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Fall 2001

Judge Says Hatchery Salmon Are Real Fish After All

Will the ESA chokehold finally loosen?

On September 10, 2001, U.S. District Judge Michael Hogan struck down the decision by the National Marine Fisheries Service to list Oregon Coast Coho salmon as threatened under the Endangered Species Act. NMFS’ listing decision was found to be arbitrary and capricious and, therefore, unlawful.

In a suit brought by the Alsea Valley Alliance, plaintiffs argued that NMFS could not ignore hatchery bred fish when making its decision to list coho as threatened. Judge Hogan agreed and ruled hatchery bred coho salmon and "naturally spawned" coho are the "same species," who must be treated as the same group.

Judge Hogan explained "the NMFS listing decision creates the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream, but only one receives ESA protection while the other does not. The distinction is arbitrary."

When all the coho are treated as a single group, their population numbers soar. Couple this truer accounting with this year’s record salmon runs and the essential question becomes: are coho really threatened after all?

The answer is a strong "no" from those who believe a hatchery fish that succeeds in surviving ocean conditions and returns to spawn has earned its right to be considered a real fish. Hatchery bred coho amount to almost ninety percent of the total population. Accordingly, Judge Hogan’s ruling is a landmark victory for many who have long derided as an administrative fiction NMFS’ policy of treating hatchery coho as poor relations to wild coho.

Water for Life belongs to a broad based alliance of natural resource producers and private property rights advocates known as Save the Salmon Coalition; a group that has lobbied long and hard against the myth that hatchery bred fish are somehow not real fish. The Salmon Coalition was instrumental in publicizing videos showing Oregon Fish and Wildlife Service employees clubbing perfectly healthy hatchery bred salmon. "It’s a great decision which strikes down the flawed listing of coastal coho," declared a founder of the Salmon Coalition, Bill Moshofsky.

Moshofsky predicts Judge Hogan’s ruling will "pressure NMFS to apply sound science and delist many other salmon species in the northwest – listings that also did not take hatchery fish into account."

Since NMFS ultimately takes its direction from the Bush administration, the agency may not appeal Judge Hogan’s ruling. Nonetheless, considering all the endless litigation from environmental extremists that led to the current situation, it will likely be sometime yet before the salmon’s status is finally resolved. For example, NMFS may choose to accept the Judge’s decision to group all coho into the same population, but then act – whether involuntarily due to a third party lawsuit or voluntarily due to in-house fish biologist direction – to place some sort of negative value on the hatchery fish. Under this scenario NMFS might conclude any given population of coho is increasingly threatened in direct proportion to their estimation of the number of hatchery fish present. This could mean an extremely robust population might still be considered threatened because too many of the fish are from hatcheries and deemed unworthy of true fish status.

Of course, such tactics will be met with the same sort of resistance that led to this most recent court triumph. For more information about Save the Salmon Coalition, contact Bill Moshofsky at (503) 620-0258, or Water for Life, Inc. at (503) 375-6003.

Call to Action

The environmental extremists have fired up their nationwide public relations machine in an attempt to pressure the Bush administration to appeal Judge Hogan’s landmark decision. It is up to all of us to counter their misinformation. We urge you, as well as your family, friends and coworkers, to voice your opinion to Donald Evans, the Secretary of Commerce and President Bush’s point man on recommending for or against an appeal. Let Secretary Evans know that grassroots America support the Hogan decision to count all the coho. Here is the contact information – register your comments now!

Donald Evans

Secretary of Commerce

U.S. Department of Commerce

14^th & Constitution Avenue NW

Washington, DC 20230

Email: deevans@doc.gov

Also send a copy of your comments to the regional office of NMFS:

Robert Lohn

Northwest Regional Administrator

National Marine Fisheries Service

7600 Sandpoint Way NE

Seattle, WA 98115

Email: bob.lohn@noaa.gov

Adair Case Reopened by Tribes

In yet another chapter of the decades long process to adjudicate water claims in the Klamath Basin, the tribes have drawn in another player: a federal court judge. While the record drought conditions in the basin this summer took attention away from the adjudication process, the hearing of claims by Oregon administrative law judges has not been interrupted. But with the introduction of federal judge Owen Panner, this may change.

Under the original Adair v. U.S. case the sale of the Klamath tribes’ reservation was affirmed, but that same federal court ruled the tribes retained certain interests to hunt, fish and forage at 1979 levels. Claiming water rights with priority dates of time immemorial, the tribes have argued during the adjudication that they should be allowed larger water rights based on their historic hunting, fishing and foraging at 1864 levels. The other parties to the adjudication disagree and interpret the original Adair case as clearly limiting the tribes to activity levels as exercised at the time of the court decision.

