This page contains information concerning Moden v. U.S. Fish and Wildlife Service, No. 02-CV-305-BR (D. Oregon), a challenge to the Bush Administration's rejection of a petition to de-list Klamath Basin suckerfish filed by six Klamath Basin residents. Specifically, by Federal Register Notice of May 14, 2002, the U.S. Fish and Wildlife Service issued a finding that “no substantial information has been presented or found that would indicate that delisting of the Lost River sucker or shortnose sucker may be warranted”. 67 Fed. Reg. 34,433, 34,423 (May 14, 2002).
Notwithstanding evidence that sucker populations are far larger than estimated in 1988 when the "species" were listed, the Administration concluded:
“The endangered status of the suckers is based upon continuing threats to the populations. The 2001 status review identifies continuing threats to the two species which warrant maintaining their listing as endangered under the Endangered Species Act, including but not limited to habitat loss, degradation of water quality, periodic fish die-offs, and entrainment into water diversions.” Id.
As a practical matter, it seems obvious that the suckers are in no danger of extinction. The challenge is to persuade United States District Judge Anna Brown that such is the case.
Sucker population dynamics and extinction risk
The most important area where lay and expert testimony is needed is with regard to the relative numbers of suckers in the late 1980s and now, showing that there are now suckers everywhere. With regard to periodic sucker die-offs, it would be useful not merely to prove that such die-offs have occurred at least twice in the 1990s, yet population estimates are substantially higher than pre-listing estimates, but also that such die-offs do not pose appreciable extinction risk in light of the fact that suckers are engineered to survive hot, drying swamps.
Habitat quality and Trends
The Administration does not identify the magnitude of alleged habitat loss, any such loss in particular, the baseline against which such loss is to be measured, or the effect of the alleged loss upon the risk of sucker extinction. It should be possible to prove that the development of the Klamath Basin Project significantly increased the total quantity and quality of habitat available to the suckers, or at least that habitat quality has been improving in recent years from government land acquisitions.
Water Quality and Trends
Again, the Administration does not identify the magnitude of alleged water quality degradation, any particular degradation, the baseline against which such degradation is to be measured, or the effect of such degradation. Prior to development of the Klamath Basin Project, the sucker habitat was frequently a stinking swamp from which early explorers could not even water their horses, and water quality has improved very substantially over such conditions. It should be possible to prove that there is no particular downward trend in water quality.
Entrainment into Water Diversions
It should be possible to prove that entrainment of suckers below Upper Klamath Lake in fact reduces extinction risk by keeping populations healthy below the Lake, or at least that entrainment has no significant effect on the overall trajectory of the population
Through this link, you can obtain a Microsoft Word 2000 form for a declaration to be executed under penalty of perjury, in which you can attest to some of the foregoing facts. Simply type in what you know, e-mail the resulting document to me at counsel@buchal.com, and we can together revise it into testimony that can help bring about reconsideration of this bogus ESA listing. You can also fax material to 503-227-1034.
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