Arguments made by attorneys for the Klamath Water Users Association (KWUA) and the federal government yesterday hit home when an Oakland, California judge dismissed a case lodged by environmental activists and the Yurok Tribe against the Bureau of Reclamation. A trial planned to address the die-off of salmon on the lower Klamath River in 2002 was dismissed by Judge Saundra Armstrong on the basis of jurisdictional issues.
The Yurok Tribe contended that the Bureau of Reclamation violated their fishing rights in 2002 by providing inadequate mainstem Klamath River flows, and that Reclamation should avoid violations of the fishing rights in the future. Klamath Project water user interveners filed a motion to dismiss the case, which was originally scheduled to be heard last fall.
Attorneys representing KWUA denied that operation of the Klamath Project harmed the Tribes’ fishery. Irrigators further asserted that the court lacked jurisdiction to hear the Tribes’ breach of claim, that the breach of trust claim was moot and not justifiable, and that the Tribes’ claim should be dismissed.
Judge Saundra Armstrong yesterday agreed with KWUA / federal government's motion to dismiss the fish die-off case as "moot". The trial on this matter, which was tentatively set for February 14, 2005, has been cancelled.
KWUA was represented in the litigation by the Pacific Legal Foundation (PLF), with assistance from the Sacramento law firm of Somach, Simmons & Dunn (SSD). PLF attorneys Rob Rivett and Andrew Lloyd and SSD lawyer Paul Simmons – counsel for KWUA – attended the hearing in Oakland yesterday, and described the victory as “positive” and “legally sound”.
“The Yuroks
wanted a better mechanism for their concerns to be communicated and heard when
Reclamation is making its annual operation plans,” said Rivett. “That should
been worked out without going to trial, and that is what the Hoopa Valley Tribe
demonstrated by settling on this issue late last year. But the Yuroks
cannot expect the federal government to give up their management
responsibilities over the Klamath Project, which involve the needs of many
parties and entities, and cede those responsibilities to the tribes. The judge
appeared to agree with this line of reasoning, which was our argument.”
Simmons was
not surprised by the decision.
“The root of the court’s ruling is that the lawsuit really could not have done anyone any good. The ruling was legally correct,” he said. “Still, nothing about the decision minimizes anyone’s interests and hopefully the parties can move forward to address the challenges of the watershed.”
“We also
argued that the court has no jurisdiction to hear the tribe's claim under clear,
recent U.S. Supreme Court precedent and accordingly, there was no basis to go
forward to trial on the Yuroks’ claims,” said Rob Rivett.
“The judge agreed.”
“Throughout
this litigation, the Yurok Tribe maintained that the fish die-off was
unprecedented," Andrew Lloyd added. "Unfortunately for
the Yuroks, the Court agreed with them. The fish die-off, while
unfortunate, had not happened before, and the Tribe could not establish
that it was likely to occur again. Given that, the Court found
that the claim could not be heard and dismissed the case."
A
written order is forthcoming, probably in the next ten days. The Yuroks may try
to appeal this decision with the Ninth Circuit, but attorneys for the water
users feel that it will go no where. Other PCFFA v USBR issues
ruled on previously by Armstrong remain to be heard in appeals court.
“This claim is essentially dead,” said Rivett.
“We are sympathetic towards the tribes’ needs, and our attorneys tried to work with all interested parties to try to reach a win-win position in this case,” said KWUA Executive Director Dan Keppen. “Litigation will not solve their concerns. There are other ways to constructively reach a remedy that addresses all the watershed needs without needless lawsuits and divisive press attacks.”
Water users are hopeful that recent momentum developed by the 2003 final Klamath River report of the National Research Council and last year’s signing of the historic Klamath River Watershed Coordination Agreement may provide the right environment to nurture such an approach.
KWUA
Perspective on the Die-Off
Traditional advocates of high mainstem Klamath River flows quickly concluded in 2002 that the fish die-off was due in large part to Klamath Project operations, despite the fact that the fish died below the confluence of the Klamath and Trinity rivers, 200 miles downstream of the Klamath Project. Dave Vogel, a fisheries biologist with 28 years of experience, believes that Klamath River water temperatures are extremely important in this issue because of the adverse impact high water temperatures can have on salmon. The topic is also important because of how water project operations can, or cannot, affect water temperatures in riverine areas important to salmon.
During late summer and early fall of 2002, Dave Vogel conducted a field investigation to assess water temperatures in the main stem Klamath River:
· Main stem water temperatures were measured hourly just prior to and during the fall-run Chinook salmon migration season.
· Vogel found that water temperatures in the upper Klamath River downstream of Iron Gate Dam during September 2002 were unsuitable for adult salmon. This finding was similar to that of previous studies.
· Vogel also found that large numbers of salmon entered the lower Klamath River earlier than usual and were exposed to two dramatic and uncharacteristic cooling and warming conditions causing disease outbreak from warm water and crowded conditions.
The combination of these factors was chronically and cumulatively stressful to fish and is probably the most plausible reason for the fish die-off.
Judge
Reaffirms that Hatchery Fish Need to be Included in Klamath Coho Counts
Coho
salmon in the Klamath River Basin region have been illegally listed under the
Endangered Species Act as a threatened species, a federal judge declared
Tuesday. Ruling from the bench, Judge Michael Hogan agreed with Pacific Legal
Foundation that the federal government violated the ESA when it failed to
consider hatchery fish in its assessment of coho in southern Oregon and northern
California rivers. ESA protection of coho in the Klamath River was a significant
factor in the government’s devastating decision to shut off irrigation water
to Klamath Basin farmers in the spring of 2001.
"This
victory came too late for the farmers who where pushed into bankruptcy and the
businesses that were forced to close to protect fish that were never
endangered," said Pacific Legal Foundation attorney Russ Brooks. "Our
rivers and streams are teeming with salmon, yet the Klamath community was
practically destroyed because of environmental politics run amok."
"This
ruling should send a message to NOAA Fisheries that they cannot continue to
circumvent the ESA to keep salmon listed when the prolific number of hatchery
fish means salmon are not endangered. If NOAA does not accept the reality that
the ESA does not distinguish between wild and hatchery fish before it issues its
new hatchery policy, we will wind up back in court," Brooks said.
The
case, Grange v. National Marine Fisheries Service, had been stayed by
Judge Hogan pending environmentalists’ attempts to appeal PLF’s landmark
victory in Alsea Valley Alliance v. Evans (2001). In that case, Judge
Hogan held that the government had illegally listed coho along the Oregon
coast as threatened when it excluded hatchery coho from fish counts. The Ninth
Circuit Court of Appeals rejected the appeal in February, 2004.
In
Tuesday’s ruling, however, Judge Hogan did not set aside the illegal listing,
but left it in place while the agency completes the review of 26 west coast
salmon listings, which it agreed to undertake as a result of its loss in Alsea.
In June, 2004, NOAA proposed a new hatchery policy, but simultaneously announced
that it would result in the relisting—not delisting—of west coast salmon and
steelhead populations.
However,
Judge Hogan also indicated that if a federal agency took a specific enforcement
action on behalf of the illegal listing which caused harm, those harmed could go
to court and ask to have the federal action stopped.
"In
other words, as long as the federal government complies with Judge Hogan’s
ruling that the listing is illegal, there won’t be a problem. But if they try
to cut off the water again or take some other similar action, we’ll be back in
court," Brooks said.
In
November, 2004, PLF announced it will file a sweeping lawsuit challenging all 26
listings if NOAA enacts the proposed policy and continues to distinguish between
hatchery and naturally spawned fish. The final rule is scheduled to be published
in June, 2005.
- Source: PLF Media Advisory -