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Enviros Claim Victory in Klamath River Water Ruling
Siskiyou Daily News
October 20, 2005

SAN FRANCISCO - Environmentalists are claiming a victory for their position following the Oct. 18 Ninth Circuit Court of Appeals ruling that rejects the Bush administration's water diversion plan for the Klamath River because “it fails to protect threatened Klamath River coho salmon.”

“The ruling is hailed by Klamath River tribes and surrounding communities dependent on a healthy fishery,” said Howard McConnell, chairman of the Yurok Tribe. “This is an example of how the ESA serves as the last line of defense to protect working families and tribal culture.”

The essence of the court's ruling is that more water needs to flow down the Klamath River in order to protect the coho salmon, declared a threatened species in 1997. The court rejected the Bureau of Reclamation's plan to share the water with irrigators while maintaining what it considered adequate water for the fish.

The Ninth U.S. Circuit Court of Appeals in San Francisco ruled that the Bureau of Reclamation's irrigation plan from 2002 to 2010 provides the coho with only 57 percent of the water it needs and fails to explain how the species will survive. The bureau controls water flows on the Klamath from its dams and reservoirs.

“The agency essentially asks that we take its word that the species will be protected if its plans are followed,” said Judge Dorothy Nelson in the 3-0 ruling. The court told a federal judge in Oakland to order the government to take immediate steps to preserve the coho.

The Bush administration, joined by Klamath Basin farmers who depend on irrigation water, argued to the court that the eight-year water plan was the best estimate of the coho's survival needs in the face of conflicting scientific reports. The plan proposed an increase in flows in 2010-11.

In spite of strong runs of coho salmon returning to the Iron Gate Hatchery on the Klamath River, the court said the coho, which has a three-year life cycle, might be extinct by the time the flows picked up.

Environmentalists make a genetic distinction between hatchery and stream hatched salmon, a distinction the court accepts in its claim that the coho salmon are near extinction. Other biologists question that claim, pointing out that the distinction is minute and the coho population, inclusive of the hatchery fish, is robust.

“It is pathetic we have judges making decisions based on unsubstantiated studies,” said Deb Crisp, Executive Director of the Tulelake Growers Association. “Either they are misinformed or some people have a preconceived idea of what the conditions are in the Klamath River.”

Crisp said the decision is disappointing but she believes it will be appealed. She believes the lawsuit is an attack on agriculture from people who would like to remove all of it from the Klamath Basin.

“We have followed all the requirements,” she said. “If what we are doing is so bad, why has there not been another fish die off. I am highly suspicious of the one in 2002.”

The court used a government report for its decision that identified a Bureau of Reclamation-directed low water flows as a prime reason for a major salmon kill on the Klamath in 2002, a situation that reportedly decimated commercial stocks of chinook salmon in addition to the coho. To protect the endangered fish, which mingle with other species when they reach the Pacific, the government has severely restricted commercial ocean fishing this year as far south as Monterey.

Klamath River irrigators, however, have also contested this argument, claiming that the lack of water flow from the Trinity River, which merges with the Klamath River before reaching the ocean, is a contributing factor to the 2002 incident. Water is diverted from the Trinity River to feed the canal to the Bay Area.

“Our interest is in getting fish back to the Klamath River because we depend on it for our livelihood,” said Glen Spain, northwest regional director of the Pacific Coast Federation of Fishermen's Associations, a plaintiff in the case. He said the ruling should lead to a “better and more balanced water plan.”

“It's always been irrigators first,'' said Earthjustice attorney Kristen Boyles, who represented environmental and fishing organizations challenging the Bush administration's plan. “Fishing communities and tribal communities dependent on these fish ... have been ignored.”

Increased flows for fish probably would come at the expense of irrigation water for farmers. Pacific Legal Foundation lawyer Robin Rivett, representing the Klamath Water Users Association and the Tulelake Irrigation District, said the court appears to have misunderstood the case.

“All the water that's necessary for survival of the species will be provided in the Bureau of Reclamation's current plan,” he said.

Rivett said he was confident that the government could provide a better explanation of its plan to U.S. District Judge Saundra Brown Armstrong in Oakland and avoid a court ordered increase in water supplies.

Klamath Basin irrigators say there is plenty of water for both them and the fish and wish to avoid a complete cut-off of irrigation that happened several years ago, a situation that decimated agriculture in Northern California and Southern Oregon causing many third generation farmers to lose their land.

A coalition of commercial fishermen and conservation groups, joined by the Yurok and Hoopa Valley Tribes, filed the lawsuit against the National Marine Fisheries Service and Bureau of Reclamation in September 2002, claiming that the agency's 10-year plan “failed to leave sufficient water in the river for salmon and relied on future, speculative actions from the states of California and Oregon to make up for the missing water.”

The lawsuit claims that in the fall of 2002, five months after the plan was adopted, low flows in the Klamath River caused by unbalanced irrigation deliveries killed nearly 70,000 adult salmon. Months earlier, during the spring of 2002, the lawsuit claims that juvenile salmon died in the river from low water conditions. The plaintiffs claim that the loss of these juveniles is what led to the severe commercial salmon fishing restrictions this year on the California and Oregon coasts.

“This decision gives hope to the families that depend on Klamath River salmon,” said Glen Spain of Pacific Coast Federation of Fishermen's Associations. “This case is about restoring balance to the basin so that fishermen, Native Americans, and irrigators can all receive a fair share of the water. We will continue to work on a new vision for the basin.” PCFFA is the west coast's largest organization of commercial fishing families.

The environmentalist's concept of fair share is contested by the irrigators who claim that the 2002 plan is a fair share. The irrigators also believe that the science used by these special interest groups is skewed and their real agenda is to pressure for the removal of the hydroelectric dams on the Klamath River.

The dam removal concept, in fact, was mentioned in the Yurok Tribe press release announcing its successful lawsuit decision by the Ninth Circuit Court of Appeals.

The Yurok Tribe press release stated: “The Klamath was once the third mightiest salmon-producing river in the continental US, behind only the Columbia and Sacramento in productivity. The river has been reduced to a shadow of its former self largely as a result of the Bureau of Reclamation's re-plumbing of its headwaters to maximize irrigation in the arid upper basin desert along with hydroelectric development. The long-term answer may include buying back some of the agricultural land in the Klamath Basin to reduce water demand, as well as decommissioning all or part of the hydroelectric project owned by Portland based PacifiCorp.”

Some speculate that the recent attention relating to blue-green algae, an issue driven by environmental and tribal interests, also relates to an agenda promoting the removal of the dams, which are up for relicensing.

Salmon hatcheries were built on the Klamath River mitigating the impact of the dams when they were constructed. For decades these effectively provided for the fishing industry and water for the irrigators, who point out that water flows are regulated and have not changed and say that not all the factors relating to claimed declining fish populations are being considered.

The appeal was filed by Earthjustice on behalf of PCFFA, Institute for Fisheries Resources, The Wilderness Society, WaterWatch of Oregon, Northcoast Environmental Center, Oregon Natural Resources Council, Defenders of Wildlife, Klamath Forest Alliance, and Headwaters. In the district court, these groups were joined by Congressman Mike Thompson (D-Napa) and the Yurok and Hoopa Valley Tribes; amicus briefs supporting the plaintiffs were filed by the Cities of Arcata and Eureka, Del Norte, Humboldt, and Trinity Counties, and the Humboldt Bay, Harbor, Recreation and Conservation District.

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