On May 12, 2002, the United States Fish and Wildlife Service published a Federal Register notice containing its ruling on administrative petitions to delist two species of sucker fish found in the Klamath Basin. The fish were listed as endangered in 1988, on grounds that almost immediately proved to be false. Biologists claimed, for example, that the fish had not successfully spawned in 18 years. Yet more than ten times the expected population was found soon after the listings, with fish from all age classes, proving that the suckers had been spawning all along.
On July 16, 2001, David Vogel, a biologist engaged by the Klamath Water Users Association, testified before Congress as to the serious deficiencies in the sucker listing. His testimony, along with the documents in the files of the Service, demonstrates that there is no evidence that the suckers are endangered at all. It was not merely junk science that provided the rationale for the seizure of Klamath Basin water; it was junk science that drove the listing in the first place. One might go so far as to denounce the entire affair as a particularly vicious hoax.
On October 19, 2001, I filed a petition to delist the suckers. The law required a formal response within 90 days, "to the extent practicable". The Service's local office spit out a draft finding (which they refused to disclose) within 90 days, and then the process ground to a halt. Eventually on March 12, 2002, I filed a complaint to pry loose the 90-day finding. When that didn't work, on May 6, 2002, I filed a motion for summary judgment. The Service then issued its finding: "no substantial information has been presented or found that would indicate that delisting of the Lost River sucker or shortnose sucker may be warranted".
The Notice begins by noting, correctly, that severe overfishing (principally by the Klamath Tribe, though the Notice does not say so) drove populations down until the Oregon Department of Fish and Wildlife halted the fishing in 1987. But rather than wait for the fishing ban to have the obvious and anticipated effect, the Feds rushed in to list the suckers in 1988.
According to the Service, we should not be misled by the fact that scientists found virtually no suckers in the 1980s, and hundreds of thousands of them in the 1990s. The Service says that “comparisons between current [population] estimates and those made during the fishery, prior to its termination in 1987, are not informative due to extreme differences in methodology”.
But the scientists prior to listing were trying to estimate sucker populations, and so were the scientists afterwards. For the Service to say that we can't compare the estimates at all is simply a pseudo-scientific way of saying that the Service refuses to acknowledge the simple truth: sucker populations went way up after overfishing stopped, and are no longer in any appreciable danger of extinction.
Such a finding is anathema to the Service and its employees, many of whom would be out of a job but for the listings. Thus the Service claims the suckers are still "endangered", and that:
"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.”
This is the grossest sort of junk science. Perhaps the most egregious statement is the claim that "entrainment" (being sucked into irrigation canals) poses a meaningful threat of extinction. Here is a map of where the suckers are found, at the Northern end of Upper Klamath Lake:
The water intake for the Klamath Project is at the very bottom of this picture. While it may escape the comprehension of our heavily-indoctrinated biologists, a population of hundreds of thousands of fish cannot possibly be pushed to extinction by sucking out a few stray fish from the fringes of the population.
Ironically, at the same time the Service complains in the Notice about "entrainment", it complains in its press release heralding the Notice about "barriers to movement between different populations". Where are the different populations? At the other end of canals where suckers are entrained, of course. So suckers are endangered because the Project facilities allow them to move between bodies of water, and endangered because they can't move between bodies of water. This is the sort of contradictory, ideologically-driven "thinking" that has infested all the natural resource agencies.
The second pillar of continued "endangered" status, "habitat loss", fares no better. In fact, the development of the Klamath Basin Project significantly increased the total quantity and quality of habitat available to the suckers, insofar as Upper Klamath Lake is bigger, as are other reservoirs where suckers are found. That is probably why, in the Notice, the Service does not identify the magnitude of alleged habitat loss (the press release calls it "extensive"), identify any particular loss, or explain the baseline against which such loss is to be measured. Nor does the Service identify the effect of the alleged loss upon the risk of sucker extinction. Expert testimony of David Vogel, ignored in the Notice, states that “it is now obvious that the species' habitats were sufficiently good [at the time of listing] to provide suitable conditions for these populations”.
The third pillar of continued "endangered" status is "water quality" problems. But 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 because the water quality was so bad. That is probably why the Service does not identify the magnitude of alleged water quality degradation, any particular examples of water quality degradation, the baseline against which such degradation is to be measured, or the effect of such degradation. The press release amplifies the claim to "extremely poor water quality", something I have never seen in my trips to the Upper Klamath Lake.
The final pillar for continued "endangered" status is "periodic fish die-offs". Obviously, if die-offs are "periodic", by definition they continue over and over without causing the extinction of the population. The Service has no evidence whatsoever that the occasional fish kills (from late summer algae growth) threaten the continued existence of the suckers, which have survived droughts for centuries with far less refuge than they have now. In fact, tagging research has demonstrated that only tiny fraction of tagged fish were recovered in the kills (never more than 1%). All available evidence suggests that what the press release calls "catastrophic fish kills" don't make much of a dent in the population, much less reduce appreciably the probability that suckers will persist in the Basin.
The bottom line is that no person with common sense, a quality carefully bred out of this generation of natural resource managers, would find that the suckers are in any appreciable danger of extinction, or that they qualify for protection under the Endangered Species Act. The original listing was a mistake, if not a fraud, and now the Bush Administration is, knowingly or unknowingly perpetuating the fraud. I say "Bush Adminstration" because as far as I know, the delay in issuing the Notice came because it had to be approved by the new Director of the Service, a Bush appointee.
What can be done? I'll probably amend the complaint in the lawsuit to challenge the Notice determination as defective, but most likely, all that the Justice Department will have to do to beat the lawsuit is say that it raises a question of "science", not law. Environmentalism is now the official religion of the United States, established through vigorous indoctrination in the public schools and universities. As a general matter, the precepts of this Faith, masquerading as "science", may no longer be questioned in the courts.
As I have said over and over and over again, the only real solution is political. Until we elect politicians who can even tell that the Emperor has no clothes, much less the courage so to declare, things will continue to deteriorate on all fronts. One of the petitioners for delisting, Walt Moden, is running for Commissioner of Klamath County. If we had a hundred more like him, we'd have the beginning of an army with which we could win the War on the West.
© James Buchal, May 16, 2002
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