Klamath Water Users Association 

Weekly Update

January 9, 2004



Circuit Court Vacates Earlier Decision in Silvery Minnow Case

As is often the case with environmental litigation, this week’s decision by the U.S. Court of Appeals 10th Circuit to vacate its earlier decision in the Rio Grande silvery minnow case is seen by both plaintiffs and defendants as a victory. The 10th Circuit on Monday published a ruling that vacates an earlier decision made by a three-member panel of the court and dismissed that appeal as moot.

While environmentalists claim that this decision sustains an earlier federal district ruling, New Mexico water users and state officials also declared victory.

"Today, New Mexico received a clear and important victory," Attorney General Patricia Madrid told the press earlier this week. "I had requested a rehearing of the case because it had taken the unprecedented step of ordering water imported for the people of Albuquerque to be diverted and used for the silvery minnow. The impact of such a decision raised serious issues for states throughout the west. I am pleased the 10th Circuit has vacated their earlier decision."

In the Middle Rio Grande Basin, the San Juan-Chama project imports water from the lower Colorado River Basin for storage and ultimate delivery to contractors. The plaintiff environmental groups argue that the water must be released downstream for the listed Rio Grande Silvery Minnow. These groups prevailed in the District Court and in a three-member appointed panel of the Appeals court. If the federal government were allowed to take the water for the slivery minnow, Albuquerque's future growth would have been jeopardized, city leaders claim.


Silvery Minnow Decision Seen as a Victory for Both Sides (Continued)

While not involving the Klamath Project directly,

the silvery minnow issue is being closely watched in the Klamath Project; the Klamath Water Users Association filed a brief amicus curiae in support of the water users and the government last year in this case. Various appellants including the United States had filed petitions asking all the judges of the 10th circuit to review and reverse the decision of the three-judge panel.

"The 10th Circuit vacated the earlier 10th Circuit opinion, but did not vacate the District Court opinion," said Klamath Falls water attorney Bill Ganong. "It simply states that the preliminary injunction issued by the District Court has expired, has and had no effect on the parties, and is not a final judgment and therefore not precedent setting."

Agricultural and urban water interests won a huge water victory last November when a U.S. House and Senate Conference Committee approved language in an appropriations bill (HR 2754) that restricts the federal government from using the city's San Juan / Chama water to satisfy provisions of the federal Endangered Species Act (ESA).

"This continues to be a critical issue for western states, like New Mexico, where water is such a valuable resource and critical part of our economy," said Rep. Heather Wilson, who helped develop the congressional language.

The 10th Circuit decision notes that the litigation in the District Court is ongoing and that the parties will have the opportunity to appeal the final decision.


Upper Klamath Basin Science Workshop To be Held in Klamath Falls

Federal agencies in February are hosting a four-day scientific workshop on water and water related resources in the Upper Klamath Basin. The U.S. Department of Interior will host the "Upper Klamath Basin Science Workshop" at the Shilo Inn in Klamath Falls, beginning at 8:00 am on Tuesday, February 3, and concluding around noon on Friday, February 6.

The workshop is intended to bring together water resource managers, stakeholders, and researchers to discuss future science needs and priorities for the upper Klamath Basin. Presentations and discussions will focus around the following themes:

  • Upper Basin Sucker Biology and Habitat;
  • Water Quality; and
  • Hydrology

The first day of the workshop will be primarily devoted to hearing from selected water resource       managers and stakeholders in the basin as to their science and monitoring needs. The second and third days will be devoted to hearing the perspective of scientists as to what is known about certain relevant topics and what they believe needs to be known to
help decision makers. The final half day will be devoted to synthesizing what has been heard and then prioritizing the identified science needs in the various science topic areas. Attendance at the workshop is encouraged for scientists, water resource managers, and stakeholders interested in the upper Klamath Basin. Those interested in attending should complete the on-line registration by January 26, 2004 at:      http://www.usbr.gov/research/propc/registration/registration.cfm

NRC Final Report Assesses Scientific Support for ESA-Related Actions

The final report from the National Research Council (NRC) Committee on Endangered and Threatened Fishes in the Klamath Basin is seen by many as a critical step towards ensuring proper assessment and maintenance of healthy fish populations. As noted in this report, especially prominent in the Klamath Basin is controversy over the extent to which federal agency remedies that have uncertain outcomes should be pursued even though they are "economically or socially painful". One issue highlighted by events in the Klamath Basin is the relative weight that should be given to professional judgment as opposed to direct empirical evidence that appears to be contradictory to that judgment.

For its final report, the NRC Committee adopted specific conventions for judging the degree of scientific support for a specific proposal or hypothesis. The scientific value of such a hypothesis ranges from "negligible" to "very high", depending on the amount of testing to which it has been subjected. According to the committee’s final report, at the low end of the scale of scientific strength is the assertion or proposal that is entirely intuitive and thus without scientific support. The report directly addresses claims made by environmental activists – claims that were ramped up following the deaths of 34,000 fish on the lower Klamath River in 2002 – that "fish need water". The committee notes that this catch phrase is an example of an assertion that would fall into the low end of the scientific value scale.

"The statement is true," states the committee report. "But it does not constitute a scientifically valid argument for specific flows or specific water levels."


Fifth Annual Klamath Watershed Conference Set for February 24-26.

A gathering intended to celebrate conservation accomplishments in the Klamath Basin is scheduled late next month at the Oregon Institute of Technology in Klamath Falls. The fifth annual Klamath Watershed Conference will begin with pre-conference technical sessions and workshops on Tuesday, February 24, at 8:30 a.m. and will end on Thursday, February 26, at 5:00 p.m. The Klamath Water Users Association is a contributing host to the conference. Key conference partners include Oregon State University (OSU), the U.S. Fish and Wildlife Service Klamath Basin Ecosystem Restoration Office, Klamath River Compact Commission, the Fremont-Winema National Forests, and the University of California Cooperative Extension.

The Klamath Basin has been a region in conflict for over a decade, with endangered fish, irrigated agriculture, recreation, timber, commercial fisheries and tribal economies all vying for Basin waters. OSU Extension’s Denise Buck helped organize the conference and believes that it can bring diverse communities together to focus on knowledge and opportunities for improvement.

"There is a staggering amount of good work that has already been done, improving conditions and stewardship from the headwaters in Oregon to the California coast," said Buck. "During this gathering we will celebrate these accomplishments, and build upon them by encouraging broader awareness, participation, support and coordination."

"Early Bird" registration for the conference is January 27th. Registration forms can be picked up at the OSU Extension Office or the Klamath Soil and Water Conservation District.



Saturday, January 10, 2004 – Senator Ron Wyden’s Town Hall Meeting. 10:00 – 11:30 a.m., Oregon Institute of Technology, Klamath Falls, Oregon.

Wednesday, January 14, 2004. KWUA Executive Committee Meeting. 2:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls, OR.

Thursday, January 15, 2004. University of California and Oregon State University Pest Management Seminar. Oregon Institute of Technology, Klamath Falls, Oregon.

Wednesday, January 21 – Friday, January 23, 2004. Mid-Pacific Region Water Users Conference. Reno, Nevada.

Tuesday, February 3 – Friday, February 6, 2004. Upper Klamath Basin Science Workshop. Shilo Inn, Klamath Falls, Oregon.

Tuesday, February 24 – Thursday, February 26, 2004. Klamath Watershed Conference. Oregon Institute of Technology, Klamath Falls, Oregon.


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

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