Seemingly making a strategic decision that their water claims will be received more favorably by a federal judge rather than a state one, the tribes convinced Judge Panner to reopen Adair for the purpose of clarifying how much water they may claim. The state objected to interjecting a federal court into the ongoing state process and it remains unclear how the state will now proceed with tribal adjudication claims. Parties are currently briefing the merits of the tribal claims and Judge Panner has agreed to hold a trial, probably sometime late this year or early next year.

Senator Smith Offers Drought Relief Proposals to Secretary Norton

Senator Gordon Smith, R-Ore., has presented a series of options to Secretary of Interior Gale Norton in an effort to ensure irrigation water for the Klamath Basin next growing season. "The options I offered Secretary Norton today will help provide a blueprint for immediate action that can be taken to lessen the impact of this devastating crisis," declared Smith. Among the proposals presented by Smith, the irrigator friendly ideas include:

• Maximize storage in the upper Basin
• Study removal of the Chiloquin Dam, a major fish obstacle
• Increase hatchery efforts
• Seek full federal funding to screen the Klamath Project’s "A" canal
• Habitat restoration projects, such as dredging Williamson and Sprague Rivers, and introducing gravel spawning beds and riparian vegetation
• Reduce predation pressures on listed fish

Acknowledging the sea change in politics after the World Trade Center attack, Smith said "the events of September 11 have clearly had an effect on this year’s congressional agenda, but no matter what Congress does, the Administration can take decisive actions to mitigate this crisis, and provide hope for farmers and wildlife next year."

Malheur Wildlife Refuge Part One: State Caught In Double Standard

While many aspects of water law seem nearly incomprehensible to the layman, most farmers and ranchers understand a basic principle underlying all water rights: use them or lose them.

No matter how large or old a water right is, if it is not used at least one year out of every five it can be lost forever. Known as cancellation, a water right lost due to non use is formally cancelled by the Oregon Water Resources Department and returns to the public domain where it is available for someone who will actually use the water.

In some instances a water right holder will anticipate a change in water use that might put his or her rights in risk of cancellation. That water right holder then preserves those rights by transferring them to other lands where they will continue to be appropriated for beneficial use. Some water right holders, however, simply stop exercising their water rights without concern until presented with a threat of cancellation. Such is the case with the U.S. Fish and Wildlife Service and its water rights on the Malheur National Wildlife Refuge in Harney County.

After years of complaints that the Refuge was not exercising all its water rights, the federal government is proposing transfers of over 32,000 acres of water rights, primarily for irrigation and livestock on the Refuge. The purpose of these transfers is two fold: (1) reclaim water rights that have not been used for over five years; and (2) establish a new type of water right that will be immune from a future risk of cancellation for non use.

Harney County Soil and Water Conservation District, represented by Portland water law attorney Laura Schroeder, and Water for Life, Inc. joined in protest of the proposed transfers at an extraordinary three day contested case hearing at the Harney County Courthouse in Burns on August 23 through 25. Evidence and live testimony addressed the central issue in the case: are these transfers legal under Oregon law?

"This is an extremely unusual situation," says Water for Life attorney and executive director Brad Harper. "We have the federal government proposing to reclaim hundreds of acres of water rights that they quit using for irrigation many years ago. At the same time our state agency, the Oregon Water Resources Department, is not only agreeing to let these transfers happen, they are abandoning any pretense of impartiality and advocating on behalf of the federal agency."

"Our experts all agree that these transfers will enlarge the water rights of the federal government by granting a sort of amnesty to their past non use and any unauthorized uses," says Harper. He says this is especially troubling because local residents have an outstanding request to force cancellation of particular refuge acres that have not been irrigated in well over five years. According to Harper the department refuses to process these cancellation requests and "there is no statutory timeline that requires the State to process these requests in one month, one year, or one decade."

Water for Life is concerned that by allowing the transfers to proceed without first inquiring into whether the acres proposed for transfer are valid, the process serves to legitimize abandoned rights so USFWS can avoid cancellation. "We may have no alternative other than to seek some legislative solution to avoid this sort of interagency collusion in the future," concludes Harper.

In addition to using the transfers to recover their lost water rights, the U.S. Fish and Wildlife Service is also seeking to change their authorized use from the traditional ones of irrigation, domestic, wildlife and livestock – with those uses tied to specific acreage – to a brand new beneficial use called wildlife refuge management that would allow water to be used anywhere within the Refuge without regard to priority date and for any purpose deemed consistent with refuge management.

