KWUA-NL-021503

Klamath Water Users Association

Weekly Update

February 15, 2003

Litigation Finds Fertile Ground in the Klamath Basin

In the past decade, the contentious nature of long-simmering water and environmental disputes in the Klamath River watershed has catalyzed litigation regarding water rights priority, Klamath Project operations, lease land farming, tribal water rights and other issues. In the past year alone, environmental activists have filed several new lawsuits, primarily aimed at the federal agencies that have some jurisdiction related to the Klamath Project. While the agencies are usually the targets of the litigation, Project irrigators ultimately feel the consequences if environmentalist plaintiffs are successful.

In the past year, local water users have generally intervened only in support of the U.S. government, which has generally been on the defensive end of litigation, particularly since the September 20 02 Klamath River fish die-off. However, in past years, the Klamath Water Users Association (KWUA), local irrigation districts and landowners have also filed their own lawsuits, particularly when government actions threaten water deliveries to Klamath Project irrigators.

In the recent past, there have been a number of lawsuits affecting the interests of the Klamath Project and the Upper Klamath Basin generally. KWUA attorney Paul Simmons (Somach, Simmons & Dunn, Sacramento) has prepared a summary of litigation that has occurred over the past two decades, for information and reference purposes.

This Weekly Update is intended to provide a brief overview of the more detailed summary, copies of which are available at the KWUA office in Klamath Falls.

KWUA and individual Klamath Project irrigators have not been party to all of these cases; however, all could - directly or indirectly - have implications for the Klamath Project as well as the Upper Klamath Basin. Recent litigation (filed since January 2002) is discussed below, followed by past legal actions and court decisions, which are categorized by topic.

Litigation Filed Since January 20002

Rio Grande Silvery Minnow v. Keys

In the Middle Rio Grande Basin, a federal project imports water from the lower Colorado River Basin for storage and ultimate delivery to contractors. The plaintiff environmental groups argue that the water must be released downstream for the listed Rio Grande Silvery Minnow. The groups prevailed in the District Court. On appeal, the United States and other parties contend – among other things - that the water must be delivered to the contractors and that the government lacks discretion to do otherwise. While not directly involving the Klamath Project, local water users are closely watching this case in the U.S. Court of Appeals for the Tenth Circuit; KWUA in 2002 filed a brief amicus curiae (“friend of the court”). A decision from the court is expected within weeks.

Pacific Coast Federation of Fisherman’s Associations, et al. v. U.S. Bureau of Reclamation and National Marine Fisheries Service (NMFS)

The plaintiff environmental organizations brought suit in April of 2002 in the U.S. District Court for the Northern District of California, claiming that the U.S. Bureau of Reclamation (Reclamation) was in procedural violation of the Endangered Species Act (ESA) with respect to coho salmon. They sought a temporary restraining order that would preclude irrigation diversions if certain Klamath flows were not met. The application for temporary restraining order was denied on May 3, 2002.

Subsequently, NMFS completed a biological opinion for operation of the Klamath Project for 2002 through 2012. Plaintiffs filed an amended complaint against NMFS last fall after the lower Klamath River fish die-off, challenging both technical and legal matters in the biological opinion, and against Reclamation, alleging Reclamation is in violation of the Act.

The Yurok Tribe and Hoopa Valley Tribe have intervened in the case. In addition to joining in the ESA claims, the two Tribes contend that Reclamation violated their fishing rights in 2002 by providing inadequate mainstem Klamath River flows, and that Reclamation must avoid violations of the fishing rights in the future. The Tribes have stated that they do not seek quantification of water rights, but there is some ambiguity as to the exact judgment that may be requested.

KWUA has intervened on behalf of the defendants in this case, which is scheduled for hearing on April 29, 2003.

