Appeals court stays injunction against Upper Klamath Lake releases

Klamath Irrigation District sued OWRD last year, claiming that the department violated state water law by allowing the Bureau of Reclamation to release flows from Link River Dam greater than the inflows to Upper Klamath Lake to satisfy Endangered Species Act requirements for Coho salmon on the Klamath River. Because Reclamation did not secure a water right in Oregon for Klamath River flows during the Klamath Basin Adjudication, it’s not technically allowed to use the stored water in Upper Klamath Lake for any purpose other than irrigation — at least under state law.

But as a federal agency, Reclamation has to comply with ESA and tribal trust requirements, which imply enough water in the Klamath River to support a productive salmon fishery for the Karuk, Yurok and Hoopa Valley tribes. The fact that those rights aren’t quantified in Oregon creates a legal gray area that OWRD must operate in, despite its mission to uphold state water law.

KID prevailed late last year, getting a trial court to issue an injunction against OWRD compelling them to “immediately stop the distribution, use and release of stored water from the Upper Klamath Lake without determining that the distribution, use and/or release is for a permitted purpose by users with existing water rights of record or determined claims to use stored water in the UKL.”

But OWRD continued to let Reclamation release stored water from Upper Klamath Lake, concerned that it may not have the authority to override the bedrock federal legislation that drives Reclamation’s management of water in the Klamath Basin. They appealed the injunction this summer, requesting that it be stayed through the remainder of the appeals process.

The appeals court granted that request on December 17, due to a largely procedural issue related to KID’s case against OWRD.

KID brought up Oregon Revised Statute 540.740, which allows anyone “injured” by the action of any OWRD watermaster to seek an injunction against them. However, the statute stipulates that an injunction can only be granted if the watermaster is in violation of an order of the Oregon Water Resources Commission or a court decree determining the division of water rights in a given area.

Though there are existing, enforceable water rights in the Klamath Basin, they aren’t finalized through a court order yet. And the OWRC, an appointed committee which crafts the regulations OWRD must then enforce, hasn’t issued an order either. That, OWRD argued, means an injunction can’t be sought in this situation.

In case briefings, KID argued that the Water Resources Commission should include OWRD and its director, since the department is beholden to the regulations drafted by the Commission. Citing other statutes that define the roles within the Oregon Water Resources nexus, the court felt otherwise.

“The legislature did not use the terms ‘director,’ ‘department,’ and ‘commission’ interchangeably,” Appellate Commissioner Theresa M. Kidd wrote in the order granting the stay.

KID expressed concern that deeming ORS 540.740 inapplicable in this case would “completely neuter” OWRD’s ability to enforce determined water right claims, but the court pointed out that other statutes allow OWRD’s director to fire a watermaster who doesn’t abide by those claims.

The order didn’t address the more complicated legal questions of whether OWRD has the authority to prevent the use of stored state water for federal purposes, but it stayed the injunction partly because it believes OWRD’s appeal is “supported in fact and law.” Additionally, the lack of an injunction won’t change the way water is currently flowing in the basin, because the presence of an injunction didn’t do so either.

Irrigators are taking multiple legal routes to secure the stored water in Upper Klamath Lake, arguing in federal court that Reclamation isn’t as beholden to ESA requirements as it thinks it is. But if those arguments don’t prevail and a legal conflict does indeed exist between state water law and federal responsibilities, they hope to prove in state court that Oregon law trumps the feds.

The court did agree to expedite the appeal in the OWRD case, suggesting that it may get to the meat of the issue relatively soon. That, said Klamath Water Users Association executive director Paul Simmons, is where things will get interesting.

“What they will do when they take up the merits of the appeal is anybody’s guess,” he said.