Something's Fishy on the Klamath

Who's Killing the Salmon

Blaming the Dredgers Sounds Fishy

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Who's Killing the Salmon?

(October 1st, 2016)  While all evidence points to no harm to salmon from suction dredging the Department of Fish and Wildlife continues to allow the take of adult salmon on the Klamath River in some pretty incredible numbers. For 2015 the quota for fall run salmon is 14,133 fish.

The number of sport fishing salmon killed each year is dwarfed by the number of adult spawning salmon allowed to be commercially harvested (and sold) by the Yurok Tribe. According to an article in the Del Norte Triplicate the commercial take in 2013 by the Yurok Tribe was 76,362 adult fish which were then sold on the commercial market for up to $5 a pound.

Yet there is no evidence of any dredger, anywhere, having harmed a single salmon and the Department allows up to 100,000 salmon a year to be killed for commercial and sport fishing. On the disputed Salmon River CDFW surveys show a mere 77 salmon made it that far to spawn in 66 miles of river only 77 salmon beds were found. On average only a single salmon bed per mile of river. A situation easily avoidable by suction dredgers regardless of the time of year they're dredging.

Suction Dredges and Salmon

By now we're all familiar with the argument suction dredges on the Klamath can harm salmon by sucking up their eggs; driving from their thermal refugia, or simply harassing them to death. Is it true?

Sometimes it's worthwhile to do a little fact-checking. So, we thought we'd do a little fact-checking and see what the evidence shows.

The dispute over suction dredging begins on the Klamath River in the early 1990's with the Karuk Tribe claiming suction dredgers are harming salmon. In response the California Department of Fish and Wildlife (CDFW) prepared an environmental impact report which we now know as the 1994 Suction Dredge Environmental Impact Report, or simply the 1994 EIR.

The 1994 EIR thoroughly evaluated the potential impact on salmon usin the best available science and concluded the primary threat to salmon was the potential for salmon to lay their eggs on dredge tailing piles which could result in an unstable egg bed. If the river experienced high flows then these egg beds could potentially be washed away.

The 1994 EIR concluded,

"The proposed regulations address these impacts to fish reproduction and reduce the effect to less than significant and based on the best available data to not deleterious. Suction dredge seasons have been closed during fish spawning periods. In addition, the proposed regulations restrict the nozzle size to 6 inches unless specifically exempted, which would decrease turbidity and sedimentation produced by individual suction dredges."

Although the regulations addressed this potential impact of suction dredges the question becomes whether this situation is even likely to occur. The 1994 EIR cited the only study available on the issue which said, "Of the approximately 60 salmon redds observed in a study area on Canyon Creek none were found within dredger tailing piles" Stern 1998

This was the best available science at the time and under the law, an EIR uses the best available science to form its conclusions. There is no requiremen under the law to use science which may be available at some future time, nor to speculate on undefined potential effects.

The Illegal Attempt at the 1997 EIR

Beginning in 1995, just after the 1994 Suction Dredge EIR went final, and could not be legally challenged, the Karuks began making claims there was new information available which showed the threat from suction dredges was far greater than what the 1994 EIR considered.

The Karuk complaints continued and forced the Department to begin a new EIR mere months after the 1994 EIR was legally closed.

The 1997 attempt was a clear violation of CEQA which states an EIR is final and no further EIRs are required unless substantial new information is discovered, which was unknown, and could not have been known at the time of the EIR.

Finality in an EIR is critical to a civilized society. If groups can repeatedly re-open a completed EIR every time some bug or fish is placed on a list then there is no certainty in completing a project. Projects which are 90% or 100% complete could be forced to undergo a new EIR and the results could stop the project or cause the project to actually undo work completed. As we've seen with dredging they can just go back in time and shut down an ongoing project, this is the cost of a EIR re-do.

The law is designed to protect from social and special interest pressure and sets a very high standard for a EIR re-do. In fact they are very rare.

In 1995, suction dredger John Oates, who mined on claims in the Klamath watershed, contacted the U.S. Forest Service minerals officer and asked why California was conducting a new EIR only months after completing an EIR.

The Forest Service responded in a letter stating

"Mr. Taylor stated the reason for the proposed regulations was 'because the Department (of Fish and Game) is getting a lot of pressure from influential special interest groups that don't believe miners should be working in the rivers.' He then went on to say that the proposed regulations would be a good starting point to get this situation under control even though the Department had little scientific evidence that dredging in the rivers and streams really has a long term negative impact on the fish and other aquatic life."

Using the Oates letter as evidence of a politically motivated effort to kill suction dredging the miners were able to enlist political help to quash the new effort at an EIR, which under the scrutiny of daylight clearly violated CEQA.

With the attempt to re-do the EIR killed the environmentalists then turned their attention to using the Endangered Species Act to achieve their goals and demanded suction dredging on the Klamath, Scott and Salmon Rivers was harming endangered species and the Department was required by law to close these waters. They threatened lawsuits to force the Department to kill dredging.

The 2003 Review of the Salmon River

In response to the Karuk complaints the Department, in conjunction with seven personnel from the U.S. Forest Service, and members of the New 49ers, conducted a survey of the impacts of dredging on the Salmon River.

The investigation was headed by the CDFW Klamath River fisheries biologist, Dennis Maria, and in his report to his supervisor, Nick Villa, included

"As you know, there have been a number of calls received by you, Craig Martz, and myself from concerned locals related to this dredging activity. My primary purpose of setting up this tour..was to determine what the concern was about as it related to impact to fish."

