Friday, July 29, 2016

Better late than never: Water deal supporters may finally sue to aid Klamath Coho

The Earthjustice press release stated it precisely: "Commercial Fishing & Conservation Groups Join Native American Tribes’ Legal Action to Protect Klamath Salmon and Fishing Communities." After nearly three years of urging by scientists, activists, Native youth and KlamBlog, the Klamath River tribes and fishing organizations which have long claimed leadership in defending and restoring Klamath Salmon have finally taken action to challenge federal policies which starve the Klamath of water flows and which, in recent years, killed most juvenile salmon before they could reach the Pacific Ocean. 

It has been something like the breaching of a dam: first the Hoopa Tribe, then the Karuk and Yurok Tribes, and finally the Pacific Coast Federation of Fishermens' Associations (PCFFA) and Klamath Riverkeeper have declared their intention to legally challenge the 2013 Biological Opinion which allowed the US Bureau of Reclamation to starve the Klamath River of flushing spring flows so essential to the health of the River and Klamath Salmon.

While we question why it took them this long, KlamBlog hopes that tribes and fishing groups, which had grown bleary eyed and docile through sitting in the back rooms for too long with too many white lawyers, have finally regained clear vision and courage. But before we get too hopeful, let's look more closely at the crisis which prompted the notice that a legal challenge may be coming.

Another Salmon Disaster

For more than a decade, scientists from Oregon State University and the federal government have been working with tribal biologists to understand why salmon diseases, which in most salmon rivers result in about 10% mortality among juvenile salmon, were killing roughly 4 times that percentage of juvenile Klamath Salmon.  Why, the scientists wanted to know, had natural salmon diseases gone epidemic in the Klamath River.

Through painstaking research the scientists learned that the Klamath's poor water quality, and in particular unnaturally high water temperatures, is a major factor. They also learned that the lack of naturally high springtime river flows played a key role in making the diseases epidemic. Without annual spring flushing flows, the gravel-dwelling worm which is a host for the disease multiplies uncontrollably leading to disease rates not found in most salmon rivers.

Klamath River salmon tribes and their allies began calling for increased springtime flows to flush disease organisms from river gravel. Those entities which had signed onto the KBRA Water Deal made their pleas to federal officials behind closed doors. They were confident that the professions of collaboration and caring that had accompanied completion of the KBRA Water Deal would translate into concern for the plight of Klamath Salmon. Some considered higher springtime river flows a "benefit" they had "bargained for" in the KBRA.

Then came 2013 and a new Biological Opinion on operation of the US Bureau of Reclamation's Klamath Irrigation Project. The Opinion was a slap in the face to those who care about Klamath Salmon. Not only were higher springtime flows not included, the Opinion allowed Reclamation to cut springtime flows in order to fill Upper Klamath Lake as early as possible in the water year.

The feds claimed filling Upper Klamath Lake first was to benefit endangered Kuptu and C'wam (Lost River and Shortnose sucker fish). But that had been repudiated by independent scientists; the real reason was to maximize the amount of irrigation water Reclamation could deliver to the federal Irrigation Elite.

Still in the back room, the Yurok Tribe, Karuk Tribe and PCFFA maintained public silence even as their leaders chaffed in disappointment. Those leaders had signed the KBRA and thereby agreed to take their issues into the back room rather than to the press and public. The Yurok Tribe filed a "dispute resolution notice" as directed by the KBRA. There were more "confidential" back room talks but nothing changed on the River.    

The salmon disaster intensifies

In 2014 the continuing drought and another year of inadequate springtime flows in the Klamath River made already bad water quality much worse. The Klamath was full of salmon disease organisms that, under natural conditions, would have been flushed from river gravels. Conditions were right for intensification of the salmon disease epidemic and that is what took place.

 The Klamath's poor water quality is the result of dumping large quantities
of untreated agricultural waste water into the River and key tributaries.

Members of the Karuk and Yurok Tribes who were monitoring the River were sickened by the massive die off of young Coho and Chinook Salmon. When the data was all in, it became clear that up to 90% of the young salmon migrating from natal streams died in the Klamath River before they could reach the ocean.

In 2015 the Bureau of Reclamation again ignored tribal pleas and again prioritized filling Upper Klamath Lake over springtime river flows. The National Marine Fisheries Service, charged with protecting ESA-listed Coho Salmon went along even though the "take" of juvenile Coho exceeded the maximum allowed under the agency's own 2013 Biological Opinion.

Juvenile Coho losses to disease in the Klamath River topped 90% again in 2015, once again far exceeding the rate of juvenile Coho loss allowed under the 2013 Biological Opinion. But in spite of calls from fish scientists, KlamBlog and others, the tribes, fishing and conservation groups that claim to defend Klamath Salmon complained privately but took no effective action.

