Latest letter of FACTS sent by Siskiyou County Water Users Association

U.S. Department of the Interior

Secretary Ken Salazar

1849 C Street, N.W.
Washington, D.C. 20240

U.S. Department of Commerce
Attention: Secretary John Bryson
1401 Constitution Ave. NW
Washington, D.C. 20230

Governor Jerry Brown

c/o State Capitol,

Suite 1173. Sacramento, CA 95814.

Governor Kitzhaber
160 State Capitol
900 Court Street
Salem, Oregon 97301-4047

Gentlemen;

It has come to our attention that Secretary of the Interior Salazar, Secretary of Commerce John Bryson, California Governor Jerry Brown and Oregon Governor John Kitzhaber have exceeded their authority regarding the KBRA and KHSA in the Klamath Basin. The proposals for dam removals on the Klamath River are based on the listing of Coho Salmon as endangered by the California Fish & Game Commission and threatened by NMFS which is illegal, arbitrary and capricious as Coho Salmon are not indigenous to the Klamath Basin nor are they in decline in the Pacific Northwest.

Departments of the Interior and Commerce in addition to the State of California Fish and Game Commission are in violation of the “Wild and Scenic Rivers Act” by proposing removal of dams that will seriously affect the flows and riparian areas of the Klamath River.

Secretary Salazar of the Department of the Interior has exceeded his mandate as Salmon are saltwater species and USF&WS is directed to freshwater species only.

Secretary Bryson of the Department of Commerce has ignored his duties by not scrutinizing de-listing petitions that clearly show that Coho Salmon are not indigenous nor are they in distress in the Pacific Northwest.

Governor Brown has not investigated the Dormant Commerce Clause as no State has the right to impose any regulatory action on a species that is within a navigable river.

Governor Kitzhaber, since his election, has not investigated the consequences of dam removal on the Klamath River that will affect Southern Oregon communities and agricultural water.

Arguments supporting retaining the four hydroelectric dams on the Klamath River based on the “Wild and Scenic Rivers Act” and the removal of Coho Salmon from the Endangered Species List in California waters is herein. This is based on a five pronged approach.

1. Dam removal on the Klamath River violates the “Wild and Scenic Rivers Act”

2. Coho were not indigenous in the Southern Oregon Northern California ESU.

3. Coho are not endangered as their numbers clearly indicate that they have moved into Alaskan waters due to Pacific Ocean temperature historic rise since 1970

4. Wild and Hatchery Coho are genetically identical

5. The will of the people is being abrogated

VIOLATION OF THE “WILD AND SCENIC RIVERS ACT”

Removal of these dams will seriously affect the flows and riparian regions along the Klamath River violating the “Wild and Scenic Rivers Act” passed by Congress in 1968. The release of 20 million cubic yards of toxic sludge into a “Wild and Scenic River” (Designated Reach: January 19, 1981. From the mouth to 3600 feet below Iron Gate Dam) will seriously affect the conditions of the river at the time of designation in 1981.

“2. Existing Hydroelectric Facilities (Licensed by the FERC) In the rare instances where an existing hydroelectric facility is included in a designated river corridor, modifying or re-licensing of the facility is not prohibited by the Act. The river administering agency should evaluate the proposed modification or re-license application to ensure that proposed operations protect or enhance river-related values under the “direct and adverse” effects standard. The baseline for evaluation of existing hydroelectric facilities is the project’s configuration and operation at the time of the river’s designation as subsequently modified through FERC processes.”

“An existing hydroelectric facility is being relicensed upstream of a designated river. The licensee proposes changes in project configuration and operation.

Section 7 applies specifically to hydroelectric projects licensed by the FERC. For projects below, above or on stream tributary to the designated river corridor, the river-administering agency would evaluate the effects of the proposal on scenic, recreational, fish and wildlife values present in the designated river at the date of designation. The standard of evaluation is whether the proposal would “unreasonably diminish” these stated values.” There is no doubt that the proposals would seriously diminish the stated values as designated in 1981.

