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

I.   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.

II. 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)

A. 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)

B. 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 Tribes in Oregon, the Yurok and Hoopa Valley tribes hold fishing and hunting rights on the Klamath River in California. (39) Throughout the 1990s, these tribes pressured BOR to allow more water to flow to the Klamath River, in hopes of reviving the decimated salmon population. (40) The Yurok were particularly active, funding a study of the effects of instream flows on the salmon population. (41) Letters written on behalf of the Yurok to federal officials averred that the Klamath Project must be administered according to the best available science. At that time, the best available science was the Yurok's own study. (42)

C. Endangered and Threatened Fishes in the Klamath Waters

The Supreme Court acknowledges that Indians once considered fishing rights as important as "the atmosphere they breathed." (43) In the Klamath Region, two fishes in particular suckers and salmon--are of vital importance to the tribes for both ceremony and sustenance. The fishes have substantial significance to conservationists as well--both are listed under the Endangered Species Act (ESA). (44) Two types of suckers are listed as endangered, the Lost River sucker and the shortnose sucker. (45) The Southern Oregon/Northern California Coast coho salmon are listed as threatened under the ESA. (46) The vitality of these fishes rises and falls with the waters of the Klamath Region.

These ESA listings are at the center of the Klamath controversy. The suckers' primary habitat is Upper Klamath Lake and the connected reservoirs--the same waters BOR uses to control water flow to the irrigators of the Klamath Project. (47) Maintaining the water levels needed to sustain the suckers means less water for the Klamath Project contractors. The concurrent ESA listing of the coho salmon in the Klamath River gives further legal support to tribal demands for water to be released into the river-water needed by the suckers in Upper Klamath Lake as well as by area farmers for irrigation.

D. Too Many Promises: Additional Strains on the Klamath Water

Reclamation Act claims, treaty and tribal claims, and ESA claims are not the only demands on the waters of the Klamath Region. In 1908, President Theodore Roosevelt established the nation's first waterfowl refuge, the Lower Klamath National Wildlife Refuge, straddling the border between Oregon and California. (48) The 47,000 acre refuge is home to over 500 threatened bald eagles (Haliaeetus leucocephalus) and provides a stopover retreat to 80% of the waterfowl that migrate on the Pacific Flyway. (49) In addition, inhabitants of the Tule Lake National Wildlife Refuge in California, established in 1928, depend on waters from the Klamath Region. (50)

Hydropower is also a major demand on the Klamath Region waters. PacifiCorp owns several dams on the Klamath River, from the Link River Dam near Upper Klamath Lake to the lowest dam, the Iron Gate in California. (51) These dams, the first of which was erected in 1920, create significant impediments to the anadromous fish that use the river for spawning. (52)

Tourism and recreational uses are also important to the region's economic success. Fishing, bird watching, sailing, and whitewater rafting are all popular activities that require sufficient water levels. (53) The Basin's largest city, Klamath Falls, has a small need for municipal water which, though minimal, is yet another factor in the Klamath Crisis equation. (54)

E. The Well Runs Dry

Demands on the Klamath Project's water have increased steadily for nearly one hundred years. By 2001, the stage was set for a major controversy regarding the waters. That year was one of the driest on record for the Klamath Basin, (55) and as a result the ticking time bomb finally exploded.

In January 2001, BOR requested formal consultation under the ESA (56) with both the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (FWS), to address the impacts of BOR's activities on the suckers and coho salmon. (57) By April, BOR had confirmed earlier forecasts--the amount of water flowing into Upper Klamath Lake between April and September would be the lowest since the inception of the Klamath Project almost one hundred years earlier. (58)

NMFS and FWS issued draft Biological Opinions (BiOps) concluding that the Klamath Project activities were causing serious detriment to both suckers and salmons. (59) FWS recommended minimum levels for Upper Klamath Lake to maintain the sucker species. (60) NMFS, in turn, recommended minimum stream flows into the Klamath River to sustain the coho populations. (61) Realizing that it could not meet both recommendations and still provide the water contracted for by local irrigators, BOR drafted a new 2001 Operations Plan for the Klamath Project. The plan, released to the public on April 6, followed the recommendations of FWS and NMFS BiOps and promised to meet the requirements imposed by the ESA to protect the salmon and suckers. (62) As a result, the majority of irrigators and farmers in the region would receive no water deliveries that season. (63)

Outraged by the 2001 Operations Plan, farmers and irrigators filed suit against the Department of the Interior (of which BOR is part) in federal court, alleging breaches of contract and violations of the ESA and the National Environmental Policy Act (NEPA). (64) In Kandra v. United States (Kandra), Judge Aiken denied the petitioners' request for an injunction, and the 2001 Operations Plan continued to be in force. (66)

The incendiary decision by Judge Aiken only fueled the controversy, as it came on the heels of an injunction issued by the United States District Court for the Northern District of California strictly limiting BOR's irrigation deliveries. (66) As a result, farmers and irrigators threatened to open up the dams themselves through any means necessary. (67) In an effort to pacify the farmers and irrigators, Secretary of the Interior Gall Norton authorized the release of 70,000 to 75,000 acre-feet of water from Upper Klamath Lake for irrigation purposes. (68) In late summer 2001, several environmental groups responded by suing BOR for failing to provide the water necessary to maintain the threatened bald eagle populations on the wildlife refuges. (69)

In 2002 new controversies arose, and new legal claims along with them. First, the Bush Administration referred the findings made by NMFS and FWS in their 2001 BiOps to the National Research Council. (70) The Council found there was not enough scientific evidence to support the minimum lake level and stream flow requirements recommended by NMFS and FWS in 2001. (71) As a result, the Bush Administration sidestepped the ESA, and in 2002 BOR reversed its course, providing the water necessary to meet the irrigation contracts and distributing the scant amount remaining to the endangered and threatened fish populations. (72) This decision led to around 25% less water flowing from Upper Klamath Lake to the Klamath River, spawning grounds for the coho and other anadromous fish. (73) At the time, NMFS, FWS, and tribal biologists warned that reduced flows would harm the salmon returning to spawn. (74)

Their worst fears were confirmed in late September 2002. Anadromous fish began dying by the thousands as they made their way up the Klamath to spawn, their carcasses floating and washing onto the river banks. (75) Conservative estimates placed the number at 15,000 dead fish; high estimates reached above 30,000, or almost one-third of the river's salmon population. It was the worst fish die-off in memory, by any estimate. While unlisted chinook salmon (Oncorhynchus tshawytscha) and steelhead (O. my kiss) made up the majority of the dead, ESA-listed coho salmon were also among the fish killed, and a few endangered suckers turned up with the bodies as well. (76) Scientists confirmed the fish were succumbing to columnaris, commonly known as "gill rot." (77) The disease promulgates quickly among fish populations subjected to high water temperatures. (78) Optimumal migration water temperature for chinook and coho salmon in the Klamath River hovers around 10[degrees]C. (79) Disease infectiousness and mortality rate rise rapidly when temperatures exceed 15.5 [degrees]C, and temperatures above 21[degrees]C are considered lethal. (80) The lower regions of the Klamath River climbed to 22[degrees]C in some areas that year. (81) An ongoing scientific debate rages over the root cause of the die-off, and BOR contends that not all of the factors contributing to the die-off have been identified. However, no one disputes that lower water levels contribute to higher water temperatures. (82)

The Bush Administration insists that there is no scientific support for the view that the die-off could have been prevented by diverting more water into the Klamath River earlier. (83) Even so, after the death toll had surpassed the 10,000 mark, the administration ordered more water to be released from Upper Klamath Lake into the river--an exercise in futility akin to dousing the foundation of a building gutted by fire a week earlier. (84)

Almost immediately, various environmental groups and commercial fishermen filed suit in the Northern District of California against BOR and NMFS, alleging violations of the ESA for failure to protect the threatened coho salmon. (85) In October, the Yurok Tribe joined the suit as an additional plaintiff. (86)

A resolution to the Klamath Crisis that satisfies the needs of all involved is a pipe dream. The sheer number of different interests involved makes for a smorgasbord of possible outcomes. Invested federal agencies include BOR, the Bureau of Indian Affairs, FWS (part of the Department of the Interior), and NMFS (Department of Commerce). Two states are involved, Oregon and California, and the integration of each one's respective water law is no easy task. Finally, private groups fuel the controversy; upper basin tribes in Oregon, downriver tribes in California, local farmers, irrigators, environmental groups, and sport and commercial fishermen all raise the stakes. (87) Add the ESA, the Reclamation Act, long-standing treaty rights, the interaction between on- and off-reservation tribal rights, and two National Wildlife Refuges, and the result is a real-life version of a hypothetical any law school professor would be proud to place on a final exam, and one which most students would dread facing.

III. THE ENDANGERED SPECIES ACT AND TREATY RIGHTS

As noted above, central to the controversy in the Klamath Region are the ESA and tribal treaty rights to water. This portion of the Comment explores the ESA, basic tenets of tribal treaty rights, and how the two interact.

A. The Endangered Species Act (88)

When the ESA was signed into law by Richard Nixon in 1973, it was the most comprehensive wildlife protection law passed by any government. (89) purpose of the ESA is the conservation, protection, and recovery of wildlife, fish, and plant species that are in danger of becoming extinct. (90) The ESA provides protection for two categories of at-risk species: "endangered" and "threatened." A species is "endangered" if it is "in danger of extinction throughout all or a significant portion of its range." (91) A species is "threatened" if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (92)

1. The Listing Process

Any "interested person" may petition the government to add a species to (or remove a species from) the endangered or threatened list. (93) Listing decisions are the responsibility of the Secretary of Commerce, through NMFS, or the Secretary of the Interior, through FWS. (94) NMFS is responsible for decisions regarding ocean-going species--such as the coho (95)--and FWS is responsible for all other species. (96) Listing decisions must be made "solely on the basis of the best scientific and commercial data available." (97) Once an agency has listed a species, that agency also promulgates rules regarding the species' critical habitat. (98)

2. Section 7 of the ESA

Section 7 of the ESA requires all federal agencies to ensure that their actions are "not likely to jeopardize the continued existence" or "result in the destruction or adverse modification of habitat" of any endangered or threatened species. (99) Before talking any action that may harm a listed species or its habitat, the agency must consult with the appropriate agency for the species, either NMFS or FWS. (100) In addition, when determining whether an action may jeopardize a listed species or harm habitat, federal agencies must consider indirect and secondary effects of their actions including future activities. (101) Section 7 of the ESA applies directly to BOR.

The action agency and the expert agency (NMFS or FWS) carry out section 7 provisions through a series of procedural steps. First, the action agency must solicit from the expert agency whether any listed species "may be present in the area" of the proposed action. (102) If a listed species may be present, the action agency must conduct a "biological assessment" (BA) identifying the species at risk and whether it is "likely to be affected" by the proposed action. (103) Finally, if the BA shows that a listed species is likely to be affected by the action, the action agency must formally consult with the expert agency. (104) Formal consultation requires the expert agency to issue a BiOp on whether the proposed action will "jeopardize the continued existence" (105) of the species or adversely affect the species' critical habitat. (106)

If the expert agency's BiOp finds that jeopardy will occur, the expert agency must suggest "reasonable and prudent alternatives" (RPAs) to the action that will not jeopardize the species. (107) The action agency is not required to implement any of the RPAs suggested by the expert agency. However, if it "deviates from them, [it] does so subject to the risk that [it] has not satisfied the [no jeopardy] standard." (108)

In relation to the Klamath Crisis, in 2001 BOR sought formal consultation with FWS for the suckers and with NMFS for the coho salmon. (109) The resulting BiOps suggested the RPAs that BOR implemented, cutting off the water to the farmers and irrigators and prompting the Kandra suit. (110) These same BiOps and RPAs were deemed unsupported by science by the Bush Administration in 2002. (111) Bolstered by the recent fish kills, a highly charged political debate continues over which view was correct.

