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Column: Appeals court ruling puts common sense into ESA

Common sense is often the missing element in government regulations. However, the infamous Ninth Circuit Court of Appeals surprised a lot of people with its recent ruling that put common sense into the onerous Endangered Species Act.

The Ninth Court seldom rules against environmentalists, but it did in late February when it ruled that the National Marine Fisheries Services (NMFS) cannot count naturally spawned salmon differently than it does hatchery spawned salmon in listing Oregon Coast Coho salmon as a "threatened species" under the Endangered Species Act (ESA).

The National Water Resources Association (NWRA) recently interviewed Pacific Legal Foundation attorney Russ Brooks about the appeals court ruling that Brooks says will have significant impact on all ESA species propagation efforts.

Brooks said the appeals court ruling will have "wide ranging" effects on many different species listed under ESA. The fisheries service and other agencies will now have to consider all members of a species when it considers a species for listing...and not just the species or members of species they prefer.

The ninth court ruling could have huge implications for the Klamath Project which has been in a Herculean struggle since the federal government shut off water to the basin in 2001 to protect designated endangered Klamath Coho salmon.

Brooks said the Pacific Legal Foundation has a petition in the courts asking it to invalidate the Klamath Coho listing just as it did for the Oregon Coast Coho listing for the fact that it contains the same legal flaws. Brooks expects a ruling within the next few months.

Klamath Basin farmers and the communities there which depend on the agriculture for survival were brought to their knees when the government unfairly cut off irrigation water at the start of the growing season to protect fish. It was devastating, arbitrary and based on what many now believe was faulty science. It was capricious misuse of the Endangered Species Act.

Hopefully, the ninth court ruling will never allow it to happen again.

The court ruling was only one piece of good news Klamath farmers have received lately. The Bureau of Reclamation has delivered checks totally more than $2 million to basin irrigation districts.

The money is reimbursement for canal operation and maintenance fees the bureau charged in 2001 when the water was all but cut off.

The money was reimbursed as a result of legislation introduced by Oregon Congressman Greg Walden.

Walden has fought unceasingly for the reimbursements saying irrigators should not be required to pay for something they did not receive.

It was a matter of fairness — something farmers, especially those in the Klamath Basin, have seen little of in their struggles for the past four years to receive what they were entitled to.

There seems to be a shift in court attitudes of late in dealing with issues like ESA and water entitlements. There seems to be more interest in fairness and learning the intent of the laws that created water entitlements and enforcement of things like ESA.

Evenhandedness and common sense have been lacking in past years. It is nice to see them come back into the equation.

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