United States v. Klamath Drainage Dist.

• Docket Number: 1:22-cv-00962-CL
• Decision Date: 11 September 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff; v. KLAMATH DRAINAGE DISTRICT, Defendant.
• Court: U.S. District Court — District of Oregon

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UNITED STATES OF AMERICA, Plaintiff; v. KLAMATH DRAINAGE DISTRICT, Defendant.

No. 1:22-cv-00962-CL

United States District Court, D. Oregon, Medford Division

September 11, 2023

OPINION AND ORDER

MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff's Motion for Summary Judgment (ECF No. 64) and Defendant's Motion for Summary Judgment (ECF No. 60). All parties have consented to jurisdiction by a U.S. Magistrate Judge. See ECF No 26. For the reasons that follow, Plaintiff's Motion for Summary Judgment is GRANTED and Defendant's Motion for Summary Judgment is DENIED.

BACKGROUND

I. The Klamath Basin

The Klamath Basin encompasses approximately 12,000 square miles of "interconnected rivers, canals, lakes, marshes, dams diversions, wildlife refuges, and wilderness areas" in southern Oregon and northern California. In re Klamath Irrigation Dist, 69 F.4th 934, 938 (9th Cir. 2023) (quoting Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934, 938 (9th Cir. 2022)). Upper Klamath Lake ("UKL") is a large, shallow freshwater lake in southern Oregon. In re Klamath Irrigation Dist., 69 F.4th at 938; Klamath Irrigation Dist, 48 F.4th at 938. UKL drains into the Link River and, "[f]rom there, water flows into and through Lake Ewauna to the Klamath River, which then proceeds southwest into California and eventually joins the Trinity River near the Pacific coast." In re Klamath Irrigation Dist., 69 F.4th at 938. In recent years, drought conditions have led to "critically dry" conditions in the Klamath Basin, including in UKL. Klamath Irrigation Dist, 48 F.4th at 938-39 (citing Baley v. United States, 942 F.3d 1312, 1323-24 (Fed. Cir. 2019)).

The waters of the Klamath Basin are home to several species offish that are listed as endangered or threatened pursuant to the Endangered Species Act ("ESA"). See Id. at 939; see also Baley, 942 F.3d at 1324. These species include the Lost River sucker (Deltistes luxatus), the shortnose sucker (Chasmistes brevirostris), and a cohort of coho salmon (Oncorhynchus kisutch) known as the Southern Oregon/Northern California Coast ("SONCC") evolutionary significant unit ("ESU")^[1]. See Final Rule, Determination of Endangered Status for Shortnose Sucker and Lost River Sucker, 53 Fed.Reg. 27,130 (July 18,1988); Final Rule, Threatened Status for SONCC ESU of Coho Salmon, 62 Fed.Reg. 24,588 (May 6, 1997). UKL is critical habitat for the suckers. See Final Rule, Designation of Critical Habitat for Lost River Sucker and Shortnose Sucker, 77 Fed.Reg. 73,740 (Dec. 11, 2012). Most of the Klamath River below the Iron Gate Dam is critical habitat for the SONCC coho salmon. See Final Rule, Designated Critical Habitat for Central California Coast and SONCC Coho Salmon, 64 Fed.Reg. 24,049 (May 5, 1999). Additionally, although not listed under the ESA, chinook salmon are found in the waters of the Klamath Basin. Declaration of Alan C. Heck ("Heck Decl.") ¶ 6, ECF No. 65. Chinook salmon are a primary prey species for the Southern Resident killer whale (Orcinus orca), which is listed as endangered under the ESA. Id; see also Final Rule, Endangered Status for Southern Resident Killer Whales, 70 Fed.Reg. 69,903 (Nov. 18,2005).

II. The Klamath Project

A. History

The Reclamation Act of 1902 "laid the groundwork for a vast and ambitious federal program to irrigate the arid lands of the western states." Baley, 942 F.3d at 1319 (citation omitted); see also The Reclamation Act of 1902, Pub. L. No. 57-161,.32 Stat. 388 (codified, as amended, at 43 U.S.C. § 371 et seq.). "The Reclamation Act financed irrigation works, with construction costs repaid by Project water users." Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 489 F.Supp.3d 1168, 1175 (D. Or. 2020).

