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Klamath BOR farmers: ‘Takings’ case moves to Washington, D.C. venue

Agriculture, Biologists for hire, CA & OR, Constitution, CORRUPTION, Courts, CRIMINAL, Federal gov & land grabs, Klamath Project - BOR, Lawsuits, Liberty

PNP comment: The two below articles are of great importance. The right outcome will be a major pushback on the ESA and the corrupt practices government agencies and bureaucrats use to become tyrants over private property. — Editor Liz Bowen

Holly Dillemuth

  • Jan 20, 2017

  • Herald and News.com

Klamath Basin irrigators are taking their case to a higher court.

A historic case on the ramifications of a major water shutoff to Klamath Reclamation Project irrigators in 2001 will be heard at trial from local farmers or their attorneys starting Monday, Jan. 30 in Washington, D.C.

Local water attorney Bill Ganong, who is among the first of the local group to board a flight out of Klamath Falls on Jan. 26 for the trip, has been anticipating it for more than a decade. Ganong serves as special counsel for the more than 20 who will testify during the hearing, which could last up to three weeks.

“It’s been a long journey,” Ganong said at his law office downtown last week.“We were planning on it at about 2005.”

The ‘Takings’ case

The journey will take the local group to Washington, D.C. to share testimony in what is being called the “takings” case at the U.S. Federal Court of Claims. The trial begins with testimony from area irrigators about the impact of the 2001 water shutoff to their operations.

In April 2001, U.S. Fish & Wildlife Services and National Marine Fisheries Service issued biological opinions declaring that water diverted from Upper Klamath Lake by Klamath Project irrigators would endanger suckers and coho salmon, citing the Endangered Species Act.

“The agencies cannot say, ‘Don’t do it,’” Ganong said. “They can just say, ‘If you do it, here’s what’s going to happen. And then the law says, no U.S. person can allow that to happen.”

The 2001 water shutoff decision prompted the historic Klamath Bucket Brigade, a protest that drew widespread attention to the Klamath Basin. On May 7, 2001, thousands of people gathered in downtown Klamath Falls, forming a line from Lake Ewauna in Veterans Memorial Park, up Main Street, to the A Canal bridge at Crater Lake Parkway and Esplanade Avenue, to drop 50 buckets of water — one for each state in the U.S. — into the canal.

“It was a statement and it worked,” Ganong said. “It was national, live television.”

No water

Irrigation water remained shut off to Basin farmers between April and July 2001, available only at minimum levels for stock water.

“It bankrupted a lot of people or financially put them in a position where they had to sell or go find a different trade or a different occupation,” Ganong said.

Now, Klamath Basin irrigators will get their day in court.

“All of them have a story,” Ganong said.

Those attending from Klamath Falls and the surrounding areas hope to utilize their time in the nation’s capital to also meet with the Oregon congressional delegation, Sens. Jeff Merkley and Ron Wyden, and congressman Greg Walden.

“The people who are going back, some of them are just giddy almost,” Ganong said. “They’ve been waiting so long and to finally have it come to trial … it’s a big deal. It’s just a big deal.”

A long time coming, ‘too late’ for some

But not everyone can make the trip.

“We had to go through a process to add some witnesses who we hadn’t identified before, because some of our original people we identified have passed away or have medical or age-related issues that prevent them from traveling,” Ganong said.

“We’ve just lost a lot of people in the ag community,” Ganong added.

“It’s taken so long for these people to get to this point and hopefully compensated for what they lost. For many of them, it’s almost symbolic now.”

Ganong said farmers could expect to see a total $28 million to $30 million if a decision is handed down in their favor.

But he alluded to a favorable outcome for farmers being more than financial.

“Almost all of the farmers going back — maybe all of them — they’re third- or fourth-generation on the same farm,” Ganong said. “It is in their DNA.”

A long and difficult road

Ganong detailed a lengthy history of the case, which passed through the hands of two previous judges, and now is now in the hands of a third.

“The first judge for approximately four or five years, apparently had some medical conditions that interfered with her ability to perform her job as a judge,” Ganong said. “So the case got filed and it literally, it just sat. Nothing really happened for … it seems like it was four years.”

Stopping to recall the name of the judge, he couldn’t.

“It’s been too long,” Ganong said.

