| Discussion of how settlement will effect the
Agriculture and the Klamath Project; Comments are in
Red text of settlement is in Black
This agreement does not provide any protection from the ESA, or in any
way modify the ESA, in fact it is explicitly clear that NMFS and FWS
reserve all authority
to regulate under the ESA as is noted below;
21.5.
Reservation.
By entering into this Agreement, NMFS and FWS are not prejudging the
outcome of any process under the ESA and NMFS and FWS implementing
regulations, and NMFS and FWS expressly reserve
the right to make determinations and take actions as necessary to
meet the requirements of the ESA and implementing regulations.
This agreement does NOT make the BO’s go away;
21.1.3.
NMFS and FWS Biological Opinions.
After receipt
of the request for reinitiation of formal consultation and necessary information as
described in the preceding subsection, NMFS and FWS shall each prepare and issue a
biological opinion on the proposed action as provided under ESA section 7 and implementing
regulations. In preparing such biological opinions, NMFS and FWS shall give appropriate
consideration to the measures listed in Section 21`.1.1 as they relate to
Reclamation’s proposed action and Consistent with ESA section 7 and
implementing regulations at the time.
[all that is being offered is that NMFS and FWS
will “consider” water given up by agriculture under this agreement in issuing
new BO’s]
20.4.1.
Reservation of Rights by the Tribes.
The Tribes hereby reserve their rights to
enforce any Regulatory Approval, including biological opinions under the Endangered
Species Act, contemplated by and consistent with this Agreement under Applicable
Law. The obligations of Section 20.3.B.iii (1) through (4), and iv.(1) through (4), do not
apply to such enforcement provided that Section 7.4.2 is applicable.
[The only exclusions are sections 1-4 below so sections 6-7 still apply,
therefore it appears all the tribes have to do is “believe” “that the
quantity of water diverted for use and reuse in the Klamath Reclamation Project may result
in jeopardy of listed Species under the Endangered Species Act” then they could sue
to limit or prohibit diversion]
Further,
nothing in this Agreement shall preclude any Tribe from pursuing or obtaining authority
under 33 U.S.C sections 1377(e) nor limit its obligations under any such authority.
Even environmental groups
who sign the agreement can still sue to limit diversions of the Klamath Project, if they “believe” “that the quantity of water
diverted for use and reuse in the Klamath Reclamation Project may result in jeopardy of
listed Species under the Endangered Species Act” then they could sue for less water. Keep in mind there is not any limit what so ever on
environmental groups who do not sign onto the agreement to sue whenever they want to i.e. WaterWatch and ONRC.
20.3.1.
(B) iii (THE LOOP HOLES)
iii. Assurances
Once Diversions Limitations Are In Effect.
Before Appendix
E-1 is in effect as provided in Section 15.3.1.A or after 2017, whichever is earlier, a
Party other than Federal and State Public Agency Parties shall not seek
to enforce Applicable Law to impose limitations on the water
quantity for diversion, use, and reuse in the Klamath Reclamation
Project, unless: [as
is noted above there are no limits on what regulations UFSW and NMFS (public agency
parties) can due under the ESA, these so called limits only apply to the other parties]
(1). The Party has certified that the diversion of
water is greater than would result from the limitations under
Appendix E-1, or is not Consistent with the goals and other
provisions of this Agreement; and
(2). The Party has certified that Applicable Lead
Parties are timely implementing the actions in the Upper Basin Water
Rights Retirement Program under Section 16.2.2, the Interim Flow and
Lake Level Program under Section 19.4, the Phase I Restoration Plan
under Section 10.1, and other related actions contemplated under
this Agreement; or in the event of non-performance, such Party has
made maximum reasonable efforts to correct such non-performance as
provided in Section 3.2.4.B; and
(3). The Party has accounted for any evaluation the
TAT has completed pursuant to Section 12.2.1 through 12.2.3 on the
effects of any actions under this Agreement that have been
implemented; and
(4). The Party has considered reasonably available
alternatives within its ability to enforce Applicable Law, outside
of the Klamath Reclamation Project, where such enforcement would
benefit the Fisheries or other aquatic resource of interest, and has
concluded that such alternatives are not reasonably likely to
provide timely or effective relief; and,
(5). The Party believes that the quantity of water
diverted for use and reuse in the Klamath Reclamation Project may
result in jeopardy of listed Species under the Endangered Species
Act or other prohibited impact to the natural resources of the
Klamath Basin under Applicable law; and,
(6). Such Party provides Notice to all other Parties
of its belief under paragraph (5) and of its compliance with
paragraphs (1) through (4) above, and completes the Dispute
Resolution Procedures of Section 6 including the continuing
obligation (notwithstanding the prior efforts described in this
subsection) to consider reasonable alternatives to such enforcement.