"On Monday, September 15, 2003, which also happens to be the last day of dredging season on the Salmon River, I accompanied by my supervisor, Senior Fishery Biologist, Bob McAllister, and seven personnl from the U.S. Forest Service toured three of the most active New 49er dredging sites in the lower 15 miles of the Salmon River."

"At the lowermost site...there were approximately 7 or 8 dredge holes...the dredge holes created the only discernable juvenile rearing habitat that I could see...Consequently the relatively light accumulation of fines observed at this location, the general lack of rearing habitat in this reach and the relatively high temperatures found here makes it unlikely that the current dredging impacts will significantly, or substantially harm salmon spawning habitat or juvenile salmon.

At the second site the biologist team visited they found 21 dredges in an area used by the New 49ers for training new dredgers. The biologist team observed these 21 dredges and their impacts and concluded,

"As with the lower site I saw few dredger holes which caused me little concern from a biological standpoint."

The final stop for the team was a site eleven miles further up river, which was the furthest New 49er dredging activity extended. The team concluded there was no impact at this site as well, "There was no impact to salmon at this site as well as the lower reaches."

The report conludes,

"I saw nothing that would be considered a violation or that would have a significant impact on the fishery or significantly negatively impact overall biotic community of the Salmon River."

Say What?

If this investigation of the actual impacts of suction dredging was conducted by a bunch of suction dredgers we could understand some degree of skepticism on the part of environmentalists, but this evaluation was conducted by California Department of Fish and Wildlife Senior Fisheries biologists who specialized in the Klamath and Salmon Rivers.

Interestingly, this report of actual on-the-ground effects of dredging wasn't mentiond at all in the 2012 EIR although it was the only recorded instance of the Department sending people to the field to actually evaluate the effects on salmon. You would think this trip of 9 government wildlife agents to merit perhaps a footnote in the EIR?

Well, if the report of 9 biologist doesn't merit some credibility would the testimony of the Department's senior fisheries biologist hold some weight?

In 2005 the Karuks sued the Department to stop dredging and reached a secret settlement agreement whereby the Department would close the Klamath and Salmon Rivers to dredging. In testimony submitted to the Alameda Court the Department's Supervisory Biologist (one level up from senior biologist), Neil Manji, testified,

..."in my professional opinion as a fishery biologist, the existing regulations governining suction dredging, which are found in sections 228 and 228.5 of Title 14 of the California Code of Regulations serve to permit suction dredging activities while, at the same time, providing protection for spawning adult salmonids, including chinook salmon, and the developing eggs and larvae of such species, which remain in the gravel following spawning."

The Supposed New Evidence

The 2012 EIR was triggered, according to documents filed by CDFW, based on "new and previously unknowable information" regarding salmon. This new information according to legal documents filed by the Department consisted of 32 new studies or reports which weren't available at the time of the 1994 EIR.

In 2005, when the dredgers requested this new information to review, the Department sought, and obtained, a protective order preventing their release. In other words these were secret documents which the dredgers couldn't see, but the environmental groups could.

Why would the Department seek to prevent the miners from reviewing this supposed new evidence? Why seek a protective order from allowing us to even read the documents they claimed showed a linkage between dredging and harm to salmon?

The court ruled the secret settlement agreement between the Karuks and the Department was illegal, which then led to an agreement by all litigants to allow the Department to conduct further environmental review on the disputed three rivers specifically in regards to dredging and impacts on salmon. The Department then used this court approval to obtain the new statewide EIR they, and the environmental groups, had long sought.

In the San Bernardino litigation the Western Mining Alliance, in public court filings, challenged the validity of these 32 reports as supporting the rationale for a new EIR. The Mining Alliance requested the list of documents the Department claimed supported their position and in responding documents the Department listed these reports. The Mining Alliance reviewed every cited report and found there wasn't a single report which added any information which wasn't already evaluated in the 1994 EIR. It was a mere smoke screen to convince the Alameda Court such evidence existed, when in fact it didn't.

The EIR was conducted, the significant effects the environmental groups wanted were found, and the State issued a ban on dredging.

There Was No New Evidence

As with any complex issue its difficult to follow the threads of this web. The Department has merely to claim there were 32 reports which presented new information on the impacts of suction dreding on the Klamath. The judges don't read these reports for the truth, it's up to the miners to defend. The miners in 2005 tried to obtain these documents which authorized the 2012 EIR but were prevented by the protective order. It wasn't until the 2012 litigation we were even given a list of these documents.

All evidence appears to lead to a conspiracy to deprive us of Constitutional rights and to ban suction dredging. The conduct of the EIR appears to show coordination across agencies to reach a conclusion even prior to any evidence. In statements provided in response to an Inspector General investigation the lead US Geological mercury scientist on the dredging study admitted the California Water Board told him the results they desired from his study, which was no dredging. The same agency which funded the study.

The truth? What is the truth anymore? The evidence shows no suction dredge anywhere has ever harmed a salmon. That's the evidence. There is no evidence suction dredges release mercury. The results in the 2012 weren't obtained by testing a dredge, they were obtained by testing a Home Depot 5 gallon bucket.

The evidence has been filed in the publically available litigation. It's now up to a judge to decide where the truth lies.