Pacific Coast Fed. v. U.S. Bureau of Reclamation

• Decision Date: 03 April 2001
• Docket Number: No. C 00-01955 SBA.,C 00-01955 SBA.
• Citation: 138 F.Supp.2d 1228
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs, v. U.S. BUREAU OF RECLAMATION, Defendant, and Klamath Water Users Assoc., Intervenor.
• Court: U.S. District Court — Northern District of California

Page 1228

138 F.Supp.2d 1228

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs, v. U.S. BUREAU OF RECLAMATION, Defendant, and Klamath Water Users Assoc., Intervenor.

No. C 00-01955 SBA.

United States District Court, N.D. California.

April 3, 2001.

Patti A. Goldman, Todd D. True, Kristen Boyles, Jan E. Hasselman, Earthjustice Legal Defense Fund, Seattle, WA, Michael R. Sherwood, Earthjustice Legal Defense Fund, San Francisco, CA, for plaintiffs.

Lyn Jacobs, U.S. Department of Justice, Wildlife and Marine Resources Section, Washington, DC, Stephen M. MacFarlane, U.S. Department of Justice, Environmental & Natural Resources Division, John A. Mendez, Paul S. Simmons, Somach, Simmons & Dunn, Sacramento, CA, for defendants.

Lea Ann Easton, Oregon Legal Services, Portland, OR, amicus curiae.

ORDER

ARMSTRONG, District Judge.

This matter comes before the Court on the following motions: (1) plaintiffs' motion for summary judgment [Docket No. 65-1]; (2) defendants' cross-motion for summary judgment [Docket No. 88-1]; (3) the Intervenor's motion for summary judgment [Docket No. 80-1]; (4) Intervenor's request for judicial notice [Docket No. 105-1]; and (5) intervenor's evidentiary objections and request to strike declarations of Tim McKay, Felice Pace and Glen Spain, and exhibits A and C to the second declaration of Jan E. Hasselman [Docket No. 103-1].

Having read and considered all the papers filed in connection with these motions, having considered the arguments advanced by the parties and being fully informed, the Court hereby (1) GRANTS plaintiffs' motion for summary judgment [Docket No. 65-1]; (2) GRANTS in part and DENIES in part defendants' cross-motion for summary judgment [Docket No. 88-1]; (3) GRANTS in part and DENIES in part Intervenor's motion for summary judgment [Docket No. 80-1]; (4) DENIES Intervenor's Request for Judicial Notice [Docket No. 105-1]; and (5) DENIES Intervenor's Request to Strike Declarations and Exhibits [Docket No. 103-1].

I. BACKGROUND

A. Factual History

1. Klamath Project

This is a water rights case involving The Klamath Project. "The Klamath Project, located within the Upper Klamath and Lost River Basins in Oregon and California, was authorized by Congress in 1905 pursuant to the Reclamation Act of 1902 (32 Stat. 388). In 1905, in accordance with state water law and the Reclamation Act, the United States appropriated all available water rights in the Klamath River and Lost River and their tributaries in Oregon and began constructing a series of water diversion projects." Klamath Water Users Assoc. v. Patterson, 15 F.Supp.2d 990, 991-92 (D.Or.1998), aff'd, 204 F.3d 1206 (9th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000); Administrative Record (also referred to herein as "AR") 1:13:30.¹

Water for the Klamath Project is stored primarily in Upper Klamath Lake on the Klamath River. (AR 1:13:23; Wirkus Dec. ¶ 3) Upper Klamath Lake is located wholly in Oregon. (AR 1:1:1-2) It is a naturally occurring lake born out of a natural rock formation. (Wirkus Dec. ¶ 3) In 1917, Link River Dam was constructed near the mouth of Upper Klamath Lake to allow the lake to be drawn below its natural level, as well as to increase storage in the lake to supply water for irrigation and other purposes. (Id.)

The Link River Dam regulates flows in the lower Klamath River. (AR 1:13:32, 43) It is owned by the federal defendant, the U.S. Bureau of Reclamation, but operated and maintained pursuant to contract by a power company named PacifiCorp. (AR 1:13, 32, 43: Wirkus Dec. ¶ 4) PacifiCorp also owns and operates the canals that carry the water from Upper Klamath Lake to the Link River, and it operates several hydroelectric and/or re-regulating dams on the Klamath River pursuant to a license issued by the Federal Energy Regulatory Commission ("FERC") (previously the Federal Power Commission). (AR 1:13:43; Wirkus Dec. ¶ 4) The furthest downstream of these dams is the Iron Gate Dam in California, which PacifiCorp also owns. (AR 1:10:125-127; Wirkus Dec. ¶ 4)