"This is a classic example of giving someone a blank check," observes Harper. "A normal water right holder can only use water on certain acreage, but this new water use will expand place of use from specific acreage to the entire refuge without regard to priority date or duty limitations. If the new use is open ended in nature, then the Department will be unable to decide whether the water is being beneficially used by traditional measures and regulation becomes impossible."

"This is a double standard, plain and simple," says President of Water for Life, Inc., Susan Hammond. "A private irrigator would never be allowed these sorts of transfers," states Hammond.

Asked whether there was any motivation for the Department to favor this new water use, Harper responds "in my opinion, about $145,000 worth of motivation." Harper is referring to fees paid to the Department by U.S. Fish and Wildlife as part of their applications. "At a time when the Department’s budget is tight, that amount of money may have been irresistible."

The hearings officer who conducted the hearing in Burns is expected to issue an opinion within the next few months. That ruling will be presented to the Water Resources Commission where appeals can be filed. Any appeals from the Commission’s decision go to the Court of Appeals.

"We created a good record in Burns, but we are only at the end of the beginning in this long process," says Harper.

Malheur Wildlife Refuge Part Two: Harney County’s Economic Future at Stake

Water for Life will be joining the Cattlemen at their annual convention next month. Our board meeting is set for November 14, from 11 AM to 5 PM, at the Eagle Crest Resort in Redmond. Everyone is welcome to attend. The Cattlemen convention will also be at Eagle Crest beginning the following day, November 15. We look forward to seeing you there.

Legislative Update

The following are a few bills that passed the Oregon Legislature and were signed into law. Water for Life’s detailed Final Legislative Report is provided to all our members free-of-charge and should arrive by mail shortly. That report will discuss additional bills not listed here.

Senate Bill 644

Currently, once the governor declares a drought emergency in a particular county, water users can apply for regulatory relief in the form of temporary transfers, exchanges and changes in type of uses. SB 644 expedites this process by allowing water users to develop strategic plans in advance so that when a drought occurs their emergency permits will become effective without delay. Certain notice and waiting requirements will also be waived to assist water users during an emergency. Traditional injury tests still apply, however, so any temporary change in water use cannot adversely impact other water users.

Senate Bill 870

As mentioned with regard to SB 644, an existing water use can usually not be changed if doing so would adversely affect, or "injure," other water users. For example, a farmer cannot change his point of diversion if the new diversion point would deprive other water right holders (regardless of priority date) of their return flows. Formerly, Oregon law treated this injury test as an absolute standard. Under SB 870, a point of diversion can be transferred despite injury to another water user, so long as that water user formally consents. This bill is intended to address those situations where the people who actually stand to be injured by a changed point of diversion agree to it anyway. Formerly, if there was possible injury the transfer had to be denied regardless of whether the injured party consented.

Senate Bill 957

SB 957 requires the Water Resources Department and other agencies to improve their permitting processes by providing more complete and timely information to the public, and by requiring written documentation of the reasons for denying any permit application.

House Bill 2184

Referred to as the Deschutes Basin Groundwater Mitigation bill, HB 2184 is an experiment in Oregon allowing water users to receive mitigation credits for conserving water. The goal is to allow new and existing groundwater withdrawals in situations where the groundwater use would otherwise substantially interfere with surface water rights. These mitigation credits can be banked for future use or for sale to other water users who need the credits to mitigate their new or existing ground water withdrawals. The underlying policy is to provide an incentive based system to encourage cooperation among all water users in the Deschutes Basin – and area noted for its unique connectivity between surface and ground water. The details of this new law are largely being worked out in the administrative rule making process and Water for Life will keep our members apprised of any significant developments.

House Bill 2712

HB 2712 is intended to give water users an new tool for managing their resources: split season leasing. It has been the policy of the Water Resources Department that a water user cannot change the type of beneficial use during a growing season. Under HB 2712, the law has been changed to allow a water user to use his or her water right for one beneficial use during part of the irrigation season, and then use the right as an instream lease for the remainder of the season. Water for Life participated in the work group that suggested this bill and we view it as a useful tool for avoiding possible ESA violations. Split season leasing will neither be necessary nor available to all water users, but for those who may have to choose between irrigating or avoiding $10,000 per day ESA fines, this may be a way to do both. As with the other new laws, the traditional injury test for protection of other water users still applies.

Tulare Lake Basin Water Storage District v. United States, U.S. Court of Federal Claims, No. 98-101 L.

Federal Claims Court is a venue for injured parties to seek compensation for economic damage caused by the federal government. The claims court does not normally receive the attention given to the Supreme Court or Circuit Courts, but this could be changing.

The Tulare ruling was a significant victory for the rights of irrigators because the court confirmed that depriving irrigators of water is no different than taking their property.