Threatened Litigation Challenging Diversions to Rogue River Basin

On January 30, 2003, two environmental groups served a 60-day notice of intent to sue under the ESA concerning exports of water from the Klamath River Basin to the Rogue River basin. The notice asserts that Reclamation Projects divert 30,000 acre-feet of water to use in the Rogue River basin, and there has been a failure to comply with the ESA with respect to Klamath Basin coho and suckers, Rogue basin, coho, and other listed species. No lawsuit has yet been filed.

The Wilderness Society, et al vs. Norton,

Plaintiffs in this case challenge farming practices on the lease lands. The complaint is very similar to the Klamath Forest Alliance v. Babbitt case (see below) in that it objects to row crops, pesticide use, and – particularly - water use. Subsequent to Tulelake v. Norton (see below), U.S. Fish and Wildlife Service (USFWS) evaluated the actual effects on refuge water supply that would occur if lease lands were not irrigated, and concluded that there would be essentially no benefit. Plaintiffs challenge this decision and allege violations of the National Environmental Policy Act. A hearing is scheduled for May 27, 2003.

United States v. Braren,

The Klamath Tribes and Bureau of Indian Affairs (BIA) recently returned to Federal Court, asking the District Court to clarify rulings from the 1983 Adair case. BIA and the Tribes disagreed with the way in which the State of Oregon was apparently applying the prior case in the context of the State adjudication (see below), and sought clarification. The District Court, over the objection of the State of Oregon and others, agreed to hear the case and issued a decision in early 2002 (followed by an amended opinion order on April 9, 2002). The decision rules that the Tribes’ rights include a water right to support gathering. It also interprets the standard of measurement of the Tribes’ rights, essentially in the manner requested by the Tribes and BIA. The case is currently on appeal to the Ninth Circuit Court of Appeals.

Oregon Natural Resources Council, et al. v. Keys

Federal agencies have historically obtained ESA biological opinions and incidental take authorization concerning various activities within the Klamath Project. The activities include authorizing use of aquatic herbicides, and pesticide use on lease lands. In this case, the plaintiffs contend Reclamation has not complied with terms and conditions (primarily related to monitoring and reporting) of the biological opinions and incidental take statements. They seek an order enjoining both the use of aquatic herbicides (acrolein) throughout the Klamath Project and the use of copper-containing pesticides on the lease lands. The case is in an early stage; KWUA will likely intervene.

Oregon Natural Resources Council, et al. v. Hallock, et al

A recent decision of the Ninth Circuit Court of Appeals holds that parties applying aquatic herbicides in canals must hold a National Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act. In 2002, Klamath Irrigation District sought and obtained an NPDES permit, issued by the Oregon Department of Environmental Quality (DEQ). The plaintiff environmental groups allege a violation of the ESA; in particular, they contend that DEQ and U.S. EPA were required, prior to permit issuance, to consult with USFWS with respect to impacts to endangered suckers.

Adjudications

An adjudication can loosely be considered a “quiet title” action to water or water rights among competing users. In recent years, there has been steady activity in adjudication of both the Klamath and Lost River Basins.

Klamath River Adjudication

Water rights to some sub-basins of the Klamath watershed were adjudicated years ago. The largest claimed water rights have not been adjudicated.

The Klamath River adjudication will confirm and quantify two types of water rights: (1) water rights initiated under Oregon law prior to 1909 (including Klamath Project and other Upper Basin irrigation rights); (2) federal “reserved” water rights, including instream tribal rights to Upper Klamath Lake and its tributaries, irrigation rights of individual Indians on the former Klamath Reservation and various other rights claimed by federal agencies (such as federal wildlife refuges and Forest Service lands).

In United States v. Oregon, the Ninth Circuit Court of Appeals ruled that federal agencies and tribes are subject to Oregon’s adjudication procedure and must file claims.

