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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, Executive Director of EPIC, the Environmental Protection Information Center. I'm joined by my friend and colleague, Scott Greacen, a friend of the Eel River. Hey, Scott.

SCOTT GREACEN:

Hey, Tom, and we've got some fantastic guests today. Joining us from the offices of the Yurok Tribe is Amy Cordalis, legal counsel of the tribe, fisherwoman and co-principal of the Ridges to Riffles Indigenous Conservation Group. Let's hear a big one for Amy Cordalis. Thank you. You deserve a hype man, Amy.

AMY CORDALIS:

Happy to be here. Thank you for having me today.

GREACEN:

And in our other corner, we have Glenn Spain, the redoubtable veteran of fishing wars, 20th century to 21st century, executive director and legal counsel of the Pacific Coast Federation Fisherman's Associations.

GLENN SPAIN:

Glad to be here.

WHEELER:

We are talking about litigation that your organizations, your tribal governments, have recently brought against the Bureau of Reclamation. Glenn, can you give us the long back story here about what's going on?

SPAIN:

Well, yeah. Because coho are listed, ESA listed, in the Klamath, that means that the Bureau of Reclamation, which controls the water in the Klamath, has some obligations. One of them as a federal agency is to do nothing that will jeopardize the existence of those fish, that is, drive them to extinction or eliminate or reduce their habitat. That's a requirement of law. That's a requirement in the Endangered Species Act that they have to consult with the fishery service, in this case, National Marine Fishery Service, which is jurisdiction over salmon, to make sure that whatever action they do, and that's particularly annual irrigation deliveries, does not jeopardize the existence of this federally protected fish and does not damage their habitat. Now, up until then, there's been litigation, of course, because the Bureau in the past has failed to do that. In 1999, we sued them. That resulted in a court order basically saying, yes, you have to do the consultation. You are bound by the ESA. Since then, they've been doing that. There's also litigation that says, later litigation, that it says, not only do you have to consult and be bound by the ESA, but the water measures that you use to prevent extinction, you have to do those continually. You can't just do them for a few years at the end of a 10-year program and put less than the amount of water that's required to prevent extinction in the river in the first part of that program. That's what they tried to do. Well, we caught them on that one. They're under orders now by the Ninth Circuit to basically deliver the water. What the assumption was always made is that would be every year. This year, for the first time, they said, okay, there's this minimum amount of water that the agency says is required to prevent extinction. We're going to cut that back. We're going to do it unilaterally. We're not going to consult with the National Marine Fisheries Service on the impacts. We don't really know what the impacts are going to be, but we're going to do it. They essentially went rogue in this situation. We got word of that. That created, let's just say, a lot of angst in the lower river because we are already pushed with those stocks and the other stocks to near extinction. They're going down. We are just at the nick of time trying to save them by removing dams. But the dams being removed is only one part of what is required for restoration. It's necessary but not sufficient in itself to restore those runs. The fish have to have water. The fish swim in water. They don't swim in a situation where they're promised water later when they don't have enough to survive through that bottleneck this year. In the process of reducing the flows below the minimum that the federal services say is necessary to prevent extinction, they're dewatering reds, that's the nests. They're eliminating a lot of access to habitat. They're eliminating access to some side channels because water levels are too low. The Yurok tribe has been out there verifying and documenting this with their scientists. This is not theoretical. This is dead fish. They are dead at the stage where they're most important, and that is the egg stage. We gave them a 60-day notice. We conferred with them. They didn't budge. They got more and more entrenched in their position. They're saying basically, well, hydrological conditions are such this year that we just don't have enough water to meet all of the needs of all of the species. There are species in the lake as well. But that isn't true. They were saying, well, this might be a drought. We might be going into a drought. Well, that's true every year. In fact, when they started this program to cut back the water flows, the conditions were above normal water year at that point. The National Marine Fisheries Service objected strenuously, saying you can't do this. This is not unusual hydrological conditions. This is within the scope of what we conferred with, and you have to put water in the river. The BRS simply refused, so we took them to court.

