Endangered Species Law & Policy

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a motion to immediately enjoin water diversions, which is presently set to be heard on July 11, 2018.

The Lost River sucker and shortnose sucker are listed as endangered species under the federal and California Endangered Species Act. They are also a fully protected species under California law, which means that their take is prohibited by state law with narrow exceptions for scientific research, efforts to recover the species, and where conservation and management of the species is provided for in a natural community conservation plan (NCCP) approved by the Department of Fish and Wildlife.

At the same time that the Klamath Tribes are seeking to shut down farming in the Klamath region purportedly to save the fully protected suckers, the California legislature is poised to waive the protections afforded to the suckers by the fully protected species laws. Assembly bill 2640 would grant a legislative waiver of the protections provided to the suckers by Fish and Game Code section 5515, permitting the Department of Fish and Wildlife to authorize the removal of four dams in the lower Klamath River, which would permanently eliminate the reservoir habitat above the dams currently occupied by both sucker species, and would result in the extirpation of the species in that portion of their range.

Legislative waivers of law are rare and generally disfavored, as they undermine the concept of the rule of law, that is, the notion that the law is to be applied in a fair and consistent manner. But they have been enacted on occasion in the context of species conservation.  In this instance, the waiver obliges the Department of Fish and Wildlife to make a finding that removal of the dams will not jeopardize the suckers and that the impacts to the suckers will be minimized.  But in light of the precarious status of the species and a dearth of information regarding its contemporary distribution and abundance, as well as the prominent role of the State of California as an advocate for dam removal, those concerned about the fate of the suckers may be concerned that the State has a greater interest in dam removal than the survival of the endangered suckers.