PORTLAND, Ore. (CN) — The government’s continued prioritization of agriculture on four wildlife refuges straddling the Oregon-California border is making drought conditions there worse, attorneys told a Ninth Circuit panel Tuesday.
The Klamath Basin is in an unprecedented drought. This summer, the Klamath Tribes feared the imminent extinction of c’waam and koptu, prehistoric sucker fish they have eaten out of Upper Klamath Lake for millennia. In the Klamath River, fed by the lake, 70% of juvenile salmon died this year before they reached the ocean, killed by bacteria that thrives in the river’s artificially low water level. And a complex of wildlife refuges straddling the California-Oregon border didn’t get their usual water allocations from the lake, because the government is scrambling to prevent the extinction of the c’waam and koptu.
But not all the water that feeds the refuges was shut off. Irrigation bound for farming and ranching leases there continued.
During the final days of the Obama administration, the U.S. Fish and Wildlife Service issued a record of decision finalizing the first ever comprehensive conservation plan for the 200,000-acre Klamath Basin National Wildlife Refuge Complex.
Environmental groups say the plan doesn’t address the growing water crisis and allows agriculture, cattle grazing and pesticide use to continue unabated on wildlife refuges intended to be safe resting points for migrating birds.
It’s a situation caused by over a century of mismanagement, and compounded by climate change. Added to that is a complex web of laws governing water rights, where state water laws often contradict federal environmental laws. But none of that means the government is off the hook, Maura Fahey, an attorney for the Audubon Society, said in an interview.
“They need to do more than just say how complicated it is and say how little control they have over getting the water to the refuge,” Fahey said.
Environmental groups filed four lawsuits in 2017 over various aspects of U.S. Fish & Wildlife Service’s management plan for the refuges that make up the Klamath Basin National Wildlife Refuge Complex. The government leases about 10%, or roughly 20,000 acres of the refuge complex to commercial farmers. Some grow grain, potatoes, horseradish or onions. Others graze cattle.
While the 1964 Kuchel Act allowed that volume of agriculture on the refuges, the environmental groups say the act requires the government to prioritize the actual purpose of the refuges: the preservation of wildlife habitat, specifically for migrating waterfowl. The act’s secondary purpose was to preserve crops in surrounding areas, by offering migrating birds a reliably verdant resting spot along the Pacific Flyway, which covers the entire western portion of North America.
The four cases were consolidated, and farmers and ranchers intervened, claiming Fish & Wildlife had gone too far in protecting birds on the refuge, and had imposed restrictions that damaged the economic viability of their farms and illegally reduced agriculture allowed on the refuges.
In April 2020, U.S. District Judge Michael McShane adopted a magistrate judge's findings and dismissed all claims by the environmental groups and farmers.
McShane found the U.S. Fish & Wildlife Service doesn’t have authority to send more water to the refuges, since they have junior priority water rights in the Klamath Basin. All parties appealed.
On Tuesday, attorneys for all four environmental groups, plus farmers and ranchers intervening in the case argued their appeals before a three-judge panel of the Ninth Circuit Court of Appeals.
Fahey, the Audubon attorney, said the refuges have gone dry, and disease outbreaks have killed thousands of birds. But agricultural irrigation there continues.
“The refuge is almost entirely failing to support waterfowl because there’s no water for wetlands,” Fahey said. “It’s not justifiable for the agency to continue 20,000 acres of commercial agriculture.”
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