Environmentalists claim victory in
Klamath River water ruling
SAN FRANCISCO -
Environmentalists are claiming a victory for their
position following the Oct. 18 Ninth Circuit Court
of Appeals ruling that rejects the Bush
administration's water diversion plan for the
Klamath River because “it fails to protect
threatened Klamath River coho salmon.”
“The ruling is hailed by
Klamath River tribes and surrounding communities
dependent on a healthy fishery,” said Howard
McConnell, chairman of the Yurok Tribe. “This is
an example of how the ESA serves as the last line
of defense to protect working families and tribal
culture.”
The essence of the court's ruling is that more
water needs to flow down the Klamath River in
order to protect the coho salmon, declared a
threatened species in 1997. The court rejected the
Bureau of Reclamation's plan to share the water
with irrigators while maintaining what it
considered adequate water for the fish.
The Ninth U.S. Circuit Court of Appeals in San
Francisco ruled that the Bureau of Reclamation's
irrigation plan from 2002 to 2010 provides the
coho with only 57 percent of the water it needs
and fails to explain how the species will survive.
The bureau controls water flows on the Klamath
from its dams and reservoirs.
“The agency essentially
asks that we take its word that the species will
be protected if its plans are followed,” said
Judge Dorothy Nelson in the 3-0 ruling. The court
told a federal judge in Oakland to order the
government to take immediate steps to preserve the
coho.
The Bush administration, joined by Klamath Basin
farmers who depend on irrigation water, argued to
the court that the eight-year water plan was the
best estimate of the coho's survival needs in the
face of conflicting scientific reports. The plan
proposed an increase in flows in 2010-11.
In spite of strong runs of coho salmon returning
to the Iron Gate Hatchery on the Klamath River,
the court said the coho, which has a three-year
life cycle, might be extinct by the time the flows
picked up.
Environmentalists make a genetic distinction
between hatchery and stream hatched salmon, a
distinction the court accepts in its claim that
the coho salmon are near extinction. Other
biologists question that claim, pointing out that
the distinction is minute and the coho population,
inclusive of the hatchery fish, is robust.
“It is pathetic we have judges making decisions
based on unsubstantiated studies,” said Deb Crisp,
Executive Director of the Tulelake Growers
Association. “Either they are misinformed or some
people have a preconceived idea of what the
conditions are in the Klamath River.”
Crisp said the decision is disappointing but she
believes it will be appealed. She believes the
lawsuit is an attack on agriculture from people
who would like to remove all of it from the
Klamath Basin.
“We have followed all the requirements,” she said.
“If what we are doing is so bad, why has there not
been another fish die off. I am highly suspicious
of the one in 2002.”
The court used a government report for its
decision that identified a Bureau of
Reclamation-directed low water flows as a prime
reason for a major salmon kill on the Klamath in
2002, a situation that reportedly decimated
commercial stocks of chinook salmon in addition to
the coho. To protect the endangered fish, which
mingle with other species when they reach the
Pacific, the government has severely restricted
commercial ocean fishing this year as far south as
Monterey.
Klamath River irrigators, however, have also
contested this argument, claiming that the lack of
water flow from the Trinity River, which merges
with the Klamath River before reaching the ocean,
is a contributing factor to the 2002 incident.
Water is diverted from the Trinity River to feed
the canal to the Bay Area.
“Our interest is in getting fish back to the
Klamath River because we depend on it for our
livelihood,” said Glen Spain, northwest regional
director of the Pacific Coast Federation of
Fishermen's Associations, a plaintiff in the case.
He said the ruling should lead to a “better and
more balanced water plan.”
“It's always been irrigators first,'' said
Earthjustice attorney Kristen Boyles, who
represented environmental and fishing
organizations challenging the Bush
administration's plan. “Fishing communities and
tribal communities dependent on these fish ...
have been ignored.”
Increased flows for fish probably would come at
the expense of irrigation water for farmers.
Pacific Legal Foundation lawyer Robin Rivett,
representing the Klamath Water Users Association
and the Tulelake Irrigation District, said the
court appears to have misunderstood the case.