3. Section 9 of the ESA

Section 9 of the ESA prohibits the "taking" of an endangered species. (112) To "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (113) Threatened species are protected under section 4 of the ESA, which requires either FWS or NMFS to issue regulations deemed "necessary and advisable to provide for the conservation of such species." (114) In practice, FWS extends the section 9 "take" prohibition to all threatened species under its jurisdiction, (115) whereas NMFS makes the decisions on a case-by-case basis. In most NMFS cases, the "take" prohibition has been extended to threatened species as well. (116)

4. The God Squad

A provision in the ESA provides a mechanism for federal agencies to avoid compliance with the ESA--the Endangered Species Committee (the Committee). (117) Also known as the "God Squad" because its decisions could cause the extinction of a species, the Committee can authorize exemptions to the ESA. (118) To authorize an exemption for a federal action, the Committee must determine, in part, that the following criteria are met: 1) there are no "reasonable and prudent alternatives" to the proposed action, 2) the benefits of the proposed action "clearly outweigh" the benefits of actions that would preserve the species, and 3) the proposed action is of "regional or national significance." (119) Though the use of the God Squad is rare, in July 2001 the Pacific Legal Foundation, on behalf of the Klamath and Tule Lake Irrigation Districts, petitioned for it to convene in response to the Klamath Crisis. (120) The Departments of Commerce and the Interior swiftly rejected the petition, finding that none of the petitioners met any of the specific categories of entities that may apply for exemptions through the God Squad. (121)

B. Treaty Rights

1. Interpretation Rules and Origins

When interpreting Indian treaties, courts use rules of interpretation that find their roots in the mid- to late-1800s, when the Northwest Tribes signed the bulk of their treaties. During the negotiation and signing process, the tribes were consistently at a disadvantage for many reasons. For example, all treaties were written first in English, a language few Indians spoke and fewer read. (122) Sometimes U.S. government interpreters translated the treaties. However, even then the documents were translated into local jargon with limited word choices, making it nearly impossible to convey the technicalities of the treaties. (123) The language barrier and a lack of true translation limited communication. In addition, U.S. and state government officials often sidestepped tribal leaders, selecting other tribal members to represent tribes during negotiations. (124) Bribery, coercion, and hurrying were also common tactics. (125)

Due to the suspect conditions under which the tribes negotiated and signed treaties, and the federal trust responsibility, (126) courts generally favor tribes when interpreting treaties. The Supreme Court has developed rules of construction for treaties to meet these goals. (127)

Similar to courts favoring the party with less bargaining power in a contract dispute, the Supreme Court recognizes the unequal bargaining positions of the tribes and the U.S. government at the time of signing. (128) As a result, courts construe treaties to have the meanings the tribes themselves would have understood during the negotiation and signing process, (129) and provisions that injure the interests of tribes are read narrowly. (130) Through these canons of construction, federal courts have consistently enforced promises the U.S. government made in treaty negotiations, even in the face of defiance from state governments. (131)

2. The Winters Doctrine and Western Water Law

Though most water rights result from state water laws, Indian water rights do not follow this rule. Indian water rights are controlled by the Winters Doctrine, also known as the Reserved Rights Doctrine, first developed by the Supreme Court in Winters v. United States in 1908. (132) Under the Winters Doctrine, when the federal government sets aside land for a particular purpose, it implicitly claims enough water to fulfill that purpose. (133) As applied to an Indian reservation, the Supreme Court noted that when Congress established a reservation, it did so to encourage agricultural and pastoral development and discourage the nomadic practices of the tribes. (134) Consequently, when establishing the reservation, Congress also reserved whatever water was necessary for the tribes to live on the reservation, regardless of whether the treaty or other established document referred to the right. (135)

Using the Winters Doctrine, the Court harmonized tribal water rights with the Prior Appropriation Doctrine. (136) The priority date for reserved water rights (such as the water required for agricultural pursuits) is the date the reservation was established. The tribes are, however, exempted from some parts of the Prior Appropriation Doctrine. For example, tribes retained rights even if they did not use them at the exact time Congress established the reservation. (137) Further, reservation rights are not subject to forfeiture for nonuse. Instead, the rights are based on the intent of using the water, and are not forfeited if tribes have not used, or discontinue use of, the water. (138)

3. United States v. Adair: The Ninth Circuit Expands the Winters Doctrine

The Klamath Tribes lost their reservation in the 1950s due to the congressional policy of terminating formal recognition of several tribes. (139) As a result, much of the Klamath Tribes' land--and the appurtenant water rights--fell into the hands of non-Indian land owners. In 1975, the Klamath Tribes brought suit against these land owners--roughly 600 individuals (140)--to recover these water rights. (141) In United States v. Adair (Adair I), the Federal District Court for the District of Oregon held the 1864 treaty granted the Klamath Tribes the water rights necessary to continue hunting and fishing practices, and that these rights survived the termination of the reservation. (142) The Ninth Circuit Court of Appeals affirmed in United States v. Adair (Adair II). (143)

The Adair II decision was a significant success for tribes under the Ninth Circuit's jurisdiction. Following the Winters Doctrine, the court recognized that certain water rights were reserved under the Klamath Tribes' 1864 treaty. (144) The court went further, however, distinguishing between reserved rights created by the treaty and "aboriginal water rights." (145) Fishing rights, for example, were "aboriginal" because the tribes had always fished to support their lifestyle. These aboriginal rights "were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of these rights." (146) As a result, the priority date for aboriginal water rights is far earlier than the 1864 treaty. These rights, the court held, have a priority date of "time immemorial," in effect giving them precedence over any non-Indian water rights in existence. (147) The Adair II holding, like the Winters decision 75 years earlier, harmonized the Prior Appropriation Doctrine with tribal treaty water rights.

Adair II, however, has thus far proved to be only a paper victory. Though the court recognized the existence and the priorities of the Klamath Tribes' water rights, the actual quantification of those rights is the responsibility of the State of Oregon. (148) Known as the Klamath Basin Adjudication, the state began the quantification shortly after the Klamath Tribes filed their original suit in 1975. (149) The adjudication continues today, and will not be finished for several years.

BOR has also continuously ignored Indian water rights established by Adair II, treaties, statutes, and other court decisions, choosing instead to further the singular goal of irrigating the arid West. (150) BOR developed projects that use the same water the federal government should be reserving for tribal needs--their "aboriginal rights"--making Adair II a hollow victory, at best. One thing is clear, however: In the event that there is not enough water to protect both the suckers and the coho salmon in the Klamath Region, any court decision must be made without weighing the relative worth of the Klamath Tribes' right to the suckers against the Yurok and Hoopa Valley Tribes' right to the coho salmon, for each of these rights has equal priority--dating from "time immemorial."

C. ESA Abrogation of Treaty Rights: The Dion Standard

The ESA is often in direct conflict with tribal fishing and hunting rights. An ongoing question of debate among legal scholars is whether the ESA abrogates treaty rights. (151) Put another way, does the listing of a species as endangered prohibit tribal members from hunting the species? An analysis of this question is critical to the conclusions of this Comment. In order to determine which entity or right reigns legally supreme in the Klamath conflict, one must first examine the methods available for asserting and adjudicating the rights involved, as well as the limits upon these rights.

Any discussion on the effect of the ESA on treaty rights begins with an examination of the 1986 Supreme Court case United States v. Dion (Dion). (152) Dwight Dion, an Indian, was convicted of violating the ESA and the Bald Eagle Protection Act (BEPA) (153) by shooting four endangered eagles on a reservation in South Dakota. (154) The question before the Court was whether the ESA and BEPA abrogated Dion's treaty-granted rights to hunt on the reservation. The Court established a three-part test for determining whether an act of Congress abrogates a treaty right: "What is essential is [1] clear evidence that [2] Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [3] chose to resolve the conflict by abrogating the treaty." (155) If any of the three requirements are not met, then the act of Congress does not abrogate the treaty right. The Court also stated that, though an "explicit statement" of intent from Congress is "preferable," "sufficiently compelling" evidence would suffice. (156) The Court, however, stopped short of performing the analysis on the ESA. Instead, the Court found all three elements of the test were satisfied under BEPA, and affirmed Dion's conviction without reaching the ESA question. (157) The Court, however, did not dispute Dion's contention that the ESA and its legislative history are silent on the issue of treaty hunting rights. (158)

The abrogation question came up again in a Florida case that went through both the state and federal court systems. In State v. Billie (Billie I), (159) James E. Billie was charged with violating Florida's version of the ESA by killing a protected Florida panther (Felix concolor coryi) on his reservation, for ceremonial purposes. (160) Billie contended that the kill was legal, asserting his tribal hunting rights as a Seminole Indian. Billie argued, inter alia, that the ESA preempts states from legislating regarding endangered species, reserving that function to the federal government alone. (161) After the Florida trial court dismissed the case, the Florida District Court of Appeal reversed and remanded, holding that the ESA permits state legislation, provided the legislation does not allow actions precluded by the federal law. Moreover, the appellate court found the ESA abrogated any inherent tribal hunting rights Billie held as a Seminole. (162) Since Billie was not exempt from the ESA, the court concluded, the state of Florida could permissibly charge him under the state law. (163) The Billie I decision has come under heavy criticism from many legal commentators for misapplying the Dion test. (164)

The state court focused on the "sufficiently compelling" portion of the Supreme Court's holding in Dion. (165) The court noted that the ESA explicitly exempts Alaskan natives. In so doing, the court reasoned, one can "presume Congress did not intend to exempt any other Indian tribes." (166) This, for the Florida courts, was enough to meet the "sufficiently compelling" standard the Supreme Court laid out in Dion.

A "presumption," however, can hardly be considered "sufficiently compelling" evidence. (167) Further, the one-paragraph analysis the Florida court gave to the application of the Dion test falls far short of a finding of "clear evidence" that Congress not only considered the conflict between the ESA and treaty rights, but also chose to abrogate those rights--the standard the Dion test requires. In addition, the Florida court relied on a flawed premise from the outset--most Alaskan natives are not Indians. Three distinct ethnological groups make up the native Alaskan population: Eskimos, Aleuts, and Indians. (168) The majority of the native population is Eskimo and Aleut. (169) In addition, Congress has been aware of the distinction since long before the passage of the ESA. (170) Thus, the court erred in assuming that Congress implicitly addressed Indian treaty rights when drafting the Alaskan native exemption to the ESA. (171) As a result of the insufficient analysis and faulty foundation, Billie I is, at best, "questionable as precedent." (172)

Mr. Billie was also tried in federal court in 1987. Though he was eventually acquitted as the result of a mistrial, the Southern District of Florida issued a memorandum opinion in United States v. Billie (Billie II), (173) denying Billie's motion to dismiss. (174) The court's decision was based on a finding that the ESA abrogated treaty rights (175)--a finding arguably based on another misapplication of the Dion test.

The Billie II court agreed that the Dion test was applicable, and correctly identified all three elements. (176) However, the test it actually used was much broader and more liberal than the Dion test, and the result was based on a "series of inferences." (177) The court made its initial conclusion that treaty rights were abrogated by the ESA using the same reasoning as the Florida state court: "Its general comprehensiveness, its nonexclusion of Indians, and the limited exceptions for certain Alaskan natives ... demonstrate that Congress considered Indian interests, balanced them against conservation needs, and defined the extent to which Indians would be permitted to take protected wildlife." (178)

The court's language exposes the weakness of its holding--the "general comprehensiveness" of the ESA is not dear evidence that Congress considered the conflict between treaty rights and the ESA. The comprehensiveness of the ESA shows only that the ESA drafters considered many contingencies--not that they clearly considered this specific situation. Is the "nonexclusion of Indians" dear evidence that Congress considered the conflict? No more than the "nonexclusion" of left-handed citizens is clear evidence that Congress specifically considered that option. Is the fact that exceptions were made "for certain Alaskan natives" dear evidence that Congress considered the conflict? As Professor Miller points out, to presume mechanically that this exception somehow required Congress to consider a similar exemption for Indians is "illogical," (179) and does not meet the "sufficiently compelling" standard provided in Dion.

Perhaps realizing the shaky foundation upon which the court's initial statement rested, it then turned to the ESA's legislative history for "additional evidence" that Congress intended to abrogate treaty rights with the ESA. (180) In doing so, the court examined two companion bills--not the legislative history of the ESA itself--that Congress considered, but did not pass, in 1972. (181) During hearings on these bills, a Senate subcommittee deleted language that would have exempted Indians from certain provisions of the ESA for religious purposes. (182) However, not only did these bills not pass, the court omitted legislative history from the same bills that was adverse to its reasoning. (183) In summary, the court provided no "clear evidence" of Congressional intent to abrogate treaty rights with the ESA.

At best, the decisions by the Billie I and Billie II courts are two judges' interpretation of the Dion test, binding only on those courts. At worst, they are a gross misconstruction of a high standard set by the Supreme Court in Dion. (184) Either way, the proverbial verdict is still out on the ESA's relation to treaty rights. No federal case has been reported since Billie II that directly addresses the question.

