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Klamath Farmers Appeal Court-Ordered Increase in Water for Salmon
By Jeff Barnard, Associated Press
November 13, 2006

GRANTS PASS, Ore. (AP) -- Klamath Basin farmers are going ahead with their appeal of a federal court ruling that gave more water to salmon, raising doubts among salmon advocates that farmers are really interested in solving the region's environmental problems.

Attorneys for the Klamath Water Users Association, which represents about 1,000 farms irrigated by the Klamath Reclamation Project, filed a brief Monday with the 9th U.S. Circuit Court of Appeals in San Francisco in their appeal of an injunction speeding up the timetable for the U.S. Bureau of Reclamation to increase Klamath River flows for threatened coho salmon.

The appeal came after the Bush administration withdrew its own appeal and four weeks before a summit organized by the governors of Oregon and California to find solutions to the Klamath Basin's long-standing environmental problems, particularly four hydroelectric dams widely blamed for hurting struggling salmon runs.

"There was a lot of discussion about not appealing from a lot of different aspects, not least of which is because we are trying to turn the corner (in) our relationship (with) the tribes and downstream interests," said Greg Addington, executive director of the association. "While we're getting close to turning the corner and getting along a lot better, we're not quite there yet. Until we get there, we have to keep our options open."

In 2001, irrigation water was shut off to most of the Klamath Reclamation Project to provide water for threatened coho salmon in the Klamath River during a drought.

After irrigation was restored the next year, tens of thousands of adult chinook died of gill rot while stuck in low warm pools in the river.

Last summer, commercial salmon fishing was practically shut off along 700 miles of Oregon and California coastline to protect struggling Klamath River chinook.

The Klamath summit is tentatively set for the middle of December in Klamath Falls with representatives of state and federal agencies, farmers, tribes, conservation groups and fishermen. One of the top issues will be what it would take for PacifiCorp to agree to remove its four Klamath River dams, which NOAA fisheries has said would be the best way to assure salmon reach blocked spawning habitat.

The farmers' appeal represents an attempt to return to the past, said Dave Bitts, a Eureka, Calif., salmon fisherman and secretary of the Pacific Coast Federation of Fishermen's Associations.

"I have to wonder what happened to all the touchy feely, let's not bash each other stuff we've been hearing the last year or so," said Bitts. "If they want to actually work together for our mutual assured survival, rather that our mutual assured destruction, I would much rather do that."

NOAA Fisheries is likely to have a new management plan for threatened Klamath coho incorporating new river flows by the time the appeals court rules in 2008, which would make the appeal moot, added Kristen Boyles, attorney for Earthjustice, which represents fishermen in the case.

The appeal seeks to lift an injunction imposed last May by U.S. District Judge Saundra B. Armstrong, which says that irrigators will have to do without water in years when there is not enough for both farms and fish.

It argues the injunction is illegal because it makes farmers on the federal irrigation project responsible for making up for water used by state and private irrigators upstream, said Damien Schiff, attorney for Pacific Legal Foundation, a property rights public interest law firm representing farmers.

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.

Irrigators Appeal Key Klamath Decision
By John Driscoll, Eureka Times-Standard
November 14, 2006

Irrigators in the Upper Klamath Basin are going back to a federal appeals court in an effort to overturn a ruling that provided more water to threatened salmon.

The Klamath Water Users Association lodged its argument to the 9th U.S. Circuit Court of Appeals in San Francisco, which had ordered a district court judge to write the injunction the irrigators are appealing.

Farmers say that while there was enough water to irrigate during a wet 2006, it drew down Upper Klamath Lake, and they worry that during a drier year sending more water to salmon could jeopardize supplies.

”If that happens in a wet water year,” said water users' Executive Director Greg Addington, “what's an average year hold for us?”

The group claims that the U.S. District Court in Oakland overreached its authority and imposed higher flows downstream of Upper Klamath Lake than federal agencies had determined were needed for coho salmon. The National Marine Fisheries Service and the U.S. Bureau of Reclamation -- whose plans were the original aim of a lawsuit by fishermen, environmentalists and tribes -- are not part of the new appeal.

Addington said he was aware that the appeal could potentially endanger a growing spirit of cooperation in the region. But he said that irrigators need something to hold onto in a strained basin.

”It's important that we send a message that we don't think there's adequate resources in the system to do it all,” Addington said.

That's been the sentiment of tribes and fishermen for years. It was also the take of the 9th Circuit Court when it took up the first appeal of the case, writing that the government's plan for river flows could wipe out coho salmon eight years into the 10-year program.

”All the water in the world in 2010 and 2011 will not protect the coho,” wrote the court, “for there will be none to protect.”

Both young and mature chinook salmon have also struggled in the river in recent years, with high rates of infection from diseases biologists believe are made worse with low water. Water purchased from farmers by reclamation has boosted flows in the spring, but also cost millions.

Reclamation spokesman Jeff McCracken was unable to reach federal attorneys about the appeal. He said that the agency intends to meet with the fisheries service to hammer out the guidelines for flows to the river by the end of this year or early 2007.

Kristen Boyles, an attorney with Earthjustice that was among the groups that sued the federal government, said the appeal is probably futile. It's unlikely the court would even hear the petition for nine months or longer, she said, at which point a new plan may be in effect. She also questioned irrigators' intentions and signals toward cooperation while taking the legal action.

”They don't want to change any of their irrigation projects and they want the first take of water from the river,” Boyle said.

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.