The judge retired and the case was assigned to the late Francis Allegra.

“In the course of the next few years, there was a lot that took place, most of it in writing motions,” Ganong said.

Claims dismissed

Ganong said Allegra dismissed the claims that said, one, the U.S. government took property from farmers, and two, that farmers were protected under the Klamath Compact.

“He ultimately decided that we didn’t have a case so he dismissed it,” Ganong said.

“In his opinion, the United States owned the water and could do whatever it wanted with it. He found it in their favor.”

An appeal to Allegra’s decision was made, and over the course of time, the case was handled by the U.S. Court of Appeals with assistance from the Oregon Supreme Court.

“That court started looking at our appeal and decided they had some questions of how Oregon law applied to this case so they then referred it to the Oregon Supreme Court and that was about a two-year detour,” Ganong said. “The Oregon Supreme Court ruling was very favorable to us.”

Oregon court ruling

The Oregon Supreme Court ruled that the water from the Klamath Basin was property, and that it was taken from farmers.

The court landed back in the hands of Allegra, who died in 2015.

The “takings” case has been with Judge Marian Horn since, who set a firm court date in the face of requests to continue the case further.

“She took the bull by the horns,” Ganong said.

Ganong is hopeful of a favorable outcome for farmers.

“If we prevail, then going forward, the federal government will have to weigh the cost of the decisions it makes on endangered species and other federal laws,” Ganong said.

“They haven’t had to at least consider financially the impact on the community when they withhold water or delay the delivery of water and this will turn that around.

“This will not change the law,” he emphasized. “The United States has a duty to do whatever is necessary to prevent the extinction or loss of threatening endangered species, including taking water, including taking land, including taking logging.

“What this will do is cause the United States to pay private property owners for the loss of their water or their land or their ability to harvest timber. And it could be an enormous amount of money.”


In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Feds scramble to avoid another mass salmon die-off in Sacramento River

Biologists for hire, California Rivers, California water, CORRUPTION, Dams other than Klamath, Federal gov & land grabs, Salmon and fish

PNP comment: We in Siskiyou County have exposed fraud and flat-out lies to bureaucrats in both state and federal agencies. Using incorrect models and creating the science needed to support new regulations is now standard operating procedure for many government agencies. How to stop it? We haven’t figured that out yet! — Editor Liz Bowen

A year ago, California lost nearly an entire generation of endangered salmon because the water releases from Shasta Dam flowed out warmer than federal models had predicted. Thousands of salmon eggs and newly hatched fry baked to death in a narrow stretch of the Sacramento River near Redding that for decades has served as the primary spawning ground for winter-run Chinook salmon.

Earlier this year, federal scientists believed they had modeled a new strategy to avoid a similar die-off, only to realize their temperature monitoring equipment had failed and Shasta’s waters once again were warming faster than anticipated.

In the months since, in what is essentially an emergency workaround, they’ve revised course, sharply curtailing flows out of Shasta. The hope is that they reserve enough of the reservoir’s deep, cold water pool to sustain this year’s juvenile winter-run Chinook. But it’s meant sacrificing water deliveries to hundreds of Central Valley farmers who planted crops in expectation of bigger releases; and draining Folsom reservoir – the source of drinking water for much of suburban Sacramento – to near-historic lows to keep salt water from intruding on the Delta downstream.

In spite of all this, another generation of wild winter-run Chinook salmon could very well die.

For all the focus on fallowed farm fields and withered lawns in California’s protracted drought, native fish have suffered the most dire consequences. The lack of snowmelt, warmer temperatures and persistent demand for limited freshwater supplies have left many of the state’s reservoirs – and, by extension, its streams and rivers – hotter than normal. The changing river conditions have threatened the existence of 18 native species of fish, the winter-run Chinook among them.

Chinook are called king salmon by anglers for a reason. They can grow to more than 3 feet in length, and the biggest can top more than 50 pounds. Decades ago, before dams were built blocking their traditional spawning habitat, vast schools of these silver-sided fish with blue-green backs migrated from the ocean to spawn and die in the tributaries that feed the Sacramento River in runs timed with the seasons.

