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Tribes seek higher water levels for Upper Klamath
Lawsuit notice filed, possibility of extinction-level event cited

by KURT LIEDTKE Herald and News  Feb 14, 2018

Klamath Tribes PRESS RELEASE: Issuance of Draft 60-Day Notice to Protect C’waam and Koptu (suckers) 2/13/18
Klamath Tribe's attorney's letter: 60-day notice of violations of Endangered Species Act 2/9/18

The Klamath Tribes, in anticipation of drought conditions this summer, have filed a 60-day notice of their intention to file a lawsuit against federal agencies, seeking higher water levels on Upper Klamath Lake for protection of two endangered sucker species.

A draft 60-day notice was issued Friday by the Klamath Tribes to the Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service, a required action prior to any lawsuit filing under the federal Endangered Species Act. The Tribes are seeking immediate action to prevent destruction of habitat from low water levels this year on Upper Klamath Lake and its tributaries. The notice requests immediate, emergency measures to provide sufficient water for tribal fisheries and to correct deficiencies from a 2013 Biological Opinion that established minimal water levels to sustain species populations and habitats.

“The Tribes see 2018 as a potential tipping point, believing that the Biological Opinion is inadequate to preclude the possibility of an extinction level event for the C’waam, the Koptu, or both this water year,” the Klamath Tribes announced in a press release.

Central to the argument are Lost River and shortnose suckers, traditionally known as C’waam and Koptu by the Klamath Tribes, species listed under the Endangered Species Act in 1988. The Tribes stopped fishing both species in 1986 in recognition of dwindling populations, with the exception of two fish taken each year for ceremonial purposes.

Perceived violations cited

The letter cites perceived violations that have resulted in unlawful taking of suckers as a result of low water levels reducing habitat and causing population die-offs. The Tribes believe that insufficient water levels this year could result in an extinction level event for Lost River and shortnose suckers, as well as the Oregon spotted frog, which is listed as threatened.

Per the 2013 Biological Opinion, minimum monthly water elevations were established to maintain species populations, factoring in spawning season and irrigation. The Tribes argue that dangerously low water elevations from 2013-17 have repeatedly dropped below minimum thresholds outside the scope of the biological opinion, resulting in adversely modified and destroyed critical habitat for both species.

According to the biological opinion, a minimum elevation of 4,142 feet on Upper Klamath Lake is to be maintained during spawning season between March and May, with a minimum of 4,140 feet by July during irrigation season, and minimums of 4,138 in September. In every year that water levels have been tracked since the biological opinion was established, water levels have dipped at or below minimum thresholds to levels determined to have significant negative effects on suckers.

The measurement of Upper Klamath Lake as of Tuesday indicated elevations at 4,141.26 feet, or 67 percent of capacity, slightly below minimum threshold standards for February established under the biological opinion.

Spawning habitat loss

Per the Tribes’ letter, failure to increase lake elevations to appropriate levels would continue to pose insurmountable obstacles to sucker species through insufficient inundation of shoreline spawning habitat, shallow shoreline wetland habitat for larvae, and lack of diverse shallow shoreline habitats for juveniles.

The biological opinion does include an incidental take permit, which allows a maximum of 164 adult suckers to be “harmed” in Upper Klamath Lake each year. A 2017 study by the Tribes found at least 499 adult suckers had died that year, and anticipated another significant die-off in 2018.

“It is regrettable that we have to consider taking such a serious action as litigation at this time,” said Don Gentry, Klamath Tribal chairman. “We simply have little choice given the serious declining population status of the C’waam and Koptu in Klamath Lake. Our fisheries staff have shared with us that extinction is imminent given their currently declining population trends, and could occur in any given year due to poor lake conditions. The recent and frequent dry water years, such as that expected to occur again this year, raises our concerns significantly.”

Gentry stated that the BOR and USFWS along with other federal agencies are responsible to use every means possible to protect these species from extinction – including strategic lake level management based on currently available science.

The issuance of a notice does not necessarily mean litigation is in the future, however, Gentry emphasized the Tribes continue to invite cooperation with federal agencies to resolve problems outlined within the notice. The notice establishes a deadline to show clear steps being taken to address the concerns, otherwise a lawsuit will follow.

Working with the Tribes

“We will continue to go through the process to work with the Tribes and respond to concerns,” said Laura Williams, public affairs officer for the Bureau of Reclamation. “We always want to work with the Tribes. We operate based on requirements established by the joint biological opinion, which addresses needs of salmon and suckers, and also currently under court direction as a result of tribes in the lower basin filing suit. The decisions we make are based on those guiding documents, we really are trying to do the right things with all groups involved – we want to make things work.”

Based on what is deemed by the Tribes as inadequate protections established in the biological opinion, a timeline is now set for federal agencies to prove tangible actions to remedy violations identified for protection of critical habitat, otherwise a citizens’ suit will be filed.



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