Dear Chairman Calvert:

Much has happened since the situation of 2001 in the Klamath Basin triggered the events leading to this Subcommittee hearing. Two things are most striking in terms of impacts on the people most directly affected by the challenges of water management. First, the Klamath Tribes’ fisheries remain closed, the treaty promise of those fisheries remains unfulfilled, and there is little reason to expect that situation to change in the immediate future. Second, the Klamath Project farmers have returned to their fields and have in every year received essentially full water supplies. Indeed, this year the Project is scheduled to receive more water than in any equivalent water year in history.

In this setting and with this history just behind us, it is ironic to be participating in a hearing whose premise is that our country’s laws and regulations tilt too strongly toward protecting fisheries. The Tribe would like to offer our thoughts on the situation in the Basin and why it often seems so intractable. We begin with a discussion of the Tribes’ property right to fisheries and the current status of those fisheries. We then review the serious problems with the National Research Academy’s Report on Klamath Basin fisheries and why it is wrong to use the Report as a lever to weaken fishery protection. We conclude with a brief review of how Basin water issues have nearly been – and can still be – resolved in a way that protects fisheries and provides agriculture with a reliable water supply.

We are glad to say that it seems now to be broadly accepted that the Tribes hold significant water rights in the Basin, and that the Tribes’ treaty rights to hunt, fish, trap and gather are quite real. More and more, people in the Basin acknowledge the need to incorporate tribal resource rights into the management regimes that control Basin resources. It is increasingly accepted that these are property rights that have an important place among the carefully protected property interested in our legal and social system.

However, it has not always been so. For a century Basin water resources were managed almost exclusively for the purposes of irrigated agriculture and hydropower production. The cost to fisheries and other water dependent species was ignored as the burden of drought was shifted onto those resources in order to protect the favored interests. This history leaves today’s managers with at least four problems.

First, water managers have for so long understated the value of fisheries that now the goals for the recovery of those resources are too modest. Too often the goal of fishery restoration is seen as merely that of the Endangered Specias Act – variously stated as avoiding extinction, protecting populations, or achieving conditions that would allow delisting. Proper goals, however, must include restoration of a sustainably harvestable fishery so that the Tribes’ livelihood will enjoy the vitality and sustainability that is currently sought for the livelihoods of our agricultural neighbors. With the Act already inadequate to protect our property rights, there is little room for proposals that would make it even more difficult to restore and protect our fisheries.

Second, our collective history leaves an enormous disparity in the situation today’s managers have inherited. It is easy to say that management should aspire to "make everyone whole." But it must be remembered that past management has provided "wholeness" only to the interests it favored and has left the Tribes far from whole. Recovery from a legacy of imbalanced management presents a significant challenge. The Endangered Species Act is one tool that can help restore the balance. Burdening implementation of the Act with requirements difficult or impossible to meet will be a step away from restoring the balance needed in the Basin.

Third, we are left with what is essentially a system of subsidies that are hard to shed. Water management has transferred the burden of drought away from some interests and onto others. For many years this effectively concealed important parts of the costs of agricultural production in the Basin. Now those costs are revealed. But there is a strong incentive for some interests to either continue to deny those costs, or to insist that the transfer of the costs be continued. The ESA is one vehicle that helps identify such costs; and it helps the community identify mechanisms for allocating and absorbing such costs. Such mechanisms need not result in agriculture absorbing all reallocated costs, as we have seen in recent settlement talks (discussed below). But a healthy community dialogue about these costs and their allocation is essential to progress.

Fourth, the community is left too often with the idea that fisheries, while now deserving of managers’ attention, are somehow of secondary importance and value. After a century of fisheries being second class citizens in water management, it is not easy bring them to parity with competing interests. In 2001 fish were defined as a threat to the agricultural water supply. One result was the demeaning of the fish and a search for reasons why they do not need protection, or can get by with less water. In fact, of course, they do need protection and they do need water of significant quality and quantity. The ESA is one societal expression that assists with recovering that parity.

