Yurok Tribe v. U.S. Bureau of Reclamation

• Decision Date: 06 February 2023
• Docket Number: 19-CV-04405-WHO
• Parties: YUROK TRIBE, et al., Plaintiffs, v. U.S. BUREAU OF RECLAMATION, et al., Defendants.
• Court: U.S. District Court — Northern District of California

YUROK TRIBE, et al., Plaintiffs,
v.
U.S. BUREAU OF RECLAMATION, et al., Defendants.

No. 19-CV-04405-WHO

United States District Court, N.D. California

February 6, 2023

ORDER ON MOTIONS FOR SUMMARY JUDGMENT, MOTIONS TO STRIKE, AND MOTION TO STAY

RE: DKT. NOS. 1027, 1029, 1039, 1040, 1043, 1044, 1057, 1058, 1069

William H. Orrick, United States District Judge

Before me is the latest set of motions in a Case that, at its Core, involves the limited water supply of the Klamath River and the important, often-Competing interests of the people and wildlife who depend on it. Pending are four motions for summary judgment: one from defendant the United States; another from the Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations, and the Yurok Tribe (collectively, “the plaintiffs”); a third from CrossClaim-defendant and counterclaimant Oregon Water Resources Department (“OWRD”); and a final motion from CrossClaim-defendant and Counterclaimant Klamath Water Users Association (“KWUA”). The parties have also filed related motions to strike and a motion to stay.

The arguments boil down to a Central question: Must the United States Bureau of Reclamation (“the Bureau” or “Reclamation”) Comply with an OWRD order prohibiting it from releasing water from Upper Klamath Lake? This implicates three primary issues: (1) whether the OWRD Order is preempted by the Endangered Species Act (“ESA”); (2) whether OWRD violated the intergovernmental immunity doctrine in issuing the Order; and, relatedly, (3) whether OWRD exceeded its authority in doing so. The material facts are not in dispute and these legal questions suitable for summary judgment.

Answering the first question is ultimately all that is needed. The OWRD Order is

1

preempted by the ESA because it stands as an obstacle to the accomplishment and execution of Congress's purpose and objective in enacting in ESA: protecting and restoring endangered species. Summary judgment is GRANTED in favor of the United States and plaintiffs on the first cause of action in the United States' crossclaim: (1) the Bureau must comply with the ESA in operating the Klamath Project (“the Project”) and (2) the OWRD Order is preempted by the ESA and thus violates the Supremacy Clause.

Summary judgment is DENIED with respect to KWUA's counterclaim, because the Bureau must comply with the ESA in operating the Project. Summary judgment is also DENIED regarding OWRD's counterclaim, in that the ESA applies to the Bureau's operation of the Klamath Project. To the extent that OWRD's counterclaim seeks an injunction requiring the federal government to provide OWRD with information about the Project's operations, OWRD has not shown that it has standing to pursue this form of injunctive relief, which further supports denying its summary judgment motion.

BACKGROUND

Much like the Klamath River, the history of the Klamath Project and litigation over its operations is long and winding. What follows is by no means a complete account of that history, but provides the information necessary to understanding the issues at hand.

I. THE KLAMATH PROJECT

The Klamath River originates in the high desert of Oregon, flows into California, through the Yurok Reservation, and into the Pacific Ocean. In 1905, pursuant to the general provisions of the Reclamation Act of 1902 (which provided for the construction and operation of water projects throughout the western United States), the Secretary of the Interior authorized the Klamath Project (“the Project”) spanning parts of Oregon and California. See Stip. Docs. [Dkt. No. 1025] at 3744.^[1]Today, the Project “consists of an extensive series of canals, pumps, diversion structures, and dams capable of routing water to approximately 230,000 acres of irrigated land in the upper

2

Klamath River Basin.” Id. at 2434.