The Dispute Resolution Procedures, in addition to other requirements
of this Agreement, shall include the Party’s certification that it
has complied with paragraphs (1) through (4) above; and,
(7). In the event the Party files an action, the
Party complies with all obligations as set forth in Section 3.2.4.
The agreement establishes
unobtainable goals which we will be in violation of. How
can the Klamath Project guarantee there will be plenty of salmon for whoever wants to
harvest them as is noted below.
9.2.1.
Purpose.
The
purpose of the Fisheries Program is to restore and sustain natural production of Fish
Species throughout the Klamath River Basin. Specifically, this program: (i) provides for
reintroduction of anadromous Species above Iron Gate Dam, including tributaries to Upper
Klamath Lake; (ii) otherwise
establishes conditions that, combined with effective implementation of the Water Resources
Program in Part IV, will contribute to the natural sustainability of fisheries and Full
Participation in Harvest Opportunities, as well as the overall ecosystem health of the
Klamath River Basin; and (iii) assesses status and
trends, the factors that influence those trends, of Fish and their habitats as identified
in Section 9.1.1, and the effectiveness of actions under this Agreement to achieve this
purpose; and (iv) provides for adaptive management as described in Section 5.4.
In the definitions section Full Participation in Harvest Opportunities
is defined as follows
Full
Participation in Harvest Opportunities shall mean: full participation in Tribal,
ceremonial, subsistence, and commercial; ocean-commercial and recreational; and in river
recreational harvest opportunities for anadromous Fish Species.
The section below deals with giving the Tribes all the water;
15.3.2.
B.
Resolution of Adjudication Contests Related to Klamath Tribal Water Rights.
KPWU, the Klamath Tribes and the United
States Bureau of Indian Affairs shall file the documents in the form attached hereto as
Appendix E-6 with the Office of Administrative Hearings (OAH), Klamath Basin Adjudication,
within sixty (60) days of the Effective Date regarding Adjudication claims 612,
671, 672 and 673 consolidated within case 282 and claims 616 and 622 consolidated within
case 286 that:
i.
Provisionally resolves and ends the contests filed by KPWU,
ii. Recognizes the tribal water rights at
the claimed amounts and with the priority date of time immemorial, and [this the Klamath
Project’s death sentence, the tribes are asking for all the water, with a time
immemorial right (before everybody else) if this is granted most irrigation will end]
iii. Provides for KPWU’s exceptions to be fully litigated before the OAH Circuit Court, if
the Secretarial Notice is not timely published pursuant to Section
15.3.4. [this
is the only escape clause, if various papers are not filed by 2012, the deal is off, if
they are filed the above clause remains in effect]
C.
Tribal Rights Unresolved-Unquantified.
KPWU
agree that the water rights of the United States Bureau of Indian Affairs, acting in its
trustee capacity, and the Yurok Tribe, and Karuk Tribe, whatever they
may be, have not been quantified, resolved or determined in any way by this Agreement or
any related documents. KPWU also agree to not protest, contest, object, or block any
assertion of water rights by these governments in future judicial or administrative
proceedings that are not inconsistent with Sections 15.3.6, and
15.3.8.
In exchange for doing all the above all irrigators get is a written
promise from the Tribes in the form of a likely unenforceable contract (due to Tribal
sovereignty) that these rights will not be enforced (see section 15.3.3. B). Even if one ignores the sovereignty issue this
contract allows the tribes to assert some water rights that could easily exterminate the
project quoting directly form 15.3.3. B “however,
that this assurance shall not include, and shall not be construed to extend to, rights
under statutes of general applicability, including the Endangered Species Act,”
About Sovereign immunity the document says;
7.4.1
C. Venue.
The venue for
an action to enforce a Contractual Obligation shall be as provided under Applicable Law
for obligations of the type of the disputed Contractual Obligation. As provided in Section
2.2, this Agreement does not waive any Party’s sovereign immunity.
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