Judge Refuses to Divert Water for Endangered Salmon on Klamath River

The Klamath River near its mouth on the Pacific Ocean in Klamath, California. (By Daniel WadeOwn work, CC BY-SA 3.0, Link)

SAN FRANCISCO (CN) — Despite claims the federal government is pushing threatened Coho salmon closer to the brink of extinction by cutting off extra water flows to the Klamath River, a federal judge on Friday refused to intervene in the long-running water dispute.

U.S. District Judge William Orrick III found the U.S. Bureau of Reclamation did not violate a short-term deal struck with the Yurok Tribe in March by halting planned water flows after an extremely dry April reduced the expected water supply.

“It appears the bureau is acting appropriately and complying with the interim plan,” Orrick said during a video conference hearing on the Yurok Tribe’s motions to lift a stay on litigation and issue a temporary restraining order against the federal agency.

After suing two federal agencies in charge of planning for and managing water resources for the Klamath Project on the California-Oregon border, the Yurok Tribe reached a temporary deal in March that promised flows of 40,000 acre feet of water in May and June through 2022 under certain conditions.

Then came an extremely dry April that that failed to produce the extra 109,000 acre-feet of water that had been predicted. In response, the bureau suspended the extra water flows, a move the Yurok Tribe claims violates the terms of its interim deal with the bureau and National Marine Fisheries Service.

The federal agencies say the bureau had to stop those flows to comply with another term of the agreement, which requires it to maintain an elevation of 4,142 acre-feet of water in Oregon’s Upper Klamath Lake to help ensure the survival of two other endangered fish species: Lost River and shortnose suckers.

Just as Coho salmon serve an essential function in the cultural traditions and livelihood of the Yurok Tribe, the suckers are equally important to the Klamath Tribes. Known as C’waam and Koptu, the two species of suckers in Oregon’s largest freshwater lake have “played a central role in the tribes’ cultural and spiritual practices” for millennia, according to the Klamath Tribes.

That is why the Klamath Tribes intervened in the dispute to side with the federal government and Klamath Water Users Association, an industry group of farmers and ranchers who rely on irrigation water from the Klamath Project.

The Klamath Tribes did not take “lightly” their decision to side with two groups with whom they typically disagree on issues of water allocation, the tribes’ attorney Jeremiah Weiner said Friday, but water levels in the Upper Klamath Lake are running close to the bare minimum of what is needed to ensure the survival of endangered suckers.

“The balance of the public interest and irreparable harm favor the sucker fish & Koptu,” Weiner said.

The Yurok Tribe maintains that reduced flows will diminish critical habitat for juvenile salmon and lead to increased infection rates from the deadly parasite known as C. shasta. 

“The needs of the species are directly in conflict,” Weiner said. “It’s simply unavoidable.”

Yurok Tribe attorney Patti Goldman of Earthjustice insisted that the interim deal requires the bureau to provide flows based on April 1 projections, even if those projections are wrong. Recognizing the impact of an unforeseen drought, the Yurok Tribe agreed to forego 17,000 acre-feet of water that had been promised.

In their motion for a temporary restraining order, the tribe sought extra flows of 23,000 acre-feet of water for the Klamath River in May and June. The tribe also claims the bureau deviated from their interim deal by refusing to guarantee an additional 7,000 acre-feet of water for the tribe’s “ceremonial and culturally important” Boat Dance this summer.

The bureau maintains it complied with the terms of the agreement by immediately consulting with the tribes on an adaptive management approach after it realized the April 1 rainfall projections were “grossly inaccurate.”

As of May 14, the bureau had released 7,000 acre-feet of water to the Klamath River. Acquiescing to the Yurok Tribe’s demand and releasing another 16,000 acre-feet of water by the end of June would jeopardize the survival of endangered sucker fish, U.S. Justice Department lawyer Robert Pendleton Williams argued.

“A [temporary restraining order] shouldn’t be granted to benefit one species at the expense of another,” Williams said.

Ultimately, Orrick accepted the government’s argument that it complied with the terms of the interim deal by adapting its management approach and consulting with the tribes and other stakeholders after realizing water supply would be far lower than expected.

Orrick said he would deny the Yurok tribe’s motion to lift the stay on litigation and deem their motion for a temporary restraining order moot.

“What to me is really important is that the scientists and experts who are concerned about the ecological impacts of what’s going on with priority to endangered species, that these competing interests get worked out by the non-legal folks — by the scientists and people who understand this,” Orrick said before concluding the hearing.

In 2017, Orrick issued a preliminary injunction requiring the Bureau to redirect water earmarked for farms and ranches to help stop a salmon die-off on the Klamath River after deadly C. shasta infections of juvenile Coho salmon climbed to 91%. That injunction expired after the National Marine Fisheries Service issued a new biological opinion in 2019 with recommendations and minimum requirements for protecting endangered Coho salmon.

The Yurok Tribe challenged that opinion in a lawsuit filed in July 2019 before reaching the interim deal with the federal agencies and agreeing to stay the litigation in March.

Orrick in 2018 refused to divert water for endangered sucker fish in a separate lawsuit brought by the Klamath Tribes.

%d bloggers like this: