Published May 25, 2017
Since the Klamath Basin Restoration Agreement (KBRA) was signed in 2010, not only did its promised benefits prove illusory, the KBRA itself has effectively been nullified by Congressional inaction. The KBRA’s failure was both predictable and predicted, as were the consequences of decision making by KBRA parties that ignored the best available science and embraced political expediency.
Moreover, the good faith effort of numerous Klamath Basin stakeholders to reach a settlement was betrayed by federal agency officials whose misrepresentations and silence led Klamath basin communities to believe their proposed settlement would be approved by Congress.
Worst of all were the actions of federal officials that aggressively subordinated tribal trust resources to the needs and interests of other stakeholders without ensuring a plan for the restoration and maintenance of those resources, particularly the Klamath basin’s anadromous fisheries.
The Hoopa Valley Tribe (Tribe) participated fully and with good faith in the KBRA negotiations. But over the course of those negotiations recognized that the KBRA taking form was unrealistic, unscientific, poorly written and failed to include components essential to any meaningful Klamath water and fishery management plan. The Tribe identified the KBRA’s fundamental flaws and predicted its failure. Those are the reasons it chose not to sign the KBRA at the end of the process.
The Tribe takes no satisfaction in having predicted the obvious outcomes so accurately. The consequence of the KBRA’s failure is continued decline in Klamath basin fish populations and attendant damage to our communities. The environmental disaster that is the result of backroom deals such as the KBRA leaves us both frustrated and angry. As so many times in the past, the Tribe has turned to the court for needed relief that we discuss later in this testimony.
The cause of the present collapse of Klamath and Trinity River—the Klamath’s largest tributary—salmon populations is traceable directly to management decisions made by federal and state agencies. It is neither correct nor useful to attribute current conditions to climate change and ocean conditions. While those are important components in the salmon life cycle, a comparison of fish populations from salmon zones in Oregon and Sacramento reveals that the Klamath Zone salmon populations are the most depressed. This condition is the result of, not in spite of, the KBRA’s management strategy.
We are now facing the worst collapse in the Klamath River fishery on record. While KBRA parties blame Congress for not approving the KBRA, we are grateful that Congress failed to approve it. Had Congress acted, we would be living with the devastation that we have experienced since 2010 for the next 50 years.
The KBRA parties gave carte blanche authority to federal agency officials who had conflicting interests and responsibilities both within and outside the Klamath Basin. The KBRA signatories made a clear path for agency heads to produce outcome driven by political influence. (See KBRA Section 1.1.11).
Similarly, KBRA parties agreed that those portions of the KBRA that needed Congressional appropriations and additional authorization would be advanced to Congress while other parts would be separated and implemented immediately (Section 1.5). This had the effect of implementing the agricultural diversion portions of the KBRA without the corresponding and essential fishery restoration activities. That is perhaps the most egregious aspect of the KBRA. Seven years after signing the KBRA, the State of Oregon has acknowledged that the KBRA fish restoration and more importantly a fish reintroduction plan was never developed. The State of California and Federal agencies remain silent on this issue. This begs the question: What could the KBRA signatories and Federal agencies have scientifically analyzed if the fish restoration part of the Klamath Basin Restoration plan did not exist?
The tragic reality is that the KBRA followed the same poorly thought out process as too many Western Water agreements do where there are pre-determined politically-driven outcomes, failure to reserve enough water for fish and other in-river needs, expectations of Congressional multi-billion dollar bailouts, and, as we are now seeing with the Klamath, blaming others for unfulfilled expectations that the Tribe had long warned would likely not be met. Unfortunately, the devastating consequences of the KBRA are real and painful to our people and communities. Oregon, California, and Federal agencies bet that their scheme would halt the progressive decline to our fishery and end disruption to our families and communities. It was a bad bet and one that should never have been made by federal trustee agencies (Section15.3.9).
