|
 |
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Water Users on the
Defensive in Recent Klamath Basin Litigation
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 two years, 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 2002 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 |
Klamath Litigation
(Continued)
which are available at
the KWUA office in Klamath Falls.
In the recent past, there
have been a number of lawsuits affecting the interests of the Klamath
Project and the Upper Klamath Basin generally. Klamath Water Users
Association has prepared this summary of litigation that has occurred
over the past two decades, for general informational purposes only. The
Association and Klamath Project water users 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.
The cases are generally grouped by subject matter. Cases that are
currently active are denoted by an asterisk (*
).
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 activity in
adjudication of both the Klamath and Lost River Basins.
Klamath River
Adjudication: In re the Determination of Rights to the Use of Water of
the Klamath River and its Tributaries*
Water rights to some
sub-basins of the Klamath watershed were adjudicated years ago. The
largest claimed water rights have not been adjudicated.
*
Cases currently active.
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Klamath Litigation
(Continued)
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 (Allottees) and
various other rights claimed by federal agencies (federal wildlife
refuges, Forest Service lands, etc.). In United States v. Oregon,
44 F.3d 758 (9th Cir. 1994), 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 and recommendation by the presiding administrative law
judge, 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 can be expected to be filed in Circuit Court.
Ultimately, the Court’s Decree will be the basis of regulation, and
certificates will be issued to water rights owners.
Most Klamath Project
districts, and many other Upper Basin irrigators, are parties to the
adjudication, along with federal agencies and the Klamath Tribes.
Administrative Law Judge Maurice Russell II held the evidentiary
hearing for all Klamath Project claims in April 2004. Other
contested cases are at various stages. |
Klamath Litigation
(Continued)
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: In the Matter of Lost River
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
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath Litigation
(Continued)
Project may not have
been adjudicated at all.
Klamath Project
Operations Plans/ESA
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,
tribal trust obligations, and wildlife refuge water rights. Since
1995, the Bureau of Reclamation has prepared annual operation plans
for the Klamath Project.
Oregon Natural
Resources Council v. Bureau of Reclamation
This case was
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 Litigation
(Continued) capricious,
Klamath Water Users
Association v. Patterson
This case began as a
lawsuit 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 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 held 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 obligations related to tribal rights.
Langell Valley
Irrigation District v. Babbitt
During the summer of
2000, the Bureau of
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath Litigation
(Continued)
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.
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 Reclamation 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. Of course, the
result of these opinions was a zero allocation. Due to Reclamation
giving incomplete information
|
Klamath Litigation
(Continued)
to the Court, the
Court re-issued its injunction in the midst of the briefing on the
Kandra case, below.
Kandra v. United
States
This case challenged
the zero allocation decision of 2001. 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, Klamath
Project water users 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. Finally, it also includes claims for damages based on
breach of contract.
There have as yet
been no definitive substantive rulings in the case. The government
moved to stay the takings portion of the case pending the conclusion
of the Klamath River adjudication. The Court allowed the case to
proceed. Currently, two issues are before the court. These are:
whether interest of water users in Klamath Project water rights is a
compensable property right; and whether
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath Litigation
(Continued)
individual water
users are intended third party beneficiaries of contracts between
districts and the United States. Resolution of these questions will
determine the nature of further proceedings.
California State
Grange, et al. v. Evans*
In this case, the
plaintiffs contend that coho salmon in the Klamath River and other
northern California and southern Oregon streams were improperly
listed as threatened, and should be de-listed. In Alsea Valley
Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001),
the District Court for the District of Oregon ruled that Coastal
Oregon coho had been improperly listed, in that, generally,
hatchery-born fish that are biologically indistinguishable from
"wild" fish were not counted in determining whether the species was
threatened. Proceedings in the California State Grange case
were stayed pending the Ninth Circuit decision in Alsea Valley.
In February 2004, the Ninth Circuit Court of Appeals refused to
review the District Court decision in Alsea Valley because
the District Court had not entered a final judgment, but rather had
remanded the case to the NOAA Fisheries. In Alsea Valley Alliance
v. Evans, 358 F.3d 1181 (2004), the Ninth Circuit Court of
Appeals dissolved the stay of the California State Grange
case.
In response to the
decision in the Alsea Valley case, which rejected the NOAA
Fisheries’ treatment of hatchery fish in listing decisions, the
National Oceanic and Atmospheric Administration (NOAA) devised a new
hatchery policy and commenced comprehensive status reviews for
various west coast fish species, including the coho salmon. On June
3, 2004, NOAA proposed a new hatchery policy, 69 Fed. Reg. 33102,
which requires the quantification
|
Klamath Litigation
(Continued)
of both the hatchery
and naturally-spawning populations for listing determinations.
However, the listings can focus solely on the naturally-spawning
populations to indicate whether the ecosystem meets the species’
survival needs. NOAA is accepting public comments on the draft
policy until September 1. NOAA will then review the comments and
hopes to publish a final policy in fall 2004. Applying the new
hatchery policy to southern Oregon-northern California coho (which
includes Klamath River coho), NOAA proposed to relist the species as
threatened on June 14, 2004. See 69 Fed. Reg. 33102. Under
the ESA, NOAA must make final decisions on the proposed relisting of
the wild and hatchery southern-Oregon-northern California coho by
June 14, 2005. In the meantime, the plaintiffs in the California
State Grange case will seek to have the stay of that case listed.
Rio Grande Silvery
Minnow v. Keys
While not involving
the Klamath Project directly, this case was closely watched in the
Klamath Project; Klamath Water Users Association filed a brief
amicus curiae.
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. See Rio
Grande Silvery Minnow v. Keys. On appeal, the United States and
other parties contended that the water must be
Continued on page
6 |
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Klamath Litigation
(Continued)
NOAA Fisheries,
challenging both technical and delivered to the contractors and that
the government lacks discretion to do otherwise. By a 2-1 decision,
the Tenth Circuit Court of Appeals affirmed the District Court’s
ruling. See Rio Grande Silvery Minnow, et al. v. Keys,
333 F.3d 1109 (10th Cir 2003). Subsequently, the United
States and water users petitioned for rehearing "en banc."
Thereafter, Congress enacted legislation to deny the Secretary of
the Interior discretion to release water downstream for endangered
species, which effectively reversed the appellate decision for
purposes of the affected basin. See Pub. L. No. 108-137
§ 208(a), 117 State 1827 (Dec. 1, 2003). The Court of Appeals then
dismissed the litigation as moot. See Rio Grande Silvery Minnow,
et al. v. Keys, 355 F.3d 1215 (10th Cir. 2004).
As a result, there is effectively no decision on the legal issue
presented.
Pacific Coast
Federation of Fisherman’s Associations, et al. v. U.S. Bureau of
Reclamation and National Marine Fisheries Service*
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 Bureau of Reclamation was in procedural violation
of the Endangered Species Act 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.
Plaintiffs appealed this denial and the parties have briefed their
arguments on appeal to the Ninth Circuit Court of Appeal.
Subsequently, NOAA Fisheries completed a biological opinion for
|
Klamath Litigation
(Continued) legal matters in
the biological opinion,fv clegal matters operation of the
Klamath Project for 2002 through 2012. Plaintiffs filed an amended
complaint against NOAA Fisheries,
challenging both technical and legal matters in the biological
opinion, and against Reclamation, alleging that Reclamation is in
violation of the Act. On July 14, 2003, the District Court upheld
NOAA Fisheries’ specified flow levels and decision to adopt a phased
approach to implementation. However, the court found that the
reasonable and prudent alternative adopted in NOAA Fisheries’ 2002
biological opinion violates the ESA because NOAA Fisheries relies on
actions by states and private parties in future years that are not
reasonably certain to occur. The court also found that NOAA
Fisheries violated the ESA in adopting an incidental take statement
that does not establish an unacceptable level of "take" that would
trigger reinitiation of section 7 consultation. The court remanded
the biological opinion to NOAA Fisheries for amendment. The court
refused to issue an injunction and, rather, held that the 2002
biological opinion would remain in effect until NOAA Fisheries
issues an amended biological opinion.