WHEELER:

All right, thank you. Amy, I know that the Yurok tribe has recently cancelled its commercial fishing season. Can you tell us about the state of salmon in the Klamath River right now and what the historic long-term decline of salmon has meant for the Yurok tribe and its people?

CORDALIS:

Salmon are in trouble. Both Coho and Chinook salmon are in trouble. The Klamath used to be the third largest salmon producing river in the continental U.S. and now we are down to about one to three percent of those historical runs. And if we don't change our management of the Klamath River, if we don't prioritize salmon essentially in our natural resource management of the Klamath Basin, we will lose those iconic species very soon. And that's tragic, right? And most of this is happening because of the federal government's mismanagement of the Klamath Reclamation Project. And just to add a little bit of meat to what, to the bones of what Glenn was talking about, and also to respond to your question, the Yurok, Karuk, Shasta, the Klamath tribes, the Modoc people for millennia, since time immemorial, lived on different parts of the Klamath Basin and a major food source was salmon. During colonization, there were four dams built on the river without fish ladders. There was a massive reclamation project built in 1902, one of the largest in the country. The result is that essentially the river over this last hundred or so years has just gotten really sick and everything in it also got really sick. And so what's happening now is that the Bureau of Reclamation controls flows from upper Klamath Lake that then flow into the Klamath River, beginning in Oregon, but then going into California. And so they have their hand on the faucet. In their management, what they do is they essentially allocate three pots of water. There's a pot of water to go to the river. There's a pot to stay in upper Klamath Lake, and then there's a pot to give to agriculture. So as Glenn mentioned, poho salmon have been listed on the Endangered Species Act list. And as he said, what that means is the federal government, the Bureau of Reclamation, working with NOAA fisheries, can't operate the Klamath project in a way that would harm poho salmon. The law has developed in a very clear way that what that essentially means is that the Bureau can't operate that Klamath Reclamation project, meaning it can't divert water over to the farmers in that project if it's going to harm listed poho salmon. And essentially what they've been doing, despite the law that says you can't do this, the Bureau, and this is consistent with Republican and Democratic administrations, they have been providing water to agriculture over the needs of poho salmon. And they're using different techniques of sort of amending or interpreting in different ways the hydrologic forecast to essentially justify their allocations. They're changing the level of risk associated with hydrological forecasting to essentially get to where they want to go. I mean, the heart of the matter is they're not following their own plans. You know, they're violating their operations plans. They're violating what's called a biological opinion that is set in place with specific flow recommendations to protect salmon. So they're all across the board just violating the law. And I do want to follow up with a question, but you guys are raising hands, so I assume maybe there's something you wanted to ask.

GREACEN:

Amy, I just, the story you tell is unfortunately a really old one in which these irrigation agencies take the law unto themselves and focus really completely on one thing to the exclusion of other things and to the great cost of things like salmon and rivers. I guess I want to complicate the picture a little bit. Glenn, you mentioned that part of the Bureau of Reclamation's professed justification is the need to provide water not just to salmon and Chinook and Coho in the Klamath, but also to listed species in the upper Klamath Lake. Those fish may be in even worse trouble in some ways than the salmon, and they're of course critical to the native peoples of the upper basin. But it seems like the Bureau hasn't done any favors to those species either. Just how do they figure into this picture right now?

CORDALIS:

So I want to be clear because what you just raised is very important. The Bureau at the end of last summer gave an extra allocation of water to agriculture that drew the lake down and as a result going into the fall and then through the winter there wasn't enough water available to meet both species needs. And they violated their own plan in giving ag that second allocation. Had they not done that we would not be in this situation. That's the point about the mismanagement right is like it's very real. UROT we support suckers you know and we understand that all fish in this basin, the native fish, live together in balance. There wasn't this species versus species conflict. This is a new thing that is created by the Bureau's mismanagement of the Plymouth Project.