DATA THAT COHO WERE NON-INDIGENOUS

“(Oncorhynchus kisutch) is also known in the US as silver salmon. This species is found throughout the coastal waters of Alaska and British Columbia and up most clear-running streams and rivers. It is also now known to occur, albeit infrequently, in the Mckenzie River in Oregon” (East of Eugene, OR)

http://en.wikipedia.org/wiki/Salmon

In 2001, Not one person on the Karuk Tribal Council believed that Coho salmon were native to the Klamath River,

Within the Tribe’s jurisdiction between Bluff Creek and Clear Creek on the California portion of the Klamath River, which is approximately between 91 and 140 miles below the lowest slated dam, Iron Gate, for removal this statement is reflected for example, in the minutes of the Karuk Tribal Council Meeting of December 27, 2001: Discussion was had by the Tribal Council and whether or not they [Coho] were ever present in the main streams and tributaries… …“Council states it may be easier to prove the Coho were never present, and also the comment was made that if they were never here, then they should not be encouraged to come back.”

 

Shasta Tribe has held that Coho Salmon were never in the Klamath Basin

1913 California Fish and Game Commission Report

(CFGC 1913) , W. H. Shebley, Superintendent of Hatcheries, writes “Most of the salmon and steelhead eggs were taken at the [Redwood Creek] substation, as there was no run of either kind of Salmon in the Trinity River.” Any reported Coho after 1895 were as a result of plantings in the Klamath.

2002 California Position on Coho Salmon

The conclusion that Coho Salmon were native to the upper Klamath River system are negated by all previous historical accounts from the 1913 Fish & Game Commission report and the 2002 California Fish & Game Report. There is not one historical document that alludes to the presence of Coho Salmon in California waters prior to 1895 plantings. To quote the passage by Dr. Moyle in 1976, 81 years after initial plantings, is fallacious as he is not an expert on salmonids but is instead a freshwater species expert. Evermann and Clark 1931; stated that “Coho Salmon were extending from Alaska to Central California” some 36 years after initial plantings occurred in the Klamath River. “Lack of historical information on Coho salmon in the Klamath River can be attributed, in part, to the lack of proper species identification” (Snyder 1931) and once again this statement is made 36 years after initial plantings. There is no evidence in historical documentation that Coho Salmon were ever native to the Klamath River prior to plantings in 1895 and 1899. NMFS referral to statements made 36 years after initial plantings is arbitrary, capricious and ludicrous in an attempt to list a species that is non-indigenous to the Klamath River.Based on NMFS statements and “proof” there is little doubt that any court in the land would throw out this ridiculous claim of “proof”.

http://www.dfg.ca.gov/fish/documents/SAL_SH/SAL_Coho_StatusNorth_2002/SAL_Coho_StatusNorth_2002_D.pdf

2006 California Position on Coho Salmon

California Fish & Game Finfish and Shellfish Identification Book published in December 2006 does NOT list Coho Salmon as being present in California waters. This information alone should make it clear that California Fish & Game do not consider Coho Salmon native to the Klamath River, or for that matter, California waters at all. Consider that Coho populations in California waters have been identified as having their origin in Cascadia, Oregon. FINAL Report_Coho Salmon-Steelhead_Klamath Expert Panels_04 25 11

Based on evidence presented in this paper Coho Salmon were never indigenous to the Klamath River and the listing of Coho Salmon by California ESA and Federal ESA in the Southern Oregon-Northern California ESU should be terminated. Concluding that Coho Salmon were not indigenous, there is no provision in the Endangered Species Act to list a non-native species.

DATA THAT COHO ARE NOT IN PERIL

Siletz Tribes speak to low Coho numbers

Van de Wetering, Aquatics Program Leader of the Siletz Tribe, argues that “recent weak runs are most likely the result of unfavorable ocean conditions, which go through cycles”.

http://indiancountrynews.net/index.php?option=com_content&task=view&id=3936&Itemid=118

Statement identifying the taxon

Coho Salmon, Silver Salmon, Oncorhynchus kisutch…a salmonid which is a vertebrate fish. Based on historical evidence Coho Salmon located within the Klamath River are as a result of plantings in 1895, 1895, multiple plantings in the 1960’s and 1980’s from multiple sources. According to the Expert Science Panel 4-25-2011 “it is to be noted that upon genetic analysis of the Coho Salmon in the Klamath Basin appears to be from plantings from Cascadia, Oregon.”

FINAL Report_Coho Salmon-Steelhead_Klamath Expert Panels_04 25 11 Therefore, no single subspecies of Coho Salmon can be identified as being exclusive to the Klamath River.