The plaintiff
environmental groups appealed the aspects of the decision that were
adverse to their position. This appeal has been fully briefed in the
Ninth Circuit Court of Appeals. The United States originally filed
an appeal as well, but withdrew that appeal.
The Yurok Tribe and
Hoopa Valley Tribe have
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Klamath
Litigation (Continued)
Reclamation violated their fishing rights in 2002 by
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 how this would be separate from the claims of
insufficient flow. The trial of this issue is scheduled for
September 20-23, 2004. In the meantime, water user intervenors
and federal defendants recently filed separate motions to
dismiss the case.
Moden, et al. v.
U.S. Fish and Wildlife Service
This status
concerns the listing of the shortnose sucker and Lost River
sucker as "endangered." The plaintiffs filed a petition with the
USFWS to remove the species from the list of endangered species.
The petition contended that new information demonstrates that
the distribution, abundance, and recruitment of the species is
much greater than was believed at the time of the original
listing in 1988. USFWS determined that the petition did not
present substantial evidence that the delisting may be
warranted. See 16 U.S.C. § 1533(b)(3). In the litigation, the
plaintiffs challenge this determination.
On September 3,
2003, the District Court for the District of Oregon found that
USFWS had not adequately explained its conclusions on the
petition to delist, and that the administrative record does not
appear to support the conclusion not to delist. The court
remanded the case to USFWS to provide more information on the
methods used to measure the
|
Klamath
Litigation (Continued)
sucker
populations, and to explain the reasoning for concluding that
populations did not increase within the last decade. The USFWS
recently announced that it has concluded that it is not
warranted to propose delisting and that it will conduct a five
year status review of the species.
Environmental
Protection Information Center, et al. v. National Marine
Fisheries Service
The case concerns
whether the North American green sturgeon, which inhabits the
Klamath River and other waters, should be listed as threatened
or endangered. The plaintiff environmental groups challenge the
determination of NOAA Fisheries that listing is not justified.
The plaintiffs contended that the species has been extirpated
from most of its historic range and is now reduced to only three
known spawning populations: the Klamath/Trinity, the Rogue, and
the Sacramento. Plaintiffs argued that the decline in species is
principally due to over-fishing and habitat alteration,
including water projects and that the species is at risk.
The District
Court for the Northern District of California ruled in favor of
the plaintiff environmental groups on March 2, 2004.
Specifically, the court found that NOAA Fisheries had failed to
consider whether several lost spawning habitats collectively
constitute a major geographical area for the green sturgeon. The
court remanded the NOAA Fisheries’ 2003 decision to reject
listing the green sturgeon back to NOAA Fisheries for
reconsideration.
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath
Litigation (Continued)
Litigation
Challenging Diversions to Rogue River Basin
Oregon Natural
Resources v. Keys
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 approximately
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.
The environmental
groups filed a lawsuit against Reclamation on July 3, 2003. The
parties settled the case in early July 2003 based on
Reclamation’s agreement to complete ESA consultations.
Reclamation issued a biological assessment in October 2003, and
the biological opinion was completed in April 2004.
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
|
Klamath
Litigation (Continued)
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.
United States v.
Braren
This case is a
continuation of the Adair case discussed immediately
above.
The Klamath
Tribes and Bureau of Indian Affairs 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, and sought
clarification.
The District
Court, over the objection of the State of
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath
Litigation (Continued)
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. CV No. 75-914 PA (D. Or.). In
July 2003, the Ninth Circuit Court of Appeals vacated the
District Court’s ruling. United States v. Braren. The
Ninth Circuit found that Federal Courts cannot rule on the
adjudication standards until Oregon makes final water right
determinations in the adjudication. The result of the decision
is that the District Court’s decision is of no consequence and
any further Federal Court action regarding Klamath Tribes’ water
rights claims is very unlikely before the completion of the
state adjudication.