To summarize the point, the Tribes’ treaty protected property rights have suffered badly through a century of management aimed in other directions. The goals of the ESA are intentionally inadequate to protect tribal rights, but they remain a useful vehicle for identifying the needs of treaty resources and for precipitating community response to those needs. The Act should not be burdened in a way that neutralizes this important role.

Encouraging community members – especially those competing for water – to believe that the ESA can be adjusted in a way that will alleviate water supply problems would be a disservice of significant proportion. The Tribes’ rights will not go away, nor can they be ignored. The need to restore fisheries and other water-dependent resources will remain real. That need should be acknowledged and addressed.

The NRC Report has been said to demonstrate that science under the ESA has run amok and must be corralled. This is simply incorrect. That is not what the Report says and, moreover, the Report itself is not an appropriate foundation on which to build either Basin water management or any assessment of the ESA’s efficacy.

A flawed foundation. The NRC Report was troubled from the outset by several of the difficulties described in the preceding section of this testimony, including an inability to see the "water crisis" as the inevitable product of a century of one-sided water management, and a near-complete blindness to the legitimate interests of the Tribes.

The Report was criticized by several investigators who have much more familiarity with the fisheries at issue than do any of the Report’s authors. In response to one such criticism published in a leading professional journal, the NRC Committee chair Dr. Lewis responded saying:

This attention to economic concerns is in line with, and is illuminated by, Congressional testimony provided earlier by Chair Lewis. There he made clear the NRC Committee’s view of the interests involved. He referred specifically to the economic, water use, and water rights expectations of irrigated agriculture, to the total exclusion of any equivalent recognition of Indian rights or interests. And his description of the Federal Government’s involvement in the Basin was expressed entirely in terms of its agricultural activities and obligations. No recognition was apparent of federal-tribal treaties or federal obligations to protect the resources and livelihoods of Indian people.

This NRC sensitivity to agricultural economic concerns in what should be a purely scientific undertaking, and the absence of equivalent sensitivity to Indian rights, economics, and social issues raise serious concerns that the rights and interests of Native Americans were discounted or ignored.

A very troubling aspect of the NRC Committee’s analysis is its apparent elision of Indian water rights, and Indian social and economic values from its concerns while, at the same time, manifesting a concrete appreciation of the water rights and values of non-Indian agriculturalists. This dichotomy permeates the statements above and is carried into the NRC Committee’s Report.

For example, Chair Lewis advised Congress that the irrigators’ water rights are "very senior" such that the NRC Committee "would have expected water to go to the farmers despite the drought" in 2001. However, it is beyond question that the Tribes, not the farmers, have the most senior water rights in the Basin, with a priority date of "time immemorial." Thus, in a drought year, if tribal fisheries need water, they must be satisfied first before agricultural water deliveries are made. This can result in a lack of water for farmers and, in fact, Chair Lewis has elsewhere expressed his awareness of this when pressed on the issue. What is troubling is less that the statements to Congress are misleading on the law, than that the context and back ground of the NRC Committee’s work appears to include concern for agricultural water rights and not for Indian rights or fisheries which actually have a senior claim to water.

Similarly, the NRC Committee took as its raison d’etre the deprivation of water in 2001 to the Klamath Project, saying "[t]he severe economic consequences of this change in water management led DOI to request that the National Research Council (NRC) independently review the scientific and technical validity" of the Biological Opinions. There is no equivalent expression of awareness of either (a) a century of previous water management decisions emphasizing the protection of agricultural water deliveries at great cost to the needs of fisheries, or (b) the economic consequences for Indian and other fishing communities.

The only "economic losses" referenced by the NRC Interim Report are those incurred when "irrigators were deprived during a severe drought of traditionally available water" resulting in "severe economic consequences of this change in water management." No equivalent awareness is expressed of the fact that the Klamath Tribes’ fisheries have been closed now for more than 17 years and that the economic and social consequences to the Tribes are as damaging, and of longer duration, than the 2001 losses to irrigators. That the Tribes used to harvest tens of thousands of pounds of fish but are now restricted to two fish a year for ceremonial purposes is a contextual fact readily available to, but not referenced by, the NRC Committee.