Though no court has considered the issue since the Billie decisions, the Department of the Interior has ordered FWS and NMFS to take advantage of the various options provided by the ESA to "avoid or minimize" conflicts with Indian cultural and religions practices that may affect listed species. (185) The order also requires FWS and NMFS to encourage tribes to develop their own conservation plans for natural resources on tribal lands. (186) So far, FWS and NMFS appear to be following the order. (187)

The larger question of whether the ESA abrogates treaty rights remains unanswered. However, the hypothetical posed in this Comment can be resolved without a clear outcome to the abrogation question. The tribes and the agencies administering the ESA have parallel interests in protecting the fish. Indeed, the tribes involved in the crisis thus far have used the ESA as a legal tool against BOR. (188) Though the present conditions in the Klamath do not require a definitive outcome to the abrogation issue, it could become significant before the crisis comes to a close. FWS also has an obligation under the ESA to protect the American bald eagle on the Lower Klamath National Wildlife Refuge, which is fed by the waters of the Klamath. (189) This additional obligation could create a conflict with tribal interests in the fish, and the above analysis would yet have some part to play.

IV. THE LISTED SPECIES IN THE KLAMATH REGION

As noted above, the Klamath Region is home to both endangered and threatened species--the Lost River and shortnose suckers, and the coho salmon, respectively. Exploring the reasoning of these listing decisions is essential to forming a true understanding of the basis of the controversy.

A. The Endangered Suckers

The endangered Lost River and shortnose suckers do not get the same attention as their more famous counterparts in the Klamath River, the coho salmon. However, these fish were once a primary food source for the Klamath Tribes. (190) Known to the Indians as c'wam and qapdo, the suckers are of vital importance to both the physical and spiritual welfare of the Klamath Tribes each year, the Klamath Tribes conduct the "Return of c'wam Ceremony." (191) Long-living fish, the suckers Were once so plentiful in Upper Klamath Lake and its surrounding waters that they supported a cannery on the Lost River. (192) Though an 1864 treaty and the Adair II decision upheld the Klamath Tribes' right to harvest the suckers, the severe decline in the population throughout the 1980s motivated FWS to list them as endangered in 1988. (193) Today, the Klamath Tribes are restricted to catching one fish per year, for ceremonial purposes. (194)

In its 1988 listing decision, FWS found the range and population of both types of suckers had been reduced by over 95%. (195) The decline was precipitous--in 1984, FWS estimated the shortnose sucker population at 2,650; in 1985 and 1986, too few existed for FWS even to provide an estimate. (196) "The catch per unit effort of shortnose suckers declined thirty-four percent between the 1984 and 1985 spawning runs." (197) Between 1985 and 1986, it decreased an additional 74%. (198) The Lost River suckers were no better off--in 1984, FWS estimated a spring spawning run population of 23,123. By 1985, that number had dwindled to 11,861. (199) The remaining suckers take refuge in Upper Klamath Lake and its tributaries, (200) the same places BOR stores water to administer the Klamath Project.

The primary factors contributing to the massive decline in the sucker population were dams, instream flow diversions, marsh drainage, dredging of Upper Klamath Lake, and "other forms of water manipulation." (201) Many of these factors are inherent to BOR's Klamath Project. Of these factors, dams are the worst offenders. (202) Dams block the suckers' spawning runs, encouraging cross-breeding and hybridization with other types of suckers in the waters below the dams. (203) FWS estimates that the Sprague River Dam alone destroyed 95% of the suckers' spawning habitat. (204) Efforts at mitigation using fish ladders proved unsuccessful, as the suckers, though powerful swimmers, are not good leapers. (205) The lack of successful spawning is the top contributor to the suckers' decline. At the time of the 1988 FWS listing decision, neither sucker had successfully spawned in 18 years. (206)

In 2002, in response to the Ninth Circuit's decision in Kandra, Interactive Citizens United submitted a petition to FWS and NMFS to delist both the endangered suckers and the coho salmon. (207) FWS reviewed the petition, and determined that it did not present substantial scientific or commercial information to show that the delisting of the Lost River and shortnose suckers may be warranted. (208) FWS also based its determination on information from a FWS survey conducted in 2001. The survey found no trends suggesting that the sucker population was on the rise. (209) In fact, the 2001 survey found that the fish still warranted an endangered listing due to continued habitat loss, degradation of water quality, periodic fish die-offs, and water diversions. (210)

B. The Threatened Coho Salmon

The Klamath River was once one of the most productive salmon rivers on the West Coast, with the third-largest runs in the region. (211) Today, however, the salmon populations are drastically reduced. The only Klamath River salmon runs that are still relatively healthy are the fall chinook runs, and these are still only around twenty percent of what they once were. (212) The Yurok and Hoopa Valley Tribes have long depended on the Klamath River runs for their livelihood. The decimated salmon populations are contributors to the poverty these tribes now face. (213)

The coho salmon are a remarkable species. These anadromous fish begin their lives in the freshwater rivers of the West Coast. Typically, they have a three year life-cycle. (214) During their first year, they make their way down the rivers to the Pacific Ocean, where they normally spend two growing seasons. (215) During the last year of their life, these fish return to the freshwater rivers in which they were born, living off their body fat until they reach the exact location of their birth, where they spawn and die. (216)

Naturally reproducing coho populations have been eliminated from the Columbia River and nearly all of its tributaries. (217) The coho populations that spawn in the Northern California rivers, including the Klamath, have declined at least seventy percent since the 1960s. (218) By 1985, the legendary Klamath River chinook populations were so low that the federal government put a moratorium on all commercial salmon harvests on the Pacific Ocean from Fort Bragg, California, to Port Orford, Oregon. (219) The Klamath River populations are now made up mostly of hatchery fish. (220)

In 1997, NMFS listed the coho in the Klamath River as a threatened species under the ESA. (221) A survey NMFS relied upon in its listing decision found 396 streams in Northern California and Southern Oregon that once had coho runs. Data was collected from 117 of these streams. Of these 117 streams, only 73 (64%) still had coho runs. (222)

In its 1997 listing of the Southern Oregon/Northern Californian coho as a threatened species, NMFS noted that there were less than 10,000 naturally produced adults in the population. (223) In the 1940s, scientists put this number anywhere from 150,000 to 400,000. (224) Significant factors related to the decline of the coho are overharvest, hatchery practices, and habitat modification. (225) The Southern Oregon/Northern California coho has been subjected to, among other things, continuous substrate changes, loss of wetlands, declines in water quality (higher temperatures, reduced oxygen, altered biological communities, toxics, elevated pH levels, and altered stream fertility), fish passage impediments, habitat elimination, and direct taking through fishing practices. (226) Logging and agricultural practices play a significant role in the habitat destruction. (227) Urbanization and pollution have also contributed to the decline of the coho in Southern Oregon and Northern California. (228) Interestingly, NMFS found that tribal harvests (by the Yurok and Hoopa Valley Tribes) had only a "limited" impact on the decline. (229) Non-tribal fishing, however, was, and is, a contributing factor. (230)

FWS added the Southern Oregon/Northern California coho salmon to its own threatened species list in 1997. (231) As a final note, in 2002, NMFS, when faced with the Interactive Citizens United petition to delist the coho, found that there was no substantial scientific or commercial information to suggest delisting was warranted. (232)

V. TOO MANY MASTERS: FEDERAL RESPONSIBILITIES TO FARMERS, TRIBES, AND FISH

The Klamath Project 2001 Operations Plan states that BOR's objectives are to meet ESA requirements, fulfill the federal trust responsibilities to the tribes, provide deliveries of project water, and conserve wetland and wildlife values. (233) As noted above, 2001 was the driest year on record in the Klamath Region. Water levels were lower than any entity had ever anticipated. As a result, BOR was unable to fulfill its obligations to all the parties involved in the crisis. In 2001, there was just enough water for BOR to fulfill its obligations to the tribes and the ESA, with a laughably small amount left for farmers and irrigators in the region.

What if we have not yet seen the lowest threshold? Could the waters go even lower, to the point at which there would not be enough to maintain both the sucker and the salmon populations, let alone the farmers and irrigators? The water that flows into the Klamath River to support the coho salmon is released by BOR from Upper Klamath Lake--the same body of water that supports the suckers. Imagine a year so dry that releasing water from Upper Klamath Lake meant placing the suckers in jeopardy, and keeping the water in Upper Klamath Lake meant placing the coho in jeopardy. If it were to occur, what would be the result of any ensuing litigation? The same parties would have interests at stake, but in this case it would be a three-sided battle--farmers and irrigators on Side One, the Klamath Basin tribes and other sucker supporters on Side Two, and the Yurok and Hoopa Valley Tribes and other coho supporters on Side Three.

A. Irrigators and Farmers

Some recent Ninth Circuit decisions show that, at least for now, the rights of the irrigators and farmers in the Klamath Region are supposed to be at the bottom of the priority list for BOR. (234) An examination of Kandra, the most recent suit, is sufficient to show the significant legal obstacles the irrigators and farmers face.

In Kandra, groups representing the various irrigation districts and water users in the region moved for a preliminary injunction against BOR to prevent it from carrying out the 2001 Operations Plan. (235) The plaintiffs presented several claims supporting the injunction: that the plan breached their contractual rights to project water, and that the plan violated both NEPA and the ESA. (236) To obtain a preliminary injunction, a plaintiff must show "either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in its favor." (237) Judge Aiken determined that the Kandra plaintiffs showed neither.

In analyzing the breach of contract claim, the court reaffirmed the superior rights of the tribes and the duties of BOR to meet the requirements of the ESA. Plaintiffs Klamath Irrigation District and Tulelake Irrigation District contended that BOR had breached its irrigation contracts with them by diverting project water for non-irrigation uses. (238) The court noted that the contractual rights claimed by the plaintiffs were "subservient to ESA and tribal trust requirements." (239) As a result there was no claim for a breach of contract based on BOR's decision to allocate water to protect the ESA-listed fish. (240) In addition, considering the subordinate nature of the plaintiffs' rights, their likelihood of success on this claim was minimal. (241)

The court next examined the claimed NEPA violations. NEPA requires all federal agencies to develop an Environmental Impact Statement (EIS) for any "major Federal action" that will significantly affect the quality of the environment. (242) BOR did not prepare an EIS for the 2001 Operations Plan. The Kandra plaintiffs argued that BOR should be precluded from carrying out the plan until an EIS was completed. (243) The court rejected the argument, holding that NEPA did not apply to the 2001 Operations Plan, or any annual operations plan put forth by BOR. (244)

The court similarly dismissed the plaintiffs' ESA claims. Specifically, the plaintiffs claimed five separate violations: 1) the RPAs from the FWS and the NMFS BiOps were inconsistent with the purpose of the Klamath Project, 2) NMFS incorrectly interpreted the ESA to require action by federal agencies, 3) neither FWS nor NMFS developed an "environmental baseline" to determine the true impact of the Klamath Project, 4) FWS did not consider relevant scientific evidence in determining the levels in Upper Klamath Lake required to sustain the sucker population, and 5) NMFS, likewise, failed to consider all of the relevant scientific information in assessing the effect of the Klamath Project on the threatened coho salmon. (245)

The court systematically rejected each allegation. First, though agreeing that RPAs should be alternative actions that are consistent with the purposes of the original action, the court held that both the ESA and the federal government's duty to the tribes necessarily force the purpose of the Project into a subservient role, and as a result the RPAs are not inconsistent with the purposes of the Project. (246) As to the second and third alleged violations, the court found "no support" for the plaintiffs' interpretations of the ESA. (247) Finally, regarding the claims that FWS and NMFS did not consider all of the relevant scientific information, the court concluded that, on the contrary, "plaintiffs simply disagree with the scientific conclusions reached by the FWS and NMFS." (248)

In addressing the "balance of hardships" question, the court indicated its sympathy for the plaintiffs. (249) However, the court noted that the balancing question required examination of both sides of the scale, and considered the "harm to the suckers and salmon, those who rely on the fish, as well as the public interest" to be just as heavy a hardship. (250) Reiterating that the standard for an injunction requires that the balance of the hardships tip sharply in the plaintiffs favor, the court denied the motion. (251)

The strongly written Kandra opinion is, at its core, merely a reaffirmation of previously existing ideas: 1) that the ESA acts as a trump card to project water claims, and its requirements must be met first, 2) that tribal water rights are superior to the rights of irrigators and farmers, and 3) that the latest BOR Operations Plans, as harsh as they may be to the economic well-being of the surrounding agricultural communities, are not only legal, but also necessary to fulfill the obligations BOR has to ESA-listed species and to the tribes. (252) Based on Judge Aiken's sound reasoning, the irrigators' and farmers' side of the litigation triangle would fall by the wayside in a year without enough water to support both the suckers and the salmon. (253)

B. Sucker v. Salmon

The above discussion leads inevitably to the final question--the competing claims for the ESA-listed fishes in the Klamath Region. A year may come when there is not enough water to support both the suckers and the salmon, and supporters of both species could sue BOR to force it to meet its obligations under the ESA. If these two fishes--both long-time residents of the Klamath system--went gill-to-gill in court, which would prevail? The ESA is silent on the question of conflicting yet equally meritorious claims, stating only that federal agencies may not jeopardize any threatened or endangered species. (254) The wildlife services have issued no guidelines on what to do in a situation where a federal agency's actions would inevitably jeopardize one of two listed species. A controversy of this type has never arisen in any state or federal court.

