[env-trinity] Court Rejects Bush Administrations Klamath Water Diversion Plan

[Daniel Bacher]

Court Rejects Bush Administration’s Klamath Water Diversion Plan

by Dan Bacher

In a major setback to the Bush administration, the Ninth Circuit Court of 
Appeals in October unanimously rejected the Department of Interior’s water 
diversion plan for the Klamath River because it failed to protect threatened 
Klamath River coho salmon.

The court sided with fishing groups, environmental organizations, Indian 
tribes and Congressman Mike Thompson, who argued that the plan, released in 
May 2002, benefited corporate farmers in the Klamath Basin over the needs of 
fish and downstream water users. The court found the government’s plan to be 
illegal because it failed to provide adequate flows for coho salmon until 
eight years into the ten-year plan.

“Five full generations of coho will complete their three-year life cycles -- 
hatch, rear, and spawn -- during those eight years,” the court said. “Or, if 
there is insufficient water to sustain the coho during this period, they 
will not complete their life cycle, with the consequence that there will be 
no coho at the end of the eight years.  If that happens, all the water in 
the world in 2010 and 2011 will not protect the coho, for there will be none 
to protect.”

The plaintiffs are hoping that the decision will result in more balanced use 
of Klamath River water, rather than just benefiting agribusiness at the 
expense of salmon and downstream users. “This decision gives hope to the 
families that depend on Klamath River salmon," said Glen Spain of the 
Pacific Coast Federation of Fishermen’s Associations (PCFFA).  "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."

Congressman Mike Thompson, a plaintiff in the case, also hailed the court’s 
ruling. “The unanimous decision by the court confirmed what we have been 
saying for years, Klamath River salmon need sufficient flows of cool, clean 
water to survive,” Thompson said.

“A sustainable water plan in the Klamath benefits fishing communities up and 
down the Pacific Coast. This year’s drastically reduced salmon season is a 
product of the first year of the administration’s water plan, which resulted 
in up to 80,000 dead fish. The 9th circuit has handed down a major victory 
for salmon restoration efforts,” Thompson stated.

Although specifically aimed at saving the coho salmon, the decision will 
benefit the king salmon, steelhead, sturgeon, shad and lamprey fisheries of 
the Klamath watershed.

Earthjustice filed the appeal on behalf of PCFFA, Institute for Fisheries 
Resources, The Wilderness Society, WaterWatch of Oregon, North coast 
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. The Cities of Arcata and 
Eureka, Del Norte, Humboldt, and Trinity Counties, and the Humboldt Bay, 
Harbor, Recreation and Conservation District also filed amicus briefs 
supporting the plaintiffs.

The Pacific Legal Foundation, which defends the Klamath Basin irrigators in 
court, criticized the decision and indicated that it may appeal the ruling.

“The decision is unfortunate because it puts the court in the position of 
failing to defer to the scientific expertise of the fishery agencies by 
asking them to reconsider the biological opinion,” said Bob Rivett, 
principal attorney in the case for the foundations. “Our organization fully 
supports the position taken by NOAA Fisheries in the 10 year plan. We are 
strongly considering filing a motion for a rehearing to the panel of 
judges.”

The foundation has to file this motion within 45 days. If they decide to 
move forward with the litigation Rivett said the group would probably file 
the motion in late November or early December.

“The Court has said to NOAA that you have to provide more facts and analysis 
before you say that flows are adequate to protect coho salmon,” he said. 
“However, we believe that the scientists have demonstrated enough evidence 
for the adequacy of the flows in the fishery plan. The court should defer to 
the expertise of the agency.”

The coalition of commercial fishermen, conservation groups and the Yurok and 
Hoopa Valley Tribes filed the lawsuit against the National Marine Fisheries 
Service and Bureau of Reclamation in September 2002 because the agencies' 
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.

Five months after the plan was adopted in the fall of 2002, low flows caused 
by unbalanced irrigation deliveries killed over 64,000 adult salmon in the 
largest documented fish kill of its kind in U.S. history.  Months earlier, 
during the spring of 2002, over 200,000 juvenile salmon died in the river 
from low, warm water conditions.

The loss of these juveniles is what led to the severe commercial salmon 
fishing restrictions this year on the California and Oregon coast. The 
season was reduced by approximately 50 percent, in spite of the relative 
abundance of Sacramento Rive system chinooks on the same waters.

The federal and state governments also dramatically reduced the catch quotas 
of ocean recreational anglers, in river sport fishermen and the Klamath 
River tribes because of expected low returns of chinooks. The result had a 
dramatic economic impact upon the Northern California communities that 
depend on fishing and tourism for their lifeblood.

In 2003, a federal district court struck down the long-term portion of the 
plan, but ordered no change to current operations. Because Klamath River 
coho are protected as a threatened species under the Endangered Species Act, 
the National Marine Fisheries Service must approve any irrigation plan 
devised by the Bureau of Reclamation that relies on taking water from the 
Klamath River.

"Bush administration officials swept science under the rug, and the court 
caught them," said Earthjustice attorney Kristen Boyles. "With this 
decision, management of the Klamath River must be balanced so salmon and the 
communities that depend on them aren't left high and dry."

The roots of the Klamath fish kills lie in the Karl Rove “Irongate Scandal” 
of 2001-2002.  In an effort to gain the favor of Oregon agribusiness to 
support the reelection of an Oregon Senator, the president’s political 
advisor pressured the Department of Interior to make full deliveries to 
agribusiness while neglecting the needs of fish. The low, warm flows that 
resulted produced an outbreak of disease in juvenile fish in the spring and 
adult fish in the fall of 2002.

This court victory shows what is possible when fishing groups, environmental 
organizations, Indian tribes and supportive political leaders work together 
in unity to stop a government-ordered plan to destroy a fishery. Let’s hope 
that court decision stands and that any attempt to derail the long overdue 
restoration of the Klamath system fails.

For more information on the Klamath Basin and a copy of the opinion, please 
visit www.earthjustice.org.