RETURN RECEIPT REQUESTED

DATE: August 29, 2003

TO: Judi Johansen

Chief Executive Officer

PacifiCorp

825 NE Multnomah

Suite 1800

Portland, Or 97232

CT Corporation System

388 State St.

Suite 420

Salem, Or 97301-3581

Ms Gail Norton

Secretary

United States Department of the Interior

1800 C Street NW

Washington, DC 20240

Re: Notice of Violation of the Endangered Species Act: Take of Endangered Shortnose Suckers and Lost River Suckers Under Section 9

TO THE ABOVE-NAMED PERSONS:

The Endangered Species Act of 1973, as amended (hereafter

"ESA"), 87 Stat. 884, 16 U.S.C. §§ 1531-1543, in furtherance of its stated purpose and policy of conserving endangered and threatened species and the ecosystems upon which they depend, provides that any person may commence a civil suit on his or her own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency, who is alleged to be in violation of any provision of the ESA or regulation

issued under its authority. 16 U.S.C. § 1540(g)(1)(A). The ESA requires that sixty (60) days before the institution of a civil suit pursuant to this authority, a citizen must give notice of intent to file suit. 16 U.S.C. § 1540(g)(2)(A). However,"...such action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing a significant risk to the well-

being of any species of fish or wildlife or plants." 16 U.S.C.

1540 (g)(2)(C).

You are hereby given notice that, either on or after the

expiration of sixty (60) days from the date this NOTICE OF

INTENT TO FILE SUIT is given, the person giving notice,

hereafter ("notifier"), by and through their attorney, William

C. Carpenter Jr., will file suit in the U.S. District Court for

the District of Oregon. Notifier may bring an action prior to

the expiration of the sixty (60) delay period if an emergency

will pose a significant risk to the well-being of an endangered

species.

You are further notified that this lawsuit will allege as

follows:

I. PacifiCorp is Taking Listed Suckers at the Link River Dam’s

Eastside and Westside Diversion Canals and Such Taking is Not

Authorized by Any Current or Past Incidental Take Statement or

Permit

On July 15, 1996, pursuant to section 7 of the ESA, 16

U.S.C. § 1536, the United States Fish and Wildlife Service

(USF&WS) issued a biological opinion and incidental take

statement to the U.S. Bureau of Reclamation,("BOR"), for

PacifiCorp’s and New Earth Company’s ("permittees") operations

at the Link River Dam and the Eastside and Westside Diversion

Canals, Klamath County, Oregon. Formal Consultation on

PacifiCorp and New Earth Corporation Operations, as Permitted by

Bureau of Reclamation, for Lost River Sucker and Shortnose

Sucker, USF&WS, Klamath Basin Ecosystem Restoration Office 1-10-

Ecosystem Restoration Office (Dec. 19, 1996).

A. The Entrainment Reduction Device Installation Condition

Precedent of the July 15, 1996 Incidental Take Statement

The incidental take statement discusses acceptable terms

and conditions to allow taking of Lost River and Shortnose

Suckers due to BOR’s permittees’ activities. "[T]aking that is

incidental to and not intended as part of the agency action is

not considered a prohibited taking provided that such taking is

in compliance with the terms and conditions of this incidental

take statement. . . . If Reclamation (1) fails to require the

applicants to adhere to the terms and conditions of the

incidental take statement through enforceable terms . . . and/or

(2) fails to retain oversight to ensure compliance with these

terms and conditions, the protective coverage of section 7(o)(2)

[exempting qualified incidental take from the section 9 take

prohibition] may lapse." Id. at 39.

The BOR’s permittees proposed activities included

conservation measures "deemed necessary to avoid jeopardy to

these species and to reduce take of listed suckers." Id. at 2.

These measures include: installation of entrainment reduction

devises (ERDs) at Link River power canal headgates and

completion of an entrainment reduction study. See Id. at 6; see

also, Cover Memo of Biological and Conference Opinions, July 15,

1996, pg. 2.