The dispute arose in Tulare County, California, between 1992 and 1994. The Tulare Lake Basin Water Storage District had a contract with the U.S. Bureau of Reclamation and the state Department of Water Resources for the coordinated delivery of 118,000 acre-feet of water per year. In turn, the Tulare water district had contracts to deliver water to the State Water Project, irrigation districts and individual private water users. Another plaintiff, Kern County Water Agency, had contracts for 1,153,400 acre-feet.

As a result of ESA listings by both NMFS (winter run chinook) and USFWS (delta smelt), water deliveries to the Tulare water district were shorted by 58,820 acre-feet between 1992 and 1994, and Kern was shorted 319,420 during the same period. Both Tulare and Kern filed suit claiming that, due to ESA enforcement, they had suffered a "taking" according to the Fifth Amendment of the U.S. Constitution and are due compensation for their economic loss. The court of claims agreed.

The court discussed the distinction between categories of takings. The first type is a "regulatory" taking, which occurs when government regulation restricts the use of property. In order to win compensation for a regulatory taking, the courts will balance the character of the government’s actions, the economic impact and the property owner’s investment-backed expectation. This can be a complicated test which may not result in compensation for the property owner unless he or she can show the property has been deprived of all beneficial or productive use.

The second, stricter type of taking is a "physical" one. The courts have declared that when a property owner has suffered a physical invasion of property, "no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation." Accordingly, if the federal government puts a highway through even a foot of private property, a physical taking has occurred and compensation for the landowner is an automatic right.

Irrigators have long and successfully argued that water rights are no different than other forms of property rights. Depriving a farmer or rancher of their water rights is the same as physically taking their land. The court of claims agrees.

In Tulare, the court concluded that "deprivation of water amounts to a physical taking." While the financial compensation due Tulare, Kern and the other plaintiffs is not yet known, the implications for administrating the ESA are clear. In the court’s own words: "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so." There is no balancing test to determine what a fish is worth versus an irrigator’s livelihood, as would be the case with a regulatory taking. Instead, the court views deprivation of water as a clear physical taking and compensation is due regardless of the government’s reason for withholding the water.

Tulare may promise hope for the devastated communities of the Klamath Basin. Lost production alone in the Basin is estimated in the millions.

New Mexico Cattle Growers Assn. v. U.S. Fish and Wildlife Service, U.S. Tenth Circuit, Court of Appeals, No. 00-2050.

The New Mexico Cattle Growers case is a forceful rebuke of the methods and policies used by the U.S. Fish and Wildlife Service to administer the ESA. Specifically, USFWS has long argued that economic considerations have little or no place in the ESA. The Tenth Circuit Court disagreed and said, while the decision to list or not list a species is not an economic one, decisions made after listing must incorporate economic impacts.

In the New Mexico case, USFWS listed the southwestern willow flycatcher as endangered in 1995. After a listing, the agency is supposed to make a "critical habitat designation" [CHD] identifying those geographic areas where species will be managed for recovery. Interestingly, these CHDs can include areas both inside and outside the geographic area occupied by the species at the time of listing.

The important concept regarding CHDs is the congressional intent to include economic considerations when they are established. It has been the policy of USFWS to resist CHDs as being unhelpful and duplicative of other management activities. But, by dismissing CHDs, USFWS was also avoiding the introduction of economic impacts into their management strategy.

The Tenth Circuit sided with the Cattle Growers. The court agreed that USFWS was allowed to make listing decisions regardless of economic impact, but once the decision to list is made, economics are a factor that must be considered. Specifically, identifying areas of critical habitat must look to the economic impact of trying to manage those areas for species recovery. This is especially important considering the CHDs can be outside the species current territory.

For instance, trying to designate the entire city of Albuquerque as a CHD for the flycatcher simply because a single bird is present there would be wildly impractical. Conversely, from an economic standpoint it might make good sense to designate a CHD on less developed, but otherwise suitable, terrain nearby the flycatcher’s current territory.

Thanks to All Our Friends at the Western Video Market Sale

The Western Video Market’s 12^th annual Golden Nugget Sale in Reno was another tremendous success. Water for Life appreciates all the support we receive from our friends. The Ninth Anniversary WFL Saddle went home with Maurice O’Keefe. Also, for the first time this year we raffled off a top quality, custom made hydraulic squeeze chute manufactured by Kelly Piele, of Salt Creek Industries in Lakeview, Oregon. Over two hundred raffle tickets were sold and the lucky winner was Ron Lay of Baker City. A special thanks to our corporate Friends Helping Friends sponsors: Merial, Agri Beef Co., Farnam Companies, Salt Creek Industries, Western Video Market and Shasta Livestock Auction Yard.

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