Today the Ninth Circuit Court of Appeals rejected the Bush administration's water diversion plan for the Klamath River because it fails to protect threatened Klamath River coho salmon. The court sided with fishing and conservation groups that have been seeking a more balanced distribution of water needed to rebuild Klamath River salmon stocks. The court found the government's plan illegal because it failed to provide adequate water flows for coho salmon until eight years into the ten-year plan.
The court said, "Five full generations of coho will complete their three-year life cycles -- hatch, rear, and spawn -- during those eight years. 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."
Salmon advocates have been pointing to the plan's inadequacies since it was released in May 2002. Indeed, as soon as it was implemented and water diversions to upstream farmers began, juvenile salmon died in the river. A severe shortage of adult Klamath River salmon this year is traced directly to the effects of diverting Klamath water to farms. This shortage resulted in commercial salmon fishermen losing about 50 percent of their normal fishing season. In 2003, a federal district court struck down the long-term portion of the plan but ordered no change to current operations.
"This decision gives hope to the families that depend on Klamath River salmon," said Glen Spain of Pacific Coast Federation of Fishermens' 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.
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 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. However months earlier, during the spring of 2002, juvenile salmon died in the river from low water conditions. The loss of these juveniles is what led to the severe commercial salmon fishing restrictions this year on the California and Oregon coasts.
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. In May 2002, the Fisheries Service held that the Bureau's plan would jeopardize the continued survival of the Klamath River coho, but failed to require adequate measures to protect the salmon.
The court ordered the case back to the district court to put more water in the river saying, "We emphasize that the interim injunctive relief should reflect the short life-cycle of the species. It is not enough to provide water for the coho to survive in five years, if in the meantime, the population has been weakened or destroyed by inadequate water flows."
"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."
Inadequate river flows that result when the Bureau of Reclamation diverts water for irrigation in the high desert hurt salmon in a number of ways. Newly hatched salmon, called fry, need safe habitat in and around bank vegetation to hide and feed. Lower river flows force these young fish into the mainstream of the river where they are easy prey. Juvenile salmon, called smolts, need adequate river flows and cold clean water in the spring to safely make the journey to the Pacific Ocean. Adult salmon, returning upriver to spawn, are hurt or killed by high water temperatures and poor water quality due to low river flows caused by upstream irrigation diversions.
"The Bush administration has worked hard to maintain the status quo in the Klamath Basin, but the status quo killed 64,000 salmon," said Steve Pedery of ONRC. "Too much water has been promised to too many different interests. Salmon need water to survive, and so do the commercial fishing and Native American families whose livelihood depends on healthy salmon runs."
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 Reclamations' re-plumbing of its headwaters to maximize irrigation in the arid upper basin desert. The long-term answer could include buying back some of the agriculture land in the Klamath Basin to reduce water demand.
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.
# # #
Kristen Boyles, Earthjustice: 206.343.7340 x33
Glen Spain, PCFFA: 541.689.2000
Steve Pedery, ONRC: 503.283.6343 x212
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.