As part of the consultation and incidental take statement,

BOR committed to require permittees to "install and maintain

Service-approved entrainment reduction devices" at the Eastside

and Westside diversion canals no later than June 1, 2000.

Amendment to Formal Consultation on PacifiCorp and New Earth

Corporation Operations, as Permitted by Bureau of Reclamation,

for Lost River Sucker and Shortnose (Dec. 19, 1996)

("Amendment"), at 2.

To date BOR permittees have failed to install entrainment

reduction devices at the Link River Dam power canal headgates

and PacifiCorp continues to take endangered suckers.

The incidental take statement provides six reasonable and

prudent measures deemed necessary and appropriate to minimize

incidental take of listed suckers. Measure one is: "Monitor

incidence of sucker entrainment and review effectiveness of

Entrainment Reduction Devices at PacifiCorp and The New Earth

Company facilities." July 15 statement at 44. Term and

Condition 1.2 of the incidental take statement requires

"effectiveness monitoring of entrainment and impingement

reduction activities" at the Link River diversions. Amendment

at 2-3.

Given PacifiCorp’s and New Earth’s failure to install

screens or other ERDs, permittees necessarily cannot comply with

the Terms and Conditions set forth in the incidental take

statement as amended. Therefore, the take of listed suckers due

to entrainment at the Link River Dam diversions (Eastside and

Westside) is no longer covered under the incidental take

statement and is in violation of section 9 of the ESA. Further,

PacifiCorp now claims that the Bureau of Reclamation does not

have any jurisdiction to control PacifiCorps’ activities in

operating the Eastside and Westside Diversions of the Link River

Dam. Notice of Intent to Sue, March 15, 2002, page 5. If the

Bureau of Reclamation does not have jurisdiction over the

Eastside and Westside Diversions, any incidental take statement

issued relying on that erroneous jurisdiction is void and has no

force of law. Thus, alternatively PacifiCorp cannot rely on any

of the accompanying protections that may have been proposed in

the USF&WS’s 1996 Biological Opinion on the Eastside and

Westside Link River Dam Diversions.

B. Endangered Species Taken and Likely To Be Taken

Among the fish species that live in the waters of the

Klamath River directly upstream of the Unscreened Diversion are

the Shortnose Sucker (Chasmistes brevirostris) and the Lost

River Sucker (Deltistes luxatus). USF&WS has designated as

endangered these two fish species pursuant to the ESA. 53 Fed.

Reg. 27,130-34, July 18, 1988; 50 C.F.R. § 17.11(h) (1993). All

ESA protections became effective on August 17, 1988.

C. The Entrainment and Subsequent Mortality Of Shortnose and

Lost River Suckers Estimated in the Biological Opinions and 1996

Incidental Take Statement Have Not Been Reduced and is Causing

Jeopardy to the Lost River and Shortnose Suckers

BOR studies indicate that nearly all suckers entrained in

the East and Westside diversions will die. July 15, 1996

Biological Opinion at 29, 41. In the incidental take statement,

FWS estimated that 100 adult Lost River and Shortnose Suckers

will be entrained each year and 5,000 juvenile Lost River and

Shortnose Suckers will be entrained each year. Id. These

estimates assumed that BOR permittees operate the entrainment

and impingement reduction devices, described in the Biological

Opinion.

USF&WS has summarized the situation and studies done in the

late 1990's as to the contribution that the Eastside and

Westside Diversion has on the killing and harming of endangered

suckers as follows:

2002 Jeopardy Biological Opinion, May 30, 2002, Introduction,

page 7.

In its Cover letter for that Biological Opinion, USF&WS states:

May 31, 2002 cover letter to Jeopardy Biological Opinion from

Steve Thompson, Manager USF&WS, page 5 (emphasis added).

And specifically to the harm of entrainment the Service states:

Id. at 2-3.-

Cell Tech’s report, entitled "Link River Hydroelectric

Project (Eastside and Westside Powerhouses) Final Entrainment

Report-- March 1997- October 1999, September 2000, estimates the

number of entrained endangered suckers in the diversions canals

themselves, taken before installation of the A-Canal screen.

