Klamath Water Users Association 

One year after the unfortunate die-off of 33,000 salmon on the lower Klamath River, vocal critics of Klamath Project operations and Bush Administration environmental policy used the die-off anniversary to renew their now-familiar arguments.

U.S. Representatives Mike Thompson (D-CA) and Earl Blumenauer (D-OR) issued a press release last week that claims the deaths were a "direct result of a failed Klamath water policy by the Bush Administration." Meanwhile, California Resources Secretary Mary Nichols, Yurok Tribe chairwoman Sue Masten, and Zeke Grader of the Pacific Coast Federation of Fishermen’s Associations joined environmental activists in blaming low river flows for the loss of salmon last year. Nichols said the federal government needs to address the needs of the entire basin, not just agricultural interests in the Upper Basin.

Many of those making public statements last week were the same spokespersons that led the charge in 2002, assigning blame within days of the fish die-off to Klamath Project operations. Even though the fish die-off occurred 200 miles downstream from the Project, at a location below the confluence of the main stem Klamath River and the Trinity River, traditional advocates for higher river flows quickly assigned blame to Klamath Project farmers and ranchers. Some of these same interests and others in the environmental community have even attempted to directly link the fish die-off to political maneuvering orchestrated by senior policy officials in the Bush Administration. As a result, presidential hopeful Senator John Kerry has called on the U.S. Interior Department's Inspector General to look into whether "political pressure from the White House is intimidating staff and influencing policy" in Klamath River management decisions.

In the past year, the fish die-off has been effectively spun by Klamath Project critics to drive a dizzying array of attacks aimed at the Bush Administration and federal agencies responsible for Klamath Project management. Well-coordinated media coverage surrounding several acts of litigation and proposed federal legislation in the year since the fish die-off have effectively imprinted the environmentalists’ message in the minds of many:

• "Fish need water";
• "Klamath Project farmers were denied water in 2001 and no fish died in the Klamath River";
• "Klamath Project farmers received full supplies in 2002, and 33,000 salmon died in the river";
• "The Bush Administration sacrificed fish for the benefit of farmers."

To the amazement of Klamath Project irrigators and others in the water community, urban newspapers throughout the country have readily accepted this logic, which has been largely driven by press releases produced by western environmental groups.

"In the past year, we have seen countless news stories and a series of press releases condemning our community for what it has done in 96 of the last 97 years - irrigating Project lands," said Rob Crawford, a farmer from Tulelake. "We’re seeing myth-making on a major scale."

In the days before dead fish first appeared on the lower Klamath, anglers were abuzz over the surging fall-run Chinook salmon runs on the Klamath River and other Northern California rivers. Media reports suggested that unprecedented numbers of fish were returning to spawn in upstream areas. On the Klamath and Trinity Rivers, there were so many fish that state biologists were predicting that anglers would complete the season without triggering quota-induced closures. Earlier in the year, the California Fish and Game Commission set a quota on the sport take of Klamath-Trinity adult, fall-run salmon of 20,500 fish, the second-highest limit since quotas were introduced more than 20 years ago.

''The lower 20 miles of the Klamath River is stacked with salmon, the most I've ever seen," said guide Dave Mierkey, from Stockton, California, late in the summer of 2002. "It is routine to hook and release more than 30 fish during a morning session.''

Mierkey’s comment was made just days before thousands of dead salmon began to appear close to the Highway 101 bridge near the river’s mouth.

On September 22, 2002, the Eureka Times Standard reported that 4,000 Chinook salmon had perished in the lower river over the previous few days. The fish appeared to have died from one or two diseases triggered by stress. While later reports suggested that the overcrowded conditions were a contributing factor to stressing the fish, the Times Standard and other papers initially emphasized that warm, poor-quality water was the culprit. That paper – which serves communities along the lower Klamath – also stated that "many believe the fish kill, and others in recent years, are the product of poor management of water" within the Klamath Project. The sole biologist quoted in that article was Dave Hillemeier, of the Yurok Tribe.

