Klamath Water Users Association is a defendant in the lawsuit.

“We’ve got some concerns about the use of it to begin with, whether it’s the right (habitat) curves or the wrong (habitat) curves, how much does that really tell us about coho salmon?” said Paul Simmons, executive director of KWUA.

“The pending motion is to put things back in place the way they were a couple years ago with the 2013 Biological Opinion and the injunction – that was very problematic, especially in 2018, when we had to live through that. It would be very consequential if that were required.”

Hardy, who was hired by the federal government to consult the 2018 Biological Opinion using incorrect data, has been identified in court filings related to the litigation.

Not enough water

In the case, both the Yurok Tribes and Pacific Coast Federation of Fishermen’s Association claim there isn’t enough water for coho salmon using the provided data.

Bureau of Reclamation in November announced that the federal agency would need to reconsult for a new biological opinion by April 1, 2020, due to “erroneous data” provided by an outside source.

Hardy was hired by the U.S. Department of Justice on behalf of Bureau of Indian Affairs to conduct flow studies on the Klamath River.

The studies have received financial contributions from federal agencies, ultimately leading to Phase I and II reports. Reclamation and NMFS have used these reports to determine the flow needs for coho salmon in the Klamath River.

The faulted data – in the form of habitat flow curves – surfaced while Hardy was working with the Yurok Tribe, following his consultation work for and with the government.

Klamath Water Users Association board member Ry Kliewer, also a farmer and co-owner of Skyline Brewing Co. in Klamath Falls, expressed disappointment in the faulty findings leading up to the lawsuit.

In a guest editorial to the H&N, Kliewer alleged Hardy was also responsible for the 2001 water shutoff, since it called for unprecedented volumes of Upper Klamath Lake water to be sent downstream.

“This will destroy Klamath Project irrigators and dry up our wildlife refuges,” Kliewer said.

Consultation needed

Jeff Nettleton, manager of Reclamation’s Klamath Basin Area Office, also commented on the need to consult for a new biological opinion.

“I’m disappointed in some regards because I felt like everybody worked hard together to get to our proposed action assessment,” Nettleton said. “Of course the services worked hard to develop their effect analysis.

“Honestly, I think we’ve got a good BiOp in place,” Nettleton added. “I look at this year, which really was an average year. We were able to provide an adequate project supply, granted it was adequate partly because of the type of weather we had this year – cool, wet year. A shorter growing season, so the demand was probably down.”

Simmons expressed empathy for Reclamation over the re-consultation.

“They did a pretty accelerated schedule and here they are starting over,” Simmons said. “I don’t envy that. It’s got to be disheartening.

“At the end of the day, we’re both interested in the same thing,” he added.

The court case is ”Yurok Tribe, Pacific Coast Federation of Fishermen’s Association and Institute for Fisheries Resources vs. U.S. Bureau of Reclamation and National Marine Fisheries Services.” A hearing on the case is scheduled for Feb. 5, at the U.S. District Court for the Northern District of California. Judge William Orrick will preside.