In 1905, Congress authorized the Secretary of the Interior to advance the Klamath River Basin Project ("Klamath Project" or "Project"), one of the first projects authorized under the Reclamation Act. See Id. (discussing origins and history of the Klamath Project). The Klamath Project is "a series of complex irrigation works in the region" that the Bureau of Reclamation ("Reclamation") operates "in accordance with state and federal law, except where state law conflicts with superseding federal law." In re Klamath Irrigation Dist, 69 F.4th at 938 (citations omitted); see also Baley, 942 F.3d at 1319-20 ("Section 8 of the Reclamation Act requires the Secretary of the. Interior to comply with state law regarding the appropriation of water for irrigation, to the extent such law is not inconsistent with federal law." (citing 43 U.S.C. § 383)). "Prior to passage of the Reclamation Act, at least part of the Klamath Basin was not arid land, but wetlands or marshes that were subsequently drained and converted to farmland pursuant to the Klamath Project." Baley, 942 F.3d at 1319 n.7_;

On May 17, 1905, pursuant to Oregon law, Reclamation filed a notice of appropriation as to all of the then-unappropriated waters of the Klamath Basin for the Klamath Project. See Klamath Irrigation Dist,, 489 F. Supp, 3d at 1175. "The notice stated that 'the United States intends to utilize ... [a]ll of the waters of the Klamath Basin in Oregon, constituting the entire drainage basins of the Klamath River and Lost River, and all of the lakes, streams and rivers supplying water thereto or receiving water therefrom' for purposes of 'the operation of works for the utilization of water ... under the provisions of the ... Reclamation Act.'" Baley, 942 F.3d at 1320-21 (quoting Baley v. United States, 134 Fed.Cl. 619, 626 (2017)) (alteration in original).

B. Operations

In the Klamath Project, water is stored in UKL by means of the Link River Dam. Baley, 942 F.3d at 1321. Reclamation owns the Link River Dam. Heck Decl. ¶ 3, ECF No. 65. "Water is diverted from [UKL] and locations downstream from the lake on the Klamath River and conveyed through canals and laterals to individual users in Oregon and California." Baley, 942 F.3d at 1321 (citation omitted). "As part of this process, water is stored and its flow is controlled using a series of dams downstream from the Link River Dam, which is at the south end of Upper Klamath Lake." Id. The last of these dams on the Klamath River is the Iron Gate Dam in California. Id. In operating the Klamath Project, Reclamation has the "nearly impossible" task of balancing multiple, often competing interests in the Klamath Basin. Klamath Irrigation Dist., 48 F.4th at 940 (quoting Klamath Irrigation Dist., 489 F. Supp, 3d at 1173). Three of those interests are directly Implicated here: Tribal water and fishing rights, Reclamation's obligations under the ESA, and Reclamation's contracts with individual irrigators and irrigation districts.

First, Reclamation must operate the Project "consistent with the federal reserved water and fishing rights of the Klamath, Hoopa Valley, and Yurok Tribes that predated the Project and any resulting Project rights," Id. at 941. The Klamath Tribes' senior, non-consumptive rights include "the right to prevent other appropriators from depleting the streams['] waters below a protected level" and "the right to certain conditions of water quality and flow to support all life stages of [the Lost River sucker and the shortnose sucker]." Baley, 942 F.3d at 1322 (citation omitted); Klamath Irrigation Dist, 48 F.4th at 939-40, 943 (citations omitted). The rights of downstream Tribes, such as the Yurok Tribe and Hoopa Valley Tribe, also require Reclamation to maintain specific instream flows in the Klamath-Trinity River in California. In re Klamath Irrigation Dist, 69 F.4th at 938. "At the bare minimum, the Tribes hold rights to an amount of water that is at least equal, but not limited to, the amount necessary to fulfill Reclamation's ESA responsibilities." Id. (citations and quotation marks omitted); see also, Baley, 942 F.3d at 1337 ("At the,bare minimum, the Tribes' rights entitle them to the government's compliance with the ESA in order to avoid placing the existence of their important tribal resources in jeopardy."). The Tribes' rights "necessarily carry a priority date of time immemorial." Klamath Irrigation Dist., 48 F.4th at 939 (quoting United States v. Adair, 122, F.2d 1394, 1414 (9th Cir. 1983)).

Second, Reclamation must operate the Klamath Project in a manner consistent with its obligations under the ESA, which includes maintaining specific elevation levels in UKL and instream flows in the Klamath River. In re Klamath Irrigation Dist., 69 F.4th at 938; Klamath Irrigation Dist,, 48 F.4th at 940-41. The ESA "requires federal agencies to consult with specified federal fish and wildlife agencies to ensure that 'any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence' of any species listed for protection under the Act 'or result in the destruction or adverse modification of the species' critical habitat." Klamath Irrigation Dist., 48 F.4th at 940 (citations omitted). Reclamation develops operating procedures through consultation with agencies "to ensure that its operations do not jeopardize the existence offish species protected by the ESA, including the Lost River sucker, the shortnose sucker, and the SONCC coho salmon." Id.- at 940-41.

Third "Reclamation maintains contracts with individual irrigators and the irrigation districts that represent them, under which the United States has agreed to supply water from the Klamath Project to the irrigators, 'subject to the availability of water.'" Id. at 940. These irrigators rely on water deliveries and make investments in crops based upon expected water deliveries. Klamath Irrigation Dist., 489 F.Supp.3d at 1175, "Delayed access to or decreased amounts of water cause ...