Dr. John Palmisano formerly a Marine mammal biologist for NMFS in Juneau, Alaska, teaching fisheries and biology at U of Washingtonan environmental scientist for a consulting firm in Bellevue, WA. (503 645-5676 503 645-5676 )) 1997: pg2. “Coastal waters from Mexico all the way to Alaska have gradually warmed since the climate shift of the 1970s and the subsequent, periodic affects of El Nino.” “It is estimated that 40 – 80 percent of estuarine habitat along the Pacific Northwest has been diminished or destroyed”. “It is clearly not the perceived mismanagement of inland streams and rivers that has caused the recent degradation of the salmonid population“.

“Weitkamp et al. (1995) suggested that natural origin Coho production in the SONCC ESU may not be currently sustainable. Further reduction in survival at sea in response to climate shifts has the potential to offset potential improvements in the freshwater environment, or it could cause further reductions or even extinction of natural origin Coho populations that are presently threatened with extinction.” It is also to be noted that upon genetic analysis of the “Coho Salmon in the Klamath Basin appears to be from plantings from Cascadia, Oregon.” This statement also verifies the statement that Coho Salmon were never indigenous to the Klamath Basin.

FINAL Report_Coho Salmon-Steelhead_Klamath Expert Panels_04 25 11

1993 Report by NMFS in their Oceanic report states that the El nino of 1983-1985 devastated the Coho Salmon population off the coast of California driving Coho Salmon North into Alaskan waters.

Pacific Northwest Coho Landings

Based on the following utilizing data from http://www.st.nmfs.noaa.gov/st1/commercial/landings/annual_landings.html

It becomes clear that Coho Salmon population in the Pacific Northwest is not declining and that the Coho have moved North into cooler Alaskan waters as a result of the historic rise in Pacific Ocean Temperature. Decreased landings in California, Oregon and Washington are not as a result of dams, farming, mining or other man related projects. This NMFS data clearly indicates that Coho Salmon in the Pacific Northwest is not in decline, but is maintaining a 62 year average landing with 91% of Coho being landed in cooler Alaskan waters in 2010. Prior to the warming of the Pacific Ocean the landings in 1950 of Coho Salmon in Alaskan waters was only 55%. This data alone negates the listing by California ESA and NMFS for Coho Salmon.

Understanding Coho reduction in California Waters

In an attempt to understand the movement of commercial Salmon into Alaskan waters research found that there has been a historic rise in temperature of the Pacific Ocean which directly correlates with the historic increased activity in the Ring of Fire volcanoes. In 2010 91% of all Coho Salmon have been caught in Alaskan waters. Although California, Oregon and Washington commercial fisheries are suffering, there is significant scientific evidence that the Pacific Ocean temperature increase is the primary cause. In 1950 the total catch of Coho Salmon in Alaskan waters was 55%. This scientific data clearly demonstrates that the commercial Salmon industry is in better shape than it has ever been. However, severely reduced landings of Coho Salmon in California, Oregon and Washington have no scientifically substantiated direct correlation of that decline to prior and present conditions on the Klamath River and its tributaries. However, there is a direct correlation of salmon migration movement to the historic rise in Pacific Ocean temperatures. Based on this scientific data it is clear that listing the Coho Salmon as endangered is fallacious as the ocean environment for these Salmon has forced them to move North into cooler waters. http://www.st.nmfs.noaa.gov/st1/commercial/landings/annual_landings.html

Pacific Ocean Temperature http://www.google.com/search?q=history+of+pacific+ocean+temperature&hl=en&prmd=ivns&sa=X&ei=D_N3
TbhSg4KxA7b61ccE&ved=0CHAQpQI&tbm=&tbs=tl:1,tlul:1950,tluh:2010

Volcanic activity in the Pacific Ocean

http://www.google.com/search?q=volcanic+history+of+eruptions+in+the+ring+of+fire&hl=en&sa=X&ei=
GHiWTKjHI5GqsAPNsvTkCQ&ved=0CHUQpQI&tbs=tl:1,tlul:1950,tluh:2010