The adjudication is presently at an administrative hearing stage. Contested claims have been referred to a panel of administrative law judges, and “cases” on individual claims are proceeding. After the contested case hearing, the Water Resources Department’s “Adjudicator” will issue an Order of Determination, which will be the basis of regulating rights according to priority. Additionally, exceptions to the Order of Determination will likely be filed in Circuit Court. Ultimately, the Court’s Decree will be the basis of regulation, and certificates will be issued to water rights holders.

Most Klamath Project districts, and many other Upper Basin irrigators, are parties to the adjudication, along with federal agencies and the Klamath Tribes.

Water for Life v. State of Oregon

This case sought to enjoin the Klamath Basin adjudication on primarily procedural grounds. The Court denied the injunction but indicated the plaintiffs’ objections could be raised in the adjudication process.

Lost River Adjudication

The Klamath County Circuit Court concluded an adjudication of the Lost River in 1918. The decree recognized vested rights both within and without the Klamath Project.

In 1999, Klamath Project irrigators taking water from the Lost River system petitioned for an amendment of the decree, to correct property descriptions. The United States made a “special appearance” in opposition. The United States argued, in essence, that when the Lost River was adjudicated in 1918, Congress had not yet waived the sovereign immunity of the United States to allow it to be joined in state adjudication. It further argued that the United States is now an indispensable party to Lost River adjudication proceedings.

The government asserted that the petition should be dismissed, because the United States cannot be joined except in a general stream adjudication. The Court agreed and dismissed the petition.

The broad implication is that the 1918 decree is not effective as against the United States, and seemingly that Lost River rights in the Klamath Project have not been adjudicated at all.

Klamath Project Operations Plans / Endangered Species Act Litigation

Since the early 1990s, there have been various suits against the United States concerning the operation of the Klamath Project. The underlying issues include water rights of irrigators, Endangered Species Act (ESA), tribal trust obligations, and wildlife refuge water rights. Since 1995, the Bureau of Reclamation has prepared annual operation plans, which have often been the subject of litigation.

Oregon Natural Resources Council v. USBR

In this case - originally filed in 1991 -various theories (Endangered Species Act, National Environmental Policy Act, and others) were asserted to reduce or eliminate Klamath Project irrigation deliveries and increase mainstem river flows and Upper Klamath Lake levels. Both the U.S. District Court and the Ninth Circuit Court of Appeals rejected plaintiffs’ contentions.

Bennett v. Spear / Bennett v. Badgeley

In this case, Lost River irrigators established precedent in the U.S. Supreme Court that economic interests have “standing” to challenge ESA biological opinions. On subsequent remand to the Federal District Court, the Lost River irrigators successfully established that lake level requirements for suckers in Clear Lake and Gerber Reservoirs imposed in 1992 and 1994, were arbitrary and capricious, and those requirements were invalidated.

Klamath Water Users Association v. Patterson

This case originated as a lawsuit initiated by the Association and various water users challenging the Bureau of Reclamation’s 1997 operations plan. Ultimately, when it was clear there would be sufficient water in 1997, the case was dismissed and there were no final decisions on any of the claims brought by water users.

The issue that was actually litigated concerned a counterclaim filed by Pacificorp against the water users. Under a 1956 contract, Pacificorp operates Link River Dam through the year 2006. The issue of debate was whether the contract creates obligations for Pacificorp, enforceable by irrigators, to protect Klamath Project water supply in the operation of the dam, (i.e., whether irrigators are “intended third party beneficiaries” of the contract.)

The Ninth Circuit issued its ruling in the case on January 28, 2000. The Court found that irrigators are not intended third party beneficiaries of the contract. The decision also states that the Bureau of Reclamation can assert control of the dam to meet Endangered Species Act obligations and to meet unquantified tribal water rights.

Langell Valley Irrigation District v. Babbitt

During the summer of 2000, the Bureau of Reclamation released significant water from Clear Lake for irrigation of lands in the west side of the Klamath Project. The purpose was to lessen irrigation demand from the Klamath River and Upper Klamath Lake, in order to maintain high instream levels in those water bodies. The districts who have historically relied on Clear Lake sought a preliminary injunction, concerned about the effect on their own supply and carryover storage. In the preliminary injunction context, the Court found this action to be within the Bureau of Reclamation’s authority, and that it had complied with applicable legal procedures. The districts dismissed their lawsuit without prejudice, and there was no final judgment.