The KBRA's pernicious influence

Those who sat on their hands in 2014 and 2015 as Klamath Salmon died in droves include the Yurok and Karuk Tribes, Klamath Riverkeeper and the Pacific Coast Federation of Fishermens' Associations (PCFFA). Now those same tribes and organizations have finally declared that they will sue to overturn the Biological Opinion which allows the US Bureau of Reclamation to starve the Klamath River of springtime flows. KlamBlog is grateful to those who have now stepped up to challenge a Biological Opinion which was driven by politics, not science. KlamBlog just wants to know what took them so long.

In their July 21st press release, Earthjustice Seattle, the law firm representing PCFFA and Klamath Riverkeeper, quoted PCFFA's Glen Spain on the reason legal action under provisions of the Endangered Species Act is planned:
          "We can’t allow NMFS to simply sit on its hands and allow river conditions that are killing 80 to 90 percent of already threatened coho salmon.”

Really Glen? Then why did PCFFA sit on its hands for two years while Klamath Salmon died in drives? And why didn't your commercial fishing organization challenge the 2013 Bi-Op when it was first issued? Why did millions of salmon have to die before the defenders of Klamath River Salmon decided to act?

The reason can be stated in four letters: K B R A. The Klamath Basin Restoration Agreement, or KBRA, which was signed and strenuously defended by PCFFA, the Karuk Tribe and the Yurok Tribe, contains 19 pages of "Regulatory Assurances" designed to relieve federal irrigators of the burden of the Endangered Species Act, Bald Eagle Protection Act and several other state and federal wildlife laws.

While the KBRA never became law, NMFS and US Fish & Wildlife Service officials began providing "regulatory relief" as soon as the KBRA was signed. That included removing Critical Habitat designation for Kuptu and C'wam from the entire Lost River Basin where most federal irrigation occurs. Regulatory relief for federal irrigators also included the 2013 Biological Opinion which is now, finally, being challenged.

 In 2010 the USFWS removed Critical Habitat for Kuptu and C'wam from areas 
where it might burden federal irrigators. The area removed is shown in red.
(image courtesy of the Resighini Rancheria)
Late in 2015, the Yurok Tribe pulled out of the KBRA stating that the Deal's "bargained for benefits" had not been forthcoming. It was a largely symbolic action; the KBRA was already dead in Congress along with the companion Upper Basin Comprehensive Agreement, another bad water deal. The KBRA's termination date would have ended the agreement in any case.   

But even the demise of the KBRA was apparently not enough to persuade PCFFA, the Karuk Tribe and Yurok Tribe to act to protect Coho. That took action by the Hoopa Tribe which declared its intention to challenge the Biological Opinion on May 18th over a month before the Karuk and Yurok Tribes took the same action, and over two months before PCFFA and Klamath Riverkeeper finally joined the parade.

Would PCFFA, Klamath Riverkeeper, the Yurok Tribe and Karuk Tribe have challenged the Biological Opinion if the Hoopa Tribe had not acted first?

Have lessons been learned?

The KBRA was a huge mistake. If it had been endorsed by Congress, the deal would have permanently locked in lower Klamath River springtime flows in order to maintain up to 225,000 acres of federal irrigation. Demand reduction would have been prohibited on the Klamath Irrigation Project to protect the profits of large dominant growers, and the Klamath's federal wildlife refuges would have lost water rights and been rendered permanently dependent on irrigation districts for their water supply. The KBRA was bad policy, bad precedent and bad for the Klamath River; nothing like it should be allowed to even be discussed in future water settlement negotiations.

We all make mistakes; the important thing is to learn from our mistakes so as not to repeat them. So have those tribal and fishing leaders who backed the KBRA learned their lesson? KlamBlog would like to believe they have; but experience strongly suggests that it is wise to remain skeptical.

What are the motives of PCFFA and the other KBRA signatories which have now, finally, challenged the 2013 Biological Opinion? Are they truly concerned about Coho Salmon or are they just seeking a seat at the table to prevent the Hoopa Tribe from being in control of the likely pre-litigation settlement? Do they want a seat at the table so that they can continue to advance the interest of their friends in the Irrigation Elite? Or are these tribes and organizations concerned that funding, which has come to them as defenders of Klamath Salmon, will be lost unless they match the Hoopa Tribe's action?

KlamBlog wants to believe that leaders of PCFFA, the Karuk Tribe and the Yurok Tribe have learned a lesson and will not again become embroiled in "regulatory relief" for the federal Irrigation Elite. We want to believe but then we remember what has transpired.

It was Jesus of Nazareth who said "by their acts will you know them." Rabbi Jesus was pointing out a truism: words are cheap; actions speak louder and tell us where a person, a tribe or an organization really stands. So KlamBlog will follow the advice of Rabbi Jesus; we'll remain watchful and judge these former KBRA supporters by their actions going forward.

Klamath Accountability

Whether or not their leaders have learned from their mistakes, the People of the Klamath River have learned a lesson from the KBRA debacle. We know now that we can not trust too much, that we must hold our leaders accountable, judging them on their acts, not on their words.

