The Boldt Decision - Salmon and tribal fishing rights

By now most of those who are involved with or reporting on Klamath Salmon issues know at least the basic outline of the Klamath River Salmon Wars of the 1970s. If you don't know that history, the best retelling available was written by legendary Klamath Biologist Ronnie Pierce and is available on-line for download. The war - real guns were fired on all sides and armed federal marshals were deployed - raised such a stir that it was reported at length in Sports Illustrated.

Yurok fishers take salmon by drift net at the Klamath River's mouth

But you may not know that the Klamath Salmon War was part of a larger struggle of Indigenous Northwest and California Native peoples to preserve their rights to fish for salmon as they had done for time immemorial. In the 1970s state fish and wildlife departments - supported by the federal government -  moved to terminate and wipe out all vestiges of traditional Indigenous salmon fishing. At the time no one thought that the rag-tag groups of Native fishermen would prevail...including most of the fishermen themselves and their families. They had forgotten or had never known the words of anthropologist Margaret Mead:
          Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.

The struggle over salmon fishing spawned hatred, violence and major federal court cases. The Indigenous Natives prevailed and the main resulting court decision - the Boldt Decision - has governed the allocation of salmon among Native, sport and commercial salmon fishers ever since. The Boldt Decision, for example, was the basis for the decision by Interior Secretary Bruce Babbitt to allocate 50% of the allowable Klamath River salmon catch to the Yurok and Hoopa Tribes. Ironically, other Klamath River Indians who also depend on salmon - including Yurok members of the Resighini Rancheria and Karuk members of the Karuk Tribe and Quartz Valley Tribe - do not have government recognized fishing rights. These folks must still fish at night and risk prosecution to exercise their aboriginal right to fish for salmon in a traditional manner.

My guess is that most of those involved in Klamath River and Klamath Salmon issues these days do not know the history of the Boldt Decision. So KlamBlog offers the article below from the February 7, 1999 issue of the Seattle Times newspaper.

Those who understand history and its patterns have an advantage navigating the present. This is particularly true for those who are involved in political movements and social controversies. We have that now on the Klamath. While the political and social struggles still center on salmon, the antagonists now are those who seek to control Klamath River water and its management as well as those who own dams and those who seek to remove them.

Learn the history, it will help you find the right road today.

Coordination, Consultation and Co-management: Behind the scenes maneuvering in the Klamath River Basin

While the public government processes which will lead to the removal of four of PacifiCorp’s five Klamath River dams grind on, public and closed door preparations to derail dam removal are also progressing. A glimpse into behind the scenes efforts in Siskiyou County to defeat the Dam Deal surfaced last week.

At the January 18th Siskiyou County Board of Supervisors meeting, former school superintendent Frank Tallerico told the supervisors that his group - the Siskiyou County Water Users Association (SCWUA)  - wants the county to contribute $40,000 toward its lawsuit challenging the proposed Klamath Basin Restoration Agreement – the KBRA or Klamath Water Deal.

the KHSA or Klamath Dam Deal is not functionally related to the costly and controversial Klamath Basin Restoration Agreement - the Water Deal. Nevertheless, the KBRA has been politically joined to the KHSA in an attempt by federal agencies and other interests to tie their agendas to the dam removal train.  Dam removal is likely because PacifiCorp and its powerful chief shareholder Warren Buffet recognize that the Klamath Dam Deal they negotiated is in the company’s – and the shareholders – financial interest. In fact, the Dam Deal is sweet indeed for PacifiCorp since it relieves the company for all responsibility (and liability) for toxic legacies which may be lurking around powerhouses up to 100 years old.

The KBRA Water Deal is supported by powerful Upper Klamath Basin growers who control the Tule Lake Irrigation District. This Irrigation Elite got all they asked for in KBRA negotiations and now seek to consolidate those gains. Among numerous other efforts, Tulelake and the other Klamath Project irrigation districts are seeking declarations from California and Oregon courts that their actions in adopting the KBRA were lawful.

