Kandra v. U.S.

Decision Date30 April 2001
Docket NumberNo. CIV. 01-6124-AA.,CIV. 01-6124-AA.
Citation145 F.Supp.2d 1192
PartiesSteven Lewis KANDRA; David Cacka; Klamath Irrigation District; Tulelake Irrigation District; and Klamath Water Users Association, Plaintiffs, and City of Klamath Falls, Klamath County, Modoc County, and Lon Bailey, Plaintiffs-Intervenors, v. UNITED STATES of America; Gale Norton, Secretary of the Interior; Don Evans, Secretary of Commerce, Defendants, and Klamath Tribes; Yurok Tribe; the Wilderness Society, et al., Defendants-Intervenors,
CourtOregon Supreme Court

Stephen A. Hutchinson, Douglas M. DuPriest, Hutchinson, Cox, Coons & DuPriest, Eugene, OR, Stuart L. Somach, Paul S. Simmons, John A. Mendez, Somach, Simmons & Dunn, Sacramento, CA, William M. Ganong, Klamath Falls, OR, for plaintiffs.

Richard C. Whitlock, City Attorney, Klamath Falls, OR, for plaintiff-intervenor City of Klamath Falls.

Reginald R. Davis, Klamath County Counsel, Klamath Falls, OR, for plaintiff-intervenor Klamath County.

Thomas M. Buckwalter, Modoc County Counsel, Alturas, OR, for plaintiff-intervenor Modoc County.

Laura A. Schroeder, Steven Lee Shrop-shire, Schroeder Law Offices, Portland, OR, for plaintiff-intervenor Lon Bailey.

James L. Sutherland, Assistant United States Attorney, Eugene, OR, Lyn Jacobs, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, Stephen M. MacFarlane, United States Department of Justice, Environment & Natural Resources Division, Sacramento, CA, David W. Harder, United States Department of Justice, Environment & Natural Resources Division, Indian Resources Section, Denver, CO, for defendants.

Carl V. Ullman, Klamath Tribes Water Adjudication Project, Chiloquin, OR, Lea Ann Easton, Native American Program Oregon Legal Services, Portland, OR, Walter Echo-Hawk, Native American Rights Fund, Boulder, CO, for defendant-intervenor Klamath Tribes.

Curtis G. Berkey, Scott W. Williams, Alexander & Karshmer, Berkeley, CA, for defendant-intervenor Yurok Tribe.

Jan E. Hasselman, Todd D. True, Earthjustice Legal Defense Fund, Seattle, WA, Peter M.K. Frost, Eugene, OR, Robert G. Hunter, Medford, OR, for defendants-intervenors The Wilderness Society, Waterwatch of Oregon, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, Northcoast Environmental Center, and Klamath Forest Alliance.

Frank DeMarco, Siskiyou County Counsel, William Standley, Assistant County Counsel, Donald R. Langford, Mary Frances McHugh, Deputies County Counsel, Yreka, CA, for amicus curiae Siskiyou County.

OPINION AND ORDER

AIKEN, District Judge.

Plaintiffs move for a preliminary injunction against defendant United States of America, Department of Interior, enjoining the Bureau of Reclamation ("Reclamation") from implementing the Klamath Reclamation Project 2001 Annual Operations Plan ("2001 Plan" or "Plan"). Under the 2001 Plan, water elevations of Upper Klamath Lake and water flows below Iron Gate Dam will be maintained to support endangered sucker fish and threatened coho salmon. Due to inadequate water supplies, no irrigation water deliveries will be made to the majority of land within the Klamath Reclamation Project ("Project"). Plaintiffs seek an order enjoining Reclamation from implementing the Plan and ordering Reclamation to release unspecified "historic" amounts of irrigation water. In the alternative, plaintiffs request that the court order Reclamation to release 262,000 acre feet of water, resulting in an Upper Klamath Lake elevation of 4138 at the end of September, which allocates roughly fifty percent of stored water and inflow to Project irrigators.

Plaintiffs claim that the 2001 Plan breaches their contractual rights to irrigation water and is arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in that its implementation violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq.

BACKGROUND

The Project is a water storage and irrigation project serving over 200,000 acres of land in Southern Oregon and Northern California. The Project was authorized in 1905 pursuant to the Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371, et seq. 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 Association v. Patterson, 204 F.3d 1206, 1209 (9th Cir.1999) ("Patterson").

