Klamath Tribes file suite against the Bureau of Reclamation over Reclamation's ongoing violations of the Endangered Species Act

The following is a press release from the Klamath Tribes of Oregon.

CHILOQUIN, Ore. - The Klamath Tribes today filed a lawsuit against the Bureau of Reclamation in federal district court in Medford, Oregon, over Reclamation’s ongoing violations of the Endangered Species Act in its operation of the Klamath Project. C’waam (Lost River sucker) and Koptu (shortnose sucker), two critically endangered fish of vital spiritual and cultural importance to the Tribes, are being pushed to the very brink of extinction by Reclamation’s violation of one of our country’s bedrock environmental laws.

“We will do everything necessary to protect the C’waam and Koptu, which are of the utmost importance to our people,” said Tribal Council Vice Chair Gail Hatcher. “In this historically bad water year the consequences of decades of mismanagement are coming home to roost; Reclamation’s failure to provide the bare minimum conditions necessary for their survival is unconscionable.”

Reclamation has been operating the Klamath Project out of compliance with the terms and conditions of the Biological Opinion (BiOp) issued by the U.S. Fish and Wildlife Service in 2020, causing harm to the C’waam and Koptu even beyond the level authorized under that document. The Tribes are also seeking an emergency order directing Reclamation to immediately reduce its releases of water from Upper Klamath Lake (UKL) in order to preserve the C’waam and Koptu while the lawsuit moves through the courts. This reduction in releases is necessary to bring Reclamation back into compliance with the BiOp.

“A temporary restraining order to keep more water in Upper Klamath Lake is essential to keep Reclamation from furthering worsening conditions for the C’waam and Koptu, during both the current critical spawning season and later this summer when water quality in the Lake can become lethal. The fish cannot afford the future Reclamation is otherwise forcing them to face this year.”

“The Tribes have always believed the BiOp itself didn’t provide the C’waam and Koptu with enough protection to ensure they survive and ultimately to recover to a level where the Tribes can begin to harvest them again, as we have a treaty right to do,” said Tribal Council Chairman Don Gentry. “But its protections are at least better than what Reclamation is doing now. We intend to fight for stronger protections in the next BiOp, which is due to be released by September of 2022. This lawsuit and temporary restraining order are needed to ensure that the C’waam and Koptu are not pushed to the brink before then.”

The Tribes recognize that in this historically bad water year, keeping more water in UKL means less water available for flows below Iron Gate Dam to support salmon in the Klamath River.

“Our hearts break that we have been forced into this position,” said Tribal Council Member Clay Dumont. “We know how important the salmon are to our tribal brothers and sisters in the lower Klamath Basin, and the Klamath Tribes have longstanding cultural connections and treaty rights to harvest salmon as well. We look forward to the day that salmon are able to return to the Upper Klamath Basin as they did before the dams went in. It is beyond repugnant that such a longstanding, deep lack of understanding of our complex ecosystem on the part of those with management authority has brought us to the point of having to calculate that the C’iyal (salmon) will survive this year as a species—knowing that without more water in Upper Klamath Lake immediately, we cannot say the same for the C’waam and Koptu.”

The emergency order the Tribes seek is carefully crafted to balance the needs of the species. It does not ask for the court to order Reclamation to stop all releases from UKL, which would otherwise risk stranding fish – including C’waam, Koptu, and redband trout – below the Link River Dam. Instead, it asks the court to order Reclamation to reduce releases to a maximum of 400 cfs, which protects the Link River, and which also allows for flows of at least 650cfs below Iron Gate Dam. Salmon have successfully reproduced in similar flow conditions in the past.

Fish disease is also a serious risk to out-migrating salmon this spring, but it is unlikely that any amount of the water available this year would be able to mitigate that risk without doing even more extreme damage to the C’waam and Koptu than Reclamation’s actions are already causing.

“What the Tribes are asking for is based on sound science and a clear-eyed assessment of the relative risks faced by the various species whose needs are unavoidably in conflict this year,” said Jay Weiner of Rosette LLP, the Tribes’ ESA lawyer. “No one wants to be in this position, but if a choice between species has to be made – and that’s where Reclamation’s management of the Project and this year’s hydrology have put us – then it needs to be made in favor of the species who are at greatest risk, and that’s the C’waam and Koptu.”

That the Klamath Basin is facing a year of having to triage the needs of endangered species while providing little to no water at all for Project irrigators is just the latest and most glaring sign of how out of balance the Basin has become.

“The Klamath Basin is living far beyond what it’s water budget can tolerate. We cannot keep pretending to be surprised by poor water years and conflicts among agriculture and endangered species,” said Tribal Council Secretary Roberta Frost. “Nor can people hope to keep relying on single year quick-fix bailouts to paper over our systemic problems. The catastrophe of this year throws into stark relief how desperately the Basin needs to move to a more sustainable footing.”