1. Balancing Tests 

Outside the environmental context, federal courts often employ a balancing test when determining the outcome of a situation involving two conflicting, yet seemingly equal claims. A typical situation is the tension between the Sixth Amendment right to a fair trial and the First Amendment right to freedom of press. (255) The Supreme Court consistently weighs various factors regarding the interest of the accused's fight to a fair trial against the public interest in open trials, determining a fictional "winner." The result is an unclear doctrine that sometimes falls in favor of the Sixth Amendment and sometimes in favor of the First Amendment. This ambiguity underlies the difficulty in making any predictions regarding the suckers versus the salmon.

Moreover, the Supreme Court has explicitly rejected the use of a balancing test in another realm of competing constitutional claims: the Establishment Clause and the Free Exercise Clause. Throughout the latter half of the twentieth century, courts routinely balanced the burden a law placed on a religious practice against the government interest underlying the law. (256) If the burden outweighed the government interest, the law was declared unconstitutional. (257) The Court discontinued this practice in 1990, noting the anomalies that such tests invariably create. (258) The Court stated:

   [G]overnment's ability to enforce generally applicable prohibitions
   of socially harmful conduct ... cannot depend on measuring the
   effects of a governmental action on a religious objector's spiritual
   development. To make an individual's obligation to obey such a law
   contingent upon the law's coincidence with his religious beliefs,
   except where the State's interest is "compelling" ... contradicts
   both constitutional tradition and common sense. (259)

The difficulties of applying a balancing test to competing ESA claims are enough to steer courts away from this resolution. Suckers and salmon are both listed under the ESA, presumably due to their impending extinctions. The most serious obstacle to a balancing test is determining what factors to weigh. Doing so would require making a judgment call between the worth of the salmon and the worth of the sucker, which, in turn, would require, among other things, choosing between the cultures of the Klamath Tribes and the Yurok and Hoopa Valley Tribes. Both tribal groups venerate their respective fish in spiritual and practical manners. To choose one over the other would "conflict with common sense," and could also run afoul of the Free Exercise Clause itself. Courts are not in a position to evaluate the worth of one species relative to another. Indeed, a balancing test in this situation would lead to nothing more than a battle of the so-called "experts." When the extinction of a species hangs in the balance, this is not an acceptable way of resolving a dispute. Furthermore, a balancing test would be too difficult to apply in subsequent cases involving myriad other species that are listed under the ESA.

2. Natural Conditions

Since, as noted above, the ESA is silent on the conflict question, courts must look elsewhere to determine the appropriate outcome. A second possible resolution of the proposed conflict is a court order to BOR to put the Klamath Region back as close to "natural conditions" as possible and let the fish fend for themselves. The idea is an extrapolation from several policies, including those of EPA, FWS, and NFMS, stating that native species should take precedence over non-native species in conservation efforts. (260) For example, R. Edward Grumbine lists maintaining "viable populations of all native species in a given region" as one of the four main "ecosystem-management goals." (261)

Public policies have also advanced a theory of preference for natural conditions. The Wilderness Act of 1964, (262) for example, mandated preservation of natural conditions. (263) FWS has often discussed the negative impacts of non-native species of both plants and animals on an ecosystem, noting that these species "reduce native plant and animal diversity by out-competing natives for space and resources." (264)

In addition, in 2001 FWS released its "Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System." (265) This policy assesses both "biological integrity" and "environmental health" in terms of the ecosystem's functioning at levels of "historic conditions." (266) Under the policy, "historic conditions" are those that were in place before any humans made substantial changes to the surrounding environment. (267) Native species are clearly preferred in the policy and are defined as "species that, other than as a result of introduction, historically occurred or currently occurs in that ecosystem." (268) The bottom line of the policy is that the closer a wildlife refuge is to historic conditions, the higher the refuge's biological integrity and environmental health. (269) In furtherance of the policy, wildlife refuge managers should strive to achieve historic natural conditions by maintaining, and reintroducing where practical, native species. (270)

There is, then, well-grounded support for the theory that natural conditions are preferred over non-natural conditions. However, this does not rise to the level of mandating a court order to return the Klamath Basin to natural conditions. First and foremost, such an order would be economically infeasible. It would require the removal of a century's worth of dams, canals, and irrigation ditches, all to accommodate one dry year. In a subsequent year of normal rainfall, would BOR be ordered to reconstruct all of these water management and control devices? Second, though the bulk of the support for this argument comes from various statements of FWS and NFMS, none of them speak directly to the ESA itself. An agency mandate on the management of the nation's National Wildlife Refuges does not equate to a similar mandate for the ESA, an unrelated realm of regulation. Finally, returning the Klamath Region to natural conditions could very well work to the detriment of the suckers and the salmon. The suckers are sustained by waters artificially kept in Upper Klamath Lake by BOR. Releasing this water quickly enough to compensate for low river levels during a dry year would not only harm the suckers but the resulting increase in the water temperature in the Klamath River would raise the salmon's susceptibility to disease and mortality rates. (271)

3. Status of the Listed Species

One thing does differentiate the suckers and the coho: their listing status. The suckers are on the endangered fist, while the coho remain on the threatened list. (272) In situations where courts are faced with competing rights, they often search for a tiebreaker. The difference between the two listings provides an avenue for such a tiebreaker, and a legally supportable resolution.

To some, it may seem intuitive that endangered species should take precedence over threatened species. However, on the face of the statute and regulations, both the suckers and the coho are afforded the same protection. According to the ESA, BOR must take steps to ensure that its actions do not jeopardize the continued existence or result in an adverse modification of habitat of any endangered or threatened species. (273) And, though the ESA's "take" prohibition applies only to endangered species, (274) FWS has extended the "take" prohibition to any species it lists as "threatened," including the coho salmon. (275) In addition, NMFS, with some minor exemptions irrelevant to this analysis, extended the "take" prohibition to the coho in its listing decision (276) Therefore, both the threatened coho and the endangered suckers, at least at this point in the analysis, warrant equal protection. No court will alter this equality absent some evidence of legal support for the concept that the controlling agencies place a higher priority on the protection of endangered species than on protection of threatened species. A 1983 document from FWS and a 1990 document from NMFS provide that support. (277)

Prior to 1983, FWS did not use a standard priority system when making decisions on ESA listing and recovery plans. Instead, the priority assignments were made informally, based on a variety of different systems. (278) In 1979, the General Accounting Office (GAO) conducted a review of FWS's listing process and recommended that FWS implement a formal listing priority system. (279) GAO's recommendation called for the priorities to be based mainly on the degree of threat faced by a species. (280) Responding to GAO's recommendation, and a subsequent congressional amendment to the ESA, FWS officially adopted a listing priority system in 1983, the Endangered and Threatened Species Listing and Recovery Priority Guidelines (FWS Guidelines). (281) The FWS Guidelines establish priority hierarchies for both listing decisions and species recovery plan implementations.

The 1983 FWS Guidelines consist of two priority assignation hierarchies for listing decisions: 1) decisions either to list a species or reclassify a species from threatened to endangered, and 2) decisions either to delist a species or to reclassify a species from endangered to threatened. (282)

Decisions to list a species or reclassify a species from threatened to endangered are prioritized according to the following three criteria, in order of importance: 1) magnitude of threat, 2) immediacy of threat, and 3) taxonomy. (283) For the first criterion, species are assigned either a "high" or "moderate to low" label. The underlying theory is that the "[s]pecies facing the greatest threats to their continued existence ... receive highest listing priority." (284) The second criterion, the immediacy of the threat, is straightforward as well--species that face an "imminent" threat take priority over species facing a "non-imminent" threat. This insures that "species facing actual, identifiable, threats are given priority over those for which threats are only potential or that are intrinsically vulnerable to certain types of threat but not known to be presently facing such threats." (285) The third criterion, taxonomy, ranks a monotypic genus over a species, and a species over a subspecies. The intention is to "devote resources on a priority basis to those species representing highly distinctive or isolated gene pools." (286)

These three criteria combine to form twelve priority categories. For example, a species belonging to a monotypic genus facing an imminent and high-magnitude threat is the top priority for listing and threatened-to-endangered reclassification decisions. (287) A subspecies facing a non-imminent and moderate to low magnitude threat receives the lowest priority--a twelve. The policy goals of the FWS Guidelines are clear in the listing and threatened-to-endangered reclassification priority system--the closer a species is to extinction, the higher priority it receives for consideration under the listing and reclassification process.

The ESA requires development of a recovery plan for every listed species, unless "such a plan will not promote the conservation of the species." (288) The FWS Guidelines provide a set of priorities for developing and implementing these species recovery plans. Like the listing and reclassification priority hierarchy described above, the recovery plan priorities are also based primarily on the degree of threat to the species. (289) The hierarchy is based on the following four criteria, in order of importance: 1) degree of threat, 2) recovery potential, 3) taxonomy, and 4) conflict with development or construction projects. (290)

As stated in the FWS Guidelines: "The first step for the conservation of any species is to prevent its extinction. Thus, the species with the highest degree of threat have the highest priority for preparing and implementing recovery plans." (291) The remaining subordinate criteria are straightforward-species with a high potential for recovery take precedence over species with a low potential. (292) As in the priority hierarchy for listing and reclassification decisions, a monotypic genus takes precedence over a species, which in turn takes precedence over a subspecies. Finally, those species that are in conflict with a development or construction project take precedence over their counterpart species at the same priority level based on the other three criteria. (293) For example, a monotypic genus with a high potential for recovery facing a high degree of threat is the top priority. In this category, any species that is in conflict with a development or construction project has priority over species in the same category that are not in conflict. Again, the policy supporting the FWS Guidelines is clear: The closer a species is to extinction, the higher priority it receives.

In some years since 1983, FWS has issued additional "fiscal year" guidelines, specific to the budget constraints of the particular year. (294) However, all of these guidelines are based on the original 1983 FWS Guidelines, and all incorporate the same hierarchical priority structure, where the primary factor for listing or reclassification decisions and recovery plan implementations is the degree of threat that a particular species is facing.

In 1990, NMFS issued its own version of the priority guidelines. (295) The NMFS Guidelines are based on the FWS Guidelines. (296) NMFS enacted some minor alterations, "due to the smaller number of listed species and the anticipated smaller number of candidate species" under its jurisdiction. (297) However, the main principle is the same--those species that are closest to extinction receive the highest priority. The NMFS Guidelines remove the taxonomy criterion from both the listing/reclassification and recovery plan development and implementation priority hierarchies. For listing and reclassifying a species from threatened to endangered, NMFS uses only two criteria: the magnitude of threat and the immediacy of the threat. (298) The NMFS Guidelines give the highest priorities to "species facing the greatest threats to their continued existence," and to "species facing actual threats." (299) For recovery plan development and implementation, only three criteria are used: 1) the magnitude of the threat, 2) the potential for recovery, and 3) whether the species is in conflict with a construction or development project. The NMFS Guidelines use these three criteria in the same manner as the FWS Guidelines.

VI. CONCLUSION

The current wrangling taking place in the Klamath Region involves a host of potential legal rights and entities capable of exercising those rights. It is still unclear whether the ESA abrogates tribal fishing rights, but the competing claims of the tribes involved are not a valid method for determining the outcome, nor is this method necessary in light of the current parallelism between tribal rights and the protections provided by the ESA. Moreover, Kandra lends strong legal support to the view that the contract rights of the farmers and irrigators linked to the Klamath Project are subordinate both to BOR's obligations to the tribes and the ESA. So which right trumps all others? The answer lies with the only players in the controversy who have rights they cannot assert themselves--the suckers residing in Upper Klamath Lake and the coho salmon using the Klamath River to spawn.

The priority guidelines issued by FWS and NMFS clearly indicate the opinions of the agencies with respect to species priority under the ESA-species that are closer to extinction warrant stricter scrutiny and tighter protection. Danger of extinction determines priority of protection. With this in mind, a court must only look to the ESA definitions of "endangered" and "threatened" to resolve logically the proposed conflict between the endangered suckers and the threatened coho salmon in the Klamath Region. Endangered species are "in danger of extinction."(300) Threatened species are "likely to become an endangered species within the foreseeable future." (301) Put another way, endangered species are imminently close to extinction. Threatened species may soon be close to extinction, but have not yet reached that critical stage. Applying the above analysis, a court can only come to one conclusion: If there is not enough water in the Klamath Region to support both fish, then BOR must retain enough water in Upper Klamath Lake to keep the suckers out of jeopardy. Any water in excess of the amount needed to support the suckers should be released for the coho salmon in the Klamath River. (302) Only after these interests are served should BOR consider the remaining entities in the controversy. (303)

The high stakes involved in this crisis--not just the threatened extinction of multiple species, but also the threatened livelihood of human inhabitants in the area, tribal and otherwise--ensure that any debate on the subject will be emotionally charged. This situation, arising in part from the whims of Mother Nature, has visited, and undoubtedly will continue to visit, substantial harms upon some undeserving subset of our nation's population. Taking a broad look at the dispute, as this Comment has done, is the only way to make an informed and just decision, unclouded by passion.