Upper Klamath Lake (“UKL”) is central to the Project's operation, serving as its primary storage feature. See Pacific Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 138 F.Supp.2d 1228, 1230 (N.D. Cal. 2001). The lake is “relatively shallow and has limited storage capacity” of approximately 562,000 acre-feet of water. Stip. Docs. at 2291. It also loses water each year through evaporation. See id. at 6281. “As a result, [UKL] cannot store large quantities of spring runoff and lacks storage capabilities in wet years to carryover volumes that could help meet all water needs in subsequent dry years.” Id. at 2291. Put simply, UKL water is in relatively short supply.

The Bureau is tasked with administering the Klamath Project, in part by managing the water levels in UKL and distributing water from it. The Link River Dam (which is owned by the Bureau and operated by another entity, PacifiCorp) allows for the regulation of UKL elevations and controlled releases into the Klamath River. See USA Mot. for Summ. J. (“USA MSJ”) [Dkt. No. 1027] 11:20-23.

II. THE BUREAU'S OPERATIONS OF THE PROJECT

Operation of the Project is no simple task. As evidenced by the number of parties in this litigation, there are numerous stakeholders who rely on the water that flows through the Klamath Project, including irrigators, Tribes, and wildlife. The Bureau must take a number of considerations into account as it distributes water from UKL.

A. The Endangered Species Act

At the heart of this case is the ESA, which provides that “all federal departments and agencies shall seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531(c)(1). Two provisions of the ESA are at issue. The first is section 7(a)(2), which provides:

Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section

3

Id. § 1536(a)(2). In other words, as a federal agency, the Bureau must ensure that any action that it takes is not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its habitat.^[2] See id. “Action” is defined broadly to mean “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States,” and expressly includes “actions directly or indirectly causing modifications to the land, water, or air.” 50 C.F.R. § 402.02.

If an agency believes an action “may affect” a listed species or critical habitat, the agency typically must engage in a formal consultation process with either the United States Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”), depending on the species. See id. § 402.14(a), (b); 402.01(b). The agency must provide certain information, including the purpose, duration, timing, and components of the proposed action, along with “the best scientific and commercial data available or which can be obtained . . . for an adequate review of the effects that an action may have upon listed species or critical habitat.” Id. § 402.14(c), (d). The consultation process culminates with the issuance of a written biological opinion (“BiOp”) that includes the FWS or NMFS's opinion on the likelihood that the proposed action will “jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.14(h). If the consulting agency opines that the proposed action will cause such jeopardy, the BiOp “shall include reasonable and prudent alternatives, if any.” Id.

Although an agency is “technically free to disregard the Biological Opinion and proceed with its proposed action . . . it does so at its own peril (and that of its employees).” Bennett v. Spear, 520 U.S. 154, 170 (1997). That is because of the second ESA provision at issue in this case, section 9. See id.

Section 9 makes it unlawful for “any person” to “take” any member of an endangered or threatened species. See 16 U.S.C. § 1538(a)(1)(B), (C), (G); see also id. § 1533. “Take” is also

4

defined broadly, and “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Id. § 1532(19). “Harm,” in turn, “means an act which actually kills or injures fish or wildlife,” and “may include significant habitat modification or degradation” that does so “by significantly impairing essential behavior patterns” such as breeding, feeding, or sheltering. 50 C.F.R. § 222.102; see also id. § 17.3. The word “person” as used in section 9 is similarly broad, and includes “any officer, employee, agent, department, or instrumentality of the federal government.” 16 U.S.C. § 1532(13).

If the FWS or NMFS determines after the consultation process that an agency's proposed action will not cause jeopardy but will result in “incidental take”-“takings that result from, but are not the purpose of, carrying out an otherwise lawful activity”-it may issue an incidental take statement (“ITS”) providing the federal agency safe harbor from section 9 liability. See 50 C.F.R. §§ 402.14(i), 402.02; 18 § 1536(b)(4), (o). The ITS specifies the amount or extent of permissible take. 50 C.F.R. § 402.14(i). If the federal agency stays within that limit, the take is not prohibited by the ESA. Id. If that limit is exceeded, however, the agency “must reinitiate consultation immediately.” Id.

Finally, the ESA provides for civil and criminal penalties for any person who knowingly violates the Act. See 16...