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The Pacific Legal Foundation filed suit yesterday to remove Endangered Species Act protection for coho salmon in the Klamath Basin, charging that hatchery fish are the same genetically as wild fish and should be included in counts of wild coho.
PLF filed in the same District Court in Eugene, Ore., where Judge Michael Hogan ruled in September that no genetic distinction exists between hatchery and wild coastal coho salmon on Oregon's Alsea River, thus stripping the fish of ESA protection. An appellate judge issued a stay on that ruling in December, pending an appeal.
Anne Hayes at PLF, which also litigated the coastal coho suit, said the Klamath lawsuit is one of many to come. "We're looking at all of the listings of salmon that deal with this hatchery versus wild fish dichotomy. This is sort of our next suit, and obviously the Klamath was chosen because of the practical effect," of providing relief to farmers should coho be delisted, she said. Half the basin's farmland received little to no irrigation water since April 2001 in order to provide more water during a severe drought for threatened coho salmon in the Klamath River downstream, in addition to endangered sucker fish in Upper Klamath Lake.
Historically, the National Marine Fisheries Service has distinguished between wild and hatchery salmon on both the Atlantic and Pacific coasts, listing wild salmon as threatened or endangered and providing hatchery fish for recreational and commercial fishing. NMFS chose not to appeal the Alsea River case and instead is reviewing salmon listings in the Northwest. Environmental and fishing groups appealed the case as intervenors.
Glen Spain of the Pacific Coast Federation of Fishermen's Association said he doubts the Klamath suit has a chance because the data differentiating hatchery and wild coho in the Klamath is much better than the data in the Alsea. Nevertheless, PCFFA will intervene in the suit, he said.
Spain also said that a recent National Academy of Sciences report highlights serious pollution problems in the Klamath River and Upper Klamath Lake, and that delisting wild coho salmon will not help hatchery salmon survive in polluted water. "What we need to do is we need to clean up the river system. Without that, hatchery fish fail as quickly as, or quicker than, the wild fish," he said. "This is a Trojan horse. It's a ruse by landowners to avoid their responsibility to cleaning up a river system."
The Oregon chapter of Citizens for a Sound Economy
maintains that fish in the Northwest are being used to control property rights and water, according to CSE's Oregon state director, Russ Walker. Walker said hatchery salmon are born from the eggs of wild salmon and should be included in wild counts. In some cases hatchery salmon will even spawn in the river and avoid the hatchery, he said.
The Alsea River case came after NMFS officials clubbed to death 170,000 hatchery coho after they returned to the hatchery to spawn. "If there's that many of them, why are they threatened?" asked Bob Gasser, a spokesman for the Klamath Water Users Association.
"Any well-run hatchery is going to have a surplus of fish," said Spain. When the fish return to the hatchery to spawn, officials select the salmon with the best genes and kill the rest as quickly as possible before they spawn and die naturally. The salmon are either donated to food banks or put out in the river to rot so insects can feed on them, which provides a healthier insect population for the next generation of fish.
At the behest of Interior Secretary Gale Norton, the National Academy of Sciences released a preliminary report this week on the Klamath saying the Fish and Wildlife Service and National Marine Fisheries Service had insufficient scientific evidence for withholding water from farmers to help threatened coho and endangered sucker fish.
Norton asked NAS to examine the science justifying the biological opinions issued under ESA, one written by NMFS governing management of threatened anadromous coho salmon, and the other written by FWS governing management of two species of endangered inland sucker fish. The report released this week was a preliminary two-month assessment upon which NAS will elaborate next year. NAS stressed that more data is needed.
After studying NMFS's BiOp on coho, which calls for increased flows in the Klamath River, NAS "did not find clear scientific or technical support for increased minimum flows in the Klamath River main stem," according to the report. Instead, NAS found that the water released into the river from Upper Klamath Lake was too warm due to pollution, sometimes exceeding lethal temperatures for coho during warm months.
NAS did find, however, that NMFS was justified in reducing "ramping rates", i.e. the rate at which water flows into the river. If flows increase dramatically, fish cannot adapt quickly enough and get washed away from spawning areas; likewise, if flows drop dramatically, fish get stranded.
NAS also found some flaws in FWS's BiOp on sucker fish. Although NAS found substantial scientific support for most of the BiOp, one piece stood out: the recommendations concerning minimum water levels for Upper Klamath Lake, according to the report. "A substantial data-collection and analytical effort by multiple agencies, tribes and other parties has not shown a clear connection between water level in Upper Klamath Lake and conditions that are adverse to the welfare of the suckers," the report says.
In fact, adult fish kills in the lake have not been associated with years of low water levels and the highest population jump actually occurred in a year of low water levels, according to the report. Furthermore, extreme chemical conditions considered threatening to sucker fish have not coincided with years of low water levels.
NAS also criticized the Bureau of Reclamation's water plan for irrigators in 2001, which was not implemented due to increased water needs for salmon and suckers, saying "there is no scientific basis for operating the lake at mean minimum levels below the recent historical ones" from 1990 to 2000. NAS advised operating under those historical conditions until more data are collected, which looks achievable this year as snow is accumulating on the mountains and the 2001 drought is unlikely to repeat itself in 2002.
Historical conditions in the lake are anywhere between
4,136 to 4,142 feet above sea level in a lake only about eight feet deep on average. In 2001, FWS forced BuRec to keep levels at 4,140.
Minimum downstream flows for coho salmon are between 710 cubic feet per second (cfs) in the summer to 1,300 cfs in the winter, unless Mother Nature grants significantly more or less water that year. In 2001, NMFS required 1,600 cfs in the summer and 1,300 cfs this winter, according to BuRec spokesman Jeff McCracken.
Hayes said she hopes the NAS study will provide an opportunity for compromise in the basin. "The NAS study opens the door to finding a workable solution that isn't going to send people to bankruptcy court," she said.
Pete Test at the Oregon Farm Bureau said he hopes the NAS study will encourage stakeholders to work together again. For years, BuRec, which has a legal mandate to provide irrigation water to farmers, and FWS and NMFS, which have legal mandates to protect ESA-listed species, have worked effectively together. "It was a slap in the face when things went the way they did last year," he said.