The largest run that remains in the Sacramento River system is the fall run, which survives almost entirely due to hatchery breeding programs below the Shasta, Oroville and Folsom dams. The winter run, in contrast, is still largely reared in the wild, laying its eggs in the gravel beds below Shasta’s concrete walls. Their numbers have dwindled in the face of predators and deteriorating river conditions. The federal government declared the run endangered in 1994, and it has flirted with extinction ever since.

Following last year’s failed federal efforts, only about 5 percent of the winter-run Chinook survived long enough to begin to migrate out to sea. The species has a three-year spawning cycle, meaning that three consecutive fish kills could lead to the end of the winter run as a wild species. One hatchery below Lake Shasta breeds winter-run Chinook in captivity.

Officials with the U.S. Bureau of Reclamation, which operates both Shasta and Folsom dams, say they believe their emergency efforts at Shasta are working and they anticipate “some” winter-run Chinook will survive this year.

“We believe that we are on track,” said bureau spokesman Shane Hunt. “We are sitting in a much better place today than we were a year ago today.”

Several biologists interviewed remain dubious. They note that preserving more cold water in Shasta has meant many stretches of the Sacramento River are warmer than they were last year. They worry that salmon eggs and fry will still die – only gradually instead of suddenly.

“We stand a pretty good chance of losing the wild cohort again this year, like we did last year,” said Peter Moyle, a UC Davis researcher and one of the nation’s leading fisheries biologists. “If we get lucky some of those fish will survive. We’re definitely pushing the population to its limits.”

Agricultural leaders, meanwhile, say there’s good reason to suspect the government models will again prove flawed and the fish will die despite the sacrifices farmers have made.

Rep. Jim Costa, a Democrat and third-generation farmer who represents a wide swath of the San Joaquin Valley, is among those who think there’s a good chance farmers have been punished for no benefit to the fish.

“That begs the question: What are we accomplishing?” Costa said. “We are in extreme drought conditions. … The water districts that I represent in the San Joaquin Valley have had a zero – zero – water allocation. … Over half a million acres have been fallowed … It just seems to defy common sense and logic.”

Some members of California’s fisheries industry also have lost confidence in the bureau, arguing the government has badly mismanaged its rivers. Beyond the very existence of a wild population of fish, they say, the government is risking millions of dollars for California’s economy and hundreds of fishing jobs – and a key source of locally caught seafood for markets and restaurants.

Two consecutive fish kills involving an endangered species could lead to more stringent regulation of commercial and recreational fishing. It’s a real possibility, state and federal fisheries regulators said, that salmon fishing could be severely restricted along much of California’s central coast and in the Sacramento River system next year.

Larry Collins, a commercial fisherman operating out of Pier 45 in San Francisco, said that in the fight over water, the fishing industry – and wild fish – lack the political clout compared with municipal and agricultural interests.

“I’ve been around a long time, and I’ve fought the battle for a long time, and I’ve watched the water stolen from the fish,” he said. “The fish are in tough shape because their water is growing almonds down in the valley. To me, it’s just outright theft of the people’s resource for the self-aggrandizement of a few, you know?”

“You got money you can buy anything,” he added. “You can buy extinction.”

Federal models prove faulty

On paper, the requirements for salvaging the winter-run Chinook seem fairly basic. The winter-run Chinook spawn from April to August. Juvenile fish swim downriver from July to March. If the water in the Sacramento River is too hot as the fry emerge from their eggs, they die. Warm water also makes it more difficult for the juveniles to survive their swim downstream to the ocean.

But in practice, there are broad variables to keeping the river cool, involving snowmelt, heat waves, water depths and the temperatures of the tributaries entering the reservoir, as well as conditions in the river downstream.

A year ago, federal and state officials had a plan to keep temperatures in key portions of the Sacramento River below 56 degrees; temperatures above 56 can trigger a die-off. The models built by the Bureau of Reclamation indicated operators could release large amounts of water from Lake Shasta while still maintaining a cool temperature, easing the pressure on farms and cities. According to their calculations, the water would be cold enough at key points in the Sacramento River to ensure survival of 30 percent of the salmon run.

But the models were wrong. The Bureau of Reclamation essentially ran out of cold water reserves in Lake Shasta, limiting its ability to control temperatures in the Sacramento River. Average daily river temperatures rose well above levels needed by salmon to survive. The 5 percent that did transition from eggs to fry were left to navigate to the ocean in tough conditions.