“All the water that's necessary for survival of
the species will be provided in the Bureau of
Reclamation's current plan,” he said.
Rivett said he was confident that the government
could provide a better explanation of its plan to
U.S. District Judge Saundra Brown Armstrong in
Oakland and avoid a court ordered increase in
water supplies.
Klamath Basin irrigators say there is plenty of
water for both them and the fish and wish to avoid
a complete cut-off of irrigation that happened
several years ago, a situation that decimated
agriculture in Northern California and Southern
Oregon causing many third generation farmers to
lose their land.
A coalition of commercial fishermen and
conservation groups, joined by the Yurok and Hoopa
Valley Tribes, filed the lawsuit against the
National Marine Fisheries Service and Bureau of
Reclamation in September 2002, claiming that the
agency's 10-year plan “failed to leave sufficient
water in the river for salmon and relied on
future, speculative actions from the states of
California and Oregon to make up for the missing
water.”
The lawsuit claims that in the fall of 2002, five
months after the plan was adopted, low flows in
the Klamath River caused by unbalanced irrigation
deliveries killed nearly 70,000 adult salmon.
Months earlier, during the spring of 2002, the
lawsuit claims that juvenile salmon died in the
river from low water conditions. The plaintiffs
claim that the loss of these juveniles is what led
to the severe commercial salmon fishing
restrictions this year on the California and
Oregon coasts.
“This decision gives hope to the families that
depend on Klamath River salmon,” said Glen Spain
of Pacific Coast Federation of Fishermen's
Associations. “This case is about restoring
balance to the basin so that fishermen, Native
Americans, and irrigators can all receive a fair
share of the water. We will continue to work on a
new vision for the basin.” PCFFA is the west
coast's largest organization of commercial fishing
families.
The environmentalist's concept of fair share is
contested by the irrigators who claim that the
2002 plan is a fair share. The irrigators also
believe that the science used by these special
interest groups is skewed and their real agenda is
to pressure for the removal of the hydroelectric
dams on the Klamath River.
The dam removal concept, in fact, was mentioned in
the Yurok Tribe press release announcing its
successful lawsuit decision by the Ninth Circuit
Court of Appeals.
The Yurok Tribe press release stated: “The Klamath
was once the third mightiest salmon-producing
river in the continental US, behind only the
Columbia and Sacramento in productivity. The river
has been reduced to a shadow of its former self
largely as a result of the Bureau of Reclamation's
re-plumbing of its headwaters to maximize
irrigation in the arid upper basin desert along
with hydroelectric development. The long-term
answer may include buying back some of the
agricultural land in the Klamath Basin to reduce
water demand, as well as decommissioning all or
part of the hydroelectric project owned by
Portland based PacifiCorp.”
Some speculate that the recent attention relating
to blue-green algae, an issue driven by
environmental and tribal interests, also relates
to an agenda promoting the removal of the dams,
which are up for relicensing.
Salmon hatcheries were built on the Klamath River
mitigating the impact of the dams when they were
constructed. For decades these effectively
provided for the fishing industry and water for
the irrigators, who point out that water flows are
regulated and have not changed and say that not
all the factors relating to claimed declining fish
populations are being considered.
The appeal was filed by Earthjustice on behalf of
PCFFA, Institute for Fisheries Resources, The
Wilderness Society, WaterWatch of Oregon,
Northcoast Environmental Center, Oregon Natural
Resources Council, Defenders of Wildlife, Klamath
Forest Alliance, and Headwaters. In the district
court, these groups were joined by Congressman
Mike Thompson (D-Napa) and the Yurok and Hoopa
Valley Tribes; amicus briefs supporting the
plaintiffs were filed by the Cities of Arcata and
Eureka, Del Norte, Humboldt, and Trinity Counties,
and the Humboldt Bay, Harbor, Recreation and
Conservation District.
Note: AP contributed to this report from an
article written by Bob Egelko with the San
Francisco Chronicle.
