KLAMATH, Calif. - An appellate
court decision concluded that the U.S. government has not provided a
clear plan for Klamath River water through the year 2010.
The 9th U.S. Circuit Court of Appeals recently reversed a lower
district court ruling in Pacific Coast Federation of Fisherman's
Associations v. U.S. Bureau of Reclamation and National Marine
Fisheries Service and remanded the case to the court for injunctive
relief.
Commercial fisherman, environmental organizations and tribes are
demanding that farmers above the Klamath dams use less water, which
they intend to use for lower river restoration of threatened species.
Plaintiffs also want the federal government to provide timely water
releases for anadromous fish that need fresh water to spawn.
In its Oct. 18 decision, the court opined, ''We conclude that the
short-term measures are arbitrary and capricious'' and ruled that the
National Marine Fisheries Service must better explain their plan for
protecting Klamath coho salmon and its habitat.
''The agency essentially asks that we take its word that the species
will be protected if its plans are followed,'' the court reported.
''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.''
At issue in the case is the NMFS plan. It is to be broken down into
three phases and is to consider ''reasonable and prudent actions'' for
10 years of Klamath water flows through the year 2011. Scheduled from
2002 - '09, phases I and II provide for only 57 percent of water
needed by the coho. A minimum flow of 1,000 cubic feet per second must
be provided to avoid the adverse effects of high water temperatures,
an amount originally figured by the NMFS biological opinion used in
the case. The court was troubled that ''five full generations of coho
will complete their three-year life cycles - hatch, rear and spawn -
during those eight years.''
U.S. Rep. Mike Thompson, D-Calif., represents California's 1st
District, which spans much of the northern California coast. Thompson,
a plaintiff in the case, said, ''Today's 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.'' The
congressman also blamed the plan for this year's lack of Klamath fish
and the major fish kill of 2002, ''which resulted in up to 80,000 dead
fish.''
Wild coho were classified as a threatened species in 1997 under the
federal Endangered Species Act, with an estimated total population of
fewer than 6,000 in 1996. The 2002 fish kill included populations of
coho, as well as chinook and steelhead in the Klamath, once the
third-largest salmon producing river in the United States.
In sync with the coho cycle, this is the third year since the 2002
kill; and indeed, the number of fish caught is down this year,
according to Yurok fisherman David Gensaw Sr. ''The most I've caught
was like 12 at one time, and that's not too good. Down at the estuary,
you can even look and you can see the shallow spots now where you
never used to see those before.'' He is concerned about water flow and
the toxic bloom of algae behind Iron Gate and Copco dams, which
recently shut down tribal fishing.
The Karuk Tribe, located upriver from Yurok, tested Klamath water and
reported: ''Samples taken from areas frequented by recreational users
of the reservoir contained cell counts 100 times greater than what the
World Health Organization considers a moderate health risk.'' Exposure
to the naturally occurring toxic algae species has poisoned dogs and
is a public health risk, possibly causing liver and kidney damage.
Craig Tucker, Klamath campaign coordinator for Karuk, said, ''The
blue-green algae is an indicator that the system is broken.''
Yurok Tribe Executive Director Dennis Puzz Jr. said the tribe looks
forward to working with basin irrigators in seeking a long-term
solution for fisheries protection.
Troy Fletcher, consultant for Yurok, said, ''The federal government
has a fiduciary duty to maintain these resources for American Indians,
and the appellate court stated that fact in their decision. We want
enough water to meet our ceremonial, subsistence and commercial
needs,'' he said. ''The tribe is happy with the ruling, but we still
have a long way to go to keep our fish protected.'' |
