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Appeals court upholds water for fish before farms

3/28/2007, by Jeff Barnard, The Oregonian

GRANTS PASS, Ore. (AP) A federal appeals court Wednesday upheld a ruling forcing a federal irrigation project to boost flows in the Klamath River to help threatened salmon even if it means shutting off water to farms.

Winter snowpack and reservoir levels this year hold enough water to provide irrigation as well as flows to sustain Klamath River coho salmon, said Cecil Lesley, chief of the water and lands division of the Klamath Basin office of the U.S. Bureau of Reclamation.

But the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco could set up a repeat of the 2001 irrigation shut-off to farms on the Klamath Reclamation Project the next time drought hits southern Oregon and Northern California.

Farmers had sought to lift an injunction imposed last year by U.S. District Judge Saundra B. Armstrong in Oakland, Calif., which said irrigators will have to do without water in years when there is not enough for both farms and fish.

"We hope that the end of this litigation is a sign that there will be progress on working together toward a durable long-term solution," to the region's water problems, said Jan Hasselman, attorney for Earthjustice, which represented fishermen and conservation groups in the case.

The Klamath Basin has been locked in a bitter struggle for decades over sharing scarce water between farms and fish.

Faced with drought in 2001, the U.S. Bureau of Reclamation shut off irrigation to most of the 1,000 farms on the Klamath Reclamation Project to maintain water for salmon in the Klamath River, as required by the Endangered Species Act. The next year, the Bush administration restored full irrigation to farms, but some 70,000 adult chinook salmon died in the Klamath River from gill rot diseases when they were trapped in warm pools by low flows.

Last year, salmon fishing was practically shut down on 700 miles of the Oregon and California coasts because returns of Klamath chinook were low for three straight years.

Farmers decided to go ahead with the appeal despite warming relations with fishermen, Indian tribes and conservation groups who want more water for salmon. Last Saturday, some farmers, fishermen and Indian tribes gathered in Crescent City, Calif., for a barbecue.

Meanwhile, a summit called for by the governors of Oregon and California to solve the Klamath Basin's environmental problems, including the issue of whether to remove four hydroelectric dams, has yet to materialize.

In a five-page opinion, the appeals court sharply rejected arguments by the Klamath Water Users Association, which represents about 1,000 farms on the Klamath Reclamation Project, that the Endangered Species Act did not require farmers to give up water for fish.

Klamath Water Users Association's "novel interpretation of the (Endangered Species Act) is not shared by (the National Marine Fisheries Service), which has explained that the proper environmental baseline `includes the past and present impacts of all Federal, state, or private actions and other human activities in the action area," the ruling said.

The farmers' appeal, "fails to recognize that district courts have `broad latitude in fashioning equitable relief when necessary to remedy an established wrong," the ruling added.

Greg Addington, executive director of the Klamath Water Users, told the (Klamath Falls) Herald and News that the ruling was frustrating, but not a surprise.
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