files suit against Reclamation
The Yurok Tribe
and Pacific Coast Federation of Fishermen’s Association is
suing the Bureau of Reclamation and National Marine
Fisheries Service in objection to the 2018 Biological
Opinion, with their objections including insufficient flows
in the Klamath River in May and June.
The opinion was
based on faulty data provided by consultant Thomas Hardy
during the writing of the 2018 Biological Opinion.
Users Association is a defendant in the lawsuit.
“We’ve got some
concerns about the use of it to begin with, whether it’s the
right (habitat) curves or the wrong (habitat) curves, how
much does that really tell us about coho salmon?” said Paul
Simmons, executive director of KWUA.
motion is to put things back in place the way they were a
couple years ago with the 2013 Biological Opinion and the
injunction – that was very problematic, especially in 2018,
when we had to live through that. It would be very
consequential if that were required.”
Hardy, who was
hired by the federal government to consult the 2018
Biological Opinion using incorrect data, has been identified
in court filings related to the litigation.
In the case,
both the Yurok Tribes and Pacific Coast Federation of
Fishermen’s Association claim there isn’t enough water for
coho salmon using the provided data.
Reclamation in November announced that the federal agency
would need to reconsult for a new biological opinion by
April 1, 2020, due to “erroneous data” provided by an
Hardy was hired
by the U.S. Department of Justice on behalf of Bureau of
Indian Affairs to conduct flow studies on the Klamath River.
have received financial contributions from federal agencies,
ultimately leading to Phase I and II reports. Reclamation
and NMFS have used these reports to determine the flow needs
for coho salmon in the Klamath River.
data – in the form of habitat flow curves – surfaced while
Hardy was working with the Yurok Tribe, following his
consultation work for and with the government.
Users Association board member Ry Kliewer, also a farmer and
co-owner of Skyline Brewing Co. in Klamath Falls, expressed
disappointment in the faulty findings leading up to the
In a guest
editorial to the H&N, Kliewer
alleged Hardy was also responsible for the 2001 water
shutoff, since it called for unprecedented volumes of Upper
Klamath Lake water to be sent downstream.
destroy Klamath Project irrigators and dry up our wildlife
refuges,” Kliewer said.
manager of Reclamation’s Klamath Basin Area Office, also
commented on the need to consult for a new biological
disappointed in some regards because I felt like everybody
worked hard together to get to our proposed action
assessment,” Nettleton said. “Of course the services worked
hard to develop their effect analysis.
think we’ve got a good BiOp in place,” Nettleton added. “I
look at this year, which really was an average year. We were
able to provide an adequate project supply, granted it was
adequate partly because of the type of weather we had this
year – cool, wet year. A shorter growing season, so the
demand was probably down.”
expressed empathy for Reclamation over the re-consultation.
“They did a
pretty accelerated schedule and here they are starting
over,” Simmons said. “I don’t envy that. It’s got to be
“At the end of
the day, we’re both interested in the same thing,” he added.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Yurok Tribe,
PCFFA and IFFR vs BOR and NMFS, 7/31/19
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