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August 7, 2016 – On July 29, the Hoopa Valley Tribe filed a lawsuit against the federal government for violations of the Endangered Species Act (ESA) over management actions that have imperiled Coho salmon on the Klamath River.

The Tribe filed the litigation against the Bureau of Reclamation and the National Marine Fisheries Service in the U.S. District Court for the Northern District of California, Oakland Division, to protect the Coho salmon, listed as an endangered species under the ESA. The Trinity River, the largest tributary of the Klamath, runs through the Hoopa Valley Indian Reservation.

The complaint is available at: www.schlosserlawfiles.com/

“The harm caused by the Bureau of Reclamation’s and National Marine Fisheries Service’s failure to protect Coho salmon is driving this federally protected fish and our Tribe to extinction,” said Chairman Ryan Jackson, in a press release. “These fish have been essential to our culture, religion and economy since time immemorial.”

Jackson said federal irrigation project and private dam operators on the Klamath River divert and store water, leaving less for fish. “The water that remains is warmer than tolerable for salmon and polluted with nutrients and chemicals,” he noted.

Under those conditions, salmon are vulnerable to diseases they ordinarily would have survived. In September 2002, an estimated 34,000 to 68,000 migrating adult salmon died in the lower Klamath River in the largest fish kill of its kind in U.S. history, due to outbreak of disease under similar low, warm water conditions.

“Moreover, literally hundreds of thousands of Klamath River juvenile salmon have been infected with disease pathogens that have severely reduced their survival,” said Jackson.

“To help prevent another fish kill, the Tribe said federal agencies set ESA standards for Klamath fish health and Klamath Project operations were bound to meet standards in the 2013 Biological Opinion issued by NMFS,” according to the Tribe. “Multi-year drought and project operation changes have contributed to juvenile fish infection rates in 2014 and again in 2015 that have soared past the limits established in the Biological Opinion.”

Hoopa Fisheries Director Michael Orcutt said, “Instead of reacting to the impacts on fish health caused by unforeseen circumstances, the federal agencies have proposed to lower the standards for fishery protection by increasing levels of incidental take of ESA protected Coho salmon so that damaging irrigation diversions and dam operations can continue.”

The naturally-producing coho population is very low, as evidenced by the Willow Creek weir counts where most of the fish surveyed are hatchery fish from Trinity River Fish Hatchery.

“The effect of these actions stands the law on its head,” said tribal attorney Thomas Schlosser.  “The Hoopa Valley Tribe’s fishery, not irrigation and dam operations, has priority for Klamath River water under both federal Indian law and reclamation law.”

The lawsuit charges that the failure by federal agencies to re-consult on the 2013 Biological Opinion in light of new information is a “direct violation of the ESA.”

“For several years now, we have attempted to engage with the federal agencies regarding improvements to Klamath Basin management,” stated Jackson. “It is unfortunate that it will require this lawsuit to gain their attention .  However, this action is unavoidable if we are to protect our fishery resources for future generations.”

Orcutt noted that the current flows that imperil coho are heavily influenced by the (Klamath Basin Restoration Agreement) KBRA flow allocations.

“That agreement expired; everybody blamed Congress for failing to pass legislation. However, there were lots of concerns that the Hoopa Valley Tribe had regarding  flows, funding, and the forced waiver of senior tribal water rights, so we didn’t sign off on the waiver,” said Orcutt.

Now with the new KHSA (Klamath Hydroelectric Agreement) that was signed in April, “People seem complacent that dams come will come out and things will be better now. However, there still major water quality problems that need to be addressed. In addition, the Klamath Strait Drain creates intolerable conditions that must be addressed if we are going to reintroduce the fish above Iron Gate Dam once the dams are removed. ” he noted.

On July 18, a group of youth, including teens from the Yurok and Hoopa Valley Tribes, organized three protests to demand a thorough clean up of the Klamath Strait Drain, located in Klamath County, Oregon. (www.indybay.org/…)

Orcutt said the Keno and Link River Dam stretches of the river also have poor water quality conditions; and the current recommendation is to truck fish around that stretch, once the fish are reintroduced above the dams, because of the poor water quality.

Also, in spite of this being considered a wet water year, Orcutt said the Bureau of Reclamation will probably have to release preventive flows to stop a fish kill on the lower Klamath, much like they have been forced to do every year since 2012.

While the current suit focuses on coho salmon, an alarmingly low number of fall run Chinook salmon is expected to return to Klamath this year, due to adverse river water conditions during the past few drought years, combined with poor ocean conditions. The total combined subsistence salmon allocation for the Hoopa Valley and Yurok Tribes this fall is  just 7400 fish.

In March, Dr. Michael O’Farrell of the National Marine Fisheries Service (NMFS) forecasted an abundance of only 142,200 Klamath River fall Chinooks in the ocean this year, based on the returns of two-year-old salmon, called “jacks” and “jills.”

O’Farrell said the 2016 abundance forecast for Klamath River fall Chinook is 93,393 for age 3, 45,105 for age 4 and 3,671 for age 3. The potential spawner abundance forecast is just 41,211 — and the fishery managers must target an escapement of at least 30,909 fish.

“This ESA suit is not the warning of a miner’s canary; it is the tsunami siren alerting North Coast communities of impending environmental catastrophe and cultural devastation for the Hoopa Valley Tribe,”  concluded Jackson.

The Hoopa lawsuit is expected to be followed by several other lawsuits. On July 20, the Pacific Coast Federation of Fishermen’s Associations (PCFFA), Institute for Fisheries Resources, and Klamath Riverkeeper, represented by Earthjustice, put  Reclamation and NMFS on 60-day notice that they could be sued under the federal Endangered Species Act if they fail to reopen and improve water management in the Klamath River.

The 60-day notice by Earthjustice followed similar notices sent by the Yurok, Karuk and Hoopa Valley Tribes. The Hoopa Valley Tribe was the first to file, filing their 60 day notice on May 18, 2016.

Meanwhile, the Klamath salmon and steelhead populations face an other threat — Governor Jerry Brown’s Delta Tunnels Plan that will facilitate the export of more water from the Trinity, the Klamath’s largest tributary, and the Sacramento-San Joaquin River Delta.

State Water Resources Control Board meetings began in Sacramento on Tuesday, July 26, regarding the California Department of Water Resources and U.S. Bureau of Reclamation’s requested permits for new water diversion intakes on the Sacramento River and water quality certification under the Clean Water Act, essential permits required before construction of the Delta Tunnels.

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