Water for the Project is stored primarily in Upper Klamath Lake ("UKL") on the Klamath River. The Link River Dam, constructed near the mouth of UKL, regulates flows in the lower Klamath River. It is owned by Reclamation, but operated and maintained pursuant to contract by PacifiCorp, a power company. PacifiCorp also owns and operates the canals that carry water from UKL to the Link River, and it operates several hydroelectric and re-regulating dams on the Klamath River pursuant to a license issued by the Federal Energy Regulatory Commission. The furthest downstream of these dams is the Iron Gate Dam in California.

Reclamation must balance diverse, and often competing, demands for Project water. Reclamation must deliver water to Project irrigators in accordance with the rights held by the United States and the irrigators' individual repayment contracts, subject to the availability of water. Plaintiffs Klamath Irrigation District and Tulelake Irrigation District have rights to receive appropriated water pursuant to their contracts with Reclamation. Two national wildlife refuges, the Lower Klamath and Tule Lake National Wildlife Refuges, depend on the Project for water and receive large quantities of return irrigation flows and other Project waters.

Under the ESA, Reclamation must not 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. See 16 U.S.C. § 1536(a)(2). In 1988, two fish, the Lost River and shortnose suckers, were listed as "endangered" due to a decline in the species' population resulting from a fragmentation of aquatic habitat through damming, flow diversion, and decreased water quality. 53 Fed.Reg. 27130, 27131-32 (July 18, 1988). The suckers live only in UKL and nearby Project waters. They are adfluvial, in that the suckers live mostly in UKL, migrating up tributaries to spawn.

Below Iron Gate Dam, the Klamath River is used by various species of fish, including the Southern Oregon/Northern California Coast coho salmon ("coho salmon" or "salmon"). The coho salmon was listed as "threatened" under the ESA in 1997, in part due to habitat degradation resulting from water diversions. 62 Fed. Reg. 24588, 24592 (May 6, 1997). The Klamath River from Iron Gate Dam to the Pacific Ocean has been designated as a "critical habitat" for the coho salmon. See 64 Fed.Reg. 24049 (May 5, 1999). The coho are anadromous, in that they migrate from the ocean to fresh water to spawn.

Large numbers of bald eagles migrate into the Klamath Basin during fall and winter. The eagles, listed as "threatened" under the ESA, rely heavily on the abundant waterfowl that use the Lower Klamath National Wildlife Refuge, which receives water from Project operations.

Finally, Reclamation must also consider the rights of Indian tribes, including defendants-intervenors Klamath and Yurok Tribes, who hold fishing and water treaty rights in the Klamath River Basin. The Tribes retained these rights pursuant to treaties in which they ceded millions of acres of land to the United States. See Parravano v. Babbitt, 70 F.3d 539, 541-42, 545 (9th Cir.1995); United States v. Adair, 723 F.2d 1394, 1414 (9th Cir.1983). The endangered suckers, called "c'wam" by the Klamath Tribes, play an integral role in the Klamath Tribes' customs and traditions. Prior to its closing in 1986, Klamath Tribes maintained a c'wam fishery which provided a source of food and income for tribal members. Declaration of Elwood Miller, ¶¶ 5-9. The threatened coho salmon are equally important to the Yurok Tribe, providing a source of food, opportunities for employment and income, and the basis of Yurok customs and traditions. Declaration of Glenn Moore, ¶¶ 4, 6, 8, 11. Reclamation has an obligation to protect tribal trust resources such as the sucker fish and salmon. Patterson, 204 F.3d at 1213; Parravano, 70 F.3d at 547; Adair, 723 F.2d at 1408-11, 1415.

Several constraints force Reclamation "to walk a water-management tightrope in dry years." Defendants' Opposition to Motion for Preliminary Injunction, p. 6. Unlike other Reclamation projects, the Project does not have a major water storage reservoir. Yearly water levels of UKL vary, largely depending on the previous winter's snowfall and the amount of precipitation during the spring and summer. UKL is relatively shallow and unable to capture and store large quantities of water from spring run-off. Consequently, the Project's storage capacity is limited, and Reclamation cannot store water during years of heavy precipitation to meet water needs in dry years.

To prepare Project operation plans, Reclamation relies on the Natural Resources Conservation Service ("NRCS") Streamflow Forecast for the Upper Klamath Basin. NRCS issues its forecasts on a monthly basis, between January and June, for the period from April 1 to September 30. The Project's primary irrigation season begins in late March, shortly after Reclamation receives the first streamflow forecasts.

In light of the diverse water demands, Reclamation initiated a public process to establish a new long-term operating plan. For the past several years,...

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