Need for Klamath River Chinook ESA listing, impact on tribal fishing debated

For several years now the Salmonid Restoration Federation has sponsored a Spring Chinook Symposium in connection with dives to count wild Spring Chinook adults which have reached the Salmon River. These magnificent fish will remain in deep pools high in the watershed until fall when they will spawn in areas which Fall-run Chinook can not reach due to naturally low fall flows.

This year event planners invited the Environmental Protection Information Center (EPIC) and Oregon Wild (formerly ONRC) to present at the Symposium about reasons the organizations are considering filing a petition to list the Upper Klamath-Trinity River Chinook Salmon Evolutionarily Significant (Population) Unit or ESU pursuant to the federal Endangered Species Act.

The National Marine Fisheries Service defined Chinook salmon ESUs up and down the coast as part of its coast-wide Chinook Salmon status review completed in 1998. The Upper Klamath-Trinity River Chinook Salmon ESU includes all Chinook which spawn above the confluence of the Klamath and Trinity Rivers at Weitchpec. A second ESU - Southern Oregon and California Coastal ESU - includes Klamath Chinook that spawn below Weitchpec.

The Status Review found a listing for the Upper Klamath-Trinity River ESU “unwarranted” and failed to distinguish Spring Chinook as a separate population unit or ESU. That decision was controversial within the review team as was the decision not to define a separate ESU for salmonids south of the Eel River.

At this year’s Symposium, Scott Graecen, executive director of EPIC, made a presentation which was followed by shorter talks by Mike Belchik representing the Yurok Tribe and Petey Brucker representing the Salmon River Restoration Council. Belchik’s remarks were augmented by Troy Fletcher – the Yurok Tribe’s lead negotiator on Klamath River issues – who spoke from the audience.

We briefly summarize those presentations below. However, KlamBlog has also invited EPIC, Oregon Wild, the Yurok Tribe and SRRC to publish here their own more detailed description of their presentation/position on whether the listing petition is warranted, needed and a good or bad idea.

Scott Graecen’s presentation laid out reasons his group thinks a petition is warranted. The alarmingly low number of Springers surviving to spawn in the Klamath-Trinity River Basin figures prominently among those reasons.

Most salmon biologists believe that a stock with a spawning population that is regularly below 500 individuals is not genetically viable, i.e. does not include sufficient genetic variability to survive over the long term. The Salmon River retains the largest wild Spring Chinook spawning population in the Basin. However, during 16 of the past 27 years (the period for which spawning surveys are available), fewer than 500 Spingers have spawned in the Salmon River; in 2005 fewer than 100 Springers returned to the Salmon River to spawn. On the Trinity side wild Springer numbers are much lower with remnant wild populations remaining mainly in the South Fork, New River and North Fork. All these watersheds – as well as the Salmon River - rise in wilderness areas.

Spring Chinook in the Klamath River system are “in danger of extinction within the next 50-100 years” according to a recent expert, peer-reviewed report commissioned by California Trout.

One of Greacen’s main points is that it is up to the responsible federal agency - in this case the National Marine Fisheries Service (NMFS) – to decide whether or not to list the entire ESU or to distinguish “distinct population segments” (like Klamath-Trinity Spring Chinook) for which listing is warranted. NMFS is required to use the best available science in reaching a listing decision. Greacen expressed his interest in prioritizing and protecting ceremonial and subsistence uses of Chinook Salmon by traditional members of the Yurok, Karuk and Hoopa Tribes.

Mike Belchik explained why the Yurok Tribe does not favor a listing petition. The connection between the salmon and those Yuroks who still live and fish within the Klamath River Reservation was described as well as the potential impact a listing could have on tribal fishing and the conservation steps which the Yurok Tribe has taken on behalf of Spring Chinook. The Yurok Tribe, for example, has established closure days during the period when Springers are in the lower river when no tribal fishing is allowed . No other group or interest which "takes" Springers has such closures. As a result Yurok subsistence fishers sit on the bank two days per week while sport fishers “take” Springers on the Yurok Reservation!

Belchik presented the controversial Klamath Basin Restoration Agreement (KBRA)as an alternative to listing. He claimed the KBRA would facilitate recovery not only of Chinook but of all aquatic species as compared to an SA listing which he said only prevents "jeopardy" to Chinook [1]. The Yurok tribe is one of the main prmoters of the still incomplete agreement.

A Draft of the proposed KBRA released well over a year ago contained controversial provisions. These included giving a small group of irrigators the first right to Klamath water and continued access to commercially farm Klamath Wildlife Refuge lands guaranteed by federal legislation as well as power and other subsidies. KlamBlog has several posts (below) which address aspects of the proposed KBRA. On January 8, 2008 we analyzed major provisions of the Draft KBRA including advantages, disadvantages and alternatives for the major provisions of the KBRA version which was released. You can access KlamBlog’s analysis by scrolling down to the 1/8/08 post or by using this link.

Belchik stressed that the Agreement calls for Congress to fund restoration and that some of these funds would come to the Salmon River. One audience member noted that ESA listed species are the funding priority for most state and federal agencies; another audience member called the amount of restoration funds which the KBRA would allocate to the Salmon River as “crumbs from the table.”

Petey Brucker spoke for the most part about efforts to get the information needed to begin scientifically managing Klamath River Spring Chinook. He acknowledged that salmon advocates have failed to address “take” of wild Springers by sport fishers. Sport fishing for Springers is allowed seven days per week in the Lower Klamath River (below Weitchpec) and in the Trinity River above the confluence with the South Fork. Brucker stressed the need for all those who want to help Spring Chinook to respect differences and keep lines of communication open.