“That 5 percent – I guarantee you they didn’t make it down through the Delta,” said Bill Jennings, executive director of the California Sportfishing Protection Alliance.

Fast forward to this year, and another plan gone awry.

During the spring, government officials again said they would keep winter-run Chinook alive by maintaining water temperatures below 56 degrees. The State Water Resources Control Board signed off on their plan in mid-May.

Only weeks later, Bureau of Reclamation officials told the state that their temperature monitoring equipment wasn’t working. In fact, they said, temperatures in Shasta were warmer than anticipated – and dramatic intervention would be needed to keep winter-run Chinook alive. They asked the board to consider a new plan and immediately restricted flows from Shasta.

The state water board took up the issue at a meeting on June 16. Members of the board bemoaned their lack of good choices and later adopted a plan that left no one happy. Water releases would be curtailed out of Lake Shasta. Folsom Lake would be drawn to historic lows. Deliveries to farmers would be reduced.

And, despite those measures, the average daily temperature in the Sacramento River would rise to 57 degrees on most days and 58 degrees on some days, according to the government models. That’s too high a temperature for all winter-run Chinook to survive, but the Bureau of Reclamation, in documents supporting the change, said its modeling predicted roughly 20 percent of the fish would survive to early adulthood. That would be lower than a typical year – but not a disaster.

But are this year’s models more accurate? Already this summer, average daily temperatures at a key point in the Sacramento River have risen above 58 degrees on seven separate occasions, including several times in late August, state data show.

Federal officials said their models anticipated some temperature spikes, and noted that on each occasion so far, they were able to release cold water into the river and bring temperatures back down.

“It can have an effect” on fish, said Hunt, the bureau spokesman, of river temperatures above 58 degrees. But, he added, “That temperature is not a lethal temperature immediately.”

Jon Rosenfield, a biologist with the Bay Institute, disagreed, saying that many winter-run salmon likely were doomed by the temperature spikes. He offered the analogy of a chicken egg: “If you take an egg and dip it in boiling water, you are jeopardizing its ability to develop into a chick,” he said. “The longer you do that and the hotter the temperatures, the less likely it is to develop.”

Another concern is whether there is still enough cold water in Shasta to keep river temperatures low into the fall. Hunt says yes – that the government projects that Shasta will contain 350,000 acre-feet of cold water, below 56 degrees, at month’s end, far more than in 2014.

Rosenfield expressed doubts that the bureau is in position to do detailed calculations on its cold water supply. “They are way behind in anything using modern technology in measuring how much cold water they have,” Rosenfield said.

Scientists won’t know whether this year’s plan worked until fish surveys are completed in the winter. In a worst-case scenario, the government could rely even more heavily on its hatchery to sustain winter-run Chinook. Rosenfield called that option a “Band-Aid,” noting it would not preclude the loss of the fish as a wild species. Hatchery fish, he said, tend to come from a limited gene pool and may also have difficulty surviving in warm water.

Read more here: http://www.sacbee.com/news/state/california/water-and-drought/article34197762.html#storylink=cpy

Read more here: http://www.sacbee.com/news/state/california/water-and-drought/article34197762.html#storylink=cpy

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Federal wildlife officials plan to send hunters to kill barred owls in Northwest

Biologists for hire, Endangered Species Act, Federal gov & land grabs

PNP comment: This is pure craziness. It has now been proved that the spotted owls breed with the barred owl. So the USFWS will be violating its own laws in killing spotted owls thinking they are barred owls. Also there are plenty of Northwest spotted owls — they are not “threatened with extinction” as this biased Yellow Journalism article states. Gee wiz Wally! wise up! — Editor Liz Bowen


Associated Press

GRANTS PASS, Ore. –  Federal wildlife officials plan to dispatch hunters into forests of the Pacific Northwest starting this fall to shoot one species of owl to protect another that is threatened with extinction.

The U.S. Fish and Wildlife Service on Tuesday released a final environmental review of an experiment to see if killing barred owls will allow northern spotted owls to reclaim territory they’ve been driven out of over the past half-century.

The agency has been evaluating the idea since 2009, gathering public comment and consulting ethicists, focus groups and scientific studies. It will issue a final decision on the plan in a month.

