plaintiffs arguments unravel 041603

Plaintiffs’ Arguments in Looming Court Case Beginning to Unravel
April 16, 2003
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On April 29, 2003, Judge Saundra Armstrong will weight arguments made in PCFFA et al. v. USBR, et al. The plaintiffs in this case seek to impose a flow regime for the lower Klamath River, that, if implemented, would essentially curtail irrigation deliveries this May and June to family farms and ranches in the Klamath Project. Plaintiffs’ arguments in this case hinge primarily on two positions:

Statements made by a "whistleblower" working for the National Marine Fisheries Service; and
Allegations – based in large part on a recent assessment prepared by the California Department of Fish and Game (CDFG) – that Klamath Project Operations were the primary cause of the unfortunate fish die-off that occurred last fall.

This information packet has been prepared to provide you with new information, showing that these claims, particularly the latter assertion, have begun to unravel in recent weeks. Attached, please find several one-page fact sheets for your use:

"U.S. Closes Whistleblower File" (1 pp)
New information showing that Klamath River temperatures – not Klamath Project Operations – are the likely reason for the 2002 fish die-off (3 pp).
New information exposing the flaws in the CDFG fish die-off assessment (2 pp).
Biography for David Vogel, a fisheries scientist with 28 years experience, who performed the work that generated this new information (1 p).

If you have any questions about this information, or would like a copy of Mr. Vogel’s complete declaration in PCFFA v. USBR, please do not hesitate to call me.

I would also like to remind you that KWUA’s 49^th Annual Meeting is scheduled for April 24, 2003 at the OIT Union auditorium, beginning at 7:00 p.m. A PowerPoint presentation of Mr. Vogel’s findings will be shown at that meeting.

Thank you for your consideration of this matter.

U.S. Closes Whistleblower File

The U.S. Office of Special Counsel (OSC) has determined that allegations made by a National Marine Fisheries Service (NMFS) whistleblower do not warrant further investigation and that the file for this case will be closed. NMFS biologist Michael Kelly alleged a violation of law, rule, or regulation and gross mismanagement by agency employees during the 2002 formal consultation on Klamath Project operations with the U.S. Bureau of Reclamation. Kelly filed for protection under the federal Whistleblower Statute last year, in a move that was highly publicized by environmental advocates immediately after the lower Klamath River fish die-off.

In a March 5, 2003 letter to Kelly, OSC declined to take further action on Kelly’s claims, including:

Kelly’s allegation that a there was a substantial likelihood that NMFS’s decision to adopt its Klamath River flow regime represented a violation of law, rule or regulation.
His claim that the fish die-off that occurred last September provides the proof that NMFS engaged in "gross mismanagement".
Kelly’s charge that NMFS engaged in a "gross waste of funds".

"After careful review of your comments and the materials previously submitted, and consideration of the issues discussed in our recent telephone conversations, we have determined that our original decision to close the case was warranted," OSC stated in its letter to Kelly.

Environmentalist plaintiffs in PCFFA v. USBR have relied upon Kelly in their arguments, claiming that U.S. defendants do not address his allegations.

Please contact KWUA at 541-883-6100 if you would like a copy of the OSC response to Michael Kelly.

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net