The Report disclaims any purpose of "investigating or reporting on economic dislocation or with forecasting economic consequences." But the very next sentence reveals that the NRC Committee’s baseline is not fishery protection but delivery of irrigation water, saying "all committee members are aware of the importance of any change in historical management of flows to water users." In contrast, the Tribes’ interests are not part of the economic baseline, but simply a "long-standing interest." The thousands of years of historical water management by the Tribes prior to the Reclamation Project does not figure in the NRC Committee’s understanding of history."

In the same vein, the hydrologic baseline is described as one in which water supplies are dedicated to providing agricultural water deliveries, not one in which fisheries have a recognized role. Congress is advised by Chair Lewis that the Biological Opinions called for "higher water levels in Klamath Lake than had historically been maintained and higher flows in the lower part of [the] Klamath main stem than had normally been maintained." Thus history and normalcy are defined not by protection of fish or by quantities of water that had supported the fisheries and Tribes for millennia, but rather by protection of irrigation diversions brought on line in recent decades.

Where the "economic stakes" are high, Chair Lewis implies that the role of fish-protective professional judgment should be discounted. If these stakes included tribal interests and protection of fisheries, however, the role of fish-protective professional judgment would be enhanced, not discounted. The inescapable conclusion is that the only ""economic stakes""in play are those of irrigated agriculture and not those of Indian people. This inequivalency affects the outcome of the NRC Committees’ work. Field crops and the farmers who grow them are assets and interests that have "stakes" requiring discounting of the professional judgment used to protect fish. But the fish and the Indians who harvest them do not exist in the NRC Committee’s economic realm, so the Indians’ "stakes" are not measured when the NRC Committee determines if the protection afforded the fish was appropriate.

The unavoidable conclusion is that the NRC Committee’s product is flawed by its inability to "see" the social and economic values of Indian people as equivalent to those of irrigators who are seen as part of the "real" economy and therefore deserving of protection. This is an unacceptable discrimination. Taking resources away from communities that own and depend on the resources, by treating those communities as though they are not part of the larger social economy, is a time-honored way of appropriating water, land and political legitimacy from people outside the dominant society. The history of the treatment of Native Americans is rife with such tactics.

The Tribes are deeply concerned that in pursuing perceived flaws in the ESA, the Resources Committee can fall into the same trap. The Resources Committee should put a very high priority on avoiding such a misstep.

Unreliable content. In addition to being steeply tilted against tribal interests, the NRC Report is not supported by most of the scientific community. I cannot guide restoration of tribal resources because it is not representative of the best scientific analysis on the topics of concern. Several reports by investigators with considerably more experience and expertise with Klamath Basin fisheries have flatly contradicted some of the key conclusions of the NRC Report. As a result, the Resources Committee should not look to the Report as the cornerstone, or even an important building block, of its work.

At least three other formal studies of the 2001 Biological Opinions and/or related resource data and analysis have been completed. These include, IMST Review of the USFWS and NMFS 2001 Biological Opinions on Management of the Klamath Reclamation Project and Related Reports, Technical Report 2003-1 to the Oregon Plan for Salmon and Watersheds, Oregon Watershed Enhancement Board, Salem, Oregon ("Oregon IMST Review"); University of California Peer Review of: Biological Opinion and Conference Report for the Continued Operations of the Bureau of Reclamation’s Klamath Project as it Affects Endangered Lost River Sucker )Deltistes luxatus), Endangered Shortnose Sucker(Chasmistes brevirostris), Threatened Bald Eagle (Haliaeetus leucocephalus), and Proposed Critical Habitat for the Suckers, University of California, 2001; and Water allocation in the Klamath reclamation project, 2001: An assessment of natural resource, economic, social, and institutional issues wit a focus on the Upper Klamath Basin, Special Report 1037, Oregon State University Extension Service, Corvallis, 2002.

