[env-trinity] Klamath Basin Farmers Win Technical Victory, But Coho Listing Stays

[Daniel Bacher]

Klamath Basin Farmers Win Technical Victory, But Coho Listing Stays

by Dan Bacher

Judge Michael Hogan, in U.S. District Court in Eugene, Oregon, ruled in 
January that coho salmon in the Klamath Basin were incorrectly listed as a 
“threatened” species because of the way the federal government treated 
hatchery and wild fish in the same Evolutionarily Significant Unit (ESU).

At the same time, Hogan thwarted an attempt by basin growers to collect 
“damages” resulting from coho protections. He also left the listing intact, 
subject to a major policy change by the National Marine Fisheries Service 
expected to be finalized in June 2005.

“This was a thinly veiled water grab to take more water and make the fish go 
extinct,” said Glen Spain, Northwest Director of the Pacific Coast 
Federation of Fishermen’s Associations. “It was a technical victory, but 
they lost the war.”

The case, being litigated by the Pacific Legal Foundation, is very similar 
to the Alsea Valley Alliance case it previously brought. The previous case 
turned on fine legal and biological distinctions between wild and hatchery 
fish – and resulted in a ruling by the same Judge in September 2001 
judicially delisting the Oregon Coho, according to Spain.

PCFFA, the Yurok Tribe and other groups intervened in this case in order to 
continue minimal protections for coho salmon. Wild coho salmon populations 
have declined dramatically in the Klamath River and throughout the Northwest 
in recent decades, due to bad logging and other land management practices, 
water diversions and the construction of dams.

The diversion of water to subsidized agribusiness in the federal Klamath 
Project of southern Oregon has resulted in dramatic declines of coho salmon, 
king salmon, steelhead and other species. Because of a change in Bureau of 
Reclamation water policy that favors farmers over fish, over 200,000 
juvenile salmon died in the spring of 2002 and over 68,000 adult fish 
perished in September 2002. These fish kills have resulted in record low 
returns of wild salmon, including coho, in Klamath River tributaries such as 
the Scott and Salmon rivers this fall.

In spite of the attempts by the Pacific Legal Foundation (PLF) and other 
extreme property rights groups to strip salmon protections, NMFS has 
recommended relisting the coho under that new hatchery listing in June 2005.

The PLF praised the judge for saying that fish were “illegally listed,” but 
threatened further legal action if NOAA continues to keep the coho listing 
after the review of 26 West coast salmon stocks is completed this June.

“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,” Russell Brooks, 
PLF spokesman said. “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.”

Judge Hogan had stayed the case, Grange v. National Marine Fisheries 
Service, pending the tribe’s and PCFFA’s appeals of the PLF’ victory in 
Alsea Valley Alliance v. Evans (2001).

In June 2004, NOAA Fisheries proposed a new hatchery policy while 
simultaneously announcing that it would result in the re listing of west 
coast salmon and steelhead populations.

“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 explained.

In November 2004, PLF said it would file a lawsuit challenging all 26 
listings if NOAA enacts the proposed policy and “continues to distinguish 
between hatchery and naturally spawned fish, according to Brooks.

However, Spain noted that the difference between hatchery and wild fish is 
virtually “irrelevant” on the Klamath River and its tributaries. “Whether 
you put wild or hatchery fish into the Klamath, there is a high risk of a 
fish kill taking place,” he quipped.

Also, although the court left the door open for farmers to show damages for 
relief, “It is unclear that they could ever show damages, given the way the 
water management has been restructured in favor of farmers,” he said.

“The farmers received more water in 2004 than any similar dry to critically 
dry year in the last 41 years,” emphasized Spain. “They received their full 
delivery of 310,000 acre feet of water.”

The Alsea case and the latest ruling aren’t’ really about hatchery versus 
wild fish, according to Spain. “This case is really about water and about 
whether landowners have any obligation at all to prevent the death of an 
entire river system and all of the fish within it by putting water they have 
taken in the past back into the river,” noted Spain.

“While farmers claimed that this was a victory for them, it was really a 
victory for the fish,” said Troy Fletcher, executive director of the 
YurokTribe. “Although the listing was deficient, Judge Hogan still left the 
coho listing in place.”

He emphasized that while alleged damages to the farmers were “only 
speculative” because the farmers received their full water deliveries, the 
tribe and the PCFFFA in court demonstrated actual damages to the tribe and 
the North Coast economy caused by the fish kill. “This is one of a long 
series of long battles to restore the Klamath River,” added Fletcher.

Tribal communities and commercial and recreational fishing communities up 
and down the coast have depended upon fall chinook for their livelihoods and 
sustenance. Yurok and Karuk Tribal people, who have lived on the river for 
thousands of years, depend on salmon as a main part of their diet and for 
their culture, their livelihoods and their health.

A Karuk Tribe-commissioned report written by Kari Marie Norgaard, a UC Davis 
sociologist, shows that lack of customary salmon in the tribal members’ diet 
has had devastating impacts on community health. “The report links the 
disappearance of salmon to increases in poverty, unemployment, suicide and 
social dissolution,” wrote Blaine Harden in the Washington Post on January 
30. The same water problems forcing the coho toward extinction affect all 
other salmon, including fall chinook.

With an administration in Washington that favors a small group of subsidized 
Klamath Basin farmers over thousands of tribal members, recreational anglers 
and commercial fishermen, the courts will be increasingly crucial as an 
arena for defending the gains made by fish advocates in recent years and 
defeating the “wise use” movement and their allies.