Species vs. Species

In Oregon's Klamath Basin, the Endangered Species Act is being used to protect trout at the expense of farmers and thousands of animals and birds, including the bald eagle.

As endangered American farmers see it, "What we have here is a good example of the Endangered Species Act [ESA] violating the Endangered Species Act." At least that is the assessment of Jeff McCracken, a spokesman for the U.S. Bureau of Reclamation, which this spring was forced by ESA lawsuits to withhold irrigation water from the Klamath Basin of southern Oregon and northern California. Those waters had sustained the 1,400 family farms of the basin since the early 1900s.

ESA critics are fond of grumbling that the legislation bestows "rights" to plants and animals, which it then elevates above those of human beings, pitting one species against another. They say environmental extremists use it to drive people from large portions of the American countryside in a process referred to as "rural cleansing."

"Everything we do has a ripple effect," says Terry Wheeler, a range- watershed expert with more than 40 years of worldwide experience. "If you manage an area for just one species you will destroy others, and 99 percent of the time you lose the species you're trying to protect."

These ironies may never have been clearer than they are in the Klamath Basin, where a series of court rulings has determined that the ESA gives the water rights of three species of endangered/threatened fish priority over the century-old water rights of local farmers. The rulings stemmed from "citizen" lawsuits brought by environmental activists, including the Tucson, Ariz.-based Center for Biological Diversity, the Oregon Natural Resource Committee (ONRC) and the Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund).

Responding to an April 3 court order, the Bureau of Reclamation announced on April 7 that it would have to withhold virtually all of its Klamath Project irrigation water and either retain it for the" endangered" bottom-feeding sucker fish in the Upper Klamath Lake — the primary storage reservoir for the irrigation project — or allow it to flow directly down the Klamath River to the allegedly "threatened" coho salmon 60 miles downstream.

Although withholding the irrigation water from the basin's 250,000 acres of cropland might (or might not) be helping the sucker fish and the salmon, it has meant starvation and death for thousands of other animals that depend on the irrigation canals and grain fields for food and water. Farmers whose croplands are turning to dust tell Insight that they not only fear for their own livelihoods but also for the more than 400 species of wildlife in the region.

Moreover, the farmers contend that they are the true environmentalists. "We have always shared our irrigation water with wildlife," says Don Russell, president of the Klamath Water Users Association. "In 1992 and other drought years we voluntarily shut off some of our water so the wildlife refuges would get some. We would have done the same thing this year, and we all would have made it through."

Instead, without irrigation water, animal carcasses were littering the landscape by mid-July. But ONRC Executive Director Regna Merritt sidesteps the issue of whether the citizen lawsuits to stop the flow led to the death of wildlife. She blames the drought instead, declaring that "a lot of wildlife has suffered because we have had only 27 percent of our normal snow pack this year." The farmers tell Insight they are worried about the basin's wildlife refuges at the end of the line on the irrigation canals, which provide feeding and breeding grounds for millions of waterfowl, including 2,000 bald eagles. McCracken says that, after the mandated allocations for the sucker fish and the coho salmon were met, "there was simply no water left for anything else." The waterfowl are the staple of the bald eagles' diet. Yet the waterfowl get the bulk of their food from the thousands of acres of grain and cereal crops that are grown on leased lands within the wildlife refuges, according to a Klamath Project fact sheet provided by the Bureau of Reclamation.

But Merritt disputes the bureau's fact sheet. She says the waterfowl do much better with natural forage and don't need the grain and cereal crops. "They don't eat potatoes," she quipped.

