Klamath Water Users Association

          Klamath Falls , Oregon 97603

                                         (541)-883-6100   FAX (541)-883-8893  

                                                       kwua@cvcwireless.net

                                                             www.kwua.org

FOR IMMEDIATE RELEASE

July 14, 2006 

Pacific Legal Foundation (PLF) and its clients the Klamath Water Users Association, Tulelake Irrigation District, William Heiney, and Amos B. Hoyt (collectively “the Association”) filed today a Notice of Appeal in federal district court in Oakland .  PLF and the Association are appealing the injunction granted by Judge Sandra Armstrong this past March, in which the United States Bureau of Reclamation (BOR) was ordered to provide prescribed amounts of water in the lower stem of the Klamath River for the Coho salmon, a listed species under the federal Endangered Species Act (ESA).  The injunction puts in place a biological opinion’s flow regime that originally was not to be implemented until the fall of 2010.

The injunction follows upon the Ninth Circuit’s decision last October, in which the appellate court invalidated the 2002 Coho salmon biological opinion developed between BOR and the National Marine Fisheries Service (NMFS), which administers the ESA for the Coho and other ocean-going species.  Following the Ninth Circuit’s remand to Judge Armstrong, NMFS issued a supplement to the original biological opinion.  Both NMFS and the Association argued before the district court that NMFS’s supplement remedied any defect in the original biological opinion.  The district court rejected that argument and concluded that the only portion of the original biological opinion and accompanying flow schedule that still retained legal force was that portion scheduled to take effect in 2010.  Thus, Judge Armstrong ordered that the 2010 schedule be implemented immediately and remain in place until NMFS issues an entirely new biological opinion and flow schedule.

Depending on hydrologic conditions, the effects of the injunction on Klamath farmers could be catastrophic.  Water deliveries could be stopped, resulting in devastating consequences for wildlife, small communities and family farmers.  In an effort to avoid this, PLF and the Association have decided to appeal.

PLF and the Association contend that the injunction is improper because the original biological opinion’s defects have been remedied by NMFS’s supplement.  Further, the injunction order is legally flawed because in essence BOR is required to augment river levels with water legally stored for irrigation during higher flow periods.  Thus, the injunction shifts to the federal government, and to Klamath Project farmers who rely upon Klamath water for their livelihoods, the responsibility for going beyond avoiding impacts to mitigating non-Project actions.  That is neither fair nor legal.  PLF and the Association hope to remedy this problem through appeal to the Ninth Circuit.

The Association is, in the meantime, actively working with tribes, conservation organizations and other stakeholders to develop solutions to difficult resource issues in the Klamath Basin .

"All of us are weary of this and other ongoing litigation and know there is a better way," said Greg Addington, the Association's Executive Director.  "We remain committed to make every effort to resolve the Basin's problems in a collaborative manner, but until then, we are obligated to protect the future of Klamath Project farmers."