VII. EPILOGUE 

The events of the past year demonstrate that the Klamath water crisis of 2001 to 2002 was not an isolated occurrence. Area tribes and farming families continued to struggle in 2003 to retain their way of life. Meanwhile, court decisions did nothing to settle the ever-shifting legal landscape, and nature played its own role in keeping the crisis current and critical. Through it all, two fishes persisted in their daily battle for survival.

In 2003, BOR and unpredictable weather combined to create a rollercoaster summer for the farming community in the area. First, in March, BOR began offering farmers cash in return for decreased Klamath Project water use. (304) Under the plan, BOR offered farmers $187.50 per acre to leave land dry, and $50 per acre to pump irrigation water from their own wells rather than using Project water. (305) Many farmers took advantage of the plan, hoping to hedge against the possibility of another dry summer. (306) Though early forecasts of a dry summer supported this wisdom, May brought substantial rains, and Klamath water users temporarily relaxed. By late June, however, the promise of the rainy May gave way to despair--levels in Upper Klamath Lake and the Klamath River were dangerously close to the thresholds required to sustain the ESA-listed fish in the waters, and BOR initially ordered a halt to all irrigation use. (307) Though it rescinded that decision almost immediately, BOR warned farmers to curtail severely their water use or risk receiving no water at all. (308)

Meanwhile, BOR's plan to compensate farmers for decreased water use did little to alleviate the animosity between tribes and farmers, with the Yurok accusing the BOR of "perpetuat[ing] the welfare scenario for farmers." (309) In addition, tribal interests had a setback in a Ninth Circuit Court of Appeals ruling which vacated a district court decision holding that the tribes in the Klamath Region had rights to the water levels necessary to support their aboriginal gathering rights, in addition to their already recognized hunting and fishing rights. (310) The Yurok and Hoopa Valley tribes, as well as the commercial fishermen, had a glimmer of hope in July, when Judge Armstrong delivered an order in response to several summary judgment motions in Pacific Coast Federation of Fishermen's Ass'as v. United States Bureau of Reclamation. (311) Judge Armstrong agreed with the plaintiffs that NFMS and BOR had failed to adequately protect the coho in their 2002 BiOp. (312) However, it was another hollow victory for tribes, as Judge Armstrong ordered that the 2002 BiOp remain in place until NMFS issues a revised one. (313)

The results of the catastrophe in the Klamath Region over the last few years have not been entirely negative. The sense of urgency has provided an impetus for farmers, tribes, environmental groups, and the federal government to begin developing realistic solutions to the problem. In addition to offering monetary incentives to decrease Project water use, Congress has authorized federal grants totaling $50 million to upgrade the region's irrigation equipment to the latest technological standards. (314) Landowners are also working to restore wetlands which will aid in filtering water in the region, improving the health of area wildlife, (315)

The most ambitious of these solutions is a proposed agreement between the Klamath Tribes and Klamath Region farmers which would restore roughly 690,000 acres of former reservation land to the Klamath Tribes and downsize several farms, in return for guaranteed water receipts during even the driest years and reduced power rates for farmers, (316) Though still in the formative stages, the plan has the blessing of the federal government and the potential to be a historic event. However, the proposal has met significant opposition from environmental groups who question whether conservation goals will be met when the Klamath Tribes assume control over the former reservation land. (317)

Thus, the conflict continues, albeit with more hope than the region has seen in the past. For the first time, various groups are working together to form resolutions for the betterment of all involved. The proffered solutions mentioned above are still in preliminary stages, but more will be forthcoming. Putting cultural differences and emotions aside, as this Comment has attempted to do, may yet yield a workable solution. Any successful solution, however, must ensure the survival of some of the region's oldest inhabitants, the silent parties in the dispute--the endangered suckers and the threatened salmon.

(1) "'It's safe to say the losses are in the thousands.... There's no memory of a loss of adult salmon of this magnitude before.'" Michael Milstein, Dead Fish Tied to Policy Flaws, THE OREGONIAN, Sept. 24, 2002, at A1 [hereinafter Milstein, Policy Flaws] (quoting Paul Wertz, California Department of Fish and Game). "'There are fish floating past every eddy, scores of dead fish with moss on them.... It makes me want to cry.'" Andy Dworkin & Michelle Cole, The Scene." Residents and Anglers are Aghast and Saddened by Losses, THE OREGONIAN, Sept. 27, 2002, at A1 (quoting Mike Belchick, Yurok Tribe biologist). "'There's way too many fish. And they're still coming in. They're coming in like flies on flypaper.... This place is going to look like an elephants' burial ground.'" Id. (quoting Owen Chew, son of owner of a fishing store in Klamath Glen, California).

(2) Milstein, Policy Flaws, supra note 1.

(3) Michael Milstein, The Salmon: Activists Sue, Saying the Federal Water Strategy Has Fated, THE OREGONIAN, Sept. 27, 2002, at A1 [hereinafter Milstein, Activists Sue]; Michael Milstein & Jim Barnett, Salmon Die-Off Fears Become Harsh Reality, THE OREGONIAN, Sept. 29, 2002, at A1. See also Michelle Cole, Spirit for Fishing Dies with Salmon, THE OREGONIAN, Sept. 28, 2002, at A1 (quoting Craig Bell, director of the Northern California Association of River Guides, as saying, "It's basically the largest kill-off of salmonids anyone knows of. There's no parallel to this."); Dworkin & Cole, supra note 1 (describing the die-off as "one of the largest fish kills in recent Western history," and quoting Mike Belchick, Yurok Tribe biologist, as stating, "I've been talking to Yurok, who have been here for hundreds of generations, and there's no precedent for this in myth or history"); Milstein, Policy Flaws, supra note 1 (describing the die-off as "the worst anyone can remember").

(4) Dworkin & Cole, supra note 1; Milstein, Policy Flaws, supra note 1.

(5) Milstein & Barnett, supra note 3.

(6) For purposes of this Comment, the "Klamath Region" refers to the areas surrounding Upper Klamath Lake in Southern Oregon and the path cut by the Klamath River through Southern Oregon and Northern California to the Pacific Ocean.

(7) U.S. FISH & WILDLIFE SERVICE, ENDANGERED SPECIES PROGRAM, KLAMATH RIVER BASIN ECOSYSTEM [hereinafter BASIN ECOSYSTEM], at http://endangered.fws.gov/klamath.html (last visited Nov. 16, 2003).

(8) Reed D. Benson, Giving Suckers (and Salmon) an Even Break: Klamath Basin Water and the Endangered Species Act 15 TUL. ENVTL. L.J. 197, 201 (2002).

(9) Id.

(10) David J. Hayes, Federal-State Decisionmaking on Water: Applying Lessons Learned, 32 Envtl. L. Rep. (Envtl. L. Inst.) 11,253, 11,257 (2002).

(11) BASIN ECOSYSTEM, supra note 7.

(12) 43 U.S.C. [subsections] 371-498 (2000).

(13) Id. [section] 373a.

(14) California v. United States, 438 U.S. 645, 650 (1978); Peterson v. United States Dep't of Interior, 899 F.2d 799, 802-03 (9th Cir. 1990).

(15) See generally 43 U.S.C. [subsections] 371-498 (2000) (outlining a comprehensive reclamation scheme designed to provide irrigation water and power to the arid west).

(16) See, e.g., id. [section] 593a (regarding the construction of the Hungry Horse Dam in Montana); id. [section] 600a (regarding the Arch Hurley Conservancy District project in New Mexico); id [section] 600b (regarding the Canadian River project in Texas).

(17) Peter M. Lacy, The Irrigated Desert and Imperiled Salmon: "Reclaiming" Illegally Spread Water Via the Endangered Species Act 4 U. DENY. WATER L. REV. 351, 361 (2001); Benson, supra note 8, at 207.

(18) 43 U.S.C. [section] 383 (2000).

(19) For a discussion of the Klamath Project, see Infra Section II.A.2.

(20) Benson, supra note 8, at 209.

(21) E.g., Michael C. Blumm, The Rhetoric of Water Reform Resistance: A Response to Hobbs' Critique of Long's Peak, 24 ENVTL. L. 171, 173 (1994) (discussing the legacy of prior appropriation principles); Mryl L. Duncan, Reconceiving the Bundle of Sticks: Land as a Commodity-Based Resource, 32 ENVTL. L. 773, 795 (2002) (discussing public and private aspects of water rights); Krista Koehl, Partial Forfeiture of Water Rights: Oregon Compromises Traditional Principles to Achieve Flexibility, 28 ENVTL. L. 1137, 1140-42 (1998) (discussing the history of the prior appropriation system). (22) OR. REV. STAT. [section] 537.250(3) (2001).

(23) See, e.g., NAT'L WATER COMM'N, A SUMMARY-DIGEST OF STATE WATER LAWS 29-48 (Richard L. Dewsnup et al. eds., 1973) (providing a history of the prior appropriation doctrine); 2 WATERS AND WATER RIGHTS [section] 12.02(a)-(f) (Robert E. Beck ed., 1991 & Supp. 2002); Reed D. Benson, Maintaining the Status Quo: Protecting Established Water Uses in the Pacific Northwest, Despite the Rules of Prior Appropriation, 28 ENVTL. L. 881, 885-87 (1998) (examining the application of traditional western water law and deference to existing water-use practices).

(24) The "use it or lose it" concept, whereby holders of water rights can lose their rights through nonuse, does not apply to Indian tribes. See discussion infra Section III.B.2.

(25) See, e.g., Flint v. United States, 906 F.2d 471, 477 (9th Cir. 1990) (finding that private parties have no interest in project water); Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 626 F.2d 95, 99 (9th Cir. 1980) (holding project water is that which has been developed by the United States); Israel v. Morton, 549 F.2d 128, 132-33 (9th Cir. 1977) (distinguishing natural flow water from project water); Reed D. Benson, Whose Water Is It? Private Rights and Public Authority Over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 369-75 (1997) (examining the rights involved in project water); Reed D. Benson & Kimberley J. Priestley, Making a Wrong Thing Right: Ending the "Spread" of Reclamation Project Water, 9 J. ENVTL. L & LITIG. 89, 108 (1994) (discussing unauthorized water use and BOR authority).

(26) Benson, supra note 25, at 401; 1 WELLS A. HUTCHINS, WATER RIGHTS LAWS IN THE NINETEEN WESTERN STATES 569 (1971).

(27) U.S. DEP'T OF THE INTERIOR, ENVIRONMENTAL ASSESSMENT: OPERATION OF THE KLAMATH PROJECT IN RESPONSE TO CRITICAL DRY CONDITIONS DURING 2001, at 1 (2001).

(28) OREGON WATER RESOURCES DEP'T, RESOLVING THE KLAMATH 18 (1999), available at http://www.wrd.state.or.us/programs/klamath/summary99.pdf.

(29) Klamath Water Users Ass'n v. Patterson, 15 F. Supp. 2d 990, 992 (D. Or. 1998); Kandra v. United States, 145 F. Supp. 2d 1192, 1196 (D. Or. 2001).

(30) Kandra, 145 F. Supp. 2d at 1196.

(31) OREGON WATER RESOURCES DEP'T, supra note 28, at 11. See KLAMATH TRIBES--HISTORY, at http://www.klamathtribes.org/history.html (last visited Nov. 16, 2003) ("We have lived here..., in the Klamath Basin of Oregon, from time beyond memory."). See generally ROBERT H. RUBY & JOHN A. BROWN, A GUIDE TO THE INDIAN TRIBES OF THE PACIFIC NORTHWEST 90-95 (1st ed. 1986) (discussing the history of the Klamath tribes).

(32) United States v. Adair, 723 F.2d 1394, 1414 n.22 (9th Cir. 1984); Benson, supra note 8, at 202; Darla J. Mondou, The American Indian Agricultural Resources Management Act: Does the Winters Water Bucket have a Hole In It?, 3 DRAKE J. AGRIC. L. 381, 386 (1998); OREGON WATER RESOURCES DEP'T, supra note 28, at 15.