“If we don’t manage barred owls, the probability of recovering the spotted owl goes down significantly,” said Paul Henson, Oregon state supervisor for Fish and Wildlife.

The agency’s preferred course of action calls for killing 3,603 barred owls in four study areas in Oregon, Washington and Northern California over the next four years.

The plan is expected to cost about $3 million and requires a special permit under the Migratory Bird Treaty Act, which prohibits killing nongame birds.

Neither the timber industry nor the Audubon Society was pleased with it.

“Shooting a few isolated areas of barred owl isn’t going to help us as forest managers, nor is it going to help the forest be protected from wildfires, and catastrophic wildfire is one of the big impediments to spotted owl recovery,” said Tom Partin, president of the American Forest Resource Council, a timber industry group.

Bob Sallinger, conservation director for the Audubon Society of Portland, said saving the spotted owl is of paramount importance, but the focus must remain on protecting habitat.

“To move forward with killing barred owls without addressing the fundamental cause of spotted owl declines, from our perspective, is not acceptable,” he said.

Henson said the Northwest Forest Plan, which cut logging by 90 percent on national forests in the 1990s, has done a good job of providing habitat for the spotted owl. But the owls’ numbers have continued to slide.

Henson said unless barred owls are brought under control, the spotted owl in coming decades might disappear from Washington’s northern Cascade Range and Oregon’s Coast Range, where the barred owl incursion has been greatest.

It has taken the federal government a long time to get to this point. The California Academy of Sciences killed some barred owls in spotted owl territory on the Klamath National Forest in Northern California in 2005, and the owner of some redwood timberlands in Northern California regularly kills barred owls to protect spotted owls.

The idea of killing one type of owl to protect another underscores a fragile balance of nature that biologists have struggled with for years.

Between 2000 and 2006, wildlife officials captured and removed more than 40 golden eagles from the Channel Islands off Southern California to protect the island fox. They also hired a company to kill 5,000 feral pigs on Santa Cruz in a controversial program to restore the island’s ecosystem.

Read more:  http://www.foxnews.com/politics/2013/07/23/federal-wildlife-officials-plan-to-send-hunters-to-kill-barred-owls-in/#ixzz2ZwMFoEKb

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Biologists for hire sell opinions

Biologists for hire, Op-ed


Denver Nelson, Guest Opinion For the Times-Standard March 14, 2012

The recent arrest of Mad River biologists Ronald LeValley and Sean McAllister on charges of using phony spotted owl surveys to embezzle funds from the Yurok Tribe should lead to an in-depth discussion of the long-standing method of obtaining a scientific consultation for any resource project. For many years, I have been troubled by the many partially trained alleged biologists willing to give an opinion on virtually any project for a large sum of money. This is usually done under the guise of “science,” and the experts usually have some scientific training. The more expensive ones may have a college degree or have written numerous reports. They may have become a member in good standing of the local scientific community.

In most situations, there is no criteria for becoming an expert. Some experts have undergraduate degrees; a few have advanced degrees; some did not complete their degree or have degrees in a field not related to their expert opinions. There are virtually no testing or knowledge standards for becoming an expert.

It is a poorly kept secret that if you have a project that needs a favorable expert scientific opinion, there are many alleged scientific experts in this area who will give you a favorable opinion for a large sum of money. Conversely if you need a negative opinion, for an equally large sum of money, you can find an alleged scientific expert who will back your negative opinion. If this project then comes to court, judges are left with no valid scientific expertise and are forced to base their opinions on the narrow interpretations of the legal process such as the ridiculous Richardson Grove opinion being based on the accuracy of measurements of tree diameters.

I do not know Ron LeValley or Sean McAllister, and have had no dealings with either of them. I have no opinions on the legality of their dealings with the Yurok Tribe. I do believe that there needs to be a reevaluation of the use and credentials of scientific experts in resource issues. Scientific experts are routinely making recommendations that affect public safety and public funds. Virtually all other professionals, from cosmetologists to neurosurgeons, are required to be licensed by the state; so should scientific experts.

Dr. Denver Nelson is a Humboldt County planning commissioner, former neurosurgeon , Klamath River advocate and Cutten resident.

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