SPAIN:

There's more to the story, and that is that we live in a basin where right now there's enough water for all of us. That's the problem. They're cooking the books, essentially, thinking of using the worst-case scenario, saying, well, we might still be in a drought. Now if you think about that, that's true every year. Is that an adequate excuse for going off script, going rogue, and jettisoning a valid, scientifically sound salmon plan? No.

GREACEN:

If I may, it's something you could claim any given year, but like of all years, this seems like the least likely.

SPAIN:

Well, right now there's enough water and there's enough snowpack, it's above normal. That makes a difference. The hole that the Bureau got itself into, it dug itself. The first thing you do when you're in a hole is stop digging. They need to reassess and really recommit to what the biological opinion says. And remember, we're not talking about a lot of water. We're talking about a minimum amount of water to prevent extinction. My view is the National Marine Fisheries Service, when they said minimum, they meant minimum. And the courts agree with us so far, and we're taking it back to the judge to reaffirm that. The reality is that the biological opinion was built on the assumption, two assumptions. One, that the Bureau would follow it, number one, and that they would deliver at least that minimum amount of water in every year required. That is not dependent on whether they think they might have problems later in somebody's opinion or projections and worst-case scenarios. We deal with those worst-case scenarios. If there are conflicts, there is a procedure in what's called the Interim Operations Plan, which is in place right now, to meet and confer among the agencies. Well, they refused to do that, but also National Marine Fisheries Service said, you're crazy, there's a lot of water. This is not unusually hydrological conditions. We're not in a drought, they said. So they're running on their own, basically going rogue. And to be clear, there are a lot of good people in the Bureau. I work with a lot of them, and they do a lot of good stuff. But the original purpose of the Bureau and the institutional mindset is their job is to deliver water for irrigation. No, in fact, their job is to deliver water in a balanced situation where irrigation does not jeopardize the existence of the species that are in the lake and in the river. So what this is requires, it's not going to go along with traditional standards when it comes to speed management and energy systems.

CORDALIS:

they did was set up circumstances where they felt they needed to drop flows below the minimum flow requirements by the biological opinion. And that action really was more than just a violation of the ESA. It was also a violation and an offense to public resources because those minimums are based on the best available science that says in order for this river to perform its basic ecological functions, you have to provide this way minimum flow. If you drop below that, then you start harming the river's ability to survive. It's essentially like these minimums are life support and that's what the river was on. And then they pulled the plug and dropped them even lower. And because of that, the salmon reds died, probably tens of thousands of coho fry died. They harmed the river and they cooked their books in order to justify that. And that's a violation of the public trust.

GREACEN:

Absolutely, and I would just add, waving our own small flag here, that Friends of the Eel has brought a public trust case against Tumbalt County for failing to provide the protections to minimum flows in the lower eel that salmon need. It's clear to me that the Bureau should be held similarly responsible for its failure to protect the public trust in the whole lower calamity.

WHEELER:

news we're talking about Bureau of Reclamation not putting enough water in the Klamath River to sustain our salmon river.

SPAIN:

runs. What concerns us the most is the fact that these fish are so much needed. Remember, these eggs are going to hatch. If enough of the salmon go out to sea, we have a return, which is the first salmon run after dam removal. That means it's very important that we get that run and bootstart the reintroduction and the reoccupation of all of that area by fish who have been excluded from that area for more than 100 years. There's a huge importance here. In addition, remember that this year there will be no salmon fishing in California because the runs all across the board are at lower levels, frankly, because so many of them died in river because of water management or mismanagement policies three years ago. There's a three-year lag time because that's their cycle. You look back three years ago and they were taking too much water out of the river in the California Central Valley. They had problems in the climate because of disease, because again, not enough water. Now, the Bureau is basically repeating that process. If we allow that to stand, that creates a precedent that will essentially drive the fish to extinction. We cannot let that stand. That's why we're in court.

