Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update September 10, 2004 www.kwua.org Fish Die-Off Trial Has Its Roots in Litigation Launched in 2002 The recent court decision to delay a trial associated with the 2002 die-off of fish on the lower Klamath River actually has roots that were planted several months before the die-off occurred. In PCFFA et al. v. USBR et al., the plaintiff environmental organizations brought suit in April of 2002 in the U.S. District Court for the Northern District of California, claiming that the Bureau of Reclamation (Reclamation) was in procedural violation of the Endangered Species Act (ESA) with respect to coho salmon. They sought a temporary restraining order that would preclude irrigation diversions if certain Klamath flows were not met. The application for temporary restraining order was denied on May 3, 2002. Plaintiffs appealed this denial and the parties have briefed their arguments on appeal to the Ninth Circuit Court of Appeal. Subsequently, NOAA Fisheries completed a biological opinion for operation of the Klamath Project for 2002 through 2012. Plaintiffs filed an amended complaint against NOAA Fisheries, challenging both technical and legal matters in the biological opinion, and against Reclamation, alleging that Reclamation is in violation of the Act. On July 14, 2003, the District Court upheld NOAA Fisheries’ specified flow levels and decision to adopt a phased approach to implementation. However, the court found that the reasonable and prudent alternative adopted in NOAA Fisheries’ 2002 biological opinion violates the ESA because NOAA Fisheries relies on actions by states and private parties in future years that are not reasonably certain to occur. The court also found that NOAA Fisheries violated the ESA in adopting an incidental take statement that does not establish an unacceptable level of "take" that would trigger   Fish Die-Off Trial Has Its Roots in Litigation Launched in 2002 (Cont’d) reinitiation of section 7 consultation. The court remanded the biological opinion to NOAA Fisheries for amendment. The court refused to issue an injunction and, rather, held that the 2002 biological opinion would remain in effect until NOAA Fisheries issues an amended biological opinion. The plaintiff environmental groups appealed the aspects of the decision that were adverse to their position. This appeal has been fully briefed in the Ninth Circuit Court of Appeals. The United States originally filed an appeal as well, but withdrew that appeal. The Yurok Tribe and Hoopa Valley Tribe have intervened in the case. In addition to joining in the ESA claims, the two Tribes contend that Reclamation violated their fishing rights in 2002 by providing inadequate mainstem Klamath River flows, and that Reclamation must avoid violations of the fishing rights in the future. In the meantime, water user interveners recently filed a motion to dismiss the case, which will be heard in October. KWUA denies that operation of the Klamath Project harmed the Tribes’ fishery. Irrigators further assert that the court lacks jurisdiction to hear the Tribes’ breach of claim, that the breach of trust claim is moot and not justifiable, and that the Tribes’ claim should be dismissed. "We are sympathetic towards the tribes’ needs, and our attorneys have been working with all interested parties to try to reach a win-win position in this case," said KWUA Executive Director Dan Keppen. "We hope the tribes recognize that litigation will not solve their concerns. We all need to come back to the table and work together to try to reach a remedy that addresses all the watershed needs." Continued on page 3   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update September 10, 2004 www.kwua.org Public Meetings Scheduled on the Conservation Implementation Program The Bureau of Reclamation has scheduled a series of public meetings throughout the Klamath Basin to solicit additional input on the proposed multi-participant, basin-wide Conservation Implementation Program (CIP). In addition to seeking confirmation that the current program in the CIP is what the participants requested, Reclamation is looking for interested parties to help identify consensus activities that can be immediately activated and to implement the CIP, a mechanism through which participants can work together to achieve program goals. The purpose of the CIP is to (1) largely restore the Klamath River ecosystem to achieve recovery of the Lost River and Shortnose suckers and substantially contribute to the recovery of Coho salmon, (2) contribute to the Tribal Trust responsibilities of the Federal government, and (3) allow continued, sustainable