The Klamath Project serves and affects a number of interests. Two fish which are listed as "endangered" under the Endangered Species Act (also referred to herein as "ESA"), 16 U.S.C. § 1531, et seq., 53 Fed.Reg. 27130 (July 18, 1988), the shortnose sucker and the Lost River sucker, live in Upper Klamath Lake and nearby Project waters and nowhere else. Upper Klamath and Clear Lake National Wildlife Refuges also benefit from lake elevations. The Klamath Project supplies irrigation water to agricultural lands. It also supplies water to Tule Lake and Lower Klamath National Wildlife Refuges for permanent and seasonal marshlands and irrigated crop lands. Below Iron Gate Dam, the Lower Klamath River is used by various species of fish, including the Southern Oregon/Northern California Coast ("SO/NCCC") Evolutionary Significant Unit ("ESU") of coho salmon, which was listed as "threatened" under the ESA in 1997, see, 62 Fed.Reg. 24, 588 (May 6 1997). After the water leaves the Klamath Project area, it remains important to the Klamath River habitat in both Oregon and California. (AR 1:13:23-25, 1:15:282-283; Wirkus Dec. ¶ 5)

The Secretary of the Interior, through the Bureau of Reclamation, must manage and operate the Klamath Project pursuant to various legal responsibilities. Pursuant to the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. §§ 371, et seq., as amended and supplemented, for example, the Bureau of Reclamation has entered into contracts with various water districts and individual water users to supply water, subject to availability, for irrigation purposes. (AR 3:33:336-338, 342) Two national wildlife refuges, the Lower Klamath and Tule Lake National Wildlife Refuges, also are dependent on the operations of Klamath Project and have federal reserved water rights to the amount of water, unreserved at the time of creation of the refuges, necessary to fulfill the primary purpose of the refuges.² (AR 3:33:338-339) "In addition, the Secretary of the Interior has recognized that a number of Oregon tribes, including the Klamath, Yurok and Hoopa valley tribes (the "Tribes"), hold fishing and water treaty rights in the [Klamath] basin." Klamath Water Users Protective Assoc. v. Patterson, 204 F.3d 1206, 1209 (9th Cir.1999), cert. denied, ___ U.S. ___, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000). (AR 3:33:339-342)³ The Bureau of Reclamation has an obligation to protect Tribal trust resources, including the Klamath River coho salmon. (AR 9:293:4781-4782) It also has an obligation under the ESA not to engage in any action that is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of the critical habitat of such a species. (AR 3:33:9) See, 16 U.S.C. § 1536(a)(1).

The Bureau of Reclamation must manage water resources carefully in order to meet its competing purposes and obligations. This need to strike a proper balance is particularly challenging because the Upper Klamath Lake is relatively shallow and, therefore, the Klamath Project's storage capacity is limited. Water levels in the Lake vary from year to year, depending to a significant extent upon the previous winter's snowfall and temperature, and on precipitation conditions during the spring and summer. (Wirkus Dec. ¶ 6)

In order to prepare Project operation plans, the Bureau of Reclamation relies on the Natural Resources Conservation Service ("NRCS") Streamflow Forecast for key areas in the Upper Klamath Basin. The NRCS forecast period runs from April 1 to the end of the current water year, September 30. NRCS issues its forecasts on a monthly basis, between January and June. The reliability of these forecasts increase with each month, as the forecast period becomes shorter. (Wirkus Dec. ¶ 22; AR 7153:3983) Weather changes during the year, however, (for example, due to unusually hot and dry conditions, or unusually rainy conditions) may significantly affect Upper Klamath Lake inflows as well. (AR 8:227:4384; AR 7:183:4180)

Pending completion of a long-term plan, in 1995, the Bureau of Reclamation began developing annual plans for operation of the Klamath Project. The purpose of these plans was to provide information concerning the criteria to be used in operating the Project during the year and to assist water users and resource managers in planning for the water year. (Wirkus Dec. ¶ 11; AR 2:30:1167; AR 3:41:1463; AR 4:52:1637; AR 4:56:1843; AR 4:61:2184) On April 26, 2000, the Bureau of Reclamation issued its operations plan for 2000. See, 9:292:4776. Since 1996, the Bureau of Reclamations also has been working to develop a multi-year operations plan. (AR 4:63:2350) To date, however, no such long-term plan has been completed.

2. The Southern Oregon/Northern California Coastal Coho Salmon

Plaintiffs' claims in this suit revolve around the needs of the SO/NCC coho salmon. As noted above, the National Marine Fisheries Service ("NMFS") has listed this species as "threatened" under the ESA. See, 62 Fed.Reg. 24, 588 (May 6, 1997). The Klamath River downstream of Iron Gate Dam has been designated as a "critical habitat" for the SO/NCC salmon. (AR 4:63:2382) See, 64 Fed.Reg. 24,049, 24,062 (May 5, 1999). The level of the instream flow in this region forms an important part of the species' habitat needs. See, AR 5:64:2380-2381; AR 9:273:4655-58. A decreased flow reduces the stream-side edge habitat (which preferably should be inundated with multi-stream vegetation to avoid predation by birds and other fish and to provide relief from the velocity of free flowing water), which in turn allegedly results in increased mortality among the young of the species. (Pierce Dec. ¶¶ 30-34)

Since 1962, instream flows in this region have been substantially determined by the minimum flow regime specified at Iron Gate Dam under PacifiCorp's license from the Federal Energy Regulatory Commission ("FE...