Perhaps the most striking summary of the state of scientific review of the 2001 Biological Options is provided by the Oregon IMST Review. At pp. 55-56 it provides a table comparing the conclusions of the NRC Report with those of these three other reviewers. The comparison reveals that the NRC Report stands alone in its conclusion that management of Upper Klamath Lake levels does not affect sucker survival. (The table is attached for your review at the end of this testimony.) This table and comparison should be of particular interest to the Resources Committee because it reveals that when the true state of scientific peer review is considered, the NRC’s conclusions are contradicted and the USFWS and NMFS Biological Opinions vindicated.

A fundamental flaw in the NRC Report stems from the misguided scope of its investigation. The NRC Committee mistook the purposes of the Biological Opinions, their role in ESA implementation, and their analysis. The Upper Klamath Lake levels in the Biological Opinion were prescribed based on a substantial scientific foundation indicating that higher lake levels can be used to manage for lower biomass of algae, better water quality, improved habitat, and ultimately a greater probability for restoration of the fishery. Instead of analyzing matters in this context, the Committee presumed that the Biological Opinions (and, thus, the ESA) were asserting a simplistic determination that the poorest water quality will always be associated with the lowest Lake elevations.

As a result, while both the scientists who have studied the Lake system for many years and the authors of the Biological Opinion give extensive treatment to the particular mechanisms that drive Lake ecology, the Report did not attempt to significantly engage them, choosing instead to seek simplistic explanations in a very complex system. This has led to a Report that, as explained above, stands contradicted by virtually every investigator familiar with the Klamath Basin ecosystem.

The NRC Report’s difficulties were brought into distinct relief when the journal Fisheries published a sharply critical article written by university investigators with a long history of work in the Klamath Basin. (Markle and Cooperman, THE ENDANGERED SPECIES ACT AND THE NATIONAL RESEARCH COUNCIL’S INTERIM JUDGMENT IN KLAMATH BASIN, Fisheries, vol. 28, no.3, p. 10.) Like others, they said the NRC Committee has "misinterpreted" the Biological Opinion. And they continued with a disturbing observation about the NRC Committee’s treatment of peer reviews it received regarding its work.

Such cavalier dismissal of legitimate criticism casts a deep shadow over the NRC Committee’s work. But despite these shortcomings, the NRC Report is offered today as a beacon to inspire and guide modification of the ESA. It is bad enough that such an approach does not even pretend to address restoration of tribal fisheries, but, more, such use of the NRC Report is more than the Report can sustain, and can only lead to more conflict in the Klamath Basin and elsewhere.

The Klamath Tribes have been working for more than a year with the Administration, and in particular with the Secretary of the Interior as chair of the President’s Working Group on Klamath Basin resource matters, to seek solutions for the whole community. In early 2004, with the support and participation of the Administration and other Basin water interests, a water balance was identified that would have reduced conflicts and set the stage for restoration of tribal resources, all without unduly reducing agricultural production by Klamath Basin irrigators.

Unfortunately, this resolution was turned down, not by the Tribes, but by agricultural interests. Now, regrettably, the Klamath issues are no longer the focus of an effective settlement for all people in the Basin. Instead, they have become the centerpiece of a national debate about weakening the protection of endangered species when, in fact, the issues could have been – and still can be – resolved in a way that protects fisheries and provides Basin agriculture with a stable water supply.

If this Committee truly has in mind the best interests of all people in the Klamath Basin, it will encourage rededication of work toward this potential agreement. And it will discourage those who cling to the false belief that weakening fishery protection holds the key to resolution of Basin water and other resource issues.

Thank you for this opportunity to provide testimony on Klamath Basin fisheries and related resources. If there is anything more we can provide at this time, please let me know.

Very truly yours,

Signed by: Allen Foreman

Chairman