Salmon Stakes

A month after his disclosure, in his first interview with the media, Kelly told me this: "We were ordered to interpret the NRC report as recommending that the Bureau of Reclamation could avoid jeopardy by operating as it had for the previous 10 years. But simple logic and a basic understanding of the Endangered Species Act regulations can demonstrate that any 'recommendation' in the NRC report does not make sense in an ESA context. One of the problems we have with the NRC report is that the panel never defined what kind of confidence they wanted. We biologists felt like they were a bunch of Ph.D.'s accustomed to reviewing peer-reviewed scientific-journal articles that require a very high level of confidence. A biological opinion is not that kind of document. The regulations say you use the best information available. You have to make a conclusion. And when you're unsure, you give the benefit of the doubt to the species."

Most whistle-blowers put up with lawbreaking until late in their careers, when they haven't got much to lose. But Kelly is only 37 and has a young family to support. When the Public Employees for Environmental Responsibility came to his defense, it warned him that if he blew the whistle, he might get lucky and hang on to his job, but that he should pretty much expect to lose it. I asked Kelly if blowing the whistle had been worth the risk. "They [his team's superiors] did a masterful job of forcing us to the point where I just couldn't participate any longer," he said. "The only way for me to continue would have been to violate the Endangered Species Act. I just couldn't do that. I wouldn't want to be continually participating in such egregious rule breaking and mismanagement of resources. In the past there was always subtle political pressure. I'd hear a supervisor say, 'Well, we can't recommend that under this administration.' It was de facto pressure. But this was finally something that was so blatant I had to say something."

Since Kelly's disclosure, two Oregon State University researchers who had been investigating the NRC document - fisheries professor Douglas Markle and graduate student Michael Cooperman - have reported that it is riddled with errors, such as incorrect water-quality data, faulty fish-population models, selective use of data to support "a conclusion they had already reached," and even reference to nonexistent species.

Enemies of the ESA and the press framed the controversy as a choice between fish and farmers. "The Bush administration knew exactly what side they wanted to be on - the side of the farmers," says Mike Daulton, Audubon's assistant director of government relations. "So, dismissing the opinion of the NMFS and others and disregarding the downstream tribal fishermen, they decided to put on paper this 10-year plan to basically guarantee flows to irrigators."

There is only one solution to the Klamath water crisis: End lease farming on the refuges and buy farms and water rights from willing sellers. Before the summer of 2002 the federal government was committed to just this. But it gave up when it ran into fierce resistance from business interests that profit from farming, such as pesticide and fertilizer distributors, and from farmers who lease land cheaply on the refuges and therefore profit from subsidies. In an October 23, 2001, letter to Representative Wally Herger, the Tulelake Growers Association tried to get Phil Norton, who was then manager of the Klamath refuges, disciplined for alleged violations of the Hatch Act, which proscribes lobbying by federal employees. As evidence the association cited comments attributed by the media to Phil Norton, such as: "We are trying to fix the system so that it works again, but there's a lot of land that, frankly, never should have been put into agriculture production."

Last June the Fish and Wildlife Service, which is controlled by the Secretary of the Interior, completely reversed itself, issuing a Finding of No Significant Impact from farming in the Tule Lake National Wildlife Refuge. And despite a 94 percent favorable response in the public-comment period, the service rescinded its 1999 ruling that irrigation on the refuges would be permitted only in years when there was enough water to sustain wetlands. It abandoned its buyout effort. No longer did refuge spokespeople say that lease farming on the refuges "had to go." Instead, they proclaimed that farming was "compatible" with their mission.

The Klamath Water Users Association prevailed on Representative Greg Walden to kill an amendment to the 2002 Farm Bill that would have provided $175 million to buy farmland from willing sellers in the Klamath Basin. This so infuriated farmers who own land and have long favored a buyout that 50 of them wrote the association as follows: "To prevent this unfortunate situation from reoccurring and to prevent any future legal action, we request that all future association activities purporting to represent Klamath Basin Water Users on any major issues, such as retirement of land, be submitted to a vote of the landowners prior to any public announcement or official position statement."

Among the signers was John Anderson, 50, who runs beef cattle and grows a few crops on 3,500 acres in Tulelake, California. The drought of 2001 hurt him badly, wiping out 100 of 150 acres of peppermint and making him even more determined to get into a business more practical and profitable than trying to make the desert bloom. "The buyout has become an emotional issue that has built on itself," he says. "Logic has been lost. People go around saying, 'By God, we're not going to let the government take it,' and 'These environmentalists are full of bull.' I'd say more than 50 percent of the farmland is available for federal buyout right now." A lot of landowners aren't talking because they've been intimidated by property-rights barkers. Anderson, who is not among them, says he has received death threats by phone in the middle of the night.

On October 2, 2002, after salmon had been dying in the lower river for two weeks, the Pacific Coast Federation of Fishermen's Associations, the Earthjustice Legal Defense Fund, the Wilderness Society, Trout Unlimited, the Yurok tribe, and Representative Mike Thompson (D-CA) held a press conference outside the Interior Department building in Washington, D.C., to announce their lawsuit against BuRec and the NMFS for violating the Endangered Species Act. Thompson had the Yuroks ship out 500 pounds of dead salmon with which he and his fellow plaintiffs festooned the park across from the Interior building. So rancid was the shipment that Federal Express at first refused to deliver it. "It was amazing how quickly the flies found those fish," recalls the Wilderness Society's Pete Rafle. "I now understand why the theory of spontaneous generation held sway. I've got a pair of shoes that I'm going to have to resole or burn. I wasn't expecting puddles."

"I think there's been a real lack of understanding that the salmon are connected with the farming practices," Representative Thompson told me. "Unless you know the area, you don't necessarily know that the two are connected, and that's been a big problem. So it has come down to God-fearing farmers versus hippies and fish. That's not what it's about at all. It's about livelihoods in the lower basin."