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Pacific Legal Foundation and Klamath irrigators appeal river
flows at 9th Circuit
KWUA News Release 7/14/06
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893
kwua@cvcwireless.net
www.kwua.org
FOR IMMEDIATE RELEASE
July 14, 2006
Pacific Legal Foundation (PLF) and its clients the Klamath Water Users
Association,
Tulelake Irrigation District, William Heiney, and Amos B. Hoyt (collectively
“the
Association”) filed today a Notice of Appeal in federal district court in
Oakland. PLF and
the Association are appealing the injunction granted by Judge Sandra
Armstrong this past
March, in which the United States Bureau of Reclamation (BOR) was ordered to
provide
prescribed amounts of water in the lower stem of the Klamath River for the
Coho salmon,
a listed species under the federal Endangered Species Act (ESA). The
injunction puts in
place a biological opinion’s flow regime that originally was not to be
implemented until
the fall of 2010.
The injunction follows upon the Ninth Circuit’s decision last October, in
which the
appellate court invalidated the 2002 Coho salmon biological opinion
developed between
BOR and the National Marine Fisheries Service (NMFS), which administers the
ESA for
the Coho and other ocean-going species. Following the Ninth Circuit’s remand
to Judge
Armstrong, NMFS issued a supplement to the original biological opinion. Both
NMFS
and the Association argued before the district court that NMFS’s supplement
remedied any
defect in the original biological opinion. The district court rejected that
argument and
concluded that the only portion of the original biological opinion and
accompanying flow
schedule that still retained legal force was that portion scheduled to take
effect in 2010.
Thus, Judge Armstrong ordered that the 2010 schedule be implemented
immediately and
remain in place until NMFS issues an entirely new biological opinion and
flow schedule.
Depending on hydrologic conditions, the effects of the injunction on Klamath
farmers
could be catastrophic. Water deliveries could be stopped, resulting in
devastating
consequences for wildlife, small communities and family farmers. In an
effort to avoid
this, PLF and the Association have decided to appeal.
PLF and the Association contend that the injunction is improper because the
original
biological opinion’s defects have been remedied by NMFS’s supplement.
Further, the
injunction order is legally flawed because in essence BOR is required to
augment river
levels with water legally stored for irrigation during higher flow periods.
Thus, the
injunction shifts to the federal government, and to Klamath Project farmers
who rely upon
Klamath water for their livelihoods, the responsibility for going beyond
avoiding impacts
to mitigating non-Project actions. That is neither fair nor legal. PLF and
the Association
hope to remedy this problem through appeal to the Ninth Circuit.
The Association is, in the meantime, actively working with tribes,
conservation
organizations and other stakeholders to develop solutions to difficult
resource issues in the
Klamath Basin.
"All of us are weary of this and other ongoing litigation and know there is
a better way,"
said Greg Addington, the Association's Executive Director. "We remain
committed to
make every effort to resolve the Basin's problems in a collaborative manner,
but until then,
we are obligated to protect the future of Klamath Project farmers."
Pacific Legal Foundation (PLF) and its clients the Klamath Water Users
Association,
Tulelake Irrigation District, William Heiney, and Amos B. Hoyt (collectively
“the
Association”) filed today a Notice of Appeal in federal district court in
Oakland. PLF and
the Association are appealing the injunction granted by Judge Sandra
Armstrong this past
March, in which the United States Bureau of Reclamation (BOR) was ordered to
provide
prescribed amounts of water in the lower stem of the Klamath River for the
Coho salmon,
a listed species under the federal Endangered Species Act (ESA). The
injunction puts in
place a biological opinion’s flow regime that originally was not to be
implemented until
the fall of 2010.
The injunction follows upon the Ninth Circuit’s decision last October, in
which the
appellate court invalidated the 2002 Coho salmon biological opinion
developed between
BOR and the National Marine Fisheries Service (NMFS), which administers the
ESA for
the Coho and other ocean-going species. Following the Ninth Circuit’s remand
to Judge
Armstrong, NMFS issued a supplement to the original biological opinion. Both
NMFS
and the Association argued before the district court that NMFS’s supplement
remedied any
defect in the original biological opinion. The district court rejected that
argument and
concluded that the only portion of the original biological opinion and
accompanying flow
schedule that still retained legal force was that portion scheduled to take
effect in 2010.
Thus, Judge Armstrong ordered that the 2010 schedule be implemented
immediately and
remain in place until NMFS issues an entirely new biological opinion and
flow schedule.
Depending on hydrologic conditions, the effects of the injunction on Klamath
farmers
could be catastrophic. Water deliveries could be stopped, resulting in
devastating
consequences for wildlife, small communities and family farmers. In an
effort to avoid
this, PLF and the Association have decided to appeal.
PLF and the Association contend that the injunction is improper because the
original
biological opinion’s defects have been remedied by NMFS’s supplement.
Further, the
injunction order is legally flawed because in essence BOR is required to
augment river
levels with water legally stored for irrigation during higher flow periods.
Thus, the
injunction shifts to the federal government, and to Klamath Project farmers
who rely upon
Klamath water for their livelihoods, the responsibility for going beyond
avoiding impacts
to mitigating non-Project actions. That is neither fair nor legal. PLF and
the Association
hope to remedy this problem through appeal to the Ninth Circuit.
The Association is, in the meantime, actively working with tribes,
conservation
organizations and other stakeholders to develop solutions to difficult
resource issues in the
Klamath Basin.
"All of us are weary of this and other ongoing litigation and know there is
a better way,"
said Greg Addington, the Association's Executive Director. "We remain
committed to
make every effort to resolve the Basin's problems in a collaborative manner,
but until then,
we are obligated to protect the future of Klamath Project farmers."
Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |