The Klamath River Dispute

by Colin Miller

July 2006

The Klamath River story of Northwestern California and Southern Oregon is as tragic as it is convoluted, and the legal battles and controversy surrounding it are as dirty and as overheated as the river itself.

Fishing rights' clash with aggressive farmers, and the conflict on the Klamath has created a strange bedfellows alliance between commercial fishermen and Native Americans. The two groups, normally opposed on political grounds, have come together with environmentalists and environmental justice groups in lawsuits filed against the U.S. government for failing to adhere to the Endangered Species Act (ESA) and save the few remaining salmon. Each year, the populations of threatened Chinook and endangered Coho salmon coming up the Klamath have dropped.

The conflict came to a dramatic head during a drought in 2001, when the Bureau of Reclamation (the federal irrigation division responsible for monitoring the water levels on the Klamath) opened the dam floodgates to provide cool water for two species of suckerfish in Klamath Lake and for the salmon that would be coming up for the fall runs. The farmers of Southern Oregon were apoplectic at losing 75% of "their" water. Incensed, the farmers filed a lawsuit and engaged in massive protests, drawing the national spotlight in the months running up to Oregon Republican Senator Gordon Smith's re-election campaign. Within months, the water was turned back on for the farmers, despite the wealth of scientific evidence documenting the salmons' tenuous position in a dying ecosystem.

By September of the following year, the catastrophic dimension of the government's decision to allow irrigation was revealed. The 2002 salmon harvest was tragically small. Approximately 80,000 salmon lay gasping for breath on the banks of the Klamath, unable to reach their spawning grounds alive. Since then, each year's salmon run has gone lower, suffering from disease and high heat, pushing the "endangered" salmon species near extinction and the "threatened" species closer to an "endangered" listing. If Congressman Richard Pombo of California has his way, the Endangered Species Act may yet be reformed and crippled to the extent that the listings as they stand hold even less water, so to speak, than they already do.

The impact on commercial fishermen of the North Coast, and indeed, for salmon fishermen from Seattle to San Francisco, has been grave. Because it is impossible to determine the origins of ocean-going salmon (which always return to their birthplaces to spawn) the Environmental Protection Agency (EPA) has mandated an extremely low allowable wild salmon harvest, limited by the endangered salmon runs of the Klamath. As hard as it has been for these fishermen, Indians of the Klamath have been, and will continue to be hit the hardest, because of the subsistence nature of the tribal fishery.

The Karuk people were once one of the wealthiest indigenous groups in all of California. Today, the 4,000-member Karuk Nation is the second-largest tribe in the state and one of the poorest. About 90% of Karuk families in Siskiyou County live in extreme poverty. Historically, the Karuk customarily ate more than 450 pounds of fish per person per year, an average of 1.2 pounds per day, comprising 50% of their total diet. Last year, the Karuk caught just 100 fish, five pounds of fish per person per year. Not only does this number mock the idea of "subsistence" fishing, it doesn't even provide for their ceremonial rites. Last year, the Karuk people bought Alaskan salmon.

While dam removal is fundamental to the pursuit of both justice and sustainability, it resolves only one facet of a complex problem. Incompatible extractive land-uses continue to cause disproportionately negative impacts on the health and survival of both salmon and Klamath Basin tribes. The Klamath Water Users Association, representing mostly farming interests, contends that dams are actually serving to protect salmons' health and the overall ecological well-being of the Klamath River Basin, by allowing sediment, pesticides, and herbicides to "settle" in reservoirs, rather than flowing freely into the river. These claims could not be more misguided.

A combination of 55 agro-industrial chemicals used on farms upstream, made more toxic to fish in their synergistic effects, combined with extremely high water temperatures due to dams, are still finding their way into the river in lethal quantities.

The tribes first sued PacifiCorp for a $1 billion in a Court of Federal Claims, but their case was dismissed because the 1864 treaty guaranteeing Klamath Basin Indians the "exclusive right of taking fish in the streams and lakes" predates the existence of the company or its dams! Failing that, in late 2002, they sought representation under Earthjustice lawyer Kristine Boyles, together with a large group of high-profile environmental groups to sue the Federal government for failing to protect the endangered Coho salmon, and the threatened Chinook salmon and bull trout. As expected, the Federal court threw the case out, but Earthjustice appealed.

In October 2005, the Ninth Circuit Federal Appeals Court unexpectedly overturned the Federal government's plan to "protect" Coho salmon by providing status quo amounts of irrigation water to farmers for the next decade. Unfortunately, the appeal derives the strength of its argument entirely from its argument that the Bush Administration's plan for the Klamath would violate the Endangered Species Act (ESA). Were the ESA to be weakened, the Ninth Circuit decision could be repealed, bringing the tribes to the next nationally-fought legislative battle. This battle would be waged not just by indigenous advocacy and Environmental Justice groups, but by mainstream environmentalists as well.

California Republican Congressman Richard Pombo has sponsored House Resolution 3824, which the House subsequently approved. Should HR 3824 pass in the Senate, it would undermine the Endangered Species Act, removing every restrictive provision and altering the system by forcing taxpayers to reimburse would-be habitat-destroyers if they voluntarily decided to protect endangered wildlife.

This bill would prove devastating to the future of the dwindling Klamath River salmon population, which was once teeming with life. The future of the Klamath River depends on prudent policy including dam removal and meaningful agriculture reform. The Klamath River salmon run's alarmingly small population is a warning of the river's poor health. The Klamath has fueled culture, subsistence, and industry for millennia. It is up to both the federal government and the people to determine that the day for justice has finally come. Then, the salmon may finally return to their ancestral home.