LAW AND SCIENCE IN THE KLAMATH BASIN: KEEPING YOUR EYE ON THE LAW

by Greg D. Corbin and John Volkman

Environmental and natural resource attorneys often practice at the intersection of law and science. This means we must be both legal experts and students of science. Only in doing so may we understand the full complexity of the issues we face. But we must not to forget ourselves and become blinded by the science. We are experts in the law, and it is our professional obligation to use that expertise to analyze critically the way science intertwines with the law. This is one of the great challenges our practice provides.

The recent dispute over water allocation in the Klamath Basin drives the point home. At the center of the dispute are three fish species protected by the Endangered Species Act ("ESA"), the endangered shortnose and Lost River suckers and the threatened Southern Oregon/Northern California coho salmon. The United States Bureau of Reclamation's ("Bureau") Klamath Project ("Project"), an extensive system of dams, diversions, and canals that provide irrigation water to lands in the Klamath River and Lost River basins, affects these species. Managing the Project for the benefit of both listed species and irrigation requires scientific expertise. Under the ESA, the scientific experts are the Untied States Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") (collectively the "Services").

In 2001, the Bureau proposed to operate the Project in a way that would lower Upper Klamath Lake and decrease minimum stream flows in the Klamath River below historic levels. It prepared biological assessments ("BA") of the effects of the Project on listed species as part of its duty to consult with the Services under section 7 of the ESA. 16 USC § 1536(a)(2). The Services responded with biological opinions ("BO") concluding that the Project would jeopardize the continued existence of the listed species in violation of the ESA. The BOs included reasonable and prudent alternatives ("RPA") to the action that required the Bureau to maintain lake levels and minimum stream flows above what it had proposed. The Bureau complied, which, coupled with a drought year, created a shortage of water for irrigation and led to widespread economic hardship and protest.

The Department of Interior responded to public outcry over its management of the Project by engaging a committee of the National Academy of Sciences National Research Council ("Committee") to conduct a review of the Bureau's BAs and the Services' BOs. The Committee issued an interim report (the "Report") on February 6, 2002. A final report is expected March of 2003.

The purpose of the Committee's review is to evaluate objectively the science underlying the Bureau's BAs and the Services' BOs. In short, the Committee concluded that there is "no substantial scientific foundation" for either the Bureau's BAs or the Services' BOs with respect to lake levels and minimum stream flows. Although the result of a dispassionate scientific critique, this has stirred a kettle of emotion and placed the Services on the political hot seat to justify their actions in 2001 and those they are about to take in 2002. The current political refrain is that the Services were wrong; there is no scientific justification for their RPAs.

The Report also has raised difficult legal questions concerning how the Report deals with a central ESA dilemma - what do you do when a species is at the brink of extinction and someone proposes an action that MAY affect it but the effects are unclear? Section 7 of the ESA requires federal agencies to carry out programs to conserve listed species and to "insure" that their actions do not "jeopardize the continued existence" of listed species. 16 USC § 1536(a)(1), (2). In deciding whether an action will jeopardize a listed species, the agencies "shall use the best scientific and commercial data available." Id. § 1536(a)(2). But what happens when there is scientific uncertainty over a course of action? The Report does not address this issue. Rather, it raises the following questions:

Do the Bureau's proposed lake levels and minimum stream flows jeopardize the continued existence of the listed species? The Report does not say. It finds no clear connection between these factors and mortality to the species. Is it saying that the Bureau's proposed action will have no negative effect, that is, not just that it sees no clear evidence of significant adverse effects, but that it is sure there will be no adverse effect? If so, then the Services reached the wrong conclusion. If not, then may the Service still reach a jeopardy conclusion?

Do the Services' RPAs violate the ESA? The Report finds no substantial scientific foundation for the RPAs. Is it saying that there is some evidence of adverse effects, but not enough to persuade it? Or is it saying that the effects are small enough not to worry about? Presumably there is at least some scientific foundation for the RPAs. If so, then it's an ESA burden-of-proof question, and the Report's conclusion is debatable: it may be the opposite of the conclusion the Services are required to reach if section 7(a)(1)'s duty to conserve species and section 7(a)(2)'s duty to insure against jeopardy mean that some evidence of adverse effect precludes assurance of no jeopardy. In other words, what level of scientific support must the Services have to suggest an RPA? Is some science enough, or must it be substantial?

In the court of public opinion, these ESA questions are quibbles. The Report says the Services are wrong, it's as simple as that. This makes it even more pressing to find a decent way to work through the Klamath problems, evaluating the science in a way people trust, exploring ways to soften the effects of harsh alternatives, and finding ways to address biological and human problems together. We are not there now, and can hope that the Administration's Klamath Task Force will help. But in the end attorneys must confront these difficult legal questions. Science may inform the inquiry, but the answers ultimately are legal ones. We can not fall back on the political refrain and conclusions of scientists to answer the legal questions. That is our job.

Source: http://www.stoel.com/resources/articles/environment/env_035.shtm