Klamath Farmers Applaud Ruling

A federal judge declined Friday to order Klamath River water flows increased to benefit rare coho salmon, concluding that she lacked scientific evidence that the fish would be harmed if river flows remain at their current level.

Coming in response to a suit brought by a group of commercial fishermen and environmentalists, the ruling by U.S. District Judge Saundra B. Armstrong was a victory for Klamath Basin farmers, who had feared that a court order boosting water for salmon would mean less water for their farms, triggering a repeat of last summer’s crisis of parched fields along the California-Oregon border.

The farmers receive their water from a 95-year-old U.S. Bureau of Reclamation irrigation project that diverts water from the Klamath River’s source.

“I’m happy. I’m relieved. It’s the right conclusion. It’s the right outcome,” said Paul Simmons, the attorney representing the Klamath Water Users Assn..

The ruling underscored a pivotal legal question in the continuing Klamath River controversy: How much evidence is needed to prove an animal or plant is threatened with extinction under the U.S. Endangered Species Act?

Fishermen and environmental groups filed suit last week and also took the unusual step of requesting a temporary restraining order, hoping to get water to fish immediately. Such orders must meet a higher standard of proof than typical legal actions. The groups plan to press on with the lawsuit.

Interior Secretary Gale A. Norton, issued a statement commending the judge for upholding the National Marine Fisheries Service’s March determination “that project operations in April and May will not significantly affect coho salmon.”

Anglers, environmentalists and Native Americans who sought the order said they remain convinced of the merits of their suit against the Bush administration, insisting that young coho salmon receive too little springtime water to sustain them under the current system.

The plaintiffs were clearly disappointed by the decision by Armstrong not to grant an order immediately giving more water to salmon.

They call the coming weeks crucial for the survival of young salmon, as the tiny fry grow and feed in shallow water at the river’s edge, and as 1-year-old coho swim toward the sea.

“We gave it our best shot and lost,” said Kristen Boyles, an attorney with Earthjustice Legal Defense Fund. “I have to be honest. For the May flows, the case is pretty much dead.”

Boyles represents the Pacific Coast Federation of Fishermen and six environmental groups in the suit. Two Native American tribes filed papers supporting the motion.

Judge Armstrong criticized the Bureau of Reclamation for giving the National Marine Fisheries Service only one day to review how the bureau’s April and May flow plans would affect the fish. The fisheries service is charged with protecting coho salmon, which are listed as threatened under the U.S. Endangered Species Act.

In its counter-argument, the government relied heavily on a report issued this winter by a National Academy of Sciences panel. The report said insufficient scientific evidence exists to support the fisheries service’s 2001 decision that the coho need more water. That decision helped prompt a water shut-off to farmers last year and triggered a fierce fight over the Endangered Species Act.

Another study has been commissioned by the U.S. Department of the Interior. That report, by Thomas E. Hardy, a professor of civil and environmental engineering at Utah State University, will be released in the next few months.

Hardy’s study recommends that in May coho and other salmon need well over 2,000 cubic feet per second of water released below Iron Gate Dam, which divides the upper and lower Klamath River basins.

The bureau is releasing less than 1,400 cubic feet, a level approved by the fisheries service. A draft of Hardy’s study was cited at length by fishermen and environmentalists in their argument that more water is needed for salmon.

But Armstrong added that those requesting the order did not provide sufficient scientific evidence that coho would be harmed without more water. And, she questioned whether she could rely on a study still in draft form.

Hardy said Friday that he has learned nothing new that would suggest that the recommendations in his draft will be substantively altered in the final version.

Late Friday, however, Jeff McCracken, a spokesman for the Bureau of Reclamation, announced that water flows to the lower Klamath River will be increased to 1,700 cubic feet per second for several days because two reservoirs behind Iron Gate Dam are full and need to be lowered.

McCracken added that the increased water flow is not related to the recent stranding of young coho salmon below the dam.

The executive director of the Klamath Water Users’ Assn. released a statement Friday expressing relief that another water shut-off was not ordered Friday.

“We are pleased that rushed and rash behavior has not been awarded by Judge Armstrong,” said Dan Keppen. “She should not be expected to make a decision that approves sketchy scientific justification with only a few days’ time. Now is the time to come together and focus our energies on long-term fixes to the Klamath Basin.”