WHEELER:

I ask a politics question here, because all of this confuses me to some level. Amy, you said that we've had issues with the Bureau of Reclamation in the climate, in democratic administrations, in Republican administrations. Joe Biden is president. The Democrats control the executive office. They run department of reclamation. What, what is it that makes this kind of immune from regular politics, right? In regular politics, we would have one party kind of lineup behind fish and tribes and tribal sovereignty and water quality. Why is it that the Biden administration is allowing this to happen? I'm just totally perplexed.

CORDALIS:

So was I. It's an excellent question. And so was I, you know, and frankly, they did not engage with or in consultation with the tribes in the development of this plan. They excluded information from us. They wouldn't work with the lawyers and the technical teams. So there was really no engagement. You know, I think it speaks to the power of that like institutional agency culture.

GREACEN:

I would offer another suggestion, which is that they haven't been sued enough yet.

CORDALIS:

I don't know, we've been in litigation since 2016 on all these issues. And that was actually one of my questions was like, why do we have to file this again? And like, why do we keep having to go back to court to reaffirm the status of the law? The status of the law is clear that in the case, like if there's not enough water, and we always want there to be enough water, but if there's not enough water, you have to protect the ESA listed species. And that's because Congress was clear that that's a national priority to prevent species extinction. It's really unfortunate. And, you know, it also goes back to, we shouldn't have to sue, we shouldn't be having this conversation. You know, what Glenn spoke about is right, like, the salmon runs right now are poor, because what happened in 2016. But it's also goes further back and further back. Like I mentioned earlier, we're down to one to 3% of the historical salmon runs on the Klamath. And that's because for so long, we have operated the Klamath River to support extractive economies, hydroelectric, farming, agriculture, it would be fantastic if we could find a way to have sustainable agriculture on the Klamath. But how we're working things right now, it is not. And so we've got to figure out what is that path forward where we as people who rely on salmon, which the farmers do too, we can continue to have these important species that support, you know, not only rivers and humans, but all the ocean creatures too.

SPAIN:

To be on a bright note here, there are some things that are going on. Number one, the largest dam removal project in history, coupled with the largest salmon restoration project in history. So we hope we can come to their rescue in time with some additional habitat. But that is a major step forward. The reality is we shouldn't have ESA-listed fish at all. We should give them all enough habitat to live. We should have in-stream minimum water flow sufficient to create abundant fisheries, a balanced ecosystem. And I think we can do that. But there will have to be some give and take. And there are also other things. Our organization, I understand, I think, the irrigation system up there, and I understand the plight that they're in. They're sort of buffered around at the mercy of court orders at this point. And we made an effort to work with them years ago, yes, the Klamath Basin Restoration Agreement, to try to resolve these issues and bring the whole basin back into balance with the actual rainfall. That seems to be intuitive to us, but it's not done. And I think that there are efforts still underway. I'm certainly happy to talk to the irrigators up there to see what we can do to put the whole system on a more balanced basis that's sustainable and based on the actual rainfall. There are efforts to do that. And we got there once, but unfortunately, it was trashed in Congress after members of Congress told us that's what they wanted us to do, has come up with a ground-up, stakeholder-driven plan. And that's one of the great tragedies. That was an opportunity that was trashed for purely political reasons. Everyone is suffering throughout the basin as a result of that loss. But we are moving in that direction anyway. And if we have to do it through courts, we'll do it. We're doing it through dam removal. That frees up some opportunities and some money, and a lot of habitat will be restored in the process. So that's a beginning.

