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Klamath Irrigators slammed by court with science bought and paid for
57 per cent of farmer's water isn't enough; Klamath farmers are devastated by appeals court ruling
Klamath Courier Report, Vol 3, No. 44, October 26, 2005 edition
(an edited version was run in the Klamath Courier)

KLAMATH BASIN - Klamath Basin farmers and ranchers are devastated by last week’s court ruling by the Judge Dorothy W. Nelson from the 9th Circuit Court of Appeals in San Francisco. The ruling , in essence, states that the 57% of water for "endangered" coho salmon presently being demanded from the Klamath Basin isn’t enough. Even though basin water accounts for only 4% of the water at the mouth of the Klamath River, the court feels that 100% of coho water should all be taken from Klamath Irrigators. Farmers. Ranchers. Refuges. Parks and Cemeteries. 50,000 Klamath basin residents. 489 species of wildlife. And most of this water, before the Klamath Project was built, seldom left the Klamath Basin’s vast lakes before they were rerouted for irrigation and down-river power.

    The case –

Plaintiffs-Appellants in the case are: Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Northcoast Environmental Center, Klamath Forest Alliance, Oregon Natural Resources Council, The Wilderness Society, Waterwatch of Oregon, Defenders of Wildlife, Headwaters, and Plaintiff Mike Thompson, Representative, versus Defendants-Appellees United States Bureau of Reclamation, National Marine Fisheries Service, with Defendant-Intervenors-Appellees Klamath Water Users Association, Tulelake Irrigation District, William Heiney, and Amos Hoyt, versus Yurok Tribe and Hoopa Valley Tribe, Plaintiff-Intervenors. This is case number D.C. No. CV-02-02006-SBA.

This court case was an appeal from the U.S. District Court for the Northern District of California Saundra B. Armstrong, District Judge, filed October 18, 2005 before three Circuit Judges with the opinion by Judge D. W. Nelson.

Kristen L. Boyles and Michael Mayer Earthjustice represented the appellants and the Department of Justice represented the appellees. Pacific Legal Foundation represented defendant-intervenor-appellees Klamath Water Users Association et al.

Eight environmental organizations sued the Bureau of Reclamation and National Marine Fisheries Service alleging Endangered Species Act violations. They said that, according to the Biological Opinion, providing 57% of alleged coho needs from Klamath irrigators is not enough.

   Who wrote the biological opinion? And who is Dr. Hardy?
Dr. Thomas B. Hardy is the person who was contracted by the Department of Justice (DOJ) to establish Indian water rights and to be an expert witness for (and paid for by) the Bureau of Indian Affairs (BIA) in the Klamath River water adjudication process. The BIA authorized Hardy in his 2000 contract to receive $550,086. The BIA was to reimburse DOJ for costs associated with effort up to $1,050,000 for this agreement. He worked with the Klamath River Basin Fisheries Task Force Technical Work Group. He used tribal biology paid for by individual tribes.

Dr. Hardy wrote the report that is currently being used to regulate Klamath Project water management. NMFS formed Biological Opinions, called BiOp, from the Hardy Report. Irrigators and their scientists were not allowed at the table and there was no peer review when this was being formed.

It was Hardy’s draft BiOp that shut down the Klamath Project in 2001.

Klamath County Commissioner Bill Brown said that the entire Klamath Crisis was based on flow recommendations from Dr. Thomas Hardy’s research, which was proven flawed, yet now the government has hired Hardy to do a third study on flows. Brown said it would be as if a doctor had a patient die, and the same doctor did the autopsy. "Three Hardy opinions are not good."

The Department of the Interior brought in the National Research Council to peer review Hardy’s BiOp. The NRC is the most prestigious, independent peer review in the U.S. The NRC committee found that the fish die-off of 2002 could not be attributed to the Klamath Project. They said that there was substantial science available and that lake level and river flow management would not help 'endangered' coho or sucker fish. They said that the 2001 water shut-off was not justified. In scientific circles, NRC is considered the "best available science."

The NMFS officials, who wrote the BiOp, chose to discard the NRC conclusions and adopt the Hardy ‘science’.

- The 'voluntary' water bank -

Since Hardy’s ‘opinions’ demand more water from the Klamath Project than physically exists, NMFS decided to do the irrigators a favor and only demand 100,000 acre feet of their stored water and aquifer every year until 2010 in the form of a water bank. This year the Bureau has sent more than 2,000 additional acre feet over the 100,000 acre feet mandate into the Klamath River.

The Bureau of Reclamation asked, or rather told, Klamath Water users to form a water bank from 2001-2002. Although the irrigators did not agree that their stored water and their aquifer should be sent to the ocean, they agreed to do this to prevent another 2001 water shutoff. In low water years the irrigators would forgo some of their deeded water and in wet years they would not. They met every week for a year for hours at a time.

The Bureau threw out this document that would have worked and created their own that demanded stored water and aquifer every year, ramping up and mandating 100,000 acre feet every year from 2005 and beyond to comply with NMF’S BiOp. This is more than ¼ of Klamath Basin irrigation water. Project irrigators were told that if they did not sell their water and pump their ground water, forgoing Project water that they stored, the Project would be shut down again like in 2001. So fields have been left to grow weeds, and the aquifer according to the Oregon Department of Water Resources is dropping 5 feet per year.

The mandatory annual water bank is not allowing the aquifer to recharge.

- What’s the problem? -

The mentality behind NMFS BiOp was that the Bureau’s 100,000 AF of water annually would provide 57% of the coho needs from 2005-2010, and the 43% contribution would come from "unspecified sources."

After a fish die-off in 2002, Pacific Coast Federation of Fishermen challenged these flow levels, contending that the coho need 100% of the water from the Upper Basin until 2010. District Court Judge Saundra Armstrong had ruled in February that Phase I and II "will not jeopardize the salmon or adversely modify their critical habitat…"

PCFFA appealed and the Ninth Circuit Court of Appeals said that NMFS did not detail how the coho would survive with only 57% of Project water until 2010. So they ordered the District Court to change their ruling.

Environmentalists think it’s fair.

Tribes think it’s fair.

They should, since they supplied Dr Hardy with his "scientific" data to shut down the Klamath Project.

Judge Nelson states, "We remand the case to the district court for the issuance of appropriate injunctive relief...(that) should reflect the short life-cycle of the species. It is not enough to provide water for the coho to survive in five years, if in the meantime, the population has been weakened or destroyed by inadequate water flows."

  • Conclusion with questions –

Given the fact that the Department of Justice contracted Hardy along with Bureau of Indian Affairs, should the DOJ be considered prudent counsel in this court case?

Why, after the flaws of the Hardy studies, was Hardy hired to write a ‘Hardy 3 Report.’?

Why were Klamath Water User’s scientists not allowed at the table when Hardy science was being formed? It should be noted that NMFS, CA Fish and Game, Karuk Tribe, Fish and Wildlife, and Bureau of Indian Affairs were allowed at the table in the formation of Hardy Phase II.

When the Link River used to go dry, and the Klamath Project has allowed higher Klamath lake levels and river flows than possible before the Project was built, why is our stored irrigation water and aquifer being sent down the Klamath River?

Why was the NRC final conclusion disregarded that adequate science was available in 2001and lake level/river flow management is not scientifically justified to help the species?

These are some of the questions Klamath Basin residents need to ask their U.S. Congressmen and Senators immediately, before we face another , and another, and another 2001.





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