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Klamath Water Users Association

2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893

October 20, 2005

KWUA Response to Ninth Circuit Court Ruling in PCFFA v United States

Earlier this week the Ninth Circuit Court of Appeals reversed the 2002-2012 Klamath Project Operations Biological Opinion (BO) prepared by NOAA Fisheries for coho salmon. They claimed the BO was arbitrary and capricious and further remanded the case to the district court instructing it to issue an injunction

We are obviously disappointed in this decision from the 9th Circuit. The courtís decision threatens the water supply for family farmers and ranchers as well as two of the nationís most important national wildlife refuges.  The court elected to substitute its judgment on matters of biology and species protection for the judgment of the agencies assigned this job by law, and implies the Klamath Project can unilaterally recover the coho, which it cannot. We believe that the Biological Opinion (BO) in question clearly reflected NOAA fisheries best judgment as to the long term viability of the species. That BO struck a reasonable balance between the science of the Hardy flow requirements and that of the NRC Report. The "Reasonable and Prudent Alternative" (RPA) identified by NOAA Fisheries concluded that the species will not be jeopardized as long as by year 2011 the full 100% flow is achieved.

The court did not have before it the FINAL report of the National Research Council / National Academy of Sciences, which clearly states that a myopic focus on reallocation of irrigation and wildlife refuge water supplies is not the way to address concerns with coho populations. The court obviously focused their attention strictly on the Hardy science and brushed off the concerns raised by the NRC committee. We now also know that the courtís assumptions about the magnitude of the Klamath Projectís relative impacts (57 percent of Upper Basin irrigation) are significantly overstated.

We believe this courts ruling was Arbitrary and Capricious.

In recent years, Klamath Project water users have cooperated in programs that have resulted in ever-increasing amounts of water being dedicated to in-stream flows for coho salmon located far downriver from Project lands. In fact, by release of water stored during high flow periods for irrigation, the Klamath Project has furnished flows higher than would occur in a natural state. The increased flows have been pursuant to a long-term plan by the federal agencies, which seeks ultimately to address the multitude of factors that affect coho salmon in the watershed.  The

Courtís decision suggests that everything else can be ignored, and that flows from the Klamath Project will mitigate for all other impacts within the 5.1 million acre watershed.  

In 2001, water was reallocated away from the Klamath Project by biological opinions which are now known to have been based on flawed science.  The residual effects of that flawed science have resurfaced in the ninth circuitís decision.  KWUA will, as it always has, continue to advocate a comprehensive, watershed-wide approach to address species recovery.

Finally, we believe this is another prime example of why the ESA should be updated and amended. Anti agriculture groups have used this act once again not to aid in recovery of the species, but more as a tool to try and derail the Klamath Irrigation project.

The Klamath project accounts for less than 4% of the water resource in the entire watershed. Recovery of this species can not be done solely on the backs of these family farms.

Regarding future actions related to the decision specifically, KWUA is evaluating its options.


Greg Addington

Executive Director




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