Our Klamath Basin Water Crisis
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https://somachlaw.com/policy-alert/district-court-finds-that-the-esa-preempts-state-agencys-order-enforcing-state-water-law/?utm_source=Somach+Simmons+%26+Dunn+eAlerts+%26+Announcements+%28SSD_EBlast_20180902%29&utm_campaign=fd05497af8-EMAIL_CAMPAIGN_2023_02_06_09_37&utm_medium=email&utm_term=0_-fd05497af8-%5BLIST_EMAIL_ID%5D

23, written by Brittany K. Johnson, Somach Simmons & Dunn
FOLLOWED BY RESPONSES by Gene Souza, Klamath Irrigation District Executive Director, from Klamath Basin Crisis Facebook Page regarding court order to obliterate Klamath Project irrigators water rights.

On February 6, 2023, the District Court for the Northern District of California issued its order on pending motions for summary judgment in Yurok Tribe, et al. v. U.S. Bureau of Reclamation, et al. (N.D. Cal. Case No. 3:19-cv-04405-WHO), ruling that the Endangered Species Act (ESA) preempts an order issued by the Oregon Water Resources Department (OWRD) that prohibits the U.S. Bureau of Reclamation (Reclamation) from releasing water stored by the Klamath Project (Project) for non-irrigation purposes.

In the Klamath Basin Adjudication, OWRD determined in 2013 that the authorized purpose of use for the water rights for the Project is irrigation and that Reclamation stores water for the benefit of Project irrigators. In that proceeding, OWRD rejected arguments by the United States and others that the Project’s water rights may be used to benefit fish and wildlife species.

However, since the listing of species in the Klamath Basin, Reclamation has operated the Project according to minimum lake levels in Upper Klamath Lake and minimum flows in the Lower Klamath River set in biological opinions issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service. Following litigation in state court by the Klamath Irrigation District over the release of stored water from the Project, OWRD issued an order to Reclamation directing that stored water not be released for purposes for which there is no water right. In 2021, Reclamation claimed that its ESA obligations under federal law require Reclamation to release stored water downstream to the Klamath River to benefit protected salmon consistent with the applicable biological opinions. In pending litigation in the Northern District of California, the United States brought a claim against OWRD and Klamath Water Users Association (KWUA), challenging the OWRD Order under the Supremacy Clause and arguing that the ESA preempts the OWRD Order.

The court granted summary judgment in favor of the United States as well as the Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources, and denied the summary judgment motions filed by OWRD, KWUA, and Klamath Irrigation District. In its preemption analysis, the court considered whether it is physically impossible for Reclamation to comply with both the ESA and the OWRD Order, or whether the OWRD Order stands as an obstacle to accomplishing the purposes of the ESA. As part of this analysis, the court addressed KWUA’s argument that Reclamation does not have “discretionary authority” under the ESA to use stored water in Upper Klamath Lake for purposes other than irrigation. The court rejected this argument, instead holding that “Congress gave [Reclamation] a broad mandate in carrying out the Reclamation Act [of 1902], meaning it has discretion in deciding how to do so.” Under the Supreme Court precedent in National Association of Builders v. Defenders of Wildlife from 2007, “that discretion means that section 7(a)(2) applies.”

After finding ESA section 7(a)(2) applies to the Project because discretionary authority exists under the Reclamation Act of 1902, the court found that the OWRD Order stands as an obstacle to Reclamation’s release of stored water from the Project for ESA purposes and is thus preempted under the Supremacy Clause. The court declined to opine on other challenges to the OWRD Order under the intergovernmental immunity doctrine raised by the United States, and other arguments on discretion under ESA section 7(a)(2) by KWUA.

Since the expiration of the Klamath Basin Restoration Agreement in 2016, the Klamath Basin has been embroiled in nonstop ESA litigation, including at least ten different lawsuits in federal court filed by various stakeholders, in addition to the state court litigation mentioned above. As of the issuance of this ruling, two notices-of-intent to sue have been sent regarding 2023 Project operations.

For more information on this litigation, or application of the ESA in the Klamath Basin, please contact Brittany K. Johnson at (916) 446-7979 or [email protected]. Somach Simmons & Dunn represents KWUA in this action.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
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RESPONSES by Gene Souza, Klamath Irrigation District Executive Director, on Klamath Basin Crisis Facebook Page regarding court order to obliterate Klamath Project irrigators water rights.

2/6/23: "Water Year 2023 is shaping up to be another year of conflict for our communities.

Too much water has been released out of Upper Klamath Lake.

The National Marine Fisheries, National Oceanic and Atmospheric Administration, and Yurok Tribes’ opinion is that 55 redds guessed to be made by threatened coho in the Klamath River are in need of no less than 900 cfs of water from Iron Gate Dam which will likely push any newly hatched coho fry out to the ocean killing them. These organizations further claim the Southern Resident Killer Whales will be effected if Klamath River Chinook redds receive any less water. Theses demands for more water have not improved the conditions in over 20 years; in fact, some downriver Tribal members express excitement about the potential listing of Klamath River Chinook salmon upon most of which the science being used is based.

U.S. Fish and Wildlife Service’s opinion continues to equate lake elevations with endangered fish (C’waam, Kaptu (aka mullet or suckers)) despite the U.S. Geologic Service study finding no correlation between these species survival and lake levels.

On 6 February 2023, Judge Orrick, senior member of the Northern District of California writes, “The Oregon Water Resources Department order (to restrict the release of stored water from Upper Klamath Lake without a water right to do so) is preempted by the Endangered Species Act.” Thus, negating Section 8 of the Reclamation Act and eliminates the property rights of the Klamath Tribes and Project irrigators outlined in the Klamath River Adjudication."

2/7/23: Souza:
"Another loss for salmon...20+ years of doing the same thing... and some downriver folks are excited to hear Chinook may be soon listed by the ESA using this flawed and biased science.
Judge Orrick just undermined the Congressional intent of Section 8 of the ESA and simultaneously eliminated over 40 years of the Klamath River Adjudication establishing rights and priorities under the law.
Our refuges have been taken off life support of the water that was naturally there for the Pacific Flyway.
What a tragic death our ecosystems and communities will suffer."

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