The worst of times: a tale of two fishes in the Klamath Basin.

• Author: McHenry, Matthew G.

1. INTRODUCTION II. THE KLAMATH CRISIS: 100 YEARS IN THE MAKING A. Prelude to Disaster: The Bureau of Reclamation and Western Water Law 1. The Bureau of Reclamation and the Prior Appropriation Doctrine 2. The Klamath Project B. Tribal Presence in the Klamath Crisis C. Endangered and Threatened Fishes in the Klamath Waters D. Too Many Promises Additional Strains on the Klamath Water E. The Well Runs Dry III. THE ENDANGERED SPECIES ACT AND TREATY RIGHTS A. The Endangered Species Act 1. The lasting Process 2. Section 7 of the ESA 3. Section 9 of the ESA 4. The God Squad B. Treaty Rights 1. Interpretation Rules and Origins 2. The Winters Doctrine and Western Water Law 3. United States v. Adair: The Ninth Circuit Expands the Winters Doctrine C. ESA Abrogation of Treaty Rights: The Dion Standard IV. THE LISTED SPECIES IN THE KLAMATH REGION A. The Endangered Suckers B. The Threatened Coho Salmon V. Too MANY MASTERS: FEDERAL RESPONSIBILITIES TO FARMERS, TRIBES, AND FISH A. Irrigators and Farmers B. Sucker v. Salmon 1. Balancing Tests 2. Natural Conditions 3. Status of the lasted Species VI. CONCLUSION VII. EPILOGUE I. INTRODUCTION

   In late September 2002, an unprecedented disaster occurred in the Klamath River. Commercial fisherman, local tribe members, biologists, government officials, and members of the general public looked on in horror as thousands of dead and dying fish floated and flopped by, swept along by the Klamath's current. Hundreds more lined the banks, their bloated and rotting carcasses emitting an overwhelming stench. Sea birds gorged themselves, leaving the banks strewn with half-eaten bodies and forming a morbid canvas of silver scales, red blood, and bright orange flesh. (1)

   During those first few days of the crisis, scientists removed about 1,500 dead salmon from the waters of the Klamath River. (2) A week later, the estimated number of dead fish had climbed to 10,000. By the end of the month, estimates ranged from 12,000 to 30,000 dead fish--the worst die-off in recorded or spoken history. (3) The fish died from a gill disease, possibly the result of reduced water flows into the Klamath River. (4) Flows into the river were diverted during the summer of 2002 as part of an irrigation system designed to bring water to a naturally arid landscape. (5)

   This recent tragedy is just the latest result of a century-long plate-spinning act performed by the United States Bureau of Reclamation (BOR). BOR is responsible for controlling the flow of water from Upper Klamath Lake into the Klamath River and the surrounding farmlands and natural areas. This is a seemingly feasible task, until one considers all of the variables placing restraints on water distribution: tribal treaty rights, the Endangered Species Act, western water law, the United States Fish and Wildlife Service, the National Marine Fisheries Service, BOR-contracted irrigation districts, farmers in California and Oregon, and two National Wildlife Refuges. These factors combine to create competing demands for the waters of the Klamath Region. (6)

   Through the vehicle of a hypothetical situation, this Comment addresses the rights of the various players involved in the controversy. Consider a year in which rainfall in the Klamath Region is so scarce that there is only enough to support one of the implicated entities. Which of the various rights involved takes precedence over the others? In other words, which entity--farmers, tribes, or species--comes out on top? The Comment scrutinizes the circumstances swirling around the crisis and reaches a final conclusion that pits the coho salmon (Oncorhyncus kisutch) against the Lost River sucker (Deltistes luxutus) and shortnosed sucker (Chasmistes brevirostris), fish that share the waters of the Klamath Region.

   To fully understand the current crisis, one must be aware of its origins and the stakeholders involved. Section II of this Comment examines the long history that led up to the crisis and identifies the major players in the present situation. It explores the federal government's presence in the Klamath Region and examines the development of BOR and western water law. Section II also considers the significant tribal presence in the Klamath Region and briefly discusses the species listed under the Endangered Species Act that call the waters home. Section II culminates in a factual account of the most recent developments.

   Section III analyzes the relationship between the Endangered Species Act and tribal treaty rights. Section IV addresses the fish of the Klamath Region--the endangered shortnose and Lost River suckers and the threatened coho salmon. Section V considers the hypothetical and Section VI reports the conclusions of the analysis.