(33) Treaty Between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians, Oct. 14, 1864, 16 Stat. 707, 707-708.

(34) Id. at 708. See also Adair, 723 F.2d at 1397-98 (discussing water rights of the Klamath Tribe).

(35) KLAMATH TRIBES--HISTORY, supra note 31.

(36) 25 U.S.C. [section] 564 (2000). See also KLAMATH TRIBES--HISTORY, supra note 31 (discussing the pre-contact traditions and post-contact history of the Klamath Tribes).

(37) Klamath Indian Tribe Restoration Act, 25 U.S.C. [section] 566 (2000).

(38) OREGON WATER RESOURCES DEP'T, supra note 28, at 12-15.

(39) U.S. DEP'T OF THE INTERIOR, supra note 27, at 1.

(40) Benson, supra note 8, at 216.

(41) Id.

(42) Id.

(43) United States v. Winans, 198 U.S. 371, 381 (1905).

(44) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (2000).

(45) 50 C.F.R. [section] 17.11 (2001).

(46) Id. See infra Section IV (discussing these two species and the background of the ESA listings).

(47) Benson, supra note 8, at 217.

(48) U.S. FISH & WILDLIFE SERVICE, LOWER KLAMATH NATIONAL WILDLIFE REFUGE, at http://www.klamathnwr.org/lowerklamath.html (last visited Nov. 16, 2003). In 1908, President Roosevelt established the Refuge via Executive Order 924. Id.

(49) Id.; 50 C.F.R [section] 17.11 (2001); Michael Milstein, Water Quality, Future Murky, THE OREGONIAN, May 9, 2001, at A1.

(50) U.S. FISH & WILDLIFE SERVICE, TULE LAKE NATIONAL WILDLIFE REFUGE, at http://www.klamathnwr.org/tulelake.html (last visited Nov. 16, 2003).

(51) Kandra v. United States, 145 F. Supp. 2d 1192, 1196 (D. Or. 2001).

(52) Benson, supra note 8, at 206.

(53) OREGON WATER RESOURSES DEP'T, supra note 28, at 29.

(54) Benson, supra note 8, at 206. See also CITY OF KLAMATH FALLS, OREGON, 2001 WATER CONSERVATION: DIRECTION FOR USE OF CITY WATER TO REPLACE IRRIGATION WATER (2001) (outlining plan to mitigate loss of irrigation water for municipal uses), available at http://www.ci.klamath-falls.or.us/PressReleases/watercouservation2001.htm.

(55) Benson, supra note 8, at 223; Milstein & Barnett, supra note 3, at A1.

(56) For a discussion of the ESA consultation process, see infra Section III.A.2.

(57) Kandra v. United States, 145 F. Supp. 2d 1192, 1198 (D. Or. 2001).

(58) Id.

(59) Id.

(60) Id.

(61) Id. at 1198-99.

(62) U.S. BUREAU OF RECLAMATION, KLAMATH PROJECT 2001 ANNUAL OPERATIONS PLAN 1 (2001).

(63) Kandra, 145 F. Supp. 2d at 1199.

(64) Id.; National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370e (2000).

(65) Kandra, 145 F. Supp. 2d at 1211. For a more complete discussion of the Kandra decision, see infra Section V.A.

(66) Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1251 (N.D. Cal. 2001). The court found that the BOR violated the ESA by failing to formally consult with NMFS before implementing the 2000 Operations Plan for the Klamath Project. Id. at 1247.

(67) Eric Brazil, Klamath Livelihoods Wither. Water Shut-off Along Oregon Border Takes Toll on Farmers, S.F. CHRON., July 16, 2001, at A1 (noting that farmers had forced open Upper Klamath Lake four times in one week to allow water to flow into the main irrigation canal, under the eye of local police officers; in addition, farmers also "rigged an illegal irrigation line into a canal," siphoning off a small amount of water, in a "symbolic" effort).

(68) U.S. DEP'T OF THE INTERIOR, OFFICE OF THE SECRETARY, INTERIOR SECRETARY TO ORDER WATER RELEASE TO KLAMATH FARMERS (2001) [hereinafter RELEASE ORDER], available at http://www.doi.gov/news/010724a.html. Secretary Norton gave the order in a statement made in Portland, Oregon. According to Secretary Norton, the order was a result of the BOR's determination that Upper Klamath Lake was at a higher-than-expected level. However, Secretary Norton made clear that none of the released water would reach the National Wildlife Refuges normally fed by the Klamath Project. Id.

(69) Michael Milstein, Groups Sue for Klamath Water, THE OREGONIAN, Aug. 8, 2001, at A1. The case was subsequently settled when BOR made arrangements to meet the minimum water levels required during the fall.

(70) Hayes, supra note 10, at 11,257. The National Research Council is a subagency of the National Academy of Sciences.

(71) NAT'L ACAD. OF SCIENCES, SCIENTIFIC EVALUATION OF BIOLOGICAL OPINIONS ON ENDANGERED AND THREATENED FISHES IN THE KLAMATH BASIN 21 (2002) (regarding the minimum levels recommended by FWS for Upper Klamath Lake: "Extensive field data on the fish and environmental conditions in Upper Klamath Lake do not provide scientific support for the underlying premise of the [recommendations] that higher lake levels will help maintain or lead to the recovery of these two species." Regarding the minimum flow recommendations by NMFS for the Klamath River: "The committee does not find scientific support for the proposed minimum flows as a means of enhancing the maintenance and recovery of the coho population.") [hereinafter BIOP EVALUATION], available at http://www.house.gov/walden/issues/klamath/nasmaster.pdf.

(72) Milstein, Policy Flaws, supra note 1. The administration contended that BOR was obligated to meet the demands of the farmers and irrigators, and that ESA-based needs would have to be met through other means. Hayes, supra note 10, at 11,257.

(73) Milstein, Policy Flaws, supra note 1.

(74) Milstein & Barnett, supra note 3. Specifically, the biologists predicted that the Bush Administration's plan to release water into the irrigation districts of the Klamath Basin would have an adverse impact on salmon in the Klamath River. Troy Fletcher, Executive Director of the Yurok Tribe, said, "We pleaded with them; we said there would be serious consequences. They played Russian roulette with our fish, and our fish lost." Id.

(75) Milstein, Policy Flaws, supra note 1 ("'At every eddy, you see dozens and dozens and tons and tons of dead fish.'" (quoting Troy Fletcher, Executive Director of the Yurok Tribe)); Dworkin & Cole, supra note 1; Milstein, Activists Sue, supra note 3; Cole, supra note 3; Milstein & Barnett, supra note 3.

(76) Dworkin & Cole, supra note 1.

(77) See, e.g., Report on Salmon Deaths Inconclusive, THE OLYMPIAN, Nov. 23, 2002 (Outdoors); A Killing the Klamath, CASCADIA TIMES, Summer 2002 ("A virus infection, causing fatal gill rot, spread like an epidemic."), http://cascadia.times.org/archives/2002/klamath.htm; OREGON NATURAL RESOURCES COUNCIL, FACT AND FICTION ON KLAMATH RIVER FISH KILLS, at http://www.onrc.org/programs/klamath/factorfiction.html (last visited Sept. 8, 2003) (noting that gill rot "appears to have killed the majority of salmon"); Milstein, Policy Flaws, supra note 1; Ryan Harper, Fish Kill Cause Still in Question, KLAMATH FALLS HERALD & NEWS, Oct. 2, 2002 ("The fish appear to have died because of columnaris and a protozoal infection. Both pathogens are naturally present in the river, but... they usually don't kill fish unless their immune systems are weakened by other factors."), http://209.41.184.21/partners/670/public/news370678.html.

(78) See, e.g., ANTHONY NETBOY, THE COLUMBIA RIVER SALMON AND STEELHEAD TROUT: THEIR FIGHT FOR SURVIVAL 43 (1980) ("Water temperatures also affect the rate of growth: colder temperatures slow down growth, and warmer than optimum temperatures may cause pathological problems."); Milstein, Policy Flaws supra note 1.

(79) NAT'L MARINE FISHERIES SERVICE, BIOLOGICAL AND CONFERENCE OPINION: APPROVAL OF OREGON WATER QUALITY STANDARDS FOR DISSOLVED OXYGEN, TEMPERATURE, AND PH 28, 31 (1999); Milstein, Policy Flaws, supra note 1. See also MICHAEL C. BLUMM, SACRIFICING THE SALMON 44 (2002) ("Salmon require high quality cool water...."); JAMES L. BUCHAL, THE GREAT SALMON HOAX 61 (ed. 1999) ("[P]ractically everyone agrees that salmon are cold water fish, which will die if the water gets too warm.").

(80) NAT'L MARINE FISHERIES SERVICE, supra note 79, at 28, 31.

(81) Milstein, Policy Flaws, supra note 1.

(82) California Democrats had already blamed BOR's Klamath policies under the Bush Administration for a much smaller die-off that occurred in the spring of 2002, when the United Service Forest Service and the California Department of Fish and Game reported finding over 300 dead fish, including threatened coho salmon, on the shores of the Klamath River. Representatives Mike Thompson and George Miller stated their belief that this "is due to the reduced flows being administered by the Bureau of Reclamation." Press Release, Rep. George Miller (D-Cal.), California Congressman Urge Release of Klamath Report: The Delay of the National Marine Fisheries Service Report Further Threatens the Endangered Coho Salmon and North Coast Communities (May 13, 2002), available at http://www.house.gov/georgemiller/rel51302.html.

(83) See Milstein & Barnett, supra note 3 ("The Bush [A]dministration has maintained there is no evidence showing protected fish require the water that otherwise irrigates Klamath crops, and says that's still true because the root cause of the current kill is unknown.").

(84) RELEASE ORDER, supra note 68. In fact, the release of warm water from Upper Klamath Lake may have caused further harm to the fish, due to the increased water temperature. See Milstein, Policy Flaws, supra note 1 (arguing that the release of warm water could only compound the problems); Dan Keppen, Executive Director of the Klamath Water Users Association, said, "The issue now of releasing more warm water, we don't really want ... to see [that] happen. We don't want to see the fish suffer." Id.

(85) The case is Pacific Coast Federation of Fishermen's Ass'ns v. US. Bureau of Reclamation, No. 02-2006 (N.D. Cal. 2003). Plaintiffs in the suit are represented by Earthjustice Legal Defense Fund, and the final amended complaint may be downloaded from their website, http://www.earthjustice.org/news/documents/KlamathComplaint92602.pdf.

(86) Jonathan Brinckman, Yurok Tribe Joins Salmon Lawsuit, THE OREGONIAN, Oct. 23, 2002, at C10.

(87) Hayes, supra note 10, at 11,257.

(88) This Section will focus on the aspects of the ESA that apply to the Comment's premise. However, in addition to those portions discussed below, the citizen suit provision of the ESA is relevant to the Klamath Crisis. This provision allows any person to initiate a civil suit for three different purposes: 1) to enjoin "any person, including the United States and any other governmental instrumentality or agency" alleged to have violated the ESA, 2) to compel enforcement of the section 9 "take" prohibition (discussed infra Section III.A.3), or 3) against the Secretary of the Interior for an alleged failure to perform the duties required by the ESA. 16 U.S.C. [section] 1540(g)(1)(A)-(C) (2000). This provision of the ESA is a powerful tool, as evidenced by the suit currently pending against the Department of the interior related to the Klamath Crisis. See discussion supra notes 85-86 and accompanying text.

(89) See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) (discussing the purpose of the ESA); Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. [subsections] 1531-1544 (2000)).

(90) 16 U.S.C. [section] 1531(b)(2000).

(91) Id. [section] 1532(6).

(92) Id. [section] 1532(20).

(93) Id. [section] 1533(b)(3)(A).

(94) Id. [section] 1533(a)(1),(2).

(95) 50 C.F.R. [section] 222.101 (2002).

(96) Id. [section] 17(b)(2).

(97) 16 U.S.C. [section] 1533(b)(1)(A) (2000).

(98) Id. [section] 1533(a)(3)(A).

(99) Id. [section] 1536(a)(2).

(100) Id. [section] 1536(a)(3).

(101) 50 C.F.R. [subsections] 402.02, 402.14 (2002).

(102) 16 U.S.C. [section] 1536(c)(1) (2000).

(103) Id.

(104) Id. [section] 1536(a)(2).

(105) Id. [section] 1536(b)(3)(A).

(106) Id.

(107) Id.

(108) Tribal Vill. of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir. 1988).

(109) Kandra v. United States, 145 F. Supp. 2d 1192, 1198 (D. Or. 2001).

(110) See supra Section II.E and infra Section V.A.

(111) BIOP EVALUATION, supra note 71, at 21.

(112) 16 U.S.C. [section] 1538(a)(1)(B) (2000).

