Sunday, September 20, 2015

The Yurok Tribe's KBRA Withdrawal: Turning point or same old strategy?

The Northcoast and Klamath River Basin were astir last week when reports appeared on local news websites indicating that the Yurok Tribe would "no longer support" the KBRA Water Deal. Those reports brought hope to river communities that a federally-orchestrated deal which has divided tribes, fishermen, environmental groups and communities might finally meet its demise.

 When the KBRA was signed in 2010 it was almost universally heralded as
a balanced and durable solution to disputes over Klamath River water that would 
result in "Peace on the River". Events since reveal those claims as dubious at best.
Close reading of the notice released by the Yurok Tribal Government, however, indicates that the "withdrawal" is actually a negotiating tactic which seeks to use the KBRA's "dispute resolution process" to regain the "bargained for benefits" those leaders thought they had secured when they signed the KBRA.  The Notice requests that the Klamath Basin Coordinating Council, a body called for in the KBRA that has already been established, "expedite any attempt to resolve the dispute."
But the Yurok Tribe's  Notice of Withdrawal also states that The Upper Klamath Basin Comprehensive Agreement (UBCA), which was finalized in March 2014 without the participation of the Yurok Tribe, "provides additional benefits to member parties that upset the bargained for benefits of the KBRA and KHSA" and amounts to "a return to the old Oregon-California/Upper Klamath-Lower Klamath division of the Klamath River system..." 

The Yurok Tribe's statement goes even further, declaring that the "bargained for benefits" tribal leaders thought they had secured when they signed the KBRA "have become unachievable." The statement begs one fundamental question: if benefits to the Klamath River and the Yurok Tribe are now "unachievable" why are Yurok leaders invoking a process that is intended to "resolve" disputes? And why are they traveling to Oregon again this week to engage in further negotiations?

Tight-lipped leaders

Local reporters have sought clarification of apparent contradictions in the Yurok Tribe's statement. They have also asked tribal leaders to provide specifics on the "bargained for benefits" those leaders believe were promised in the KBRA but are now "no longer achievable". Yurok government leaders have so far declined to provide clarifications.

Meanwhile, the Eureka Times-Standard reports that the Karuk Tribe and Oregon's Klamath Tribes will also withdraw from the KBRA at the end of the year if Congress doesn’t pass legislation sponsored by Senator Ron Wyden to legalize and fund aspects of the KBRA, KHSA and UBCA. Craig Tucker, the Karuk Tribe's Klamath River Program Coordinator, has spoken to reporters; Tucker claims the dispute is not about funding for tribal government programs but he also failed to provide specifics on which KBRA "bargained for benefits....have become unachievable."

KlamBlog invites leaders of the Yurok and Karuk Tribe to open up and inform the people; this blog will publish messages from them which let river residents know the nature of "bargained for benefits" Yurok and Karuk tribal leaders hope to regain.  

Collaborative Water Management Vetoed by Irrigators

One KBRA "benefit" Yurok and Karuk leaders clearly expected when they signed the KBRA was a collaborative approach to managing Klamath River Basin water. That meant officials of tribes which signed the KBRA would be consulted when Reclamation develops Annual Operating Plans to manage Klamath River Basin water.

The KBRA was signed in 2010. Early in 2011 the US Bureau of Reclamation released its plan for managing Klamath River water in the coming year, including projected irrigation water delivery, lake levels in Upper Klamath Lake and flow releases to the Klamath River. As envisioned by the KBRA, "party tribes" (the three tribes that signed the KBRA) were involved in developing the 2011 Operating Plan.

The plan called for spring flows in the Klamath River in excess of those required to comply with the Biological Opinion implementing the Endangered Species Act. The higher flows were intended to ameliorate a growing salmon disease epidemic in the Klamath River below Iron Gate Dam. At that time about 40% of the juvenile salmon tested were found to be diseased. That alarmed scientists because "normal" fish disease rates in Pacific Salmon Rivers rarely exceed 10%. The scientists knew higher spring flows would lower the River's water temperature and flush disease organisms from river gravels; that in turn would lower the rate of infection in Klamath Salmon.

Gill Rot or "Ich" is a natural fish disease that has become epidemic among juvenile
salmon migrating down the Klamath River. Up to 100% are infected. Telemetry studies 
indicate 92% of the juvenile salmon succumb to disease before they can reach the ocean. 

Higher spring flows in the Klamath River meant that Upper Klamath Lake, source of the Klamath River and of irrigation water for most Klamath Project water users, would fill more slowly. Because filling Upper Klamath Lake as early in the year as possible maximizes subsequent irrigation water delivery, the Klamath Basin's Irrigation Elite did not like the idea. Using the Klamath County Chamber of Commerce as their tool, those irrigators orchestrated an intense campaign to "convince" the US Bureau of Reclamation to (as the campaign's popular bumper sticker insisted) "Fill The Lake First".  

Reclamation quickly caved, acceding to the Irrigation Elite's demands. Not only did the agency not provide higher spring flows in 2011, Reclamation has not provided them since, even as salmon disease infection rates in the Klamath River continue to rise. As previously reported by KlamBlog, during 2014 and 2015 up to 100% of juvenile salmon migrating down the Klamath River were found to be infected with one, and in many cases two, salmon diseases. In 2014 only 8% of juvenile salmon outfitted with radio transmitters below Iron Gate Dam made it to the estuary and the Pacific Ocean. Those facts confirm that the salmon disease epidemic is killing most wild and hatchery salmon produced in the Klamath River and its tributaries before those young salmon can make it to the ocean. 

