Klamath Irrigation Dist. v. U.S. Bureau of Reclamation

• Decision Date: 08 September 2022
• Docket Number: 20-36020, No. 20-36009
• Citation: 48 F.4th 934
• Parties: KLAMATH IRRIGATION DISTRICT, Plaintiff-Appellant, and Shasta View Irrigation District; Tulelake Irrigation District ; Klamath Water Users Association; Klamath Drainage District; Rob Unruh; Van Brimmer Ditch Company ; Ben Duval, Plaintiffs, v. UNITED STATES BUREAU OF RECLAMATION; Deb Haaland, Secretary of the Interior, in her official capacity; Camille Calimlim Touton, Commissioner of the Bureau of Reclamation, in her official capacity; Ernest Conant, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; Jared Bottcher, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees, Hoopa Valley Tribe; The Klamath Tribes, Intervenor-Defendants-Appellees. Shasta View Irrigation District; Tulelake Irrigation District ; Klamath Water Users Association; Klamath Drainage District; Rob Unruh; Van Brimmer Ditch Company ; Ben Duval, Plaintiffs-Appellants, and Klamath Irrigation District, Plaintiff, v. United States Bureau of Reclamation; Deb Haaland, Secretary of the Interior, in her official capacity; Camille Calimlim Touton, Commissioner of the Bureau of Reclamation, in her official capacity; Ernest Conant, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; Jared Bottcher, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees, Hoopa Valley Tribe; The Klamath Tribes, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

48 F.4th 934

KLAMATH IRRIGATION DISTRICT, Plaintiff-Appellant,

and

Shasta View Irrigation District; Tulelake Irrigation District ; Klamath Water Users Association; Klamath Drainage District; Rob Unruh; Van Brimmer Ditch Company ; Ben Duval, Plaintiffs,

v.UNITED STATES BUREAU OF RECLAMATION; Deb Haaland, Secretary of the Interior, in her official capacity; Camille Calimlim Touton, Commissioner of the Bureau of Reclamation, in her official capacity; Ernest Conant, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; Jared Bottcher, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees,Hoopa Valley Tribe; The Klamath Tribes, Intervenor-Defendants-Appellees.

Shasta View Irrigation District; Tulelake Irrigation District ; Klamath Water Users Association; Klamath Drainage District; Rob Unruh; Van Brimmer Ditch Company ; Ben Duval, Plaintiffs-Appellants,

and

Klamath Irrigation District, Plaintiff,

v.United States Bureau of Reclamation; Deb Haaland, Secretary of the Interior, in her official capacity; Camille Calimlim Touton, Commissioner of the Bureau of Reclamation, in her official capacity; Ernest Conant, Director of the Mid-Pacific Region, Bureau of Reclamation, in his official capacity; Jared Bottcher, in his official capacity as Acting Area Manager for the Klamath Area Reclamation Office, Defendants-Appellees,Hoopa Valley Tribe; The Klamath Tribes, Intervenor-Defendants-Appellees.

No. 20-36020

No. 20-36009

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2021 San Francisco, California

Filed September 8, 2022

Christopher A. Lisieski (argued) and John P. Kinsey, Wanger Jones Helsley PC, Fresno, California; Nathan R. Rietmann, Rietmann Law PC, Salem, Oregon; for Plaintiff-Appellant Klamath Irrigation District.

Richard S. Deitchman (argued), and Paul S. Simmons, Somach Simmons & Dunn PC, Sacramento, California; Nathan J. Ratliff, Parks & Ratliff PC, Klamath Falls, Oregon; Reagan L.B. Desmond, Clyde Snow & Sessions PC, Bend, Oregon; for Plaintiffs-Appellants Shasta View Irrigation District, Tulelake Irrigation District, Klamath Water Users Association, Klamath Drainage District, Rob Unruh, Van Brimmer Ditch Company, and Ben Duval.

Thane D. Somerville (argued) and Thomas P. Schlosser, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington, for Intervenor-Defendant-Appellee Hoopla Valley Tribe.

Rachel Heron (argued) and John L. Smeltzer, Attorneys; Jean E. Williams, Acting Assistant Attorney General; Environment and Natural Resources Division; United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Jeremiah D. Weiner (argued), Rosette LLP, Sacramento, California, for Intervenor-Defendant-Appellee Klamath Tribes.

Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.

Concurrence by Judge Bumatay

WARDLAW, Circuit Judge:

This appeal concerns the distribution of waters in the Klamath Water Basin by the Bureau of Reclamation, which owns and operates the Klamath Project, a federal irrigation project. Shasta View Irrigation District, Klamath Irrigation District, and other irrigators, farmers, and water users appeal the dismissal of their action challenging Reclamation's current operating procedures, which were adopted in consultation with other relevant federal agencies to maintain specific lake levels and instream flows to comply with the Endangered Species Act and to safeguard the federal reserved water and fishing rights of the Hoopa Valley and Klamath Tribes. The Districts contend that compliance with those procedures violates the Administrative Procedure Act and the Reclamation Act because distributing water to fulfill the Tribal reserved waters deprives the Districts of waters they claim were lawfully appropriated to the Districts in a state adjudication proceeding. The Hoopa Valley and Klamath Tribes intervened as of right, but then moved to dismiss this action on the ground that they are required parties who cannot be joined due to their tribal sovereign immunity. Because the district court properly recognized that a declaration that Reclamation's operating procedures are unlawful would imperil the Tribes' reserved water and fishing rights, we affirm its conclusion that the Tribes were required parties who could not be joined due to their sovereign immunity, and, that in equity and good conscience, the action should be dismissed.