Negotiations for a new water deal are underway and that means the first tests of whether lessons have been learned. Will the tribes, fishing and conservation organizations negotiating the fate of our River agree once again to be bound by over-broad confidentiality agreements; or will they insist that they must keep their members and river communities informed about what is going on behind closed doors? Will the tribes hold referendums on any actions that involve giving up or agreeing not to exercise their peoples' rights?  Will tribal governments keep their members fully informed about how proposals and draft agreements will impact the Klamath River and Klamath Salmon?

Whatever transpires KlamBlog will be on duty to assure that what is being discussed in these new negotiations become matters of public record. While some level of confidentiality is appropriate to any negotiation, the public should not be locked out of decisions when Public Trust Resources, including water, salmon and the fate of our River, are on the line. For that reasons, and because we believe the feds will insist on overly broad confidentiality agreements, KlamBlog invites courageous whistleblowers to leak information on what is being proposed and negotiated behind closed doors. There is no substitute for sunshine to prevent mischief.

KlamBlog would much prefer that tribes honor the UN Declaration on the Rights of Indigenous Peoples by keeping their members, along with river communities, informed about the negotiations. We would prefer that conservation organizations insist that negotiations on the fate of Public Trust Resources include regular public updates on what has been proposed and what is being considered. But if tribes refuse to keep their members and river communities informed, if those in the negotiations agree to complete secrecy, KlamBlog will take on the job of informing tribal members, river communities and the public.

More importantly, the People of the Klamath River will be watching. Many of them have learned important lessons from the KBRA debacle and young people have stepped up to demand environmental justice and accountability. KlamBlog believes the People of the Klamath will hold their leaders accountable.

 Hope for the future: Hoopa, Yurok and Karuk Young People join together to
protest a planned liquefied natural gas pipeline that threatens the Klamath River

1 comment:

Felice Pace said...

KlamBlog has just learned that the Hoopa Valley Tribe followed up on their May 18th notice and filed a lawsuit today challenging the 2013 Biological Opinion. An unformatted copy of the Tribe's press release is below. The HVT's legal compliant can be found at this link:

Hoopa Valley Tribe

29 July 2016

Contacts: Ryan Jackson, Chairman - 530 249-8653
Michael Orcutt, Fisheries Director – 707 499-6143
Ton Schlosser Legal Counsel – 206 669-6142

Federal Agency Actions Drive Klamath- Trinity River Fisheries to brink of Extinction and the Hoopa Valley Tribe to Court.

Today, the Hoopa Valley Tribe (HVT) filed its lawsuit against the federal government for violations of Endangered Species Act (ESA) regarding its management actions on the Klamath River, California’s second largest river system. “The harm caused by the Bureau of Reclamation’s and National Marine Fisheries Service’s failure to protect Coho salmon is driving this federally protected fish and our Tribe to extinction,” said Chairman Ryan Jackson. “These fish have been essential to our culture, religion and economy since time immemorial,” added Jackson.

Federal irrigation project and private dam operators on the Klamath River divert and store water, leaving less for fish. The water that remains is warmer than tolerable for salmon and polluted with nutrients and chemicals. Under those conditions, fish are vulnerable to diseases they ordinarily would have survived. In 2002, thousands of migrating adult salmon died under those same conditions. Moreover, literally hundreds of thousands of Klamath River juvenile salmon have been infected with disease pathogens that have severely reduced their survival.

To help prevent another die off, federal agencies set ESA standards for Klamath fish health and Klamath Project operations were bound to meet standards in the 2013 Biological Opinion issued by NMFS. Multi-year drought and project operation changes have contributed to juvenile fish infection rates in 2014 and again in 2015 that have soared past the limits established in the Biological Opinion. “Instead of reacting to the impacts on fish health caused by unforeseen circumstances, the federal agencies have proposed to lower the standards for fishery protection by increasing levels of incidental take of ESA protected Coho salmon so that damaging irrigation diversions and dam operations can continue,” said Hoopa Fisheries Director Michael Orcutt.

“The effect of these actions stands the law on its head,” said tribal attorney Thomas Schlosser. “The Hoopa Valley Tribe’s fishery, not irrigation and dam operations, has priority for Klamath River water under both federal Indian law and reclamation law,” said Schlosser.

In its suit, the Tribe is charging that the failure by federal agencies to re-consult on the 2013 Biological Opinion in light of new information is a direct violation of the ESA. "For several years now, we have attempted to engage with the federal agencies regarding improvements to Klamath Basin management'" summarized Jackson. "It is unfortunate that it will require this lawsuit to gain their attention . However, this action is unavoidable if we are to protect our fishery resources for future generations".

“This ESA suit is not the warning of a miner’s canary; it is the tsunami siren alerting North Coast communities of impending environmental catastrophe and cultural devastation for the Hoopa Valley Tribe,” concluded Jackson.