"The tribal members are going to be hurting for years because of management decisions made this year," said Hillemeier.

Other initial reports from media in the region relied heavily upon public statements made by long-time critics of the Klamath Project, including Yurok Tribe biologists, who directly accused Project operations and Basin irrigators as the cause for the die-off of migrating salmon. Glen Spain of the Pacific Coast Federation of Fishermen’s Association (PCFFA), another vocal critic of the Klamath Project, also figured prominently in early media accounts of the fish die-off.

"Last year in the middle of a drought we had more water coming down the river than we do now," said Spain. "This is a very clear sign that the system in place now is not working."

While fisheries experts with the National Marine Fisheries Service (NMFS) and the University of California advised that it was premature to pin the deaths entirely on the Klamath Project, the barrage of statements emanating from environmental organizations early on nonetheless set the tone for other reports that began to flood the media. These initial reports formed the basis for much of the subsequent reporting done in the media, which mushroomed into a national debate in the following days.

The media attention soon reached a level not seen since Klamath Project water was cutoff to farmers and ranchers in 2001. The Los Angeles Times on September 25, 2002 again focused on critics’ claims that Project diversions were responsible for the thousands of dead salmon. While Hillemeier and Spain were quoted in the article, no state or federal agency biologist supported their allegations. The following weekend brought with it two pieces of journalism that had a huge impact on the general public’s perception of the crisis. On Saturday, September 28^th, the New York Times broadcast the fish die-off to the world, and The Oregonian carried an editorial that laid the blame for the dead salmon at the feet of the Bush Administration and Project irrigators.

"The Bush Administration and Congress thought it could resolve last year’s crisis in the Klamath Basin by challenging the science of salmon protection and simply ordering more water to irrigators," said The Oregonian. "Here is the result: thousands of rotting salmon, including hundreds of threatened coho, stacking up in the lower river."

The New York Times focused on arguments made by the tribes and PCFFA that also accused the Bush Administration of breaking the law and starving the river by favoring farmers over fish.

"Basically, the administration created a drought in the lower river," said PCFFA’s Zeke Grader to The Times. "We were expecting a really good run of fish this year. And now we’ve got the federal government essentially killing fish to satisfy their irrigation interests." Both articles were damaging to Klamath Basin agricultural interests. The Oregonian, the state’s largest paper, presented a trial-without-jury editorial that found Project irrigators guilty of killing fish. The New York Times feature generated national media interest that would eventually send reporters from all over the country to the lower Klamath, looking for fishermen and tribal representatives to verify the charges made in the Times article. ABC News, NBC Nightly News, and National Public Radio all provided coverage of the issue. The network news stations interviewed tribal representatives and biologists, with extensive footage of dead salmon lying on the stream bank in the background.

At the same time the national media was showing interest in the fish crisis, California congressman Mike Thompson, joined by PCFFA, the Yurok Tribes and EarthJustice, filed legal papers in U.S. Federal District Court challenging the federal government’s ten-year plan for managing the Klamath Project. A press conference was also conducted by Thompson and his environmental

supporters in Washington, D.C. Environmental advocates heaped piles of dead fish on the steps of the U.S. Department of the Interior building to bring attention to their cause.

In the week following the Thompson press conference, some papers – generally those in smaller markets – began to question the assumption made by others that the Klamath Project was

somehow to blame for the crisis. Several stories printed in the Klamath Falls Herald and News were careful to point out that the allegations made against the farmers were largely being made by newspapers and the Yurok Tribe. Reports by other experts who cautioned against preliminary finger pointing were finding their way into other papers, as well. Jim Lecky, a spokesman for NMFS, said that there were too many tributaries joining the river in the 190-mile stretch between Iron Gate Dam and the river’s mouth to lay the blame on Klamath Project operations.

"That reach of the river is far downstream," he said. "They’re just one of several factors."