2. THE KLAMATH CRISIS: 100 YEARS IN THE MAKING

   At 9.5 million acres, the Klamath River Basin was once one of the largest concentrations of wetlands in the western United States. (7) The Klamath River is the third largest river on the West Coast, stretching from its headwaters in the mountains of Southern Oregon to Northern California, where it empties into the Pacific Ocean just south of Crescent City. (8) The mighty Klamath flows from its source, Upper Klamath Lake (Oregon's largest lake and the center of the current conflict), and meanders through Southern Oregon, joined by the Scott, Shasta, Salmon, and Trinity Rivers in California. (9) This river and the strip of fertile land straddling it once carved a lush path through the countryside, providing a home to a broad spectrum of waterfowl, wildlife, and fish; now it is described as a "water-short, overappropriated basin." (10) Once a vast a network of wetlands, lakes, and forests, less than 25% of the original wetlands remain in the Klamath Basin. (11)

   1. Prelude to Disaster: The Bureau of Reclamation and Western Water Law

      The current crisis finds its origins in 1902 and the Reclamation Act. (12) The Act established BOR as part of the Department of the Interior. (13) According to the Ninth Circuit, the chief purpose of the Act was to provide irrigation to arid regions of 17 western states, furthering the time-honored U.S. policy of western expansion. (14) The Act authorized BOR to undertake various "projects" in order to achieve its goals. (15) Many of these projects consisted of reclaiming land deemed unproductive and converting it into productive agricultural areas. (16) As of 2001, BOR had facilities in 17 western states, had more than 200 projects, had constructed more than 60,000 miles of canals, pipelines, and ditches, and had irrigated over 9 million acres of land. (17)

      1. The Bureau of Reclamation and the Prior Appropriation Doctrine

         While BOR has broad discretion to execute its projects, the Act generally requires the Bureau to follow state water law. (18) Since the water storage and water diversion facilities for the Klamath Project (19) are located in Oregon, the project must operate within the confines of Oregon water law. (20) Oregon, like all western states, bases its state water law on the Prior Appropriation Doctrine, which in turn embraces the concept of "first in time, first in right." (21) Under this doctrine, water rights are private property. (22) The basic tenets of the doctrine are as follows: (23) Older water rights take precedence and priority over younger, or "junior" water rights; water may only be appropriated for beneficial uses; a water user cannot use more water than is required for that beneficial use; water rights are appurtenant to the land; new appropriations and modifications to existing rights are subject to state approval; and water right holders who do not use their right may lose that right through abandonment or forfeiture. (24)

         In an effort to circumvent state water laws, BOR distinguishes between naturally flowing water and "project water." Naturally flowing water is appropriated according to state water law. Project water use--water available due to the actions of BOR--is appropriated according to BOR. (25) Normally, BOR distributes project water through contracts with irrigation districts, and these districts then distribute the water to area farmers. (26)

      2. The Klamath Project

         BOR authorized the Klamath Project in 1905 as one of its earliest undertakings. (27) BOR forever altered the pristine landscape of the Klamath Basin during the ensuing half-century, building dams and constructing hundreds of miles of canals and drains. (28) Since its inception, the Klamath Project has administered some 250 water delivery contracts to irrigators and farmers, providing water to over 200,000 acres of arid land in Oregon and California. (29) BOR stores project water in Upper Klamath Lake, and a series of dams regulates the flow of the water into the Klamath River and the various irrigation canals. (30)

   2. Tribal Presence in the Klamath Crisis

      Several tribes in the Klamath Region also hold rights to the Klamath water--the same water BOR has promised to farmers and irrigators. It is believed that the original inhabitants of the Upper Klamath Basin have been there for more than ten thousand years. (31) These peoples, the Klamath Tribe, the Modoc Tribe, and the Yahooskin Band of Snake Indians, sustained themselves by hunting, fishing, and gathering from the plentiful land they lived on. (32) In 1864, these tribes relinquished 90% of their lands through a treaty with the United States. (33) In return, the treaty provided that they retained all of their hunting, fishing, and gathering rights--a testament to the importance the tribes attached to these rights. (34) The tribes are known collectively today as the Klamath Tribes. (35) In 1954, Congress ceased formal recognition of the Klamath Tribes and annexed the reservation. (36) Though Congress restored formal recognition of the Klamath Tribes in 1986 with the Klamath Restoration Act, (37) the Act did not return the reservation land. Today, the Klamath Tribes are among the poorest people in Oregon. (38)

      In addition to the Klamath...