho in the lower river, endangered suckers in Upper Klamath Lake and its irrigators on the central California-Oregon border violated the Endangered Species Act.

But Armstrong upheld the National Marine Fisheries Service measures meant to provide more water for salmon. The Pacific Coast Federation of Fishermen’s Associations, the Yurok Tribe, the Northcoast Environmental Center, and Rep. Mike Thompson, D-St. Helena, appealed that aspect of Armstrong’s decision.

Yurok Tribe spokesman Troy Fletcher said the appeals court decision affirms that there isn’t enough water for fish. He said the tribe wants to work with Reclamation and upstream irrigators to find a solution, instead of one group getting a court victory one day, and the other group getting one the next.

”While it’s a victory today there’s a long way to go to solve the bigger issue,” Fletcher said.

The appeals court sent the ruling back to Armstrong so she can draft injunctive relief. How more water might be provided is uncertain. Reclamation has been buying water from farmers to send downstream for the past three years, this year paying $7.6 million for 100,000 acre feet.

Reclamation spokesman Jeff McCracken said the opinion has been passed on to federal solicitors.

”At this point I really don’t know where we’re going to end up,” McCracken said. “I expect we will continue to provide irrigation water and we’ll continue to provide the flows downstream.”

The “reasonable and prudent alternatives” that the appeals court considered were broken into three phases by the fisheries service. The final phase, when coho were scheduled to receive the water deemed necessary to sustain their population, didn’t start until year nine. The fisheries service did not explain why coho would be protected while getting less water than they need for eight years, the court wrote.

Some coho died in a massive fish kill on the Klamath in the fall of 2002, during a period of low flows and high water temperatures. But the lion’s share of the 30,000 to 68,000 fish were chinook salmon, the mainstay of tribal and sport fishermen, and the fish that suppresses limits for commercial ocean fishermen up and down the West Coast because of its weak population in the Klamath.

”Today’s unanimous decision by the court confirmed what we have been saying for years, Klamath River salmon need sufficient flows of cool, clean water to survive,” Thompson said in a statement. “A sustainable water plan in the Klamath benefits fishing communities up and down the Pacific Coast.”

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.