Federal judge orders government to boost Klamath River flow to protect salmon.

By Matt Weiser -- Bee Staff Writer
March 28, 2006
Story appeared on Page A3 of The Bee

A federal court in Oakland on Monday ordered the U.S. Bureau of Reclamation to boost flows in the Klamath River as soon as Saturday. It marks a major setback for federal water policy on the river, where water diversions in 2002 have been blamed for killing thousands of fish and touching off a population crash that could force a closure of this year's ocean salmon season. 

"It's not going to save this season. We're going to have a diminished season or maybe no season," said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations. "It does point to the fact that there is hope for the future with this decision if we can keep the fleet alive."

The case stems from a decision by the Bush administration to divert more water from the Klamath River in spring 2002 to benefit farmers in the Klamath basin. It was a drought year, and by fall, there wasn't enough water in the river to accommodate migrating fish. About 70,000 fish died - at least half of them salmon.

Grader's group and nine other plaintiffs sued the Bureau of Reclamation and the National Marine Fisheries Service, claiming the government's 10-year water management plan for the Klamath River was based on biological studies for the salmon that failed to follow federal law and relied on flawed science.

In October, the 9th U.S. Circuit Court of Appeals ruled against the government, saying the studies, called a "biological opinion," failed to provide enough water for salmon until the end of the 10-year management period, the so-called "phase 3" water flows.

That decision sent the case back to U.S. District Court in Oakland for resolution. On Monday, Judge Saundra Armstrong issued an injunction ordering the government to boost water flow in the Klamath River to the phase 3 level starting April 1, the usual start of the irrigation season.

The judge also ordered the government to develop a new biological opinion for Klamath salmon, and to maintain flows at the phase 3 level until it is finished.

"An injunction is necessary to ensure that flows in the Klamath River are sufficient to prevent harm to coho salmon and their habitat while the agencies comply with the law," Armstrong wrote.

The plaintiffs sued to protect the coho salmon because it is protected under the Endangered Species Act, but the ruling also benefits chinook salmon in the Klamath River, the target of commercial fishermen.

The ruling came on the eve of a hearing by the Pacific Fisheries Management Council in Santa Rosa, which will take testimony today on a National Marine Fisheries Service plan to close all salmon fishing along 700 miles California and Oregon coast to protect the few Klamath River fish still alive in the ocean.

Commercial and sport fishing groups plan a rally at today's meeting to demand at least a partial salmon season.

A final recommendation by the council won't come until it meets next week in Sacramento. The council's opinion carries weight, but is only advisory.

Fishermen hope the court ruling persuades the government to allow at least a partial season so the fishing fleet can hold on until salmon recover.

"It says there is a future for these fish and for the fishery," said Grader.

The case was argued for the plaintiffs by Kristen Boyles, an attorney with Earthjustice, a nonprofit organization based in Oakland. She said the ruling could mean 45 percent more water in the river for fish.

The government can appeal the ruling, but no decision has been made, said Jeff McCracken, a spokesman for the Bureau of Reclamation. He said bureau and fisheries service officials are already discussing a new biological opinion and preparing to meet the court-ordered flow requirements.

"That will obviously be our primary responsibility, to meet those flows, and then do the best we can with the remaining supply," McCracken said. "It could mean less water for farmers."

No shortages are expected this year because of a wet winter. There should be ample water for fish and farmers, he said.

Greg Addington, executive director of the Klamath Water Users Association, said there should be adequate water in an average year, but not in a dry year.

"In a dry water year it would be devastating, there's no doubt about it," said Addington. His group is a co-defendant with the government. "There would just flat out not be enough water."