(113) Id. [section] 1532(19).

(114) Id [section] 1533(d).

(115) 50 C.F.R. [section] 17.31 (2002).

(116) See, e.g., Daniel J. Rohff, Jeopardy Under the Endangered Species Act: Playing a Game Protected Species Can't Win, 41 WASHBURN L.J. 114, 122 (2001) (noting that NMFS has applied the section 9 take prohibition "to the vast majority of threatened species"); Jennie L. Bricker & David E. Filippi, Endangered Species Act and Western Water Law, 30 ENVTL. L. 735, 741-42 (2000) (noting that NMFS's case-by-case regulatory system usually has the same effect as the FWS's blanket application of the section 9 take prohibition to threatened species). But see Madeline June Kass, Threatened Extinction of Plain Vanilla 4(d) Rules, 16 NAT. RESOURCES & ENV'T 78, 80 (2001) (noting that when NMFS listed the Southern Oregon and Northern California Coast coho salmon as threatened, it did not directly apply the section 9 take prohibition. Instead, NMFS exempted certain actions that would normally qualify as a take under section 9); Jean O. Melious, Enforcing the Endangered Species Act Against the States, 25 WM. & MARY ENVTL. L. & POL'Y REV. 605, 625-26 (2001) (discussing section 9 and the echo salmon listing).

(117) 16 U.S.C. [section] 1536(e) (2000).

(118) Robert J. Miller, Speaking with Forked Tongues: Indian Treaties, Salmon, and the Endangered Species Act, 70 OR. L. REV. 543, 581 (1991).

(119) 16 U.S.C. [section] 1536(h)(1)(A)(i)-(iii) (2000).

(120) CHRISTINA SOUZA, CALIFORNIA FARM BUREAU FEDERATION, 'GOD SQUAD' PETITION FILED FOR KLAMATH, at http://www.cfbf.com/agalert/2001/aa-071101a.htm.

(121) Letter from Gale A. Norton, Secretary of the Interior, United States Department of the Interior, to David E. Haddock, Pacific Legal Foundation (July 13, 2001), available at http://www.doi.gov/news/haddock1.htm. Only federal agencies, state governors, or permit or license applicants may apply for exemptions through the God Squad. 50 C.F.R. [section] 451.02(c) (2002).

(122) Miller, supra note 118, at 554; WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 97 (3d ed. 1998).

(123) Miller, supra note 118, at 553; CANBY, supra note 122, at 97.

(124) Miller, supra note 118, at 554; CANBY, supra note 122, at 97.

(125) Miller, supra note 118, at 554; FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 63 (Rennard Stickland et al. eds., 1982).

(126) See, e.g., Seminole Nation v. United States, 316 U.S. 286, 297 (1942) (stating that the government "has charged itself with moral obligations of the highest responsibility and trust" to the Indian people); Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (defining the relationship between tribes and the federal government as "a ward to his guardian").

(127) Miller, supra note 118, at 557; CANBY, supra note 122, at 100 ("To compensate for the disadvantage at which the treaty-making process placed the tribes, and to help carry out the federal trust responsibility, the Supreme Court has fashioned rules of construction sympathetic to Indian interests.").

(128) FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra note 125, at 444 ("Because of communication difficulties between Indians and non-Indians, disparity in the political and military power between them, and Indian unfamiliarity with the non-Indian legal system, courts have held that language in treaties is to be construed in favor of the Indians.').

(129) See, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); Tulee v. Washington, 315 U.S. 681, 684-85 (1942); United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116 (1938); Jones v. Meehan, 175 U.S. 1, 11 (1899).

(130) Miller, supra note 118, at 558.

(131) Id. at 563. Indian Law scholars, however, have noted that decisions by the current United States Supreme Court trend away from the support federal courts have historically given to Indian rights and sovereignty. See, e.g., DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 253-55 (4th ed. 1998) (citing examples).

(132) 207 U.S. 564, 576-78 (1908).

(133) Cappaert v. United States, 426 U.S. 128, 138 (1976).

(134) Winters, 207 U.S. at 576.

(135) Id. at 576-77; See also United States v. New Mexico, 438 U.S. 696, 702 (1978) (United States reserved the water necessary for the "purposes for which a federal reservation was created."); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686 (1979) (defining the limits of tribal rights "so much as, but not more than, is necessary to provide the Indians with a ... moderate living").

(136) See discussion supra Section II.A.1.

(137) Miller, supra note 118, at 577.

(138) Winters, 207 U.S. at 577.

(139) See discussion supra Section II.B.

(140) United States v. Adair (Adair II), 723 F.2d 1394, 1397 (9th Cir. 1983).

(141) United States v. Adair (Adair I), 478 F. Supp. 336 (D. Or. 1979).

(142) Id. at 345.

(143) Adair II, 723 F.2d at 1397.

(144) Id. at 1410.

(145) Id. at 1414.

(146) Id.

(147) Id.

(148) Id. at 1399.

(149) Id.

(150) LLOYD BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF LAW 23 (1991).

(151) Miller, supra note 118; Harold Shephard, Conflict Comes to Roost! The Bureau of Reclamation and the Federal Indian Trust Responsibility, 31 ENVTL. L. 901 (2001); Conrad A. Fjetland, The Endangered Species Act and Indian Treaty Rights: A Fresh Look, 13 TUL. ENVTL. L.J. 45 (1999).

(152) 476 U.S. 734 (1986).

(153) 16 U.S.C. [subsections] 668-668d (2000).

(154) Dion, 476 U.S. at 735.

(155) Miller, supra note 118, at 566 (alterations in original) (quoting Dion, 476 U.S. at 739-40).

(156) Dion, 476 U.S. at 739.

(157) Id. at 746.

(158) Id. at 745.

(159) 497 So. 2d 889 (Fla. Dist. Ct. App. 1986).

(160) Id. at 890.

(161) Id. at 893.

(163) Id. at 894.

(163) Id.

(164) See, e.g., Tracy A. Diekemper, Abrogating Treaty Rights Under the Dion Test: Upholding Traditional Notions that Indian Treaties are the Supreme Law of the Land, 10 J. ENVTL. L. & LITIG. 473, 482 (1995) ("The Florida courts misapplied the Dion test by not requiring clear evidence of congressional intent."); Tina L. Morin, Indians, Non-Indians, and the Endangered Panther,. Will the Indian/Non-Indian Conflict be Resolved Before the Panther Disappears?, 13 PUB. LAND L. REV. 167, 177-78 (1992) (explaining that the court failed to meet "the express legislative intent test required by Dion" when it presumed "that Congress considered all Indian hunting treaty rights when it exempted Alaskan natives" and when it "relied on the [ESA's] general comprehensiveness to find that it abrogated Billie's hunting rights"); Robert Laurence, The Abrogation of Indian Treaties by Federal Statutes Protective of the Environment, 31 NAT. RESOURCES J. 859, 883-85 (1991) ("A presumption that treaty-protected Seminoles are covered by the statute merely because certain non-treaty Alaska natives are not stands Dion on its head."); Miller, supra note 118, at 568-71 ("State v. Billie remains questionable as precedent due to its poor analysis of the law and its misuse of the plainly stated Supreme Court rule in Dion.").

(165) Billie I, 497 So. 2d at 893.

(166) Id. at 894.

(167) See Miller, supra note 118, at 568.

(168) STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 19 (3d ed. 2002); see also FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra note 125, at 739.

(169) PEVAR, supra note 168, at 19.

(170) For example, the Citizenship Act of 1924 expressly included Eskimos, Aleuts, and Indians of the Alaska Territory. 8 U.S.C. [section] 1401(a)(2) (2000). See also PEVAR, supra note 168, at 19 (noting that Congress, when enacting Indian legislation, normally states expressly whether the law also applies to Eskimos and Aleuts).

(171) Miller, supra note 118, at 568.

(172) Id. at 569.

(173) 667 F. Supp. 1485 (S.D. Fla. 1987).

(174) Id. at 1497.

(175) Id., 667 F. Supp. at 1492.

(176) Id. at 1490.

(177) Miller, supra note 118, at 569.

(178) Billie II, 667 F. Supp. at 1490.

(179) Miller, supra note 118, at 570.

(180) Billie II, 667 F. Supp. at 1490. This statement is further proof of the Billie II court's misapplication of the Dion standard. The Dion court expressly stated that if Congress has not made an "explicit statement" of its intent, "sufficiently compelling" evidence will suffice. Dion, 476 U.S. 734, 739. However, the "sufficiently compelling" evidence must be "clear and reliable evidence in the legislative history of the statute." Id. (emphasis added). In other words, if there is not an explicit statement from Congress, legislative history must be considered--it should not be used simply as "additional evidence" to support a finding the court has already made, as the Billie II court did.

(181) H.R. 13081, 92d Cong. (1972); S. 3199, 92d Cong. (1972).

(182) Billie II, 667 F. Supp. at 1490.

(183) Miller, supra note 118, at 570 n.212. Professor Miller notes that an Interior Department official stated at a House subcommittee meeting on H.R. 13081 that the committee did wish to prevent Indians from hunting or fishing species to extinction under the authority of their treaty rights. Id. The official continued, "to eliminate Indian treaty rights, it should do so expressly." Id. (quoting Billie II) (internal quotations omitted). The Billie II court stated that Congress neither followed nor disregarded the official's advice because the bill was not considered after the adjournment of the 92d Congress. Id. The court considered the legislative history of these defunct bills to prove Congressional Intent to abrogate treaty rights, but elected not to consider legislative history from the same bills to disprove that intent because "H.R. 13081 ... was not the bill that eventually was passed." Id. (quoting Billie II).

(184) For an opposing view of the Billie I and Billie II decisions, see Fjetland, supra note 151.

(185) U.S. DEP'T OF INTERIOR, SECRETARIAL ORDER NO. 3206, AMERICAN INDIAN TRIBAL RIGHTS, FEDERAL-TRIBAL TRUST RESPONSIBILITIES, AND THE ENDANGERED SPECIES ACT (June 5, 1997), available at http://endangered.fws.gov/tribal/ESAtribe.htm. Order No. 3206 "acknowledges the trust responsibility and treaty obligations of the United States toward Indian tribes and tribal members" and requires FWS and NMFS to "recognize that Indian lands are not subject to the same controls as federal public lands." When protection of a listed species is necessary, the agencies are required to work with tribes on a "government-to-government" basis to "harmodize[] the federal trust responsibility to tribes, tribal sovereignty," and the provisions of the ESA. Id.

(186) Id.

(187) Fjetland, supra note 151, at 52.

(188) See, e.g., Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001).

(189) See discussion supra Section II.D.

(190) KLAMATH TRIBES, SUCKERS, at http://www.klamathtribes.org/suckers.htm (last visited Nov. 16, 2003).

(191) Id.

(192) Members of both sucker species routinely live more than thirty years. Endangered and Threatened Wildlife and Plants; Notice of 90-Day Finding on a Petition to Delist the Lost River Sucker and Shortnose Sucker, 67 Fed. Reg. 34,422, 34,423 (May 14, 2002) [hereinafter Sucker Delisting Petition Finding]. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Shortnose Sucker and Lost River Sucker, 53 Fed. Reg. 27,130, 27,131 (July 18, 1988) [hereinafter Sucker Listing]. In the early 1900s, "a man with a pitch fork could throw out a wagon load [of suckers] in an hour." Benson, supra note 8, at 217.

(193) Sucker Listing, supra note 192, at 27,130-31.

(194) KLAMATH TRIBE, SUCKERS, supra note 190.

(195) Sucker Listing, supra note 192, at 27,130.

(196) Id. at 27,131.

(197) Id.

(198) Id.

(199) Id.

(200) Id. at 27,130.

(201) Id.

(202) Id.

(203) Id.

(204) Id. at 27,131.

(205) Id. at 27,132.

(206) Id. at 27,131.

(207) Sucker Delisting Petition Finding, supra note 192, at 34,422.

(208) Id.

(209) Id. at 34,423.

(210) Id.

(211) Michael Milstein, The Ecosystem of the Klamath Basin, THE OREGONIAN, Aug. 29, 2001, at B7; see also GEORGE GIBBS, INDIAN TRIBES OF WASHINGTON TERRITORY 19 (1978) (noting that at one time, salmon "actually filled the streams").

(212) Benson, supra note 8, at 202.

(213) Id. at 203.

(214) Endangered and Threatened Species; Threatened Status for Southern Oregon/Northern California Coast Evolutionary Significant Unit (ESU) of Coho Salmon, 62 Fed. Reg. 24,588 (May 6, 1997) [hereinafter Salmon Listing].

(215) Id.

(216) Id.

(217) Id.

