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Grange holds meeting with Pacific Legal

(From the Wednesday, March 2, 2005 Klamath Courier - KBB Notes following this article)

by Leo Bergeron, president of Greenhorn Grange
The meeting began at 7:30 p.m. on February 17, with approximately 65 people in attendance.  A local television station was present and interviewed Russell Brooks, managing attorney for the Pacific Legal Foundation (PLF) and lead attorney on the coho salmon delisting suit of Grange v Evans NMFS.
Bill Ransom from the Klamath Bucket Brigade, Inc. opened the meeting and thanked the Greenhorn Grange for its co-sponsorship of the meeting with Brooks and for leading the charge on the lawsuit for delisting the coho.
The action against the listing of the coho started at the Greenhorn Grange long before the water was shut-off in the Klamath Basin in 2001.
The Greenhorn Grange worked with Jackson County Pomona Grange, in Jackson County, Oregon and with members of the Midland Grange, Midland, Oregon.  Two members of the Midland Grange, Tim O'Connor and Rayn Cleaver, were signers on the suit.
This lawsuit challenged the federal government and the Grange won with the help of Pacific Legal Foundation.
Attorney Brooks took about a half-hour presenting the process of the lawsuit.  He also explained the recent attempt by the Tribes to acquire oversite rights to the operation of the Klamath basin watershed.  That case was dismissed by a federal court in Oakland, California.
After the presentation, more than an hour-and-a-half of questions were asked and answered by Brooks.
Many ranchers and farmers voiced concerns about their water for the coming year.  Would the Klamath Project of the Bureau of Reclamation reduce water allotments to the point of crop destruction in favor of coho?
The ruling was that the National Marine Fisheries Service (NMFS) listed the coho illegally, because they did not count the hatchery fish.  The ruling did not set aside the listing, but the court made the enforcement of the listing not possible.
If NMFS tries to enforce the listing and somebody is harmed by restricted water deliveries for the coho, the courts will impose an injunction and get the water turned back on.
The attorney for PLF felt that the time frame for this type of action would be no more than one week.
The court also directed NMFS that they must complete their revised plan for the recovery of coho and verify if the coho should be listed or not listed.
If they should find that the coho needs listing, then the process will start all over again and the PLF will seek an injunciton prohibiting the implementing of the proposed listing until all challenges are made through the courts.
Brooks was very confident that NMFS would not be able to prove that the coho is threatened or endangered, which are the legal terms for listing with the federal Endangered Species Act.
Today coho are plentiful and the science that is required to make the listing is so much more restrictive.  No more can "opinions" create a listing.  Now there must be proof, which must be verified with correct data.


Klamath Bucket Brigade

Notes from the Town Hall Meeting With Russell Brooks – Pacific Legal Foundation Attorney

On January 11, 2005 U.S. District Court Judge Michael Hogan heard oral arguments in Grange vs Evans, National Marine Fisheries Service and then ruled that the Endangered Species Act listing of the Klamath River ESU (An Evolutionarily Significant Unit or "ESU" is a distinctive group of Pacific salmon, steelhead, or sea-run cutthroat trout.) was illegalNOAA has even admitted that the threatened listing of the Klamath Coho was illegal.  

In his ruling, Judge Hogan kept the ESA listing in place until NOAA has finished the status reviews of 26 Salmon ESU’s that is due on June 14th 

Russ Brooks, lead attorney for Pacific Legal Foundation (PLF) in Grange v Evans was in Klamath Falls last Thursday for a Town Hall Meeting to explain the ramifications of Judge Hogan’s latest ruling concerning the Southern Oregon/Northern California (SONC) Coho Salmon.  

Some of Brooks’ information:  

  1. SONC Coho will be relisted as threatened by NOAA.  Despite the judge’s ruling, NOAA is playing a “shell game” with their new proposed Hatchery Policy.  They will include the hatchery fish in the total population but again will only list the “wild” fish for listing.  Hogan said, “List all of them, or list none of them.”  It they were to list all the SONC Coho, the population numbers would prove that the fish are not threatened.  By defying Judge Hogan’s ruling, PLF will be filing another lawsuit. 
  1. If NOAA were to list all the fish, wild and hatchery; they would still exempt the hatchery fish from “incidental taking” and allow them to be caught by commercial and sport fishermen.  NOAA looks at hatchery fish as “surplus” – there are so many of them that they don’t need protection.
  1. Why did Hogan leave the Coho BiOp in force till June 14th?  There were two reasons given.  One was that he agreed that there was harm forced on the Klamath Project farmers in 2001. But has there been continuing harm in the years since?  And who really has water rights?
  1. The proposed relisting as threatened came out last year (2004) and they have until June 14th to finish the new status review.  NOAA is not reviewing critical habitat even though 80% of that habitat has disappeared.
  1. The Endangered Species Act is not about saving species, it’s about controlling land use.
  1. Atlantic salmon stocks are not treated the same by NOAA as Northwest salmon stocks.  NOAA does count hatchery fish on the Atlantic side.  Nor does NOAA list the different Atlantic salmon species in distinct population segments or ESU’s.  There are 5 or 6 different salmon species on the West Coast but 26 different ESU’s.  During Congress’ procedure to “reform” the ESA, we need to stress that they get rid of ESU’s.
  1. Hardy is now working on flows on the Trinity River along with finishing up the third draft of the Klamath Flow report.  But on the Trinity, Hardy is up against other hydrologists who are also looking at the flows.  His credibility is on the line if his report doesn’t agree with the other hydrologists.
  1. Another question asked was: “Can Judge Hogan drive the review process?  We need to get the re-consultation process going faster.”  Hogan can’t do anything to speed up the status review process.  For this lawsuit, Hogan didn’t have the Coho BiOp submitted as evidence like Judge Armstrong did during the fish die-off trial brought by the down river Tribes.  The BiOp derives from the ESA listing – 2 separate courts, 2 separate states, 2 separate lawsuits.
  1. Another question asked was:  “Since Federal Marshal’s were brought in to guard the Headgates in 2001 and enforce the court decision to keep the headgates closed, can the Klamath irrigators call in the Federal Marshal’s to keep the headgates open if the Bureau decides that more water needs to go down river for the coho?”  Russell loved this question . . . and his answer was yes!

10.     Back to harm – if enforcing the listing causes any harm, real or

           imagined; contact a local attorney, Leo Bergeron, or Russ Brooks at

           Pacific Legal Foundation.  Also, call your local, state and Federal

           representatives to complain.

  1. Mr. Brooks also talked a little bit about the PCFFA/Tribes lawsuit in Judge Armstrong’s court.  The Tribes were asking for “veto” power on Klamath Project operations. The suit was dismissed and the Judge said they have to get in line to get water rights.  The Tribes ave now appealed to the 9th Circuit Court of Appeals.






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