Klamath Basin Water US erred in Klamath Ruling 011305 LA Times

A federal judge in Oregon has ruled that the federal government erred in placing Klamath River coho salmon on the threatened and endangered species list, but let stand federal protections until the government completes a review this spring.

The ruling issued Monday by U.S. District Judge Michael Hogan extends the same legal logic that he used in 2001 to strike down protection for Oregon coastal coho over the lack of genetic distinction between hatchery and wild salmon.

In this case, however, his ruling focuses on the Klamath River's coho salmon, which have long been at the center of a struggle over water between fishermen and farmers. That struggle was triggered by a multiyear drought and water levels so low that fields were fallowed, farmers bankrupted and thousands of fish died.

Russell Brooks, an attorney for irrigators and farmers in Oregon and California, said the ruling gives his clients a quick legal avenue to halt any new attempt by federal officials to curtail water to farmers, as was done in 2001, to protect the rare and endangered coho salmon.

"We are approaching another growing season, and if the government were to step in and say, 'We cannot deliver as much water as you want,' we will be back in court with an injunction," said Brooks, of the Pacific Legal Foundation.

"In that way, the judge tied the government's hands," Brooks said.

But Glen Spain, a fishing industry representative, said it was an empty victory for farmers and irrigators because the judge refused to strip coho salmon of federal protections.

"The real issue is a water grab by a few disgruntled irrigators and the judge saw that," said Spain, a regional director of the Pacific Coast Federation of Fishermen's Assns.

Spain said salmon fishermen can also show damage from lack of water, and that a die-off of mostly chinook salmon in the Klamath in 2002 may result in widespread fishing closures in coming months.

"What kills chinook, also kills coho salmon," he said. "We can show real damage in the river from lack of water. Sixty thousand dead fish don't tell lies."

Brian Gorman, a spokesman for the National Marine Fisheries Service, predicted that Hogan's decision in this case will be rendered moot by the agency's newly proposed hatchery policy and review of endangered species protections of the Klamath coho.

The fisheries service, by June 14, must complete its proposal to again list the Klamath coho as threatened with extinction under a new hatchery policy that was prompted by Hogan's first decision in 2001.

In reaction to that ruling, the fisheries service will count hatchery-raised fish along with the rare wild ones as threatened or endangered.

"The eventual outcome for all of this won't make any difference to the fish," Gorman said.

"They will remain protected. But it will change things for people, in that the rules will be a bit more complicated."

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