Water users' fish die-off reports to be used in trial

Published Dec 31, 2003

By DYLAN DARLING

Upper Klamath Basin irrigators have made public a pair of reports that they believe shed new light on a fish die-off in the lower Klamath River last year.

The reports offer evidence that releasing more water from the Upper Klamath Basin would not have prevented the die-off that claimed an estimated 34,000 fish, including mostly chinook salmon.

The Klamath Water Users Association, which funded a study by fishery biologist David Vogel, hopes his reports will play a key role in an upcoming court trial aimed at determining the cause of the fish kill that occurred in September 2002.

The association released the reports last week after they were entered into the record for the trial scheduled to start May 10 before U.S. District Judge Saundra Armstrong in Oakland.

In the trial, the Yurok Tribe and the Hoopa Valley Tribe will try to prove that the federal government didn't fulfill its tribal trust agreements when it didn't send more water down the river when the fish started dying.

Armstrong conducted hearings by telephone last spring, but announced in July that she couldn't make a ruling on the cause of the die-off, and ordered the trial.

"There was a factual dispute about the causes," said Curtis Berkey, attorney for the Yurok Tribe, which has a reservation on the lower Klamath River.

At issue is whether low flows were are part of the problem, and whether water released from Iron Gate Dam in Siskiyou County would have helped the salmon. Higher flows at the dam would have decreased the amount of water available to irrigators in the Klamath Reclamation Project.

In legal proceedings last spring, Vogel, a private-sector fishery biologist from Red Bluff, Calif., filed a declaration stating the fish die-off was caused by warm water and an unusually timed salmon run. He said the blame should not be put on low flows.

He said the reports released last week back up his declaration.

"It's one thing to express an opinion, and it is another thing to back it up with empirical data and analysis," he said.

One of the reports focuses on the temperature water in the Klamath River in late summer and early fall 2002. The other report focuses on salmon rearing habitat in the river.

Vogel said the report about the river temperatures should be important in the trial. He contends higher flows would not have helped the salmon because the additional water would have been too warm.

But others say more flows would have helped.

Glen Spain of the Pacific Coast Federation of Fishermen's Associations said Vogels' reports don't say anything new, and don't dispel the notion that flows would have helped.

He said high temperatures, like the ones reported by Vogel, are linked to low flows.

"It comes down to not enough water in the river," Spain said. "There is no way you can avoid that conclusion, even with his data."

The data collected by Vogel also isn't consistent with other reports from the same period of time, Spain said. He said the differences reinforce the need to deal with the flow issue in the upcoming trial.

Dan Keppen, water users executive director, said Vogel's insight and data was key to Armstrong saying it wasn't clear what caused the fish die-off and that there needed to be a trial. In the trial, Keppen said, Vogel's work should show that more flows from Iron Gate would not have averted the fish kill.

"We are pretty confident that it will be difficult to blame the fish die-off on the Klamath (Reclamation) Project," Keppen said.

He said he questions why the issue is even going to trial.

"It almost seems like a moot point to be addressing this issue 18 months later," he said.

In the court case, Armstrong did rule last July that the U.S. National Marine Fisheries Service's biological opinion for the Klamath River needed to be amended. The opinion guides the U.S. Bureau of Reclamation in managing the river for endangered coho salmon.

Both sides called the ruling a victory - the Bureau because it didn't have to tweak flows last irrigation season, and environmental groups and downstream interests because parts of the opinion will need to be changed.

Along with the reports released last week, Vogel said he is working on confidential reports that will be made public during the trial.