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Federal Judge Throws Out Bush Salmon Plan for the Klamath River

by DAN BACHER

A federal judge in Oakland on July 17 rejected the Bush administration’s plan to “protect” threatened Klamath River coho salmon from the devastating impact of the Klamath Irrigation Project and ordered the agency to revise the plan.

Judge Saundra Armstrong of the U.S. District Court ruled that incidental take permit and reasonable and prudent alternative provisions of the National Marine Fisheries Service’s 2002 biological opinion are “arbitrary and capricious.” Armstrong found that the 10 year plan was illegal because it didn’t meet the requirements of the Endangered Species Act (ESA).

A broad coalition of commercial fishermen and conservation groups joined with Congressman Mike Thompson, the Yurok Tribe and the Hoopa Valley Tribe to file the lawsuit against the National Marine Fisheries Service and Bureau of Reclamation in September 2002. They charged that the agencies’ 10-year plan failed to leave sufficient water in the river for fish and relied on future, speculative actions from the states of California and Oregon to make up for the missing water. During the plan’s first five months, low, warm flows killed over 33,000 adult salmon in the largest fish kill in U.S. history.

Environmental, fishery and tribal groups celebrated the court’s decision as an important legal victory in the decades-long struggle to restore the Klamath, while the Klamath Water Users Association (KWUA) and Bureau of Reclamation dismissed the ruling as having little impact upon irrigators.

“Don’t believe the headlines you read in the major media outlets when you read about this case,” stated KWUA Executive Director Dan Keppen. “The environmentalist plaintiffs actually got very little out of this decision.”

Jeffrey McCracken, Bureau of Reclamation spokesman, said he expected the decision to have no immediate impact on irrigation water. “The judge made a good decision,” said McCracken. “The ruling allows the Klamath Project to continue operations and didn’t do anything that changes the flows.”

However, the plaintiffs said that the decision was a significant environmental victory, since it ruled that the Bush administration plan was illegal and ordered NMFS to develop a more fish-friendly plan.

“This decision gives hope to the families that depend on Klamath River salmon,” said Glen Spain of the Pacific Coast Federation of Fishermen’s Asociations. “This case was about restoring balance to the basin so that fishermen, Native Americans, and irrigators can all receive a fair share of the water. We will now work on a new vision for the basin, and the legislation recently introduced by Congressman Thompson is the perfect place to start.”

Susan Masten, chair of the Yurok Tribe, also applauded the ruling. “The Yurok Tribe has repeatedly warned the Bureau of Reclamation that the plan presented unacceptable risks to the river’s salmon and fish,” she said. “The decision confirms what we’ve been saying all along – that Klamath salmon need water to survive and the Klamath Irrigation Project is putting the fishery at risk.”

Masten said the tribe was looking forward to participating in redesigning the plan so that it provides adequate flows for Klamath Basin fish.

“The Yurok tribe has the largest fisheries department in northern California with upwards of 60 staff,” she said. “We have decades of experience and expertise that is totally ignored by the Bush administration.”

She also noted that the court decision rebuffed the administration for trying to escape responsibility for the fish kill in 2002.

Because Klamath River coho are protected as a threatened species under the ESA, the National Marine Fisheries Service must approve any long-term irrigation plan devised by the Bureau of Reclamation. The Court said the Service’s approval of the Bureau’s long term plan violated the ESA because it relied on future actions by state, tribal and private parties that are not reasonably certain to occur. Judge Armstrong ruled that “NMFS provides no support for its assumption that the other state and private parties will agree to take part in the process, or that the process will in fact make progress toward and finally achieve the target flow rates.”

“A promise to provide a fraction of the water salmon need, sometime in the future, from somewhere, meets neither the requirements of the law nor of sound science,” said Kristen Boyles, an attorney with Earthjustice. “The fish in the Klamath are in real trouble right now; they need real action, not vague promises.”

Although no recreational fishing groups joined in the lawsuit, Bob Strickland, president of United Anglers of California, praised the decision. “We have to protect endangered species, such as coho salmon, and the court’s decision is a step in the right direction,” said Strickland. “Both the farmers and salmon need water and the water should be distributed as equitably as possible. However, the fish have to come first.”

In February, Congressman Mike Thompson introduced comprehensive legislation to address the Klamath Basin’s problems. The Klamath River Basin Restoration and Emergency Assistance Act would allocate $200 million to landowners and tribes throughout the Klamath Basin who participate in water conservation projects. It merges the upper and lower Klamath Basin working groups into one to ensure that the North Coast communities are at the table when decisions are made.

“The only way we are going to solve the water crisis is by bringing the demand for water back into balance with what the environment can sustain and to manage this resource responsibly,” said Thompson.

Earthjustice filed the suit on behalf of PCFFA and Institute for Fisheries Resources, joined by The Wilderness Society, WaterWatch of Oregon, Northcoast Environmental Center, Oregon Natural Resources Council, Defenders of Wildlife, Klamath Forest Alliance, Headwaters, and Congressman Thompson. The Yurok and Hoopa Valley Tribes joined the plaintiffs, while the Cities of Arcata and Eureka, Del Norte, Humboldt, and Trinity Counties and the Humboldt Bay, Harbor, Recreation and Conservation District filed amicus briefs supporting the plaintiffs.

DAN BACHER can be reached at: danielbacher@hotmail.com

For more information visit the Klamath Basin Coalition website at: www.klamathbasin.info.

Dan Bacher is an environmental journalist in Sacramento. He can be reached at: Dan Bacher danielbacher@fishsniffer.com.

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