COHO, proposed chinook listing

and other endangered species news

new.gif (26402 bytes)Klamath Coho - Are the Modern Klamath Coho an Amalgamation of  Out of Area Genetic Stock?

Siskiyou County comments on proposed NOAA recovery plan for coho salmon

Coho plan update: NMFS supervisor has visited landowners, conducted field tours in county; Siskiyou County comments on proposed NOAA recovery plan for coho salmon ; Audio at 30:55 "Coordination" meeting between the Siskiyou County Board of Supervisors and NOAA Fisheries/National Marine Fisheries Service/ Irma Lagarmasino on the proposed Recovery Plan for SONCC coho [3/20/12 morning session] ; Coho salmon recovery plan's 'flaws' outlined; Lagomarsino letter responding to request for coordination: Coho concerns; Fisheries officials face hostile crowd: Salmon recovery plan seen as flawed;Conservationists concerned over coho recovery plan; fisheries service emphasizes that plan is not final ; NOAA seeks coho comments; $3.6 billion plan could help coho salmon; meeting on proposal set for Thursday; Endangered and Threatened Species; Recovery Plan Southern Oregon/Northern California Coast Coho Salmon Evolutionarily Significant UnitExtension granted: Submit a formal comment by 5 p.m. 5/04/2012 (5MB limit);  Mail: Julie Weeder, National Marine Fisheries Service, 1655 Heindon Road, Arcata, CA 95521, Attn: Recovery Coordinator/SONCC Coho Salmon Public Draft Recovery Plan Comments. Via fax: (707) 825-4840. Please include the following on the cover page of the fax: “Attn: Recovery Coordinator/SONCC Coho Salmon Public Draft Recovery Plan Comments.” Vol. I; Vol II; Federal register; Coho comments sought; NOAA seeks public input on coho salmon plan; public has until March 5 to weigh in on draft recovery plan; local NMFS SONCC coho recovery planCoho salmon face lofty recovery goals; Siskiyou County calls rates 'unfair, unrealistic' The coho recovery plan identifies agriculture as a "very high" threat to threatened coho salmon on the Scott and Shasta rivers. The plan calls for cutbacks on Scott and Shasta farmers' stream water use as well as establishing statewide groundwater permitting programs. There's also litany of habitat restoration efforts including planting more trees along streams, adding gravel to the streambeds to improve salmon spawning areas, limiting road run off and removing barriers for passing fish. [Siskiyou County's prior comments on the draft plan];

  • DFG 8/4/11 letter to Shasta and Scott water users asking them to temporarily reduce their use of their water right

DFG reaches out to Siskiyou County ranchers, farmers; agency seeks protection of coho salmon;DFG asks for landowners’ help; DFG moves salmon to Scott River; young fish at risk of death as water in Siskiyou County creeks evaporates ; Over 100 dead young coho documented off Scott River; Fish and Game: steps were taken to save salmon - Times-Standard Online; Stranded coho salmon in Scott River tributaries trigger rescues, investigation : Indybay; Scott; Coho Still Dying For Water; Saw things differently at DFG meeting;

APPENDIX B to the Klamath Compact (A bi-state compact approved by Congress)
Siskiyou County Flood Control and Water Conservation District Act
Appendix 89 to the California Water Code
Under Appendix B section (r) In all areas of Siskiyou County other than the Klamath Project, the district has the power " to prevent interference with or diminution of, or to declare the rights in natural flow of any stream or surface or subterranean supply of waters used or useful for any purpose of the district or of common benefit of the lands within the district or to its inhabitants."

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The California's Joint Legislative Committee on Fisheries and Aquaculture held a hearing on the endangered Coho salmon at the State Capitol on Tuesday, Aug. 16 2011. COHO SALMON ON THE BRINK; Agenda & Presenter Information; Presentations & Documents; Resource Links; News Links; Video of hearing, part 2  DFG plans to do priority instream flow analysis on the Scott and Shasta to "guide future allocation of resources." (25 min mark start) NFS calls for legislation for increased water enforcement (50 min); Part 2 (at 5 min.)  Peter Moyle says need more flows and to take down Dwinnel dam. Our speakers were not shown on the Channel. 