I.

A. The Klamath Water Basin

The Klamath Water Basin (the Klamath Basin) stretches from south-central Oregon to northern California, occupying approximately 12,000 square miles. The Klamath Basin consists of a complex network of interconnected rivers, canals, lakes, marshes, dams, diversions, wildlife refuges, and wilderness areas.

Upper Klamath Lake (UKL), a major lake within the Klamath Basin, is shallow and averages only about six feet of usable water storage when full. Drought conditions in past years have led to "critically dry" conditions in the Klamath Basin, including in UKL. See Baley v. United States , 942 F.3d 1312, 1323–24 (Fed Cir. 2019). This problem has only grown more severe with time. Recently, the Klamath Basin has experienced "multiple extremely dry years that unfortunately appear to be the new normal."

The waters of the Klamath Basin serve as a critical habitat for several species of fish that are listed as endangered pursuant to the Endangered Species Act (ESA), 16 U.S.C. § 1531 – 1544, including the Lost River sucker and shortnose sucker. UKL, which comprises 64,000 acres, serves as the largest remaining contiguous habitat for endangered suckers in the Upper Klamath Basin. Due to "changing water elevation in [UKL] and recurring water quality problems," U.S. Dep't of the Interior, Off. of the Solic., Opinion Letter on Certain Legal Rights and Obligations Related to the U.S. Bureau of Reclamation, Klamath Project for Use in Preparation of the Klamath Project Operations Plan (KPOP) (July 25, 1995) (Letter from the Solicitor); the population of endangered suckers has significantly declined. See generally U.S. Dep't of the Interior, Fish and Wildlife Serv., Biological Opinion on the Effects of Proposed Klamath Project Operations from April 1, 2019, through March 31, 2024, on the Lost River Sucker and the Shortnose Sucker, Opinion Letter (Mar. 29, 2019). The U.S. Fish and Wildlife service projected in 2019 that, over the next decade, "the [sucker] population [could] be[come] so small that it is unlikely to persist without intervention."

B. The Tribes

1. Klamath Tribes

Since time immemorial, the Klamath Tribes have utilized the water and fish resources of the Klamath Basin for subsistence, cultural, ceremonial, religious, and commercial purposes. See United States v. Adair , 723 F.2d 1394, 1414 (9th Cir. 1983). In 1864, the United States and the Klamath Tribes entered into a treaty whereby the Tribes ceded their interests in millions of acres of land and retained a reservation of approximately 800,000 acres abutting UKL and several of its tributaries. The Klamath Tribes also retained "the exclusive right of taking fish in the streams and lakes included in said reservation, and of gathering edible roots, seeds, and berries within its limits." Treaty between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians, art. 1, Oct. 14, 1864, 16 Stat. 707 (the 1864 Treaty).

We have acknowledged that "[i]n view of the historical importance of hunting and fishing, and the language of Article I of the 1864 Treaty ... one of the ‘very purposes’ of establishing the Klamath Reservation was to secure to the Tribe a continuation of its traditional hunting and fishing lifestyle." Adair , 723 F.2d at 1409 (quoting United States v. New Mexico , 438 U.S. 696, 702, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978) ). The fish resources—particularly the C'waam (Lost River sucker) and Koptu (shortnose sucker)—of the Klamath Basin play an especially important role in the lives of the Klamath Tribes. "The Tribes' water right includes the right to certain conditions of water quality and flow to support all life stages of [these] fish." Letter from the Solicitor at 5 (citations omitted). These rights "necessarily carry a priority date of time immemorial. The rights were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of these rights." Adair , 723 F.2d at 1414 (citations omitted).

Time and again, we have affirmed the critical importance of the Klamath Tribe's water and fishing rights in the Klamath Basin and its distributaries. See, e.g., Adair , 723 F.2d at 1411 (recognizing that the Tribe's fishing rights include "the right to prevent other appropriators from depleting the streams['] waters below a protected level").

2. Hoopa Valley Tribe

The Act of April 8, 1864, ch. 48, 13 Stat. 39, authorized the creation of the Hoopa Valley Reservation, which is located in northern California along the Klamath River and its largest tributary, the Trinity River, as a permanent homeland for the Hoopa Valley Tribe (Hoopa). We have long held that traditional fishing is one of the central purposes for which, like the Klamath Reservation, the Hoopa Valley Reservation was created. Parravano v. Babbitt , 70 F.3d 539, 546 (9th Cir. 1995) ("Our interpretation accords with the general understanding that hunting and fishing rights arise by implication when a reservation is set aside for Indian purposes."). Generations of Hoopa have relied on the water and fish resources provided by the Klamath River and the Trinity River, which flow from the UKL, for cultural, religious, practical, commercial, and ceremonial purposes. See Parravano , 70 F.3d at 542 (noting that "the Tribes' salmon fishery was ‘not much less necessary to [their existence] than the atmosphere they breathed’ ") (quoting Blake v. Arnett , 663 F.2d 906, 909 (9th Cir. 1981) (alteration in original).

C. The U.S. Bureau of Reclamation

The U.S....