Federal Judge Upholds Fish Disease Prevention Flows on Klamath River;  Hoopa Tribe Celebrates Victory in U.S. District Court

by ALLIE HOSTLER, Two Rivers Tribune May 1, 2018

On Monday, April 30, Federal Judge William H. Orrick issued an order denying requests from the Bureau of Reclamation and the Klamath Water Users Association and others to eliminate or reduce fish disease prevention water releases on the Klamath River.

The ruling upholds the original plaintiffs’ (Hoopa Valley Tribe and Yurok Tribe) argument that two types of flows are necessary to protect endangered coho salmon from disease outbreaks caused by the Ceratanova Shasta parasite, which flourishes in slow flowing, warm water. The first flow (Measure 1) requires the Bureau of Reclamation to release annual winter-spring deep scouring flows and surface flushing flows.

Hoopa Valley Tribe Fisheries Director Mike Orcutt said the springtime 24-hour deep flushing flow followed by the 72-hour surface flushing flows are critical because they help disrupt the development of the C. Shasta worm that wreaked havoc on salmon populations in 2014 and 2015 killing up to 91 percent of juvenile salmon. Fisheries scientists believe the catastrophic low return of the 2017 fall run Chinook salmon run was the result of the 2014 and 2015 disease outbreak.

The second flow (Measure 4), requires Reclamation to reserve at least 50,000 acre-feet of water to supplement normal flows should certain conditions trigger the release.

Orcutt referred to Measure 4 flows as a safety net–a reserved water supply that could be released from Iron Gate Dam in the event of a disease outbreak. The triggers are detailed in a guidance document drafted by tribal scientists and based on U.S. Fish and Wildlife science. They include water quality, temperature, flow and the detection of disease in baby salmon on their outmigration to the ocean. As the juvenile salmon swim downstream, some will pass through a monitoring station near the Scott River. Once it is determined that about 80 percent of the estimated outmigrating run have moved out of the Upper Klamath, the “safety net” flows are no longer necessary.

In 2017, the majority of the juveniles outmigrated during the week of May 7-13. To ensure a reasonable level of confidence that the wild salmon outmigration was complete, the court required an additional seven days be added to the estimate. By May 20, dilution flows were determined to be unnecessary.

“We got bailed out by Mother Nature last year,” Orcutt said.

The Klamath Basin experienced an extremely wet water year in 2017. The reservoirs filled, and immediate threats to the fishery and to the irrigator’s water supply lessened.

Scientists predict 2018 will be significantly different. Already classified as a critically dry water year, securing existing protections for juvenile salmon is of utmost importance to tribes in the Klamath Basin.

Orrick’s ruling outlines the legal reasoning for upholding his previous decision despite Reclamation and the irrigators’ argument that there may not be enough water to provide the scouring flows required in Measure 1 and reserve the 50,000 acre feet of dilution flows.

“Intervenors’ argument mainly rests on the effects of the Klamath River Project on the family farms and ranches in the Project’s irrigation districts,” Orrick wrote. “I am sympathetic to those concerns, but as I have already discussed at length in the Injunction Orders and as is very plainly the law, I am not free to favor economic or other interests over potential harm to endangered species.”

Much of Orrick’s final order outlined rules of the court that clarify his jurisdiction, and lack thereof over the matter. He was able to hear and rule on the motion for relief under two rules of the court; that there may be newly discovered evidence; and that the applying the judgement is no longer equitable.

“…For these reasons, intervenors have failed to show that they are entitled to relief from the judgement pursuant to either Rules 60(b)(2) or 60(b)(5), as they have not shown any “newly discovered evidence” nor that prospective application of the Injunction Orders would be inequitable. For these reasons, intervenors’ motion is DENIED,” Orrick wrote.

Although Reclamation and the National Marine Fisheries Service did not join the intervenors’ motion, they said that compliance with the injunctions is not possible without harming the endangered sucker fish due to the water levels in Upper Klamath Lake. In the meantime, a natural storm event occurred, which enabled them to meet the required scouring releases required in Measure 1.

“Federal defendants’ arguments are no more convincing today than they were at the time of the Injunction Orders; even if they were, it is beyond my power at this stage to grant their proposed plan as it would substantially alter the status quo,” Orrick wrote.

“Federal defendants’ proposed alternative plan is clearly at odds with the injunctions and their objectives. As discussed at length in the Injunction Orders, the injunctions prioritizes first and foremost the well being of the endangered species (both the Coho salmon and the sucker fish to the extent that they are affected), then the federally-protected rights of the tribes, and finally the rights of the irrigation districts,” Orrick wrote. “Because the injunctions demand partial compliance in the event that full compliance is not possible, federal defendants’ proposal of releasing water to the [Klamath Reclamation] Project is clearly inconsistent with their duties.”

Early in his Order, Orrick urged the tribal and other scientists working on the issue to come to a consensus and revisit the 2013 Coho Biological Opinion. The federal consultation process to work toward that end was re-initiated in January.

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