  • Presentations & Documents - 2011 Fisheries Forum : CDFG Instream Flow Program Report 2010 - flow study under way for the Shasta River which will recommend in-stream flows, with the goal of transmitting those recommendations to SWRCB for consideration when it exercises its water rights authority. Will emphasize the Shasta River Canyon reach and the Big Springs complex. The primary objective of the Instream Flow Program is to develop scientific information on the relationships between flow and physical stream habitat for indicators of ecosystem health.

  • Sommarstron presentation

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DFG 6/22/11 letter to landowners re: Status of Shasta and Scott River Watershed-wide Permitting Programs

Siskiyou County Farm Bureau has filed a lawsuit against the CA Dept. of Fish and Game in Siskiyou County court asserting that "extraction" of water by turning on a headgate does not require notification and permitting under the CA Fish and Game Code 1602. Complaint:

Groups battle over water diversions in Scott, Shasta; Groups side with DFG in water lawsuit ; Tribe, fishermen, conservationists join Siskiyou water lawsuit; say suit could endanger salmon - Times-Standard Online ; Karuk Tribe, others not part of suit; groups can't intervene in Siskiyou water use case; DFG lawsuit: Groups can’t intervene

Siskiyou County Farm Bureau 1602 lawsuit - Complaint; Ruling on Demurrer; Press Release

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Fish and Game Codes 1602, 1606, 2050 et seq, 5901, 5931, 5937 (Just check Fish and Game Code and it will pull up a complete index)

rdbut.jpg (1118 bytes)1602 (excerpted): (a) "An entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur: ..."

rdbut.jpg (1118 bytes)1606: "The department shall not condition the issuance of an agreement on the receipt of another local, state, or federal permit."

rdbut.jpg (1118 bytes)2050: "This chapter shall be known and may be cited as the California Endangered Species Act.... "

rdbut.jpg (1118 bytes)5901: "Except as otherwise provided in this code, it is unlawful to construct or maintain in any stream... any device or contrivance that prevents, impedes, or tends to prevent or impede, the passing of fish up and down stream."

rdbut.jpg (1118 bytes)5931: " If, in the opinion of the commission, there is not free passage for fish over or around any dam, the department shall cause plans to be furnished for a suitable fishway, and order in writing the owner of the dam to provide the dam, within a specified time, with a durable and efficient fishway, of such form and capacity and in such location as shall be determined by the department. Such fishway shall be completed by the owner of the dam to the satisfaction of the department within the time specified."

rdbut.jpg (1118 bytes)5937: "The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam. During the minimum flow of water in any river or stream, permission may be granted by the department to the owner of any dam to allow sufficient water to pass through a culvert, waste gate, or over or around the dam, to keep in good condition any fish that may be planted or exist below the dam, when, in the judgment of the department, it is impracticable or detrimental to the owner to pass the water through the fishway."

 

 

 

ENDANGERED SPECIES
INCIDENTAL TAKE PERMITS

rdbut.jpg (1118 bytes)California Endangered Species Act

 rdbut.jpg (1118 bytes)CEQA (California Environmental Quality Act: (site 1); (site 2);

Note, DFG Game Wardens are enforcing both the California Endangered Species Act and the federal Endangered Species Act. They are cross - deputized (Warden, personal communication)

Endangered species listing process wastes taxpayer cash, attorney says

 

 

 

MCCLOUD/SACRAMENTO WINTER CHINOOK

new.gif (26402 bytes)Spiritual covenant: Winnemem Wintu promise to return salmon barred by dam; Tribe travels across Pacific to recover lost salmon species; Pilot project proposed to re-introduce winter-run Chinook to the McCloud River; My comments (McCloud - Sacramento Chinook); Dam-raising threat: Certain wildlife live only around the lake Redding Record Searchlight 

ESA

(j) Experimental populations

(1) For purposes of this subsection, the term "experimental population" means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species

(2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.

(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species.

(C) For the purposes of this chapter, each member of an experimental population shall be treated as a threatened species; except that -

(i) solely for purposes of section 1536 of this title (other than subsection (a) (1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under section 1533 of this title; and

(ii) critical habitat shall not be designated under this chapter for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species.