During the discussion period following the presentations Fletcher expressed a desire of the Yurok Tribal Government to meet with EPIC to further discuss Chinook issues and to address the group’s objectives. It is unclear whether that invitation also extends to Oregon Wild. Oregon Wild and Water Watch were first included but then excluded from the negotiations which produced the KBRA and which have sought to link that agreement to dam removal. Fletcher is widely believed to be one of the architects of the move that excluded Oregon Wild and Water Watch.

The ESA, tribal rights and the courts

The tension between the ESA and federally recognized tribes has existed for a long time and is not limited to the Klamath River. In 1997 the federal government issued Secretarial Order 3206 which is intended to harmonize the federal government’s tribal trust and ESA responsibilities.

The order provides federally recognized tribal governments with unprecedented access to government information as well as for direct government-to-government consultations before listing decisions are made. It also clearly states that the federal government will only impose ESA restrictions on tribes if it is impossible to conserve the species through other actions. However, the order does not provide for special consideration for ceremonial or subsistence use (“take”) of ESA-listed species.

KlamBlog can find no instance in which the ESA has been used to prevent traditional Indigenous Americans from ceremonial or subsistence use of a listed species. If readers know of such instances, please share them as a comment on this post (see below) along with links to articles or reports which document the conflict.

One recent example of how the federal government has handled potential tribal-ESA conflicts is the Northern Spotted Owl. The Clinton Administration gave all federal tribes – including the Hoopa and Yurok - relief from logging restrictions similar to those imposed on national forests to provide for the Old Growth forest owl. As a result, reservation logging has proceeded without major restrictions. The Yurok Tribe, for example, has been able to log Old Growth on the reservation without encountering substantial ESA restrictions.

If Klamath River Chinook were listed as a threatened or endangered, federal tribes would also have the option of developing a Habitat Conservation Plan (HCP) to allow “take” to continue because adequate conservation measures are in place. Continuing with the Northern Spotted Owl example, the federal government approved a HCP proposed by Green Diamond Resources (Simpson Timber) which owns most timberlands on the Yurok Reservation. The approved HCP allowed the logging company to “take” 30 Northern Spotted Owl pairs in Northwest California; the company recently applied for and was granted federal permission to “take” another 7 Northern Spotted Owl pairs. The first tribal HCP in the nation has been developed by the Agua Caliente Band of Cahuilla Indians.

KlamBlog has located an excellent recent legal review of ESA-Tribal Rights issues; it does not report any cases whereby Indigenous ceremonial or subsistence use was disallowed for ESA reasons. The article does comprehensively review the tribal rights-ESA nexus and it is strongly recommended that all those involved or concerned about a possible Chinook listing petition read this article. Here is how it concludes:

It might seem odd that almost four decades after passage of the ESA, its applicability to tribal activities has not been conclusively decided. Although application of the ESA and similar statutes to tribes has been heavily litigated, most of the published case law has focused on whether a particular tribal activity is covered by a cognizable right that could have been abrogated by the ESA or similar regulation, and whether abrogation is necessary. There are impassioned views supporting a clear-cut regime where tribal activities are per se immune from ESA restrictions or, conversely, must simply follow the same ESA rules as anyone else. But such clarity has not been the hallmark of the case law. Instead, the analysis has been - and likely will continue to be - a more nuanced one, considering factors such as the source of established rights, the locus of the activity, and government regulation.

There is one case where an Indigenous American citizen killed an ESA-listed Florida Panther and where the arrest and prosecution included a claim that the ESA was violated. The case of Chief Billie went to the Supreme Count but the justices ducked the ESA claim and decided the case on other grounds.

The larger issue of the federal government’s responsibilities to federal recognized tribes is the subject of many scholarly and other works. Here’s a link to a good article on the trustee issue.

The concerns of Indigenous Americans about sthe impact of salmon listings have been carefully considered by environmental groups. Coho salmon were chosen for the first coast-wide listing petition filed by environmentalists because scientists said Coho were at greatest risk of extinction but also because it was judged that a Coho listing would have minimal potential impact on tribal ceremonial and subsistence fishing.

On the Klamath River environmentalists have previously refrained from extensive use of the ESA to promote the survival and recovery of Klamath Salmon in deference to tribal ESA sensitivity as well as because of the Act’s sensitivity with commercial salmon fishers. This voluntary restraint reflected a coalition of these interests – tribal, commercial salmon and environmental – which had been painstakingly developed and which subsequently won many court victories on behalf of salmon. This coalition, however, has been successfully shattered by the Bush Administration via the proposed Klamath Basin Restoration Agreement (KBRA) which the Bush Administration promoted. While some “environmental” organizations support the KBRA, those who formed the original coalition with tribes and commercial fishers, oppose it or – in the case of the Klamath Forest Alliance – have not taken a position on it.

Is the interest in a new Chinook ESA petition an unintended consequence of the demise of the tribal-environmental-fishermen coalition? Is it (at least in part) a response to the water allocation, refuge farming and other anti-environmental provisions of the proposed Klamath Basin Restoration Agreement? Answers to these questions were not provided nor were the questions even posed during the Spring Chinook Symposium? But KlamBlog believes they were in the minds of many who attended the Symposium.

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[1] Actually the federal ESA not only prohibits actions which would cause “jeopardy” to a species but also requires the federal government to prepare and implement a Recovery Plan which will enable the species to recover to the point where it can be removed from the list of endangered and threatened species. The assertion that the KBRA will lead to recovery of all Klamath riverine and stream ecosystems is strongly disputed. KlamBlog shares this skepticism.