http://www.heraldandnews.com/articles/2005/04/21/news/top_stories/top2.txt

Judge: Tribes' salmon suit too late by decades

 April 21, 2005 By DYLAN DARLING

A federal judge in Medford says a $1 billion lawsuit brought by members of the Klamath Tribes against PacifiCorp for the loss of salmon should be thrown out.

Judge John P. Cooney, a magistrate, said the lawsuit was decades too late. The statue of limitations ran out on the case in 1971, he said in a decision Thursday.

"This action was not filed until May 2004," he wrote. "Therefore, it is barred by the statute of limitations."

In the suit, members of the Tribes claim construction of power dams on the Klamath River destroyed the Tribes' federal treaty rights to fish for salmon in the river's headwaters. As compensation, they are asking for $1 billion.

The treaty was made in 1864. Dam construction on the Klamath River started in 1908 with Copco 1 and ended in 1967 with Keno Dam. Salmon migration stops at Iron Gate Dam, the lowest on the Klamath River, in Siskiyou County.

"We argued that it was untimely, and the judge agreed," said Jon Coney, PacifiCorp spokesman.

Cooney recommended that the case be dismissed. A magistrate judge works in federal District Court, but isn't appointed to a lifetime term, nor does he have all the powers of a district judge.

Now the case moves to Eugene where a district judge will decide whether the case should go on or be dismissed.

Plaintiffs in the suit are Klamath Tribes and the 10-member Klamath Claims Committee, which represents tribal members, and their heirs, who were on the roll of the Klamath Tribe when it was terminated by the federal government in 1954.

In the 1970s, the U.S. Supreme Court ruled that tribal members still hold hunting and fishing rights even though they no longer had a reservation. The Tribes were reinstated in 1986 and are seeking a reservation.

PacifiCorp has a 151-megawatt hydroelectric project on the Klamath River made up of four dams - Copco No. 1, Copco No. 2, J.C. Boyle and Iron Gate - and other small projects. The company also owns the Keno Dam, which doesn't produce power, but regulates flows down the river.

Dan Israel, a lawyer for the members of the Tribes, said the case is complex and he will present findings in supreme court cases involving terminated tribes in arguing in Eugene why it needs to go on.

"Ultimately, the Ninth Circuit (Court of Appeals) or some appellate court will have to decide this issue," he said.