(218) Endangered and Threatened Species; Proposed Threatened Status for Three Contiguous ESUs of Coho Salmon Ranging From Oregon Through Central California, 60 Fed. Reg. 38,011, 38,020 (July 25, 1995).

(219) Benson, supra note 8, at 217.

(220) Endangered and Threatened Species; Proposed Threatened Status for Three Contiguous ESUs of Coho Salmon Ranging From Oregon Through Central California, 60 Fed. Reg. at 38,021.

(221) Salmon Listing, supra note 214, at 24,588.

(222) Endangered and Threatened Species: Proposed Threatened Status for Three Contiguous ESUs of Coho Salmon Ranging from Oregon Through Central California, 60 Fed. Reg. at 38,021.

(223) Salmon Listing, supra note 214, at 24,588.

(224) Id.

(225) Id. at 24,591.

(226) Id. at 24,592.

(227) For example, road building for logging projects causes an increased amount of sediment to fall into the spawning areas. Less woody debris also account for less spawning. Overgrazing in riparian areas and resulting soil compaction also affect the spawning habits of the coho. Id

(228) Id.

(229) Id. at 24,593.

(230) Id.

(231) Endangered and Threatened Wildlife and Plants; Threatened Status for the Southern Oregon/Northern California Coast Evolutionary Significant Unit of Coho Salmon, 62 Fed. Reg. 33,038 (June 18, 1997).

(232) Listing Endangered and Threatened Species: Finding on Petition to Delist Coho Salmon in the Klamath River Basin; Reopening of Public Comment Period, 67 Fed. Reg. 40,679 (June 13, 2002).

(233) U. S. BUREAU OF RECLAMATION, supra note 62, at 1--2.

(234) See, e.g., Klamath Water Users Ass'n v. Patterson, 15 F. Supp. 2d 990 (D. Or. 1998), aff'd, 204 F.3d 1206 (9th Cir. 1999); Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001). 235 Kandra, 145 F. Supp. 2d 1192, 1195 (D. Or. 2001).

(236) Id. at 1196.

(237) Id. at 1200.

(238) Id at 1201.

(239) Id.

(240) Id.

(241) Id. at 1202.

(242) 42 U.S.C. [section] 4332(2)(C) (2000).

(243) Kandra, 145 F. Supp. 2d at 1204.

(244) Id at 1204--05. The court found the EIS requirement inapplicable to projects that have an annual planning cycle, because due to the continuous restructuring of the plan based on streamflow forecasts, "'an EIS would virtually always be in progress' ... It makes no sense to impose upon Reclamation a requirement it can never fulfill." Id at 1205 (quoting County of Trinity v. Andrus, 438 F. Supp. 1368, 1389 (E.D. Cal. 1977)).

(245) Id. at 1206.

(246) Id. at 1207.

(247) Id.

(248) Id at 1210.

(249) Id. at 1200 ("There is no question that farmers who rely on irrigation water and their communities will suffer severe economic hardship it" the 2001 Plan is implemented.").

(250) Id. at 1201 ("Threats to the continued existence of endangered and threatened species constitute ultimate harm.").

(251) Id ("Balancing these harms is a difficult task, and one that leads to no concrete determination. Given the high priority the law places on species threatened with extinction, I cannot fred that the balance of hardship tips sharply in plaintiffs' favor."). 252 The court summarized its holding as follows:

(252) The court summarized its holding as follows:

   While the court sympathizes with plaintiffs and their plight, I ant
   bound by oath to uphold the law. The law requires the protection of
   suckers and salmon as endangered and threatened species and as
   tribal trust resources, even if plaintiffs disagree with the manner
   in which the fish are protected or believe that they inequitably
   bear the burden of such protection.

Id at 1211.

(253) This may be true in theory only, however. Given the political clout of agricultural interests and the apparent willingness of the Bush Administration to discount the divisive scientific findings of the FWS and NMFS, it remains to be seen whether the theory will carry through in practice.

(254) 16 U.S.C. [section] 1536(a)(2)(2000).

(255) See, e.g., Press-Enter. Co. v. County of Riverside, 478 U.S. 1 (1986); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Neb. Press Ass'n v. Smart, 427 U.S. 539 (1976).

(256) See, e.g., Wisconsin v. Yoder, 408 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

(257) See, e.g., Sherbert, 374 U.S. 398 (1963).

(258) Employment Div. v. Smith, 494 U.S. 872 (1990).

(259) Id. at 885 (internal quotation marks and citations omitted).

(260) Part of the threatened coho population along the Northern California and Southern Oregon coasts consists of hatchery fish. See Salmon Listing, supra note 214. However, NMFS cannot legally separate the hatchery coho from the wild coho when making a listing decision. Aisea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1162 (D. Or. 2001). Thus, applying the "natural conditions" concept in this manner is irrelevant.

(261) R. EDWARD GRUMBINE, GHOST BEARS: EXPLORING THE BIODIVERSITY CRISIS 184--85 (1992).

(262) Wilderness Act, 16 U.S.C. [subsections] 1131--36 (2000).

(263) See, e.g., Daniel Rohff & Douglas L. Honnold, Managing the Balances of Nature: The Legal Framework of Wilderness Management, 15 ECOLOGY L.Q. 249, 273-77 (1988).

(264) Notice of Intent to Prepare a Comprehensive Conservation Plan (CCP) and Associated Environmental Assessment (EA) for Pierce National Wildlife Refuge (NWR), Franz Lake NWR, and Steigerwald Lake NWR, and Notification of Two Public Scope Meetings, 65 Fed. Reg. 52,121, 52,122 (Aug. 28, 2000) (discussing the measures that can be taken to reduce the impact of non-native species, and how these measures will affect native species).

(265) 66 Fed. Reg. 3810 (Jan. 16, 2001).

(266) Id. at 3811. The policy defines "biological integrity" as "[b]iotic composition, structure, and functioning at genetic, organism, and community levels comparable with historic conditions.... " Id. at 3818 (emphasis added). "Environmental health" is defined as "[c]omposition, structure, and functioning of soft, water, air, and other abiotic features comparable with historic conditions...." Id. (emphasis added).

(267) Id.

(268) Id.

(269) "We favor techniques ... that mimic or result in natural [ecosystem] processes...." Id. at 3821. "The highest measure of biological integrity, diversity, and environmental health is viewed as those intact and self-sustaining habitats and wildlife populations that existed during historic conditions." Id. at 3819.

(270) "We maintain, or contribute to the maintenance of, populations of native species.... Where practical, we support the reintroduction of extirpated native species." Id at 3821; "We do not ... manage habitats to increase populations of [non-native] species.... "Id at 3822.

(271) See discussion supra Section II.E.

(272) 50 C.F.R. [section] 17.11 (2002).

(273) 16 U.S.C. [section] 1536(a)(2) (2000).

(274) Id [section] 1538(a)(1)(B).

(275) 50 C.F.R. [section] 17.31 (2002).

(276) Endangered and Threatened Species; Interim Rule Governing Take of the Threatened Southern Oregon/Northern California Coast Evolutionarily Significant Unit (ESU) of Coho Salmon, 62 Fed. Reg. 38,479 (July 18, 1997).

(277) Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43,098, 43,102 (Sept. 21, 1983) [hereinafter FWS Priority Guidelines]; Listing and Recovery Priority Guidelines, 55 Fed. Reg. 24,296 (Jane 15, 1990) [hereinafter NMFS Priority Guidelines].

(278) FWS Priority Guidelines, 48 Fed. Reg. at 43,102.

(279) Id.

(280) Id.

(281) Id. at 43,098.

(282) Id. at 43,102--03. Considering decisions to delist a species or reclassify a species from endangered to threatened are not relevant to this analysis. These decisions axe based on two criteria: 1) the impact the delisting or reclassification would have on the management program for the species, and 2) whether the delisting or reclassification action is petitioned. Id. at 43,103. Petitioned decisions that would have a high management impact are given the highest priority for consideration. Unpetitioned decisions that would have a low management impact receive the lowest priority. Id.

(283) Id. at 43,102-03.

(284) Id. at 43,103.

(285) Id.

(286) Id.

(287) "Top priority" does not mean that the species will be listed or reclassified; it simply means that the species will be considered for listing or reclassification before a species of lower priority.

(288) 16 U.S.C (section) 1533(f)(1) (2000).

(289) FWS Priority Guidelines, supra note 277 at, at 43,103.

(290) Id. at 43,104.

(291) Id.

(292) Id.

(293) Id.

(294) See, e.g, Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57,114 (Oct. 22, 1999); Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Years 1998 and 1999, 63 Fed. Reg. 25,502 (May 8, 1998); Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Year 1997, 61 Fed. Reg. 64,475 (Dec. 5, 1996).

(295) NMFS Priority Guidelines, supra note 277.

(296) Id. at 24,296.

(297) Id.

(298) Id at 24,296-97.

(299) Id. at 24,297.

(300) 16 U.S.C. [section] 1532(6) (2000).

(301) Id [section] 1532(20).

(302) Water should also be released to support the threatened bald eagles in the Lower Klamath National Wildlife Refuge. See discussion supra Section R.D. An analysis of the suckers relative to the bald eagles also places the endangered suckers in a superior position. This Comment only focused on the relationship between the coho salmon and the suckers for two reasons: 1) the purpose of this Comment was to resolve which right was superior to the others in the controversy and comparing the suckers to the coho salmon provided that resolution; 2) the survival of the coho salmon directly correlates to the amount of water flowing into the Klamath River from Upper Klamath Lake. The coho are confined by genetics to the Klamath River. The future of the bald eagles, by contrast, depends on several factors, including their ability to expand their range if needed. As such, the impact of the Klamath resolution will be more immediate and far-reaching in the case of the coho as opposed to the bald eagles.

(303) This solution could be inapplicable in the future, depending on the success of the groups' petition to the agencies for changes in the status of the fish. See discussion supra Section IV. if, for example, the suckers were reclassified as threatened--the same status as the coho--courts would have to find another basis for a resolution.

(304) Michael Milstein, Farmers Offered Cash to Idle Land, Tap Wells, THE OREGONIAN, Mar. 3, 2003, at A1.

(305) Id However, farmers who take advantage of the plan are still not guaranteed sufficient water levels in a dry year. Id

(306) Michael Milstein, Klamath Farmers Retool Acreage, But Risks of Water Shortage Persist, THE OREGONIAN, June 10, 2003, at A1 [hereinafter Milstein, Farmers Retool Acreage].

(307) Michael Milstein, Klamath Water Cuts Sought, THE OREGONIAN, June 26, 2003, at A1.

(308) Id.

(309) Milstein, Farmers Retool Aerate, supra note 306 (quoting Troy Fletcher, Executive Director of the Yurok Tribe, who explained, "It's very distasteful to us when they're paying junior water users for water that's still inadequate to meet our needs.").

(310) United State v. 338 F.3d 971, 972-73 (9th Cir. 2003). The Braren court did not argue with the district court's reasoning. Rather, it held the dispute was not ripe until the completion of the Klamath Basin adjudication. Id. see discussion supra notes 148-49 and accompanying text.

(311) No. C02-2006 (N.D. Cal. 2003). see supra notes 85-86 and accompanying text.

(312) Pac. Coast Fed'n of Fishermen's Ass'ns v. United States Bureau of Reclamation, No. C02-2006, slip op. at 30-31 (N.D. Cal. July 14, 2003) (order granting summary judgment in part).

(313) Id. at 31. Judge Armstrong reasoned that, since the portions of the BiOp she found problematic--the RPAs--were not implicated until 2010, the BiOp could remain in effect unitl NMFS issued a new one adhering to the order. Id. at 26.

(314) Milstein, Farmers retool Acreage, supra note 306.

(315) Id.

(316) Michael Milstein, Accord Builds in Klamath Basin, THE OREGONIAN, Oct. 4, 2003, at A1. The 690,000 acres is land taken from the tribes in 1954 when Congress terminated federal recognition of the Klamath Tribes. See discussion supra notes 31-38 and accompanying text.

(317) Michelle Cole, Klamath Plan Meets Opposition, THE OREGONIAN, Oct. 11, 2003, at D1. The opposition, led by the Oregon Natural Resources Council, proposes instead that the federal government compensate the Klamath Tribes for the former reservation land. and acquire the land from private owners through purchase or eminent domain. Id.

Matthew G. McHenry *

* [c] Matthew G. McHenry, 2003. Associate Editor, Environmental Law, 2003-2004; Member, Environmental Law, 2002-2003. J.D. expected May 2004, Lewis & Clark Law School; B.B.A., University of Michigan Business School, 1997. The author thanks Professor Robert Miller for his guidance and suggestions. The author also thanks Maegan McHenry for her patience and support.