Two other fisheries experts with the USFWS told the Herald and News that blaming the Klamath Project for the deaths was impossible given the information available at the time.

Bob McAllister, with the California Department of Fish and Game (CDFG), said lower flows through Iron Gate and fish deaths could be related, but since the deaths occurred near the mouth of the river, the linkage was hard to establish.

"We don’t know if it would have happened anyway," McAllister told the Herald and News.

In a national press teleconference conducted a few days after the Thompson event by USFWS Director Steve Williams in Washington, the federal government firmly laid out initial findings that federal fisheries experts had developed regarding the addressed the recent fish die-off. 

"There are too many unanswered questions. We are gathering facts and aggressively seeking answers." 

Williams confirmed earlier reports that suggested most of the salmon died of suffocation due to bacterial and protozoan infections, which resulted in significant damage to the fish's gills. These are commonly known as major disease problems in salmon hatcheries, where fish are crowded together.  When fish are held in these conditions, disease transmission between individuals is greatly enhanced, leading to high rates of infection. He also indicated that another cause, such as a toxic chemical spill, was not likely responsible for this die-off.

Williams made other statements that cast serious doubt on allegations made by downstream interests that Klamath Project flow impacts were killing the fish. 

"The water volume at the mouth of the Klamath River at the time of the fish kill ranged from approximately 2,200 to 2,400 cubic feet per second," he said in a memo to the federal Klamath River Basin Working Group. "By comparison, in 3

Susan Holmes, the legislative representative for Earthjustice Legal Defense Fund, again attacked the Bush Administration after Williams’ press conference.

"They are doing everything they can to dance around giving more water to the fish," said Holmes in the New York Times. "The fish need water. This is a concept you learn somewhere around kindergarten and the Bush administration needs to catch up."

In the past year, Klamath Project detractors have made several allegations, and now many of these claims are routinely mentioned in news coverage, giving the appearance that they are legitimate issues of concern. Closer examination of these claims reveals that, in their apparent zeal to link the fish deaths with Bush Administration environmental policy, environmental activists and their supporters have either overlooked or chosen to ignore critical aspects that undermine some of their claims. The most obvious examples are further detailed below.

Traditional advocates of high mainstem Klamath River flows quickly concluded last fall that the fish die-off was due in large part to Klamath Project operations, despite the fact that the fish died below the confluence of the Klamath and Trinity rivers, 200 miles downstream of the Klamath Project. Media outlets also jumped to this conclusion, within days of this unfortunate event. Public comments made last week during the one-year anniversary of the fish die-off reflect complete acceptance of this argument. What critics of the Klamath Project do not publicly mention is that a federal judge who reviewed this matter last summer failed to reach a similar conclusion.

Downstream tribes argued in PCFFA et. al v. USBR et. al that Reclamation failed to provide adequate flow levels in the Klamath River in August and September 2002, resulting in the 2002 fish die-off that occurred on the lower Klamath River, in violation of the United States’ duty to protect the Tribes’ federal reserved fishing rights. Biologists for the tribes and the Klamath Water Users Association (KWUA) provided evidence on this matter, which Armstrong closely considered.

The declaration submitted by KWUA fisheries biologist Dave Vogel proved to be an important factor in this aspect of the case. In his declaration, Vogel challenged claims made by the Yurok Tribe and the California Department of Fish and Game (CDFG) with respect to the cause of the fish die-off:

• The Yurok Tribes’ conclusion that the large salmon run and low Iron Gate Dam flows explain the salmon kill in 2002 is improper, since in 1988, there was a much larger salmon run than in 2002, and the flows in the lower Klamath River were similar to the 2002 flows, yet there was no resulting fish kill.

• CDFG’s report, on the grounds that it contains several major errors, including inappropriate use of monthly average temperatures, and incorrect plots of temperature data in the area of the die-off.