So, yes, as mentioned above, the Tribe turned to the judiciary branch; it filed suit in Federal District Court in 2016 to stop the destruction and won a Court Order that bars the KBRA flow regime in its current form. But that is not enough, we have to reverse the actions taken under the KBRA that reduced flows to unacceptably low levels, created adult fish kill situations in the Lower Klamath, and made the Klamath River a breeding ground of diseases that left unchecked could be a lethal blow to the core of the fishery stocks. Even under the KBRA, this never should have happened. The KBRA also contains Section 5 –‘Coordination and Oversight’. It established a Klamath Basin Coordination Council (KBCC) was to replace the direct management oversight of State, Federal and Tribal management agencies with a community advisory committee that would be directly benefited or harmed by its own actions. While the KBRA also states: “Such Coordination and Oversight does not supplant existing authorities or supersede Applicable Law”, management agencies simply abandoned their posts and responsibilities. In effect, there were no policy-level managers watching or responding to the clear negative problems that were evolving in the Klamath and Trinity Rivers.
In the end, what will it take to address the long-term negative consequences of the KBRA? The tribes that are claiming damages from the loss of fish benefits also agreed to KBRA waivers that enabled destructive actions. For example, how does the Karuk Tribe, expect to obtain federal recognition of their fishing rights after their waiver of any claim to protect fishery resources in the future that are adversely impacted by the KBRA? Overall, the tragic reality is that the KBRA has seriously jeopardized the future for robust and self-sustaining fishery resources that we all fought for years to obtain. While there is still hope, the work to get there will be far more difficult in the post-KBRA world.
Where do we go from here? As offered several times in the past, the Tribe remains committed to pursuing the following management goals:
1. Implement the Agency governance and independent science structure of the Joint Directorate that we have offered before and since the KBRA was approved.
2. Change the shortsighted KBRA and amended Klamath Hydropower Settlement Agreement (KHSA) and Secretary Jewell’s policy of moving ownership and total control of the Iron Gate Hatchery to the State of California. There is a clear federal tribal trust obligation associated with the Hatchery that the State of California cannot perform as a federal trustee agency. The Tribe will sue to enforce ongoing federal trust responsibility for that hatchery. Once the Klamath and Trinity River Hatcheries are again part of a permanent trust resources management structure, develop a natural and hatchery stock integrated plan that provides for mitigation where applicable, protections of natural stocks, and hatchery facility and operational changes needed to recover/restore fishery stocks, as required by law.
3. Reform the application of ESA to coordinate and harmonize hatcheries and natural stock management without creating opportunities for special interests to sue and disrupt long-term management plans, as has been experienced in the Trinity Hatchery and Trinity River Restoration Program. At present, there are several different and conflicting applications of ESA on Klamath Basin Origin fish stocks and CVP Trinity-related issues for the same species and the same agency, depending on where it is being managed.
4. Provide for integrated Klamath/Trinity fishery management. The KBRA was purposely designed to segregate Klamath and Trinity River management in the same Basin. Even though the Trinity River produces up to half of the Klamath Basin’s fish production, the State of California, National Marine Fisheries Service and U.S. Fish and Wildlife Service refused to consider joint management of the entire Klamath Basin as a management area. Then, as Klamath problems began to surface because of the KBRA, only Trinity water was available for preventing further 2002 like adult salmon kill disasters.
5. There must be a clear understanding of the legal origin and status of Indian fishing rights in the Klamath Basin. The 9th Circuit Court of Appeals recognized this in its recent decision on Trinity River Flow Augmentation Releases. The Hoopa Valley Tribe’s rights are protected in our 1864 Treaty and 1876 Executive order, and other federal law, such as Section 3406 (b) (23) of the Central Valley Project Improvement Act (Pub. L. 102-575). The Yurok Tribe’s rights are protected by Executive Orders of 1855 and 1891. The Karuk Tribe does not possess federally-protected fishing rights, but is presumably permitted by the State of California to take from the non-Indian allocation share. Of course, the Yurok and Karuk KBRA waivers are applicable to post-KBRA inter-tribal allocation issues. These are critical applicable legal standards that will apply to future economic, harvest sharing and other issues.
Despite the inclusion of Sections like 2.2.12 of the KBRA – that no harm would be imposed on the Trinity River and Hoopa Valley Tribe – none of the KBRA signatories looked back nor did Federal agencies provide any oversight of the damaging consequences and the annual struggles that KBRA has caused for the Tribe.
Ryan Jackson is chairman of the Hoopa Valley Tribe, based in Hoopa, California.
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