Having successfully undermined the KBRA's collaborative water management "bargained for benefit" the Irrigation Elite turned next to removing teeth from the Endangered Species Act. The result was the 2012 joint Biological Opinion (Bi-Op) for Coho Salmon and two sucker species (Kuptu and Tsuam or Lost River and Shortnose Suckers).

The new Bi-Op prioritized filling Upper Klamath Lake early in the year over providing higher spring flows for salmon. That decision was justified by claiming high spring lake levels are needed by Kuptu and Tsuam. It ignored findings of independent scientists empaneled by the National Research Council. Those scientists found "no scientific evidence" indicating that higher lake levels would benefit the two native sucker species.

As reported by KlamBlog, the joint Biological Opinion was a charade intended to remove the "burden" of the Endangered Species Act from the Irrigation Elite while claiming it was being done to benefit endangered species. Irrigation interests rewarded the federal officials who orchestrated the charade: one has since retired and now sits on the Klamath Water Users Association (KWUA) Board of Directors, the second was showered with praise at KWUA's subsequent annual dinner.

It is unknown whether Yurok leaders consider the higher spring river flows needed to control the Klamath River's salmon disease epidemic to be one of the "bargained for benefits" promised by the KBRA but never delivered. But that is irrelevant. Yurok leaders should insist not only on being in the back room when Reclamation plans yearly operations but also that the corrupt 2012 Biological Opinion must be redone. Furthermore, those leaders, as well as leaders of the Karuk Tribe, should stand firm that any "resolution" to the current "dispute" must guarantee the higher spring flows scientists tell us are needed to control the salmon disease epidemic currently killing most of the juvenile salmon migrating down the Klamath River.

Ongoing KBRA "dispute resolution" negotiations are a true test of Yurok and Karuk tribal leadership: Will these leaders be satisfied with admission to the back room where Reclamation makes decisions about Klamath water management, or will they insist that federal water managers provide the Klamath River flows salmon need to survive and thrive? KlamBlog will be watching and will let the public know whether the leaders prioritize the needs of fish or simply want access to the back room where Reclamation and the Irrigation Elite continue to call the shots. 

Have the lessons been learned?

Whatever results from current "dispute resolution" negotiations, there are lessons to be learned from what has unfolded since the KBRA was signed in 2010. One lesson is that the much heralded KBRA "harmony", in which tribes and irrigators look out for each others interests, was a sham from the start. The "return to the old Oregon-California/Upper Klamath-Lower Klamath division of the Klamath River system" noted in last weeks notice from the Yurok Tribe did not begin with the recent signing of the Upper Basin Comprehensive Agreement (UBCA). It began in 2010 soon after the KBRA was signed.  

The durability of the Upper Basin-Lower Basin "division" was also indicated in March of 2013 when the State of Oregon, a KBRA signing "party", issued its Final Order of Determination in Oregon's Klamath Adjudication . That order affirmed "time immemorial" rights of the Klamath Tribes to flows in streams that discharge into Upper Klamath Lake. The State, however, denied the Tribes' claim to flows for fish in the Klamath River below Upper Klamath Lake. In other words, Oregon affirmed those tribal water rights which are compatible with the interest of the Irrigation Elite (maximum inflow to Upper Klamath Lake) and denied tribal water rights which would benefit the Klamath River and Klamath Salmon.

As part of the next and final phase of Oregon's Klamath Adjudication, the Klamath Tribes' Government has filed court papers challenging Oregon's denial of their claim to water flows for fish in the Klamath River below Upper Klamath Lake. By signing the recent Upper Basin Comprehensive Agreement (UBCA), however, the Tribes agreed to withdraw its pending court challenge of that denial. Klamath Tribal leaders are willing to abandon their claim to the Klamath River flows fish need if Congress passes legislation by Senator Wyden that would return to the Tribes a portion of the illegally terminated reservation (now national forest land) and provide economic development funds so that the Tribes can build a lumber mill and get into the wood products business. 

As KlamBlog has noted from the beginning, at its heart the KBRA is about buying off tribal interests so that the water salmon, Kuptu and Tsuam need remains with federal irrigators. And it is about removing the "burden" of the Endangered Species Act from the shoulders of the Irrigation Elite. The KBRA is anything but balanced as Yurok and Karuk leaders are, hopefully, finally realizing. And that is why the KBRA as well as the more recent Upper Basin Comprehensive Agreement should be relegated to the dustbin of history. There are good deals and there are bad deals; from the standpoint of the River and Klamath Salmon the KBRA and UBCA are bad deals that no amount of "dispute resolution" can fix.

There is also a deeper and more profound lesson KlamBlog hopes all those who care about the health of our Klamath River and Klamath Salmon will take from what has transpired since the KBRA was signed in 2010: The real power of a tribe to secure durable benefits for rivers, salmon and tribal members depends on the water rights that tribe has asserted. The failure of the Yurok Tribe to assert its inherent reserved right to Klamath River flows in Oregon's Klamath Adjudication was and remains a colossal mistake. Until Yurok leaders recognize that mistake and take decisive action to secure those inherent water rights, the Tribe will remain in a weak position to negotiate for the River, Klamath Salmon and the related interests of its members.

Securing the Yurok Tribe's reserved right to Klamath River restoration flows may take a generation. But that is a short time in the life of a River. Let's hope Yurok leaders take the long view.