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Court rejects federal plan for Klamath water

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KLAMATH, Calif. -- An appellate court decision concluded that the U.S.
government has not provided a clear plan for Klamath River water through
the year 2010.

The 9th U.S. Circuit Court of Appeals recently reversed a lower district
court ruling in Pacific Coast Federation of Fisherman's Associations v.
U.S. Bureau of Reclamation and National Marine Fisheries Service and
remanded the case to the court for injunctive relief.

Commercial fisherman, environmental organizations and tribes are demanding
that farmers above the Klamath dams use less water, which they intend to
use for lower river restoration of threatened species. Plaintiffs also want
the federal government to provide timely water releases for anadromous fish
that need fresh water to spawn.

In its Oct. 18 decision, the court opined, "We conclude that the short-term
measures are arbitrary and capricious" and ruled that the National Marine
Fisheries Service must better explain their plan for protecting Klamath
coho salmon and its habitat.

"The agency essentially asks that we take its word that the species will be
protected if its plans are followed," the court reported.

"If there is insufficient water to sustain the coho during this period,
they will not complete their life cycle, with the consequence that there
will be no coho at the end of the eight years. If that happens, all the
water in the world in 2010 and 2011 will not protect the coho, for there
will be none to protect."

At issue in the case is the NMFS plan. It is to be broken down into three
phases and is to consider "reasonable and prudent actions" for 10 years of
Klamath water flows through the year 2011. Scheduled from 2002 -- '09,
phases I and II provide for only 57 percent of water needed by the coho. A
minimum flow of 1,000 cubic feet per second must be provided to avoid the
adverse effects of high water temperatures, an amount originally figured by
the NMFS biological opinion used in the case. The court was troubled that
"five full generations of coho will complete their three-year life cycles
-- hatch, rear and spawn -- during those eight years."

U.S. Rep. Mike Thompson, D-Calif., represents California's 1st District,
which spans much of the northern California coast. Thompson, a plaintiff in
the case, said, "Today's unanimous decision by the court confirmed what we
have been saying for years: Klamath River salmon need sufficient flows of
cool, clean water to survive." The congressman also blamed the plan for
this year's lack of Klamath fish and the major fish kill of 2002, "which
resulted in up to 80,000 dead fish."

Wild coho were classified as a threatened species in 1997 under the federal
Endangered Species Act, with an estimated total population of fewer than
6,000 in 1996. The 2002 fish kill included populations of coho, as well as
chinook and steelhead in the Klamath, once the third-largest salmon
producing river in the United States.

In sync with the coho cycle, this is the third year since the 2002 kill;
and indeed, the number of fish caught is down this year, according to Yurok
fisherman David Gensaw Sr. "The most I've caught was like 12 at one time,
and that's not too good. Down at the estuary, you can even look and you can
see the shallow spots now where you never used to see those before." He is
concerned about water flow and the toxic bloom of algae behind Iron Gate
and Copco dams, which recently shut down tribal fishing.

The Karuk Tribe, located upriver from Yurok, tested Klamath water and
reported: "Samples taken from areas frequented by recreational users of the
reservoir contained cell counts 100 times greater than what the World
Health Organization considers a moderate health risk." Exposure to the
naturally occurring toxic algae species has poisoned dogs and is a public
health risk, possibly causing liver and kidney damage. Craig Tucker,
Klamath campaign coordinator for Karuk, said, "The blue-green algae is an
indicator that the system is broken."

Yurok Tribe Executive Director Dennis Puzz Jr. said the tribe looks forward
to working with basin irrigators in seeking a long-term solution for
fisheries protection.

Troy Fletcher, consultant for Yurok, said, "The federal government has a
fiduciary duty to maintain these resources for American Indians, and the
appellate court stated that fact in their decision. We want enough water to
meet our ceremonial, subsistence and commercial needs," he said. "The tribe
is happy with the ruling, but we still have a long way to go to keep our
fish protected."