The ducks, geese and other waterfowl already have begun to arrive. The eagles will start arriving at the Lower Klamath National Wildlife Refuge sometime in October. This year, without irrigation water for either natural forage or crops, the refuges have turned into death traps for the birds. U.S. Fish and Wildlife Service (USFWS) biologists say as many as 1,000 bald eagles and as many as

25,000 waterfowl could die of disease and starvation. Pat Faulk, a spokeswoman for the USFWS, says her agency worked all summer to find alternative water and food sources for the waterfowl and eagles. But the professional environmentalists did not turn their focus to the bald eagles and the refuges until they learned that the government had allowed a small amount of irrigation water to flow from Clear Lake — one of the Klamath Project's secondary reservoirs that was not restricted by April's court order — to parched farmers. They also were incensed by the fact that the farmers were allowed to drill wells to try to compensate for some of the water being denied them from Upper Klamath Lake. Predictably, on May 22, the ONRC and the Audubon Society filed a notice of intent to sue the Bureau of Reclamation, claiming the water from Clear Lake should have gone to the Lower Klamath National Wildlife Refuge on the far side of the irrigation area, rather than be "squandered" on the "lower priority irrigators."

Similar scenarios are playing out across the West. One of these, also involving the bald eagle, is unfolding in New Mexico. About 100 bald eagles and thousands of waterfowl winter at the USFWS' Bosque del Apache National Wildlife Refuge between Albuquerque and El Paso, Texas. Last fall, not only was irrigation water cut off to farmers, but the refuge itself had to give up some of its water rights and send water to the Rio Grande River. Just as in the Klamath case, a lawsuit forced the government to maintain a level of water in the river commodious for the allegedly endangered Rio Grande silvery minnow.

Fortunately for the refuge's waterfowl and eagles, the loss of water did not put the refuge at risk last year, according to Gary Montoya, its deputy manager. However, he says, it is very possible that the refuge will have to sacrifice even more water for the minnow this year and, in future years, the birds could suffer severely as a result.

Montoya says the refuge's wildlife also is being affected by another allegedly endangered species, the Southwest willow flycatcher. Another beneficiary of "citizen" lawsuits by the environmental activists, the flycatcher provoked a huge battle throughout New Mexico and Arizona several years ago because designation of its protected habitat threatens to destroy the cattle business there.

Montoya says the refuge also has been trying to eliminate the salt cedar tree, which is not native to the area and has low wildlife value, and replace it with native vegetation that would be much more beneficial for the refuge's wildlife. However, since it has been determined that the salt cedar tree is part of the flycatcher's "critical habitat," refuge management is barred from cutting down the trees in large portions of the refuge.

"It is a real balancing act for us, trying to manage the refuge for the endangered species and the other wildlife," says Montoya. A major reason for this, according to Howard Hutchinson, executive director for the Coalition of Arizona/New Mexico Counties, is that often critical-habitat designations for endangered species are being determined by "citizen" lawsuits rather than being formulated by people who understand the needs of the species. As a result, he says, decisions are made by Justice Department lawyers based on agreements reflecting political purposes.

Hutchinson cites an example. As the result of a much-publicized "citizen" ESA lawsuit filed by some of the same environmental groups involved in the Klamath Basin crisis, protection of the Mexican spotted owl virtually eliminated the timber industry in Arizona and New Mexico several years ago.

Hutchinson, who serves on the spotted-owl recovery team, says the "resulting growth of underbrush in the forests has not only led to this summer's devastating wildfires, but has also had a negative effect on several other species that have been declared endangered." And, says Hutchinson, research has shown that because of the increase in timber density the forests are retaining more water, thus decreasing the amount of water in Southwestern streams by 30 percent. As a result, he says, the Gila trout, Apache trout, spiked ace and loach minnow — all of which live in the streams and also were subjects of "citizen" ESA lawsuits — are suffering.

Even more bizarre than this pitting of one species against another, say critics, is the pitting of a species against itself. This is happening in the case of the coho salmon, one of the allegedly threatened fish that was the subject of several of the lawsuits that forced the government to turn off the irrigation water in the Klamath Basin.