operation of existing water management facilities and future water resource improvements for human use in the Klamath Basin. Reclamation will facilitate the program, compile and incorporate the comments into a final draft CIP for public review, with interested parties directing the CIP and its activities. A draft CIP is available online at www.usbr.gov/mp/kbao/docs/CIP-ProgramDoc.pdf or by calling 541-883-6935. Recent natural resource conflicts in the Klamath Basin have highlighted the need for a basin-wide forum to identify and implement solutions to these conflicts. Additionally, the U.S. Fish and Wildlife Service and NOAA Fisheries have issued biological opinions on Klamath Project operations calling for the formulation of a program to achieve or contribute to the recovery of several threatened and endangered species. Public Meetings Scheduled on the CIP (Continued) Public meetings will be held from 6-9 p.m. on the following dates and at the following locations: September 16, 2004 Best Western Miner’s Inn 122 East Miner Street Yreka, California September 29, 2004 Arcata Community Center 321 Community Parkway Arcata, California September 30, 2004 Klamath Community Center 219 Salmon Avenue Klamath, California October 21, 2004 Chiloquin Auditorium 501 Chiloquin Boulevard Chiloquin, Oregon October 22, 2004 Klamath County Fairgrounds 3531 South Sixth Street Exhibit Hall No. 2 Klamath Falls, Oregon Please send written comments on the draft CIP to Ms. Christine Karas, Deputy Area Manager, Bureau of Reclamation, Klamath Basin Area Office, 6600 Washburn Way, Klamath Falls, OR, 97603. For additional information on the CIP or the public meetings please contact Ms. Rae Olsen, Reclamation Public Affairs Officer, at 541-880-2543. - Source: USBR Media Release - Continued on page 4   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update September 10, 2004 www.kwua.org Reclamation Chief Responds Quickly to Congressional Storage Request John W. Keys III, the Commissioner of the U.S. Bureau of Reclamation, on Wednesday responded to an August 27th congressional letter that focused on accelerating progress on Klamath Basin storage projects. Congressman Richard Pombo, the Chairman of the U.S. House of Representatives Committee on Resources, sent the letter to Commissioner Keys, following up on developments that occurred at a July 17th committee field hearing held in Klamath Falls, Oregon. Pombo’s letter was also signed by the five congressmen who participated in the Klamath Falls field hearing: California Members Ken Calvert, John Doolittle, Wally Herger, and George Radanovich, and Oregon Member Greg Walden. The congressional letter addressed the possibility of developing new storage facilities in the Klamath Basin, an issue that was strongly supported by the farmers, conservationists, tribal members and government officials who testified at the July 17th hearing. "We agree with your assessment that the water bank was intended to be a limited, interim measure while longer-term solutions are being developed to bring about water supply certainty," Keys responded. "We believe that storage options may provide meaningful interim and permanent water supply solutions and credit water towards the water bank." Commissioner Keys also agreed to the congressmen’s request to update affected parties on the implementation of developing new water storage. "We plan to redouble our effort and provide the leadership required at this critical juncture and move forward with answering significant questions about potential storage projects," he noted.   There’s a Good Thing Growing at the 53rd Annual Tulelake-Butte Valley Fair The theme of the 53rd Annual Tulelake-Butte Valley Fair is "We Have a Good Thing Growing", and the best evidence of that may be the newest addition to the fairgrounds, located in Tulelake, California. The University of California joined forces with the fair and installed 13 raised beds showcasing local commercial crops produced in the Klamath Project and neighboring Butte Valley. Supplied by underground irrigation lines, the raised beds have been planted with crops representative of those grown in the Klamath Basin, including alfalfa, horseradish, onions, peppermint, strawberries, Burbank and Klamath Pearl potatoes, two types of barley, wheat, oats, cereal rye and fescue. The new University Crop Garden at the Tulelake-Butte Valley Fair, which runs from September 8-12 in Tulelake, California.       CALENDAR OF EVENTS Wednesday, September 15, 2004 to Friday, September 17, 2004 – Water Education Foundation Northern California Tour. Contact WEF at 916-444-6240 for more information. 4

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