Based on the conflicting evidence presented by the parties regarding the cause of the fish die-off, Judge Saundra Armstrong found that a "triable issue of fact" exists as to whether Reclamation breached its duty to the Tribes through its operation of the Klamath Project. Accordingly, the Court denied the Tribes’ motions for summary judgment on this matter. A separate trial is scheduled in 2004 to specifically address this matter. In the meantime, allegations that Klamath Project operations were responsible for the die-off must be treated as what they really are - allegations.

Judge Armstrong also reviewed the claims made by environmentalist plaintiffs in PCFFA v.USBR regarding the legal sufficiency of the current 10-year operations plan developed for the Klamath Project in early 2002. Even before Judge Armstrong’s decision was publicly released, spokespersons for environmental organizations had contacted papers like The Los Angeles Times and had proclaimed victory, suggesting that the Armstrong decision was proof-positive that the Bush Administration’s plan was "fatally flawed". In fact, the judge’s opinion only identified a few, specific faults that she ordered to be addressed, while the plan itself was allowed to remain in place.

While the judge ordered that the 2002 biological opinion (B.O.) developed by the National Marine Fisheries Service (NMFS) be remanded back to the agency for revision, the Court declined to vacate and set aside the 2002 B.O. in the interim. The fact that Project irrigators will continue to receive take coverage under the existing B.O. while NMFS revises the document is critically important.

In short, Judge Armstrong directed that a few, specific modifications be made to the existing NMFS B.O. to address her concerns. Her judgment in no way altered NMFS’ recommended flows for the Klamath River. More importantly, Judge Armstrong did not adopt the flow schedules proposed by the plaintiffs, which would have had serious consequences for Klamath Project irrigators.

"Don’t believe the headlines you read in the major media outlets when you read about this case," said KWUA Executive Director Dan Keppen. "The - environmentalist plaintiffs actually got very little out of this decision."

Within weeks of the 2002 fish die-off, environmental groups splashed the media with news that a federal scientist had requested legal protection after reporting political pressure had forced his agency to endorse a Klamath water plan that put endangered fisheries at risk. Michael Kelly, a fisheries biologist with NMFS, alleged a violation of law, rule, or regulation and gross mismanagement by agency employees during the 2002 formal consultation on Klamath Project operations. The plan referenced in this story was the same one that was ultimately addressed by Judge Armstrong last summer, as discussed previously.

At the same time Kelly’s charges were made public, Senator John Kerry’s office issued a press release in support of his claims, and media accounts for the past year have consistently referenced Kelly’s supporters’ allegations that Bush policy makers "rolled" NMFS scientists during the consultation process.

On the other hand, scant coverage has been afforded to the fact that the U.S. Office of Special Counsel (OSC) earlier this year determined that Kelly’s allegations did not warrant further investigation and that the file for this case would be closed. In a March 5, 2003 letter to Kelly, OSC declined to take further action on Kelly’s claims, including:

• Kelly’s allegation that a there was a substantial likelihood that NMFS’s decision to adopt its Klamath River flow regime represented a violation of law, rule or regulation.
• His claim that the fish die-off that occurred last September provides the proof that NMFS engaged in "gross mismanagement".
• Kelly’s charge that NMFS engaged in a "gross waste of funds".

"After careful review of your comments and the materials previously submitted, and consideration of the issues discussed in our recent telephone conversations, we have determined that our original decision to close the case was warranted," OSC stated in its letter to Kelly.

Despite this decision, environmental activists continue to rely upon Kelly’s allegations to support their argument that Bush Administration policy makers stifled sound science during the development of the Klamath Project operations plan. Also often overlooked in media coverage of this matter is the Administration’s decision to direct the National Academy of Science – perhaps the premier science body in the land - to provide guidance in federal Klamath decision-making.

Much attention has been focused on allegations that federal policy makers have suppressed other scientific endeavors related to the Klamath River. Much of the criticism revolves around a recreational study developed by the U.S. Geological Survey (USGS) one year ago, and the Draft Hardy Phase II study, a report that was substantially developed under the Clinton Administration. Information often overlooked in reports surrounding these allegations is further discussed below.