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, 70 F.3d 539 (9th
Cir. 1995), 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. See also discussion of
PCFFA II (above) concerning tribal claims for failure to protect
fishing rights. |
Klamath
Litigation (Continued)
Lease Lands
Northwest
Coalition for Alternatives to Pesticides and ONRC v. Babbitt
In 1994, the
parties stipulated to a judgment that required, among other
things, that the Department of the Interior prepare an
Integrated Pest Management (IPM) Plan for farming on the Tule
Lake and Lower Klamath National Wildlife Refuges. In March 1998,
the plaintiffs filed a motion claiming that the Department of
the Interior has 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, pesticide use, water use, etc.,
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
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
Klamath
Litigation (Continued)
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. 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 |
Klamath
Litigation (Continued)
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.
The Wilderness
Society, et al v. Norton
Plaintiffs
challenged farming practices on the lease lands. The complaint
was very similar to the Klamath Forest Alliance v. Babbitt
case, above, in that it objects to row crops, pesticide use,
water use, etc. The case focuses particularly on water use.
Subsequent to Tulelake v. Norton (above), 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 challenged this decision
and have narrowed the case to allege violations of the National
Environmental Policy Act (NEPA).
The parties
submitted cross-motions for summary judgment on the alleged NEPA
violation. On June 10, 2003, the District Court entered judgment
in favor of the USFWS and the districts. The court found that
maintenance of the status quo operation of the agricultural
lease program was not subject to additional environmental review
under NEPA.
Other Issues
Water Quality:
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
-
Continued on Page 11 - |
|
|
|
Klamath Water Users
Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Klamath
Litigation (Continued)
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.
FOIA:
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.
Water Quality and
Endangered Species Act (ESA): 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
(KID) 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. External Protection
Agency were required, prior to permit issuance, to consult with
US Fish and Wildlife Service with respect to impacts to
endangered suckers. They seek rescission of the permit pending
DEQ and EPA compliance with section 7 of the ESA. |
Klamath
Litigation (Continued)
After plaintiffs
filed the case, separate litigation in a federal District Court
in Washington called into question whether certain provisions of
KID’s permit are unlawful. Based on that decision and related
regulatory issues, DEQ rescinded KID’s permit and similar
permits held by other Oregon irrigation districts. KID then
pursued an administrative appeal of the rescission of the
permit, resulting in the permit remaining in effect pending the
resolution of the administrative appeal. The court in the ONRC
v. Hallock case stayed that case pending the resolution of the
administrative appeal. That stay expired on July 29, 2004.
Water Quality,
ESA and Lease Lands: Aquatic Herbicides and Lease Lands
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.
Reclamation
denied any violations, and there was no evidence of any injury
due to the alleged violations. During litigation of Plaintiffs’
case, Reclamation indicated its intention to reinitiate ESA
|
|
|
Klamath Water
Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
|
Weekly Update
August 6, 2004 |
|
|
|
Klamath
Litigation (Continued)
consultation
on the use of aquatic herbicides in Project canals and
pesticides on lease lands for reasons unrelated to the
lawsuit. A magistrate judge found that Reclamation’s steps
to reinitiate consultation were reason enough not to address
the alleged violations, and recommended either staying the
case until completion of the new consultations or dismissing
the case altogether. The U.S. District Court for the
District of Oregon upheld the magistrate judge’s findings,
and adopted the latter recommendation to completely dismiss
the case. On July 1, 2004, the District Court entered final
judgment dismissing the case.
|
CALENDAR OF
EVENTS
Tuesday,
August 10, 2004 - KWUA Power Committee Meeting. 6:00
p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath
Falls, OR.
Wednesday,
August 18, 2004 – KWUA Executive Committee Meeting. 6:00
p.m. KWUA Office 2455 Patterson Street, Suite 3, Klamath
Falls, OR.
|
|
|
|
Content and Logo: Copyright
© Klamath Water Users Association, 2002 All Rights Reserved
|