(3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before October 13, 1982, for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species.

 

 

Agency Not Protecting Klamath Chinook; Upper Trinity, Klamath Chinook not on endangered list; feds deny request of several groups; Findings of the Upper Klamath Trinity River Chinook Salmon Biological Review TeamGovernment Delay, Drought Prompts Renewed Push for Protection of Klamath River Chinook Salmon, Center for Biological Diversity 2/1/12, The Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center and The Larch Company filed the notice of intent.

Upper Klamath River Chinook Salmon One Step Closer to Endangered Species Act Protection (Determination may warrant protection); NOAA finds petition to list Chinook salmon in Upper Klamath and Trinity rivers basin may be warranted Endangered Species Act Protection Sought for Klamath River Chinook Salmon

Federal Register notice

KLAMATH CHINOOK

(Source Fishlink) ESA LISTING PETITION FILED FOR KLAMATH SPRING RUN CHINOOK:  On 27 January, the environmental groups Oregon Wild, Environmental Protection Information Center (EPIC) and the Center for Biological Diversity filed a formal Petition for Listing with the National Marine Fisheries Service (NMFS) asking for protection of Klamath River spring-run chinook under the federal Endangered Species Act (ESA).  Spring-run chinook largely occupied the river above the current Klamath dams, which cut off their migration routes, driving most of that run to extinction starting in 1916.   Very low numbers of spring chinook still persist in the lower Klamath River, which is now heavily dominated by the fall chinook run, and the groups are asking for changes in river management to protect these particular fish. The groups involved, however, have all opposed the existing “Klamath Settlement Agreement,” which among other things could lead to the removal by 2020 of the four dams blocking salmon access to the upper basin, restoring 90% of spring-run habitat.  While these groups present this ESA listing as their alternative to the Klamath Settlement they oppose, unfortunately the law is clear that an intervening ESA listing will not change the current FERC license for the dams, according to the recent Ninth Circuit Court of Appeals case which PCFFA litigated, CA Sportfishing Protective Assoc. vs. FERC, at 472 F.3d 593 (2006), available at: http://ftp.resource.org/courts.gov/c/F3/472/472.F3d.593.05-73064.html. Additionally, an ESA listing alone will not get more water permanently back in the river, nor will it require the aggressive 50-year salmon habitat efforts, both required by the Klamath Settlement.

 

     The ESA listing Petition itself is now available on the Internet  at: http://salsa.democracyinaction.org/dia/track.jsp?v=2&c=FDJkFDqTYXQ3dmMgn892J%2BW14EPtU30K.  The Petition must first go through an initial 90-day analysis by NMFS to consider whether it presents substantial scientific information indicating that further consideration might be warranted, and then if it passes that first test, NMFS must make a final listing determination within 12 months. For more, see the 28 January Eureka Times-Standard article at http://www.times-standard.com/news/ci_17225908.

 

 

Website on listing process:

 

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ANADROMOUS FISH

 

The California's Joint Legislative Committee on Fisheries and Aquaculture held a hearing on the endangered Coho salmon at the State Capitol on Tuesday, Aug. 16 2011. COHO SALMON ON THE BRINK; Agenda & Presenter Information; Presentations & Documents; Resource Links; News Links; Video of hearing, part 2  DFG plans to do priority instream flow analysis on the Scott and Shasta to "guide future allocation of resources." (25 min mark start) NFS calls for legislation for increased water enforcement (50 min); Part 2 (at 5 min.)  Peter Moyle says need more flows and to take down Dwinnel dam. Our speakers were not shown on the Channel.