Around the same time the Kelly whistleblower story was receiving attention, environmental groups claimed that the Bush Administration suppressed a draft report on Klamath River recreational benefits prepared by the USGS. The draft report was preliminarily leaked to the Wall Street Journal last November and heralded by environmental groups as justification for eliminating farming in the Klamath Project.

What supporters of this draft report have not disclosed are concerns expressed by economic experts over the report’s "severe problems" that limit its use as a basis for policy decisions.

Richard McCann, an economic consultant from Davis, California, reviewed Aaron Douglas' paper for the USGS entitled "CVM Benefits Estimates for
the Lower Klamath River", which was presented at a Western Economics Association meeting in Seattle in June 2002. McCann believes Douglas’ paper has problems in many of the key economic assumptions and interpretations contained in the draft report, including a misidentification of avoided costs for electricity and agricultural production. The USGS report concludes that the benefits achieved by increased recreational use would far outweigh the costs of buying farms and forests, removing water supplies from California’s Central Valley, and removing hydroelectric dams.

"I read the paper with great interest knowing the potential implications to policy making," noted

McCann. "Unfortunately, the paper had numerous problems that undermined any ability to draw policymaking implications."

McCann, a consulting economist who works on water, energy and environmental regulation issues,

was not retained by any of the parties involved in the Klamath River dispute.

McCann is not the only expert who has concerns about the draft report. He noted that he discussed his observations with at least two other reviewers – one with the federal government, and one from Seoul University in Korea – who also found "significant, and different" problems, as well. A policy analyst from New Mexico State University (NMSU) also joined the chorus of critics skeptical of the draft report.

Last year, McCann directly communicated his concerns to Douglas Posson at the USGS office in Ft. Collins, Colorado, but says his input was ignored. "USGS went ahead and published the report despite the obvious errors that I pointed out," said McCann. 

Within hours of the Wall Street Journal reporting on the existence of the draft study, a coalition of environmental groups had already obtained the report and issued a press release that claimed the Bush Administration stifled its release.

"The government does a great job of hiding data it doesn’t like," said Zeke Grader of the Pacific Coast Federation of Fishermen’s Associations (PCFFA). "The stench of the recent fish kill in the Klamath River is permeating to the highest levels of the Bush Administration."What PCFFA – which represents California fishermen - and other environmental activists appear to have overlooked is the draft report’s proposal to impose a long-term moratorium on fish harvesting in the Klamath-Trinity system. This ban would include an end to all harvesting by commercial fishermen, halting marine harvesting by tribal fishermen, and "sharp declines" in freshwater harvesting by tribal and recreational fishermen.

"There is a strong consensus that habitat restoration should be complemented by a cessation of fish harvesting of Klamath-Trinity system stocks for a period of 12-years", says the USGS draft report.

Despite the criticism of the USGS report by outside experts, environmental groups are using it justify their contention that farming practices in the Klamath Basin must change, and claim that the draft report is legitimate. Felice Pace, spokesman for the Klamath Forest Alliance, asserted in an opinion editorial last year that USGS scientists completed "rigorous internal and academic peer review" of the draft report. McCann offers a different perspective.

"I came to the conclusion that no useful results could be drawn from the paper, that the paper would not pass peer review, and that in fact, in all

likelihood, the entire survey process would have to be restarted from scratch," he said.

Last week’s joint press release issued by Reps. Thompson and Blumenauer also made reference to another controversial draft report – the so-called "Hardy Phase II" study that recommends flow levels for the lower Klamath River. Thompson said the Bush Administration has halted the Hardy report, which he calls "the most comprehensive study of water flows needed for the survival of salmon".

Other scientists, including fisheries experts from California, Oregon and Colorado, believe the draft Hardy study is seriously flawed and would decimate the Klamath Project and surrounding national wildlife refuges if implemented. The process leading to the draft Hardy Phase II report, they feel, was constrained and flawed by exclusion of other expertise, stakeholders and knowledgeable individuals. Some of the most visible critics of Klamath Project operations in the past year were the same ones who had the greatest access during the development of the Hardy studies. Others were apparently excluded from the process.

