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Ninth circuit to review salmon suit


 October 27, 2005 by DYLAN DARLING

The 9th Circuit Court of Appeals will review a $1 billion lawsuit filed by members of the Klamath Tribes against PacifiCorp for lost salmon fishing in the Klamath Basin.

Dan Israel, a Denver attorney who is representing the Chiloquin-based Tribes in the case, filed the appeal in early October, but said a decision won't be quick.

“It's going to take a number of months to hear out,” he said.

From the 9th Circuit, the case could be appealed to the U.S. Supreme Court by either the Tribes or the Portland-based power company, depending on the court's decision. But, Israel said, it is difficult to get a case to the Supreme Court these days.

“If I was a betting man I would bet that it gets resolved by the 9th Circuit,” he said.

Dave Kvamme, PacifiCorp spokesman, said the company thinks a July ruling by a federal judge should stand. That ruling rejected the Tribes' claim that PacifiCorp is responsible for the loss of salmon and owed damages.

“We believe that the judgment dismissing the case was appropriate,” he said.

U.S. District Judge Ann Aiken ruled that PacifiCorp couldn't be held responsible for a violation of the Tribes' treaty of 1864 because the utility wasn't a contracting party of the treaty. Neither the company nor its predecessor existed in 1864.

PacifiCorp has a 151-megawatt power complex on the Klamath River made up of four dams - Copco No. 1, Copco No. 2, J.C. Boyle and Iron Gate - as well as other small projects.

The company also owns the Keno Dam, which regulates water but doesn't produce power, and has a contract to operate the U.S. Bureau of Reclamation's Link River Dam.

The dams were installed by PacifiCorp and its predecessor, the California Oregon Power Company, between 1908 and 1962, according to PacifiCorp's Web site.

PacifiCorp is working with Basin stakeholders, including the Klamath Tribes, on agreements that would be part of the company getting a renewed 50-year license from the Federal Energy Regulatory Commission to operate its Klamath River power dams.

Salmon migration stops at the Iron Gate Dam, the lowest on the Klamath River, near Interstate 5 in Siskiyou County about 50 miles downstream from Klamath Falls.




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