Upper Basin canals and pumps: The Irrigation Elite receive taxpayer subsidized water courtesy of the federal Bureau of Reclamation's Klamath Project

The desire of the Upper Basin’s irrigation elite to firm up gains made through the KBRA Water Deal is understandable. The Deal puts them first in line for Klamath River water ahead of salmon and the health of the River itself. If the Deal holds, this will make the Irrigation Elite the Basin’s chief water brokers. Putting irrigators first in line for water ahead of fish and refuges animates much of the environmental and tribal opposition to the Klamath Water Deal.

There were signs at the January 18th Siskiyou County Board of Supervisors meeting that the powerful Tulelake irrigators have the ear of most supervisors. As reported in the Siskiyou Daily News, county counsel Thomas Guarino told the supervisors that the SCWUA lawsuit “may not fit into the county’s overall litigation strategy with respect to the Klamath agreements and county finances.” Putting two and two together, KlamBlog suspects that the county’s “strategy” is to allow the KBRA to move forward - on behalf of the irrigation elite - while attempting to scuttle removal of the four PacifiCorp dams. 

Tallerico came away from the meeting empty handed.  His group (SCWUA) mostly represents water users in the Shasta and Scott Valleys. The irrigation elite are based in the Tulelake and Lower Klamath areas. All are in sprawling Siskiyou County. 

Salmon and River Activists ask Governor Brown to change direction in the Klamath River Basin

Seventeen Salmon and River Activists have released a letter they've written to newly elected California Governor Jerry Brown asking him to review and change California Department of Fish & Game policy and direction in the Klamath River Basin. Below is their press release and a copy of the letter.

________________________


For Immediate Release

Northern California River Activists write to Governor Brown:
Review of Department of Fish & Game Klamath Policies Requested

Today seventeen salmon and clean water advocates delivered a letter to California Governor Jerry Brown requesting that he review policies and approaches which the California Department of Fish & Game (DFG) and the Schwarzenegger Administration have pursued in the Klamath River Basin. The activists singled out two areas where they say DFG and the previous administration have pursued policies which are “not in the best interest of the Klamath River, its salmon and its people” –

•    In the Scott and Shasta Sub-basins the Department has sought to permit agricultural operations under the California ESA which cumulatively dewater these key salmon rivers and place Coho salmon and other culturally important species at extreme risk of extinction. Last year only 8 Coho returned to the Shasta River…all were males.

•    In the main Klamath, the Department is supporting a flow regime for salmon which will require public purchase of water from private interests during drought years. With climate change a growing reality, droughts could come to the Upper Klamath as often as every five years. How long will taxpayers be able to foot the bill to keep Klamath salmon alive? Federal and state budgets cannot sustain these expenditures.
According to the letter, these policies and actions stem from a more fundamental failing:

“The Department has failed to be a champion for the Public Trust Doctrine, to enforce those portions of the Fish & Game Code which implement the doctrine and to use it to guide its policies and actions with respect to critical Klamath River Basin issues.”

While the activists praised the work of individual DFG wardens and biologists, they claim the State of California needs to change course. The activists want Governor Brown to order DFG and the State Water Board to identify “flows needed in the Shasta, Scott and Mainstem Klamath which are needed in order for salmon stocks to recover.

_________________________________

Here's the letter sent to Governor Brown:

North Coast and Klamath Environmental Activists
c/o Felice Pace
28 Maple Road
Klamath, CA 95548

January 7, 2011

Dear Governor Brown,

We write to you as a group of individual, independent, grassroots environmental activists on a matter of urgent concern. We believe the course which California Department of Fish & Game continues to follow in the Klamath River Basin is – in two critical respects - not in the best interests of the Klamath River, its salmon and its people, nor in the best interest of the people of California. As you begin your administration, we urge you to review the policies and approaches we identify below and to consider changes. We believe there are solutions to the problems on the Klamath and we pledge our willingness to work with you and the Department to identify and implement durable solutions.