CORDALIS:

And essentially we sued the Bureau of Reclamation and also NIMPS for violating their own biological opinions by dropping the flows below what the minimums were in the biological opinion, and then also failing to consult with NIMPS about what would be the impact of dropping flows. But then also because the plan resulted in what we call illegal take of listed species because it killed the salmon eggs. Our requested remedy is essentially that the Bureau follow the existing law, which says you have to operate the Klamath Project in a way that makes sure you can meet the species needs. And so essentially what we're asking for is that the Bureau not drop the lake super low for an irrigation delivery at certain times in the year, and that they follow their own biological opinion. So it's pretty straightforward. It's a basic ESA lawsuit, and it's really unfortunate that we had to do this, because it's a lot of space and energy and time. Had they just followed their own plans, we wouldn't have been here.

SPAIN:

One quick note on that is it's more than just we're asking the Bureau to do that. We're asking the Court to order them to do it. Well said, yeah. And that makes a difference.

GREACEN:

Glenn, you noted that one of the ways that this is a real crisis in terms of loaves in the Klamath this year and this year's run of salmon is that these are the fish that'll be coming back to Klamath newly shorn of its dams. And what do we know first about how long dam removal is going to take? Just a quick reminder for those of us who haven't been as deep in it as y'all have and what do we know about how likely dam removal is to really help these fish out? First off...

SPAIN:

Dam removal, think of it as a big event, but it's a whole bunch of events all tied together over time. We started dam removal in essence years ago. For instance, there are tribal teams out there collecting seeds. We need seeds, and we need 17 billion seeds of native plants. Now, you don't just order that from Amazon or a seed catalog. You've got to go out and find the seeds, then nurture them in a nursery. We have a farm outside of Portland that's devoted to nothing but that. So we've been doing that since 2016. But the actual physical removal, we started last week. We broke ground last week. We're building bridges to reinforce them for dump trucks. We're starting the construction of new water line for the city of Huayrica, which gets several million dollars worth of free water line brand new from this project. We're reinforcing various roads. All of that is happening now. Toward August, we'll be taking out the first of the four dams. That's called Capco 2. It's a small little dam in the middle. It's easy to drain that reservoir, so that'll come out. Why not? We need a little practice for the big event. Then toward the end of this year, we'll be draining the reservoirs. It's called drawdown. From the spring of next year, we'll be working through the rest of that year to actually take the dams down. From the top down to the bottom, jackhammers, sledgehammers, dump trucks. It's not like in the movies where you push a plunger and everything blows up and everything is flowing everywhere. No, we don't do that. We're doing it in a very, very carefully controlled way to minimize the sediment impacts, to minimize any structural problems. Yeah, I'd love to blow something up myself, but no, it's going to be jackhammers and dump trucks. By the end of 2024, we should have a clear river. At that point, the next fish in will be the ones that are the grandfather fish, if you will, for generations to come. I would go with that.

GREACEN:

grandmother but

SPAIN:

Okay. Well, you need both.

CORDALIS:

You know, and I think this is a moment for people on the North Coast, because I know we all carry a deep affection and connection to salmon and to wild rivers. And we've all been stressed too, right, with COVID and closed fisheries. And the Klamath Dam Removal Project is one that I think we should all celebrate and embrace. And also think forward about how are we going to welcome these salmon home and how are we going to celebrate them and honor their return by creating healthy rivers, right? How do we all, as people who love this area, contribute to that effort? So I would just make a call for people to reflect on that and then also think about how they can contribute to the movement.

GREACEN:

Fantastic. Amy, Glenn, where should people go on the internets if they want to know more, they want to read more?

CORDALIS:

It depends on what you want to learn about. You can check out Ridges to Riffles Indigenous Conservation Group on Instagram and Twitter. You can check out the Yurok Tribes Instagram and Twitter accounts also. We keep pretty up-to-date information on all of that. If you're interested in more information on Klamath Dam removal, you can go to KlamathRiverRenewalCorporation.com. They have a website there also.

SPAIN:

It's climatesrenewal.com.

GREACEN:

Well, thank you so much. This was a great show and a great conversation. And join us again next week for more environmental news from the North Coast of California.