Judge Won’t Divert Water for Endangered Sucker Fish

SAN FRANCISCO (CN) - More than a year after ordering the U.S. government to redirect water to save endangered salmon on the California-Oregon border, a federal judge on Friday refused to take similar action to help two other endangered species of fish.

"I don't think plaintiffs have met their burden for this extraordinary remedy," U.S. District Judge William Orrick said of the Klamath Tribes' motion for a preliminary injunction to raise water levels in Oregon's Upper Klamath Lake to help save endangered Lost River and Shortnose suckers.

Known to the tribes 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.

The two species were listed as endangered in 1988, and since 2001, their populations have decreased by 55 to 78 percent. Today, the Upper Klamath Lake has an estimated 100,000 Lost River suckers and 20,000 Shortnose suckers, but most of those fish are older and incapable of reproducing.

Since 1986, the tribes have limited fishing Lost River and Shortnose suckers to two fish per year for traditional ceremonies.

Water levels in the Upper Klamath started changing nearly a century ago after the Link River Dam was built in 1921 to regulate water for the Klamath Project. Today, the project diverts an average 340,000 acre-feet of water each year to farms and ranches.

According to the Klamath Tribes, the water levels frequently fall below the historical minimum of 4,140 feet, interfering with the suckers' spawning, rearing, feeding and access to water quality refuge areas.

The Klamath Tribes sued the U.S. Bureau of Reclamation, Fish and Wildlife Service, and National Marine Fisheries Service in May, seeking an injunction to make the Bureau raise water levels in the Upper Klamath Lake.

During a court hearing Friday, Orrick said while he is sympathetic to the plight of the sucker fish, he is not convinced that raising the water level is necessary or that taking such action would be an effective remedy.

Orrick said the facts in this case differ starkly from a previously filed lawsuit over a parasite that causes deadly infections in juvenile Coho salmon. In that case, the judge ordered the U.S. Bureau of Reclamation to regularly release water to flush out the deadly parasite, C. Shasta, and to reserve 50,000 acre-feet of water for emergency dilution flows.

Orrick also said on Friday that he will transfer the lawsuit over sucker fish to the District of Oregon because that's where the Upper Klamath Lake is located.

In January 2017, the Bureau of Reclamation started reviewing the project's impact on endangered salmon in consultation with other federal agencies. The process, formally known as re-initiating consultation, will ultimately result in the publication of a new biological opinion with new requirements for how the Klamath Project must be operated to protect endangered species.

The plaintiffs argued impacts on endangered sucker fish were not being considered as part of that process, but the National Marine Fisheries Service issued a report on June 27 stating that impacts of lake levels on sucker fish are being considered as part of that review.

U.S. Justice Department lawyer Robert Williams said the process is expected to be completed in spring 2020, but that the federal agencies are working to "expedite" the process.

After Orrick delivered his tentative ruling Friday, plaintiffs' attorney Jeremiah Weiner pleaded with the judge to consider ordering the federal agencies to speed up their review of the project's impact on sucker fish. Weiner said the federal agencies must at a minimum enact new measures by next spring to prevent the extinction of endangered fish.

"It is my hope that there will be a hard focus on this issue because it's clearly an important one," Orrick said. "It is my expectation no matter who has this case, that if this issue hasn't been worked out well, there may be another motion come this spring."

After the hearing, several Klamath Basin farmers who traveled to San Francisco for the court proceeding spoke about the importance of irrigation water for their farms and how diverting water for endangered fish could "devastate" their communities.

Ben Duval, of Tulelake, California, said communities around the Klamath River Basin are "completely dependent" on agriculture, and without irrigation water, they would be unable to grow crops.

"We're very concerned about sucker fish, but without the water our communities would be extinct too," Duval said.

This year, the U.S. Bureau of Reclamation estimates that 234,000 acre-feet of water will go to irrigate farms and ranches, down from the average 340,000 acre-feet. The decrease is the result of a drier than usual winter and dilution flows the bureau was ordered to release to help save threatened Coho salmon, according to the Bureau of Reclamation's Klamath River manager Megan Skinner.

Tracey Liskey, a member of Oregon's Board of Agriculture, which acts as an advisory panel for the state Department of Agriculture, also attended Friday's hearing. Liskey spoke optimistically about a new federal program designed to catch newly hatched suckers, remove them from the Upper Klamath Lake, raise them in captivity, and reintroduce them two years later.

Five thousand suckers were reintroduced to the lake this year, but U.S. Fish and Wildlife estimates that 60,000 suckers will have to be released there annually to stabilize the population.

Klamath Tribal Chairman Don Gentry told the Klamath Falls-based publication, Herald and News, that the practice of "artificially" raising fish is not self-sustaining and fails to address the "real problems" that threaten the survival of sucker fish in their natural habitat.

Gentry and Klamath Tribes biologist Mark Buettner did not immediately return emails and phone calls seeking comment Friday afternoon.

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