Pacific Coast Federation of Fisherman’s Associations v. Bureau of Reclamation

This case was filed by environmental groups after release of the Bureau of Reclamation’s 2000 operations plan. In June of 2000, they sought a preliminary injunction prohibiting Project deliveries based on alleged violations of NEPA and Reclamation law/state law. The preliminary injunction was denied.
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Plaintiffs subsequently added claims based on the ESA, specifically with regard to coho salmon. The Court’s ESA decision was issued on April 3, 2001. In essence, it found that the Bureau had violated required ESA procedures, and the Court issued an injunction disallowing irrigation deliveries until required procedures had been satisfied. Three days later, on April 6th, biological opinions were actually issued meeting procedural requirements. The result of the opinions was a zero water allocation.

Kandra v. United States

This case challenged the zero allocation decision of 2001 (see above). A hearing on preliminary injunction was briefed and heard on an expedited basis. The preliminary injunction challenges were based, in addition to hardship to Project interests, on NEPA, the ESA, and Reclamation law and contracts. The preliminary injunction was denied. The case, which was directed at water deliveries in 2001, was eventually dismissed without prejudice, and there was no final judgment.

Klamath Irrigation District, et al. V. United States

In this case, individual Klamath Project water users and districts seek compensation under the Fifth Amendment to the Constitution, for taking of their property rights (water rights) in 2001. The case also includes claims based on Klamath River Basin Compact provisions which require just compensation for impairment of water rights. The plaintiffs recently requested leave of court to amend the complaint to include a claim for breach of contract. There have as yet been no substantive rulings in the case.

Tribal Water Rights

Water rights claims of the Klamath Tribes are being adjudicated in the Oregon adjudication of the Klamath River. Additionally, the Department of Interior takes unadjudicated tribal water rights into consideration in its Project operations plans. In the meantime, there have been various decisions and proceedings regarding tribal water rights.

United States v. Adair

This case originally began as a suit by the United States to determine its water rights to Klamath Marsh relative to upstream irrigators on the Williamson River. It eventually grew to include the Klamath Tribes and certain rulings on rights of the
Klamath Tribes, as well as the rights of various federal agencies. It was argued in this case by the State of Oregon and others that the Federal Court should abstain from deciding water rights issues, and leave this task to the State in adjudication.

The Federal Courts disagreed, and stated they would rule on the nature of the federal and tribal rights, but leave quantification of the rights to the State adjudication. The decision in the case technically applies only to the defined “litigation area” upstream of Kirk Reef, but its principles are asserted with respect to other Upper Basin waters.

With regard to Klamath Tribes’ rights, the Court ruled that the Tribes have instream water rights, with a priority of “time immemorial” to support hunting and fishing on the former Klamath Reservation.

California Tribes

There are no Court decisions specifically ruling on rights that may be held by the Yurok, Hoopa, or Karuk Tribes in California. The Department of Interior has determined that the Yurok and Hoopa Tribes hold instream water rights in the Klamath River to support fisheries, and that the priority of these rights is 1855 or 1891.

In Parravano v. Babbitt, the Ninth Circuit Court of Appeals ruled that these two tribes have federally reserved fishing rights. In other contexts, courts have found that the existence of fishing rights supports finding an implied water right.

Lease Lands Litigation

Northwest Coalition for Alternatives to Pesticides and ONRC v. Babbitt

In 1994, contesting parties stipulated to a judgment that required, among other things, that the Department of the Interior (Interior) prepare an Integrated Pest Management Plan (IPM Plan) for farming on the Tule Lake and Lower Klamath National Wildlife Refuges. In March 1998, the plaintiffs filed a motion claiming that Interior had not complied with the judgment, and sought to reopen the case. Plaintiffs sought an order prohibiting any pesticide use until an IPM Plan is completed.