•    In the Scott and Shasta Sub-basins the Department has sought to permit agricultural operations under the California ESA which cumulatively dewater these key salmon rivers and place Coho salmon and other culturally important species at extreme risk of extinction. Last year only 8 Coho returned to the Shasta River…all were males.  The State of California needs to change course on these tributaries; it should begin by identifying flows needed in the Shasta and Scott to protect and restore salmon and by including all North Coast and Klamath streams with impaired flows in the State Policy to Maintain Flows in Northern California Rivers.

•    In the main Klamath, the Department is supporting a flow regime for salmon which will require public purchase of water from private interests during drought years. With climate change a growing reality, droughts could come to the Upper Klamath as often as every five years. How long will taxpayers be able to foot the bill to keep Klamath salmon alive? Federal and state budgets cannot sustain these expenditures.

Both these problems stem from a more fundamental failure of the Department of Fish & Game in Klamath Country: The Department has failed to be a champion for the Public Trust Doctrine, to enforce those portions of the Fish & Game Code which implement the doctrine and to use it to guide its policies and actions with respect to critical Klamath River Basin issues.

Not everything the Department has done in the Klamath River Basin is bad policy or ineffective.  Over the years and to this day there are dedicated individuals and teams doing solid professional work in Klamath Country. But when it comes to water policy, some restoration practices and, especially, the agricultural use of water – the Department has substantially failed to perform its duty to protect Public Trust Resources for the benefit of all Californians.  The Department’s Klamath policies have been rejected by significant elements within the environmental and agricultural communities. This is a clear sign that it is headed in the wrong direction.

We think there are better approaches at hand and we would like to work with you and your staff to get the State on the right course in the Klamath.  

Sincerely,

Richard Alves

Diane Fairchild Beck
  
Eileen Cooper

Robert Franklin

Don Gillespie

Gregg J. Gold, Ph.D.

Kyle Haines

Alan Levine

Daniel Myers

James Moore Jr.

Felice Pace

Jon Spitz

John M. Sully

Ronald W. Thompson
  
Donna M. Thompson

Michael Warburton

Wendell Wood

Underreported: The conflict over PacifiCorp’s Interim Measures for fish and water quality

Perhaps the reporters and editors were on Holiday break. But whatever the reason it seems curious that – with the exception of the Siskiyou Daily News – none of the newspapers which regularly report on Klamath River Basin issues reported an important US Appeals Court decision which issued on December 28th 2010.

The decision was in a lawsuit brought by the Hoopa Tribe against the Federal Energy Regulatory Commission (FERC). It challenged denial of the Tribe’s request that FERC impose specific interim operating conditions on PacifiCorp’s operation of the Klamath Hydroelectric Project. The Klamath Hydroelectric Project includes five PacifiCorp-owned Klamath River dams. Four of the dams (Iron Gate, Copco 1, Copco 2 and J.C Boyle) are being considered for removal; a fifth (Keno Dam) is slated for transfer to the federal Bureau of Reclamation. The Hoopa lost the appeal.

 Iron Gate - one of PacifiCorp's five Klamath River Dams

Removal of four Klamath River dams and transfer of the fifth dam are being considered in connection with the Klamath Hydroelectric Settlement Agreement (KHSA) which was signed by PacifiCorp and other parties last February. Under the Agreement, PacifiCorp will continue to operate its Klamath Hydroelectric Project at least until 2020 in a manner which is very similar to how that project has been operated in the past.

The KHSA specifies and limits the measures which PacifiCorp will implement and the specific amounts of funds the company will spend over the next ten years to mitigate dam impacts to Klamath River water quality and aquatic ecosystems – including salmon stocks. It is these Interim Measures which the Hoopa Tribe challenged.  According to the Tribe, the KHSA unnecessarily delays dam removal and its interim measures are inadequate to protect salmon and other aquatic species. The Tribe’s problems with the Dam and Water Deals are explained on its web site.