"I arrived at the Klamath In Stream Flow Study Work Group meeting, to which the Klamath Water Users Association had been extended an invitation by Mr. Mike Rode of California Department of Fish and Game, only to be turned away by Mr. Doug Tedrick of the Bureau of Indian Affairs," said Keith Marine, a fisheries scientist, in a November 6, 2000 letter to KWUA. Prior to being asked to leave the meeting, Marine noticed that the California Department of Fish and Game, Karuk Tribe, and the Bureau of Indian Affairs each had representatives in the meeting room with Dr. Hardy.

"We cannot regard (Hardy Phase II) as the best available science for in-stream flows," adds Richard Barnum, from the Siskiyou County Planning Director’s office in a February 28, 2002 letter to the Bureau of Indian Affairs. "There is no independent peer review or presentation and discussion of such peer review for this specific report and its recommendations."

The Hardy process was primarily conducted in the two years leading up to 2001 curtailment of Klamath Project supplies. The Hardy flow recommendations formed the basis for the schedule established by NMFS that year, which had a significant bearing on the unavailability of Project water for use on farms and ranches.

The claims discussed above are just a few of the more prominent arguments that Klamath Project critics have employed to justify a series of actions undertaken in the past year, including the following:

• Federal legislation co-sponsored by Reps. Thompson and Blumenauer that would finalize the draft Hardy flow report.
• Unsuccessful federal legislation promoted by Rep. Blumenauer that would restrict the ability of local lease land farmers to grow row crops.
• Litigation (PCFFA v. USBR) that, if successful, would have likely shut down Klamath Project operations in 2003.
• Public protests staged by tribal members and environmentalists in front of the U.S. Bureau of Reclamation in Klamath Falls one year ago and in front of the Water 2025 Conference hosted by Reclamation in Sacramento in 2003.
• Listing of the Klamath River as the third most endangered waterway in the country by American Rivers – a national environmental organization headquartered in Washington, D.C.
• An unsuccessful lawsuit filed by environmental groups against NMFS to hasten the potential ESA listing of the green sturgeon, which is found in the lower Klamath River.
• The release of an Oregon Natural Resources Council (ONRC) report, which contends that voluntary buyouts of willing sellers within the Klamath Project "remain the most politically responsible, socially just, and economically viable method to avert the coming power crisis, and to address the current ecological crisis."
• A subsequent letter sent by ONRC to Project landowners, tempting them with the promise of a buyout that would provide them with 2 ½ times the fair market value of their land.
• Numerous editorials, journal articles and magazine stories that clearly accept the arguments made by Project critics.

"Environmental exaggerations scare the public and make us more likely to spend our resources and attention solving phantom problems while ignoring real and pressing issues," KWUA Executive Director Dan Keppen said at the association’s annual meeting last April. "This is why it is important to know the real state of the Klamath River watershed. We need to get the facts and the best possible information to make the best possible decisions."

            12:00 – 6:00 Water Quality

            12:00 – 6:00 Recreation

            8:30 – 4:00 Recreation

            8:30 – 4:00 Aquatics

            8:30 – 4:00 Cultural Resources

            8:30 – 4:00 Fish Passage/ Aquatics

            8:30 – 4:00 Plenary

            8:30 – 12:00 Terrestrial

            8:30 – 12:00 Socioeconomics

Saturday, October 18, 2003 – Old-Fashioned Hoe Down and Ice Cream Social with Rep. Greg Walden. 2:30-4:30 p.m., Maurice O’Keefe’s barn at 20853 Hill Road, Merrill, Oregon. Call 1-888-774-4734 for more details.

Tuesday, October 21^st – Thursday, October 23^rd, 2003. Klamath Fish Passage Technical Team. Tour and meetings: U.S. Bureau of Reclamation.

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net

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