Snake River Currents

Volume 2, Issue 1

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SRBA mediation talks have focused recently on the protection and enhancement of on-reservation resources, through meetings with several federal resource agencies. SRBA tribal representatives also met with the Nez Perce Tribal Executive Committee to present a status of these discussions and receive guidance on future mediation steps.

Oregon Coastal Coho Get Temporary Protection

The 9th U.S. Circuit Court of Appeals in San Francisco has given temporary protection to wild Oregon coastal coho. The appeals court stayed Judge Hogan's September 10 ruling that removed the fish from the federal endangered species list (see Snake River Currents, November, 2001).

The Court issued a statement saying that it would consider an appeal by a coalition of conservation groups challenging Judge Hogan’s delisting decision. The eight conservation groups are being represented by Earthjustice, a legal organization in Seattle. An attorney for Earthjustice said it could take a year or more for the appeal to be decided.

Judge Hogan had ruled that the National Marine Fisheries Service (NMFS) erred in listing wild coastal coho as threatened under the ESA, while not protecting hatchery bred coho despite their belonging to the same geographically distinct subspecies. Hogan called the different treatment for wild and hatchery salmon "arbitrary and capricious."

Although Hogan’s ruling resulted in the lifting of federal protections for wild Oregon coastal coho, state protections remained in place. With the Court of Appeals ruling, however,federal protection is back in place for Oregon coastal coho. This means that killing or harming them is a federal crime, punishable by prison sentences and fines of up to $25,000.

Also affected are thousands of acres that were scheduled to be logged in the Umpqua National Forest and the Siskiyou National Forest. After 

Judge Hogan’s ruling, the U.S. Forest Service and the Bureau of Land Management had announced that 28 timber sales that had been stopped by the coho listing would be allowed to go forward. Those sales are now stopped again until the appeals court rules.

Hogan’s ruling had additional regional implications since after it was announced people were threatening to file similar cases that could have resulted in the delisting of other fish species. Salmon runs that could have been affected include Puget Sound and Columbia River chinook and other coho in Southern Oregon and Northern California. Now those cases are stopped, at least until the 9th Circuit Court of Appeals makes its ruling.

Many conservationists believe that the 9th Circuit decision is a significant victory. They had called for NMFS to appeal Judge Hogan’s ruling, and were disappointed when it did not.

Oregon coastal coho may not remain federally protected since the outcome of the appeal is uncertain. Also, at the time of Hogan’s ruling, NMFS announced that it intended to a review federal hatchery policy. It also planned to review 23 runs of salmon and steelhead to see if they should be removed from the endangered species list. Both those reviews remain in effect. NMFS originally listed Oregon coastal coho as threatened under the Endangered Species Act in 1998.

Supporters of the Hogan ruling consider the appeals court decision unfortunate. They still expect federal protection to be removed from many salmon runs because of NMFS’ review, regardless of what the appeals court rules.

                                       Sept       Oct       Nov       Total

Avg High Temp               82.8       61.4      51.2       65.1

Change from Norm         +5.5        -1.9      +3.1      +2.2

Avg Low Temp               53.4       42.1       37.1      44.2

Change from Norm         +2.9       +1.0       +3.0     +2.3

Total Precip                     0.19       1.86       1.23     3.28

Change from Norm         -0.47     +0.99    +0.08   +0.06

Tribe’s On-Reservation Water Right Claims Will be Reported to the SRBA Court as Originally Scheduled

At the request of attorneys for the Tribe and the United States, the Idaho Department of Water Resources (IDWR) has decided not to stagger the reporting schedule for the Tribe’s on-reservation water right claims as was earlier announced. Instead, IDWR will stick to its original schedule and report all the on-reservation claims filed by the Tribe, and the claims filed by the United States on behalf of the Tribe, at the same time – toward the end of 2003.

IDWR had considered reporting the on-reservation claims basin-by-basin, beginning in the spring of 2002, instead of reporting them all at one time. Reporting all the claims at one time will make the litigation less complicated because the SRBA Court can consolidate the on-reservation claims into one subcase as was done with the other categories of the Tribe’s claims.

Once IDWR reports the on-reservation claims to the Court, the Court will set a schedule for filing objections to the claims and for the Tribe to respond to the objections. That is the point at which litigation begins.

The on-reservation claims are one of three categories of claims filed by the Tribe and the United States in March of 1993. The on-reservation claims consist of water for a variety of purposes, including: domestic, commercial, municipal, and industrial uses; springs and ponds for livestock and wildlife; irrigation from surface water and from groundwater; water to develop wildlife habitat; recreation; and hydroelectric power production. Allottees will receive a portion of the on-reservation water that the Tribe obtains.

The Tribe and the United States also filed claims for instream flow claims (located both on the reservation and off the reservation) and for springs and fountains (located in the 1863 ceded area). Litigation began on the instream flow claims in 1995, but has been stayed pending the outcome of two appeals to the Idaho Supreme Court – the first appeal may be heard as soon as March of 2002. Litigation began on the springs and fountains claims in 1999, and a trial is scheduled to begin in October of 2002.

More information about the SRBA in general, and the status of the Tribe’s claims in particular, can be obtained from the IDWR website at http://WWW.IDWR.STATE.ID.US or from the Court’s website at http://www.srba.state.id.us. The instream flow claims are consolidated subcase number 03-10022, and the springs and fountains claims are consolidated subcase number 67-13701.

- Elsie Maynard (Nez Perce)

State water managers have approved requests for water rights to provide minimum stream flows on three segments of the Clearwater River.        

The Idaho Water Resources Board originally requested the water rights in 1992 to protect fish and wildlife habitat, aquatic life and recreational uses of the river. Thus, the rights will have a priority date of 1992, and will be junior to all other existing water rights with an earlier priority date.

The new water rights, however, allow exceptions if the water is being used for domestic, municipal, commercial or industrial development, to water livestock or to irrigate residential lots. These exceptions please Lewiston officials, who are concerned with providing for future municipal growth and industrial development. If the city of Lewiston needs more water for growth, these rights will not interfere.

Bill Sedivy, director of the environmental group Idaho Rivers United, did not have as positive a reaction to the new water rights. He said that he is happy the Idaho Department of Water Resources established minimum flows, but was disappointed fish, wildlife, and recreation are subordinate to most other uses.

Idaho water law makes if very difficult to leave water in the streams for fish, wildlife and recreation. Only the Idaho Water Resources Board can request rights for those purposes, and the rights, as in this case, are subordinate to those with an earlier priority date. This means that in low flow years when the fish really need the water, it is usually not available.

Joe Jordan of Fruitland, the chair of the Water Resources Board, said the water rights can be amended at anytime if they are deemed either too strict or too lenient.

Idaho Water Resources Board’s request was for rights to enough water to support salmon and steelhead populations and provide for recreational use. When the department granted that request, the flow levels were set.

Officials from the city of Lewiston and Potlatch Corporation had originally expressed reservations about the minimum flows during the application process, but said they were satisfied with the final decision.

A tanker truck carrying 10,000 gallons of diesel fuel overturned on Highway 12 near Syringa on January 6, 2002. Officials estimate that at least 6,000 gallons of the fuel flowed directly into the Clearwater River, which is the major source of drinking water for Kamiah, Orofino, and Lewiston. The river is also habitat for threatened salmon, steelhead, and bull trout. Clean up is in progress.