Heat Content of the Pacific Ocean

http://earthobservatory.nasa.gov/Features/OceanCooling/page4.php

NMFS Conspiracy in listing Coho Salmon

All dam removals are based on the false premise that they will restore Salmon populations in our rivers. In 1950 the total catch of Salmon in the Pacific Northwest was 149,000 metric tons with 59% caught in Alaskan waters. In 2007 the total catch was 403,000 metric tons with 97% caught in Alaskan waters due to a historic warming of the Pacific Ocean. In 1970 NOAA and NMFS were well aware of the increasing Pacific Ocean Temperature rising and predicted that Salmon would be driven North into cooler waters. This foreknowledge of Salmon catches declining in California, Oregon and Washington were used by them conspiratorially to unlawfully list Salmon as endangered in the Klamath Basin. There is no Salmon problem in the Pacific Northwest. Since 1950 there has been an almost 300% increase in Salmon thanks to dams, hatcheries and man made projects

Genetic Analysis of Hatchery vs. Natural Coho Salmon

The initial statement regarding the controversy between “natural” and “hatchery” fish was made in a report by Busack and Currens in 1995, wherein they stated, “Interbreeding with hatchery fish might reduce fitness and productivity of a natural population”. Mr. Michael Rode of the California Department of Fish and Game at a Hatchery Evaluation meeting on September 19, 2002 at Iron Gate Hatchery disclosed that less than a 2% genetic survey has been taken to date and no genetic differences have been noted between “hatchery” or “natural” Coho Salmon. A 2011 report by the Expert Panel indicated that their genetic analysis indicated the Salmon in Northern California were from Cascadia, Oregon plantings.

It should be noted that the NMFS listing of Coho Salmon in Northern California and Southern Oregon in 1997, (Federal Register: May 6, 1997 (Volume 62, Number 87, 50 CFR Part 227 [Docket No. 950407093-6298-03; I.D. 012595A]) Page 24588-24609) utilized the same data as in the coastal Oregon Coho listing. This listing also distinguishes “natural Coho” from “hatchery Coho” and they did not count “hatchery Coho” even though there is no biological distinction between the two. Citing justification that hatchery reared salmon ‘may’ display slight ‘behavioral differences’ upon planting dismisses the fact that returning marked and unmarked hatchery reared salmon known to spawn in-stream have demonstrated no such scientifically identifiable ‘behavioral differences’.

In a 2001 ruling of the ninth District where the listing affecting Northern California and Southern Oregon Salmon is that “naturally spawned” and “hatchery spawned” argument for listing Oregon coastal Coho salmon The NMFS listing decision, contained at 63 Federal Register 42,587, is declared unlawful and set aside as arbitrary and capricious. United States District Judge, Michael R. Hogan stated the NMFS listing decision was arbitrary and capricious and thus unlawful under the Administrative Procedures Act 5 U.S.C. 706. Therefore, the listing affecting Northern California and Southern Oregon is also unlawful and should be set aside as arbitrary and capricious.

According to the Expert Science Panel 4-25-2011 “it is to be noted that upon genetic analysis of the Coho Salmon in the Klamath Basin appears to be from plantings from Cascadia, Oregon.”

FINAL Report_Coho Salmon-Steelhead_Klamath Expert Panels_04 25 11

The will of the People of Siskiyou County

In the November election of 2010 eighty percent of the people of Siskiyou County voted to retain the four hydroelectric dams on the Klamath River in opposition to the Federal government wishing to destroy them for a listing of a non-indigenous species. What happened to the Constitution where it states “inalienable rights for the people and by the people.”

IN SUMMARY,

Based on evidence presented herein proposed dam removal is in direct violation of the “Wild and Scenic Rivers Act” and Coho Salmon were never indigenous nor are they in peril to the Klamath River and the listing of Coho Salmon by California ESA and Federal ESA should be terminated. Concluding that Coho Salmon were not indigenous, there is no provision in the Endangered Species Act to list a non-native species. Based on the Expert Panels Final Report, dated 4-25-11, scientific evidence is conclusive that planted Coho runs in the Klamath Basin in Northern California have moved North due to historic warming of the Pacific Ocean. This clearly indicates that said listings are in violation of the Federal ESA and are unlawful, arbitrary and capricious.

FINAL Report_Coho Salmon-Steelhead_Klamath Expert Panels_04 25 11

Further, the Department of the Interior and U.S. Fish & Wildlife are in violation of the Federal ESA as their mandates are restricted to freshwater species and their involvement in the COHO issue is out of their jurisdiction. NMFS is in violation of the Federal ESA as there is no provision for listing a non-indigenous species. NMFS is charged with an attempt to blackmail the Karuk Tribal Council. .

Respectfully submitted for your evaluation;

Leo Bergeron, President SCWUA