Court denies Yurok Tribe effort to increase downstream Klamath River flows

Herald and News May 24, 2020

A federal judge in San Francisco on Friday May 22 sided with local water users and the federal government, preventing more of the Klamath Project’s stored water being sent downstream immediately, rejecting a Yurok Tribe motion to increase release for salmon flows, according to a news release.

Judge William Orrick of the U.S. District Court for the Northern District of California denied an emergency motion filed by the Yurok Tribe and environmental groups last week. The Tribe had asked the Court to re-open a case filed under the Endangered Species Act in the Northern District in July 2019, and issue a temporary restraining order. The requested restraining order would have required the Bureau of Reclamation to release an additional 390 cubic feet per second in releases for flows in the Klamath River below Iron Gate Dam for what would amount to approximately 20 days and a total of 16,000 acre-feet.

“That amount of the increase that was requested is more than twice the amount that is currently flowing through the Klamath Project’s A Canal,” said Tricia Hill, President of the Klamath Water Users Association (KWUA).

As a result of the ruling, the case will not be re-opened. The Court also did not believe the temporary restraining order would have been justified, but there will be no formal ruling on that issue.

The Bureau of Reclamation made the decision to reduce releases from UKL starting May 11 in an effort to preserve enough water in the Lake to provide the bare minimum of necessary conditions for the survival of C’waam (Lost River suckers) and Koptu (Shortnose suckers) during what is expected to be a critically dry water year. The Klamath Tribes intervened in the case before Judge Orrick to oppose the Yurok Tribe’s motion because of the damaging effects additional UKL releases would have on the C’waam and Koptu, species that are at imminent risk of extinction from a single catastrophic event.

“It is deeply troubling that we have come to a place so ecologically dire that the survival of our C’waam and Koptu requires intervening against our downstream brothers and sisters,” said Klamath Tribes Chairman Don Gentry. “The decision to do so weighed heavily on us.”

The parties agreed to stay the case in March 2020 after Reclamation agreed to an Interim Operating Plan for the Klamath Project to be applicable until September 2022. The Interim Plan provided an additional 40,000 acre-feet of water for flow “augmentation” above current biological opinion requirements under specific conditions. Subsequent to the augmentation trigger date, projections for inflow into Upper Klamath Lake fell dramatically.

Following a recent meeting where Reclamation presented adaptive management options to address the disappearing inflow to Upper Klamath Lake and the critically dry hydrology, the Yurok Tribe filed a motion to lift the stay of the litigation and impose the restraining order. At the hearing, counsel for the Yurok Tribe argued that Reclamation should have continued to release augmentation flows based on the April 1 forecast and allocation.

Attorneys for the federal agencies, KWUA, and the Klamath Tribes countered by explaining to the Court that Reclamation was operating in accordance with the Interim Plan. They argued that the Yurok Tribe’s requested relief would almost certainly cause harm to the Project irrigators and endangered sucker species without a corresponding benefit to out-migrating salmon.

In denying the motion to lift the stay, the Court was critical of the “run-to-court” approach and urged the parties to work together cooperatively. Judge Orrick noted that the Yurok Tribe’s quick rush to the courthouse likely detracted from Reclamation’s ability to meet with stakeholders to develop an operations plan based on updated hydrology.

“We will continue to work with the irrigation districts and Reclamation on the best strategy to maximize water supply and limit catastrophic effects to the Klamath Basin community, and with Congressional delegations and the Administration for funding for disaster relief,” said Paul Simmons, KWUA executive director.

The Klamath tribes announced they will remain engaged with the BOR, U.S. Fish and Wildlife Service, and other stakeholders in the Klamath Basin to ensure that the limited water supply this year is managed to provide necessary protections for the endangered species, while also providing as much benefit as possible to irrigators and for the needs of salmon in the Klamath River.

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