On March 8, 1999, the Magistrate Judge adopted findings and recommendations that the amended complaint be dismissed, and the Court subsequently entered judgment against the plaintiff environmental groups.

Klamath Forest Alliance, et al. v. Babbitt,

Plaintiffs objected to farming practices, including pesticide use and water use on the lease lands in the Tule Lake and Lower Klamath National Wildlife Refuges and claimed violations of the Kuchel Act and legislation applicable to national wildlife refuges generally. They sought an order requiring the elimination or modification of farming on the lease lands.

On December 28, 1998, the Court granted motions for summary judgment filed by defendant and the intervenors. With minor modifications, this became the final judgment of the Court. Thus, the case was resolved against the plaintiff environmental groups.

Tulelake Irrigation District, et al. v. Stewart, et al.,

This case was filed on February 23, 1999, on behalf of Tulelake Irrigation District and two growers on the lease lands. In 1999, the Fish and Wildlife Service required that lessees on the lease lands agree that, if there is a risk of water shortage to the Lower Klamath or Tule Lake Refuges, lessees may be required to forego the use of irrigation water. The lawsuit challenged this requirement and others as being: in violation of TID’s contract with the United States; in violation of the Kuchel Act; in violation of the National Environmental Policy Act; in violation of rights to renew leases from past years, and on other grounds.

The case was settled based on recognition of sufficient water in 1999 and USFWS’s commitment to re-evaluate this policy for future years.

Tulelake Irrigation District, et al. v. Norton, et al.

In December of 1999, it was announced that the objectionable water terms that were the subject of the case above would again be included in leases in 2000. A new lawsuit was filed raising similar challenges and also contending that USFWS had not complied with the stipulation from the previous case prior to making a decision. Tulelake Irrigation Distirct (TID) and the growers that joined in the case also sought a preliminary injunction to enjoin the new policy pending a final decision in the case.

After the case and preliminary injunction motion were filed, USFWS recognized that it had not complied with the requirements of the stipulation from the old case that was settled in 1999. The parties stipulated to a court order that the objectionable terms would not be in effect in 2000, and leases for 2000 were revised or amended to state that the limitations on water would not be in force.

Other Issues

Klamath Forest Alliance, et al. v. Bureau of Reclamation

Plaintiffs contend that the Klamath Straits Drain is a “point source” discharging pollutants to the Klamath River. Under the Clean Water Act, a permit is required for the discharge of pollutants from a point source to rivers, streams, etc. A permit could likely require treatment of water in the Straits Drain before it flows into the Klamath River. Settlement discussions have been occurring between the government and the plaintiffs for some time.

Department of Interior v. Klamath Water Users Association

The U.S. Supreme Court ruled that, under the Freedom of Information Act (FOIA), the Department of Interior must provide Klamath Water Users Association documents constituting communications between the government and Klamath Basin tribes. The Court ruled that FOIA’s exemption for “intra-agency correspondence” is not applicable.

CALENDAR OF EVENTS

Monday, February 17, 2003 – KWUA Water Bank and Supply Enhancement Committee Meeting. 8:00 a.m. KWUA. 2455 Patterson Street, Suite 3, Klamath Falls, Oregon.

Thursday, February 20, 2003 – KWUA Power Committee Meeting. 4:00 p.m. KWUA. 2455 Patterson Street, Suite 3, Klamath Falls, Oregon.

Saturday and Sunday, February 22 & 23, 2003 – Western Land Use Conference. Klamath Community College, 7390 South 6th Street – Klamath Falls, Oregon.

Tuesday, February 25, 2003 – Clean Water Act Workshop. Oregon Water Resources Congress office, Salem, Oregon. Contact Anita Winkler at OWRC for more information.

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net