California's 2010 Ocean Salmon Fisheries
2011 Fisheries Forum Report ; Stock Assessment and Fishery Evaluation (SAFE) Documents: Review of 2010 Ocean Salmon Fisheries; 2010 Klamath Basin Chinook Salmon Spawning Escapement, Harvest and Age Composition; ; Abundance Estimates ; NMFS 2011 Salmon Fishery Guidance

North Coast Instream Flow Campaign ; Klamath Riverkeeper; CA Coastkeeper Alliance

rdbut.jpg (1118 bytes) The  Magnuson-Stevens Fishery Conservation and Management Act Public Law 94-265 As amended through October 11, 1996

rdbut.jpg (1118 bytes)Consolidate Salmonid Cases;

Judge: Salmon protections too costly to water users; Sept. 16 is X-Day for Delta Smelt Case ; 2009 salmonid biop found to be unlawful; Decision ; Judge: Salmon protections too costly to water users; More Interior Scientists are Taking Heat; Federal Court Eviscerates Obama Administration's California Water Policy, Congressman Nunes Newsletter, and Letter from Congressman Devin Nunes to Secretary Salazar, Delta water grab fears unfounded, says U.S. resources chief; Judge's blistering rebuke of two federal scientists stokes fires under Obama administration; Angry federal judge rips 'false testimony' of federal scientists

pg 10 [federal agencies] "They haven't just violated the Endangered Species Act in producing an unlawful BiOp and unlawful and reasonable and prudent alternatives, they've also violated NEPA, which, in effect, prevented any rational, any what the Court would believe to be informed, competent and considerate reflective analysis of the human health and safety impacts, impacts on the State of California water supply and related impacts by not performing a NEPA analysis, not preparing an EIS and not following the law in any regard to that extent."

pg 14 " I'm going to be making a finding in this case of agency bad faith...the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science. There is speculation." pg 30 And in the final analysis, protecting endangered species is crucially important. It's a legislative priority. And even the plaintiffs don't dispute that. But when it overwhelms us to the point that we lose objectivity, we lose honesty, we're all in a lot of trouble. Serious, serious trouble."

rdbut.jpg (1118 bytes)Klamath Salmon (Chinook) Understanding Allocation

rdbut.jpg (1118 bytes)Letter from Peter Moyle and Jeffrey Mount -'Unfortunately, to date, there is a distinct shortage of scientific analysis of most of the consequences of removal of the Klamath dams. The Klamath is a complex, unique river system with a diverse fish fauna. In addition, the proposed dam removal project is unprecedented in size and scope. The US dam removal community has never attempted anything comparable to this. The combination of project scale and unique river system insures that unanticipated effects—some positive, some negative—will occur during and following dam removal. It seems prudent to make investments in developing the science behind Klamath dam removal that insures effects are as fully understood as possible, and that alternative adaptive strategies are explored. We think that existing studies (primarily in the ‘gray’ literature) are inadequate to provide reliable predictions about the effects of dam removal. Most notably, there has not been a systematic, comprehensive assessment of the impact of dam removal on native fish populations of the Klamath, particularly salmonids. This is surprising because the primary motivation for removal of the dams is improvement of these populations.

 

 

Fish Disease in the Klamath

 

rdbut.jpg (1118 bytes)Entry/Trespass

rdbut.jpg (1118 bytes)The source of the State's regulatory power over fish and game

rdbut.jpg (1118 bytes)The fiction of state "ownership" of fish and game (Hughes v. Oklahoma,  441 U.S. 322 (1979)

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ARTICLES, etc

 

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COURT DECISIONS (<--click here)

(bearing on 1602s and water rights takings)

COURT CASES ( OLD COHO PROGRAMMATIC ITP & 1602
SHOT DOWN BY COURT and OLD 1602 LAWSUIT (CFBF) DROPPED)

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PROPERTY RIGHTS

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HISTORY

Standards of Resonableness as applies to regulation:

It is undisputed that an individual has an inherent right to engage in a lawful business or trade. Regulation or restraint of a business activity does not contemplate its destruction, but rather places operation within certain bounds. An state agency may impose reasonable restrictions upon the conduct of such activities so long as the regulations have a reasonable relation to a legitimate public purpose; are reasonably exercised, (within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.) Under the guise of protecting the public, the regulation may not arbitrarily interfere with, or unnecessarily restrict, a lawful business or occupation (e.g. arbitrary and capricious.)

 

LINKS

Pacific Legal Foundation

Mountain States Legal Foundation

Roger Marzulla

Siskiyou County Farm Bureau

Pie N Politics

Pacific Fishery Management Council

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