Table 7, entitled "1997-1999 Eastside, Westside, and combined

annual extrapolated entrainment indices for suckers," of that

Report is attached as Exhibit A.

From Cell Tech’s fish counts, the total annual numbers of

estimated entrained endangered suckers entrained in both the

Eastside and Westside Diversions, corrected for unidentified

suckers, and excluding larvae and suckers less than 75 mm fork

length (i.e. only juveniles, sub adults, and adults) are as

follows:

1997- 11,316

1998- 13,085

1999- 12,709

Average- 12,370

These numbers do not reflect the over 30,000 fish per year

likely to be endangered Lost River or shortnose suckers that are

less than 75mm fork length. Further, the Cell Tech scientists

admit that for the juvenile and adult estimates:

Id. at 7.

While PacifiCorps’ operation was slightly modified in 2001,

PacifiCorp continues to entrain a large number of all ages of

Lost River and shortnose suckers through the operation of its

Eastside and Westside diversion canals and hydroelectric

operation. As a result, PacifCorp is conducting unauthorized

take of a great number of Lost River and shortnose suckers

through its operation of the Eastside and Westside Link River

Diversion Canals. Consequently, PacifiCorp is taking these

endangered sucker fish in violation of section 9 of the Act.

D. Legal Provisions of the ESA Applicable to BOR Take Violations

The relevant provision of the ESA, in part, states:

Section 9, 16 U.S.C. § 1538:

Section 3, 16 U.S.C. § 1532(19), further defines take as:

(19) The term "take" means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct.: and,

Section 11(g)(2)(C) , 16 U.S.C. § 1540(g)(2)(C), states, in

relevant part:

E. PacifiCorp’s Actions Required To Be Ceased To Prevent Section

9 Unauthorized Takes

PacifiCorp’s continued diversions of water after June 1,

2000 through the Eastside and Westside Diversion Canals to the

Link River Dam without the required ERDs in place takes (kills,

harms or harasses) endangered shortnose and Lost River Sucker

fish. This take is not in compliance with any USF&WS incidental

take statement, including the one given on July 15, 1996, as

amended December 19, 1996.

PacifiCorp must stop the diversion of water through the

Eastside and Westside Diversion Canals to prevent being in

violation of Section 9 of the ESA. 16 U.S.C. § 1538.

Consequently, the notifier intends after the end of the

sixty (60) day notice period, to file a citizen suit under

section 11(g) of the Endangered Species Act, 16 U.S.C. §

1540(g), against PacifiCorp for endangered sucker fish takes

based on it and the New Earth Company’s failure to implement the

required condition that validated the incidental take statement.

Notifiers may bring an action prior to the expiration of the

sixty (60) day period in the event of an emergency situation.

The following person gives NOTICE OF INTENT TO FILE SUIT

under the Endangered Species Act:

Oregon Natural Resources Council

5825 N. Greeley St.

Portland, Oregon 97217

(503) 283-6343

During the sixty (60) day notice period, we will be

available to discuss effective remedies and actions which will

assure PacifiCorp’s future compliance with the Endangered

Species Act. In addition, we can discuss whatever facts you

believe relevant which are not itemized in this notice letter.

If you wish to avail yourself of this opportunity, or if you

have any questions about this letter, please contact us.

However, the action may need to be filed under the emergency

provisions of 16 U.S.C. § 1540(g)(2)(C) for imminent threat of

injury to the endangered fish from the Eastside and Westside

Link River Dam diversions, as allowed by Forest Conservation

Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995).

The following serve as legal counsel to the entity giving

notice identified above:

William C. Carpenter Jr.

474 Willamette St.

Suite 303

Eugene, Oregon 97401

(541) 484-4436

Very truly yours,

William C. Carpenter Jr.

CERTIFICATE OF SERVICE

The originals and the copies were mailed by first class

mail, certified, return receipt requested, to the respective

persons as designated on page 1 of this notice.

Dated this ____ day of August, 2003.

__________________________

by William C. Carpenter Jr.