According to the National Marine Fisheries Service (NMFS), the government agency that administers the ESA for marine and anadromous (fish that migrate from the ocean to freshwater to spawn) species, the salmon being protected in the Klamath River do not constitute a species as properly defined. The NMFS says they are just one of 52 "distinct population segments" or" evolutionarily significant units" (ESU) of salmon that are found in Oregon, Washington state, Idaho and California. But one-half of the 52 ESUs are protected under the ESA. The Klamath River fish belong to an ESU called the Southern Oregon/ Northern California Coasts coho salmon. It was listed as threatened under the ESA in 1997.

So what distinguishes one ESU of salmon from another? A genetic difference? No. A difference in the taste of the fillet on the dining-room table? Not even that. According to a regulation promulgated in 1996 by Bruce Babbitt, Clinton's secretary of the interior, a group of vertebrates qualifies as an ESU if it "is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological or behavioral factors."

What that means in practical terms, according to NMFS spokesman Brian Gorman, is that geography is the primary distinguishing factor. So the main factor separating the Southern Oregon/Northern California Coasts coho salmon from the Oregon coastal coho salmon — another allegedly threatened ESU — is the fact that the former migrate from the ocean to spawn in rivers and streams from the Klamath Basin south to the San Francisco Bay, while the latter migrate to spawn in Oregon's northern rivers and streams.

Part of NMFS' purpose, Gorman says, is to make sure that the salmon of different ESUs don't interbreed.

NMFS biologist Jim Lecky, who helped prepare the Biological Opinion on which the 1997 listing of the Southern Oregon/Northern California Coasts coho salmon was based, estimates that at onetime there were between 50,000 and 125,000 of this particular ESU. Today, he laments, they number between 1,000 and 2,000. Never mind that this number includes only "wild" fish, not the hundreds of thousands spawned every year in state-operated hatcheries — all of which have descended from" wild" fish and are genetically the same.

The California Department of Fish and Game has operated these hatcheries for at least 40 years, according to senior hatchery supervisor Pat Overton. He says that when the salmon was first listed as threatened his department applied for a "taking" exclusion to the ESA so it could continue raising the fish. He explained that hatchery fish reproduce in great numbers because they are killed and cut open when they return from the ocean to spawn so their eggs can be removed and fertilized.

But to their surprise, Overton says, NMFS insisted they did not need a permit because their hatchery fish were not being counted as part of the species. Gorman says the hatchery fish were not counted because, although they have been released into rivers for at least 100 years, NMFS biologists recently have concluded that the hatchery fish have different "behaviors" and actually are a threat to the "wild" fish. He claims the hatchery fish "diminish the vigor" of the wild fish and make them easier for fishermen to catch. He also says hatchery salmon reproduce less successfully in the wild than "wild" salmon.

In 1998, Oregon Department of Fish and Wildlife personnel were videotaped using baseball bats to kill thousands of Oregon coastal coho salmon at a hatchery in the Alsea River basin. "There is a rationale for killing the salmon," says Gorman. "Each hatchery can only handle so many fish, so when the hatchery's capacity is reached, the excess fish must be killed." But in this case the purpose of what attorney Russ Brooks of the Pacific Legal Foundation calls the "wholesale slaughter" of the fish was to eliminate all hatchery salmon from the Alsea River because they were a "threat" to 108"so-called `wild' fish."

In 1999, the Pacific Legal Foundation filed a lawsuit challenging the ESA listing of the Oregon coastal coho salmon on the basis that hatchery fish should be included in the count and utilized in the fish's recovery efforts rather than being slaughtered. If the foundation wins its lawsuit, it could also affect the listing of the salmon in the Klamath River.

Perhaps the cruelest irony in the Klamath tragedy is that, right now, while the farmers are being driven out of business to protect the Southern Oregon/Northern California Coasts coho salmon, the Oregon Food Bank is feeding to farmers on welfare the genetically identical Oregon coastal coho salmon because so many excess fishery salmon are returning from the ocean that about 200,000 of them must be slaughtered. "It's an insult, a real slap in the face," says Klamath Water Users Association President Russell. ------------------------------------------