Court Upholds Order to Save Salmon

Favoring fish over farmers, a federal appeals court upheld a water agency's decision to divert water to the lower Klamath River in California

The U.S. Ninth Circuit Court of Appeals said the Bureau of Reclamation lawfully diverted the water to prevent a die-off of salmon in 2013, when water levels fell precariously low for the migrating fish. The last time the river dropped so low, more than 34,000 salmon died there.

Writing for a unanimous panel, Judge N. Randy Smith said Congress gave the BOR authority to divert water resources to protect fish more than 70 years ago. Despite challenges from various water districts, the appeals court said the BOR secretary had discretion to take "appropriate measures" in releasing the water.

Some Rivers RunThrough It

The Klamath River runs 263 miles through parts of southern Oregon and northern California, where it empties into the Pacific Ocean. In volume, it is the second largest river in California after the Sacramento River. It is also part of a waterway that channels into California's Central Valley, which is the agricultural heart of the state.

The Chinook salmon swims from the Pacific up to the lower Klamath to spawn each year. Before dams were built on the Trinity River, which feeds the Kalmath, up to 75,000 fall-run Chinook salmon are estimated to have migrated from the ocean to the North Fork of the Trinity River annually.

In 2002, the river was low and the fish crowded into the lower Klamath. Because of the low water and warm conditions, disease multiplied in the water and killed off 34,000 salmon.

Clear Navigation

To avoid another die-off in the midst of a drought, the BOR decided to release more water from a Trinity dam into the lower Klamath in 2013. The strategy worked, but prompted a lawsuit from water districts serving the central valley.

A district court judge initially enjoined the release, but dissolved the injunction after a hearing. The water districts appealed, challenging the BOR's authority and claiming the agency had not complied with environmental protection laws.

Reviewing the relevant history of water law in California, the Ninth Circuit said the BOR had clear authority to release more water to save the salmon. Moreover, the court said, the government and dam owners are required to release enough water "to keep in good condition any fish that may be planted or exist below the dam."

Hoopa Valley tribe, in the Trinity River basin, and the Yurok tribe in the lower Klamath basin, intervened in the case to protect their interests in the salmon.

Related Resources:

• Court Supports Order to Divert Water to Support Salmon (Fish Information & Services)
• Hunter Misses the Mark in Anti-SLAPP Case (FindLaw's U.S. Ninth Circuit Blog)
• Indian Tribes Subject to Lending Laws (FindLaw's U.S. Ninth Circuit Blog)