Capital Press: 9th Circuit rejects timing of coho plan

9th Circuit rejects timing of coho plan

Tam Moore
Oregon Staff Writer

The controversial Klamath coho operation plan phased in over 10 years is illegal, the 9th U.S. Circuit Court of Appeals said in an Oct. 18 opinion.

In a longstanding case challenging the 2002 biological opinion protecting coho salmon from operations of the U.S. Bureau of Reclamation’s Klamath Project, the three-judge panel said endangered coho under protection of the Endangered Species Act ought not to have to wait eight years for assurance there are adequate water flows in the Klamath River.

A biological opinion by NOAA Fisheries, or National Marine Fisheries Service, the government agency responsible for protection of the coho, set a 2008 deadline for BuRec’s full implementation of a water bank. Other issues contested in the 2002 plan were settled at a district court hearing.

The Pacific Coast Federation of Fishermen’s Association took the water bank issue to the 9th Circuit.

“This decision gives hope to the families that depend on Klamath River salmon,” Glenn Spain, the PCFFA Northwest representative, said in a news release.

BuRec last week announced it has almost completed gathering data for proposing a new set of biological opinions for both Klamath coho and two species of sucker fish under Endangered Species Act protection. Much of that work is dictated by the earlier district court order.

The 9th Circuit sent the phased plan back to federal court in Oakland for imposition of an injunction that probably means the 2008 provisions go into effect for the 2007 operating season.

At the heart of the appellate court finding is a theory that you can’t phase in protection for an endangered species. Either you protect the critter or you don’t, said the opinion written by Judge D.W. Nelson.

“The agency essentially asks that we take its word that the species will be protected if its plans are followed. If this were sufficient, the NMFS could simply assert that its decisions were protective and so withstand all scrutiny,” wrote Nelson.

Tam Moore is based in Medford, Ore. His e-mail address is tmoore@capitalpress.com.