Note: this has been copied from .pdf and pasted to .html .. so some formatting, line numbers, and pagination are lost
I isn't pretty .. but all the text is here  37 pages of it .....

OPINION AND ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STEVEN LEWIS KANDRA; DAVID CACKA; ) KLAMATH IRRIGATION DISTRICT; )TULELAKE IRRIGATION DISTRICT; and ) KLAMATH WATER USERS ASSOCIATION, )
) Plaintiffs, )) and )Civ. No. 01-6124-AA ) CITY OF KLAMATH FALLS, KLAMATH ) COUNTY, MODOC COUNTY, and ) LON BAILEY, ) ) Plaintiffs-Intervenors, ) )
v. ) )OPINION AND ORDER
UNITED STATES OF AMERICA; GALE ) NORTON, Secretary of the ) Interior; DON EVANS, Secretary )of Commerce, ) )
Defendants, ) )
and ) ) KLAMATH TRIBES; YUROK TRIBE; )
THE WILDERNESS SOCIETY, et al., ) )
Defendants-Intervenors, ) )
Stephen A. Hutchinson Douglas M. DuPriest Hutchinson, Cox, Coons & DuPriest 777 High Street, Suite 200 Eugene, OR 974028 2 - OPINION AND ORDER
Stuart L. Somach Paul S. Simmons John A. Mendez Somach, Simmons & Dunn 400 Capital Mall, Suite 1900 Sacramento, CA 9581William M. Ganong 514 Walnut Street Klamath Falls, OR 97601 Attorneys for plaintiffs
Richard C. Whitlock City Attorney 500 Klamath Avenue Klamath Falls, OR 97601 Attorney for plaintiff-intervenor City of Klamath Falls
Reginald R. Davis Klamath County Counsel 305 Main Street, 2nd Floor Klamath Falls, OR 97601 Attorney for plaintiff-intervenor Klamath County
Thomas M. Buckwalter Modoc County Counsel P.O. Box 1171 Alturas, CA 96101 Attorney for plaintiff-intervenor Modoc County
Laura A. Schroeder Steven Lee Shropshire Schroeder Law Offices 1915 N.E. 39th Avenue P.O. Box 12527 Portland, OR 97212-0527 Attorneys for plaintiff-intervenor Lon Bailey
James L. Sutherland Assistant United States Attorney 701 High Street Eugene, OR 9740Lyn Jacobs United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section P.O. Box 7369, Ben Franklin Station Washington, D.C. 20044-736Stephen M. MacFarlane United States Department of Justice Environment & Natural Resources Division 501 I Street, Suite 9-700 Sacramento, CA 95814-232David W. Harder United States Department of Justice Environment & Natural Resources Division Indian Resources Section 999 18th Street, Suite 945 Denver, CO 80202-2449 Attorneys for defendants
Carl V. Ullman Klamath Tribes Water Adjudication Project Box 957 Chiloquin, OR 97624-095Lea Ann Easton Native American Program Oregon Legal Services 812 S.W. Washington, Suite 700 Portland, OR 9720Walter Echo-Hawk Native American Rights Fund 1506 Broadway Boulder, CO 80302 Attorneys for defendant-intervenor Klamath Tribes
Curtis G. Berkey Scott W. Williams Alexander & Karshmer 2150 Shattuck Avenue, Suite 725 Berkeley, CA 94704 Attorneys for defendant-intervenor Yurok Tribe
Jan E. Hasselman Todd D. True Earthjustice Legal Defense Fund 705 Second Avenue, Suite 203 Seattle, WA 9810Peter M.K. Frost Western Environmental Law Center 1216 Lincoln Street Eugene, OR 9740
OPINION AND ORDER
 Robert G. Hunter 27 North Ivy Medford, OR 97501 Attorneys for defendants-intervenors The Wilderness Society, Waterwatch of Oregon, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, Northcoast Environmental Center, and Klamath Forest Alliance
Frank DeMarco Siskiyou County Counsel William Standley Assistant County Counsel Donald R. Langford Mary Frances McHugh Deputies County Counsel P.O. Box 659 Yreka, CA 96097 Attorneys for amicus curiae Siskiyou County
AIKEN, Judge:
Plaintiffs move for a preliminary injunction against defendant
United States of America, Department of Interior, enjoining the
Bureau of Reclamation ("Reclamation") from implementing the Klamath
Reclamation Project 2001 Annual Operations Plan ("2001 Plan" or
"Plan"). Under the 2001 Plan, water elevations of Upper Klamath Lake
and water flows below Iron Gate Dam will be maintained to support
endangered sucker fish and threatened coho salmon. Due to inadequate
water supplies, no irrigation water deliveries will be made to the
majority of land within the Klamath Reclamation Project ("Project").
Plaintiffs seek an order enjoining Reclamation from implementing the
Plan and ordering Reclamation to release unspecified "historic"
amounts of irrigation water. In the alternative, plaintiffs request
that the court order Reclamation to release 262,000 acre feet of
water, resulting in an Upper Klamath Lake elevation of 4138 at the
end of September, which allocates roughly fifty percent of stored
5 - OPINION AND ORDER
water and inflow to Project irrigators.
Plaintiffs claim that the 2001 Plan breaches their contractual
rights to irrigation water and is arbitrary and capricious under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in that its
implementation violates the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et seq., and the Endangered Species Act
("ESA"), 16 U.S.C. § 1531, et seq.
BACKGROUND
The Project is a water storage and irrigation project serving
over 200,000 acres of land in Southern Oregon and Northern
California. The Project was authorized in 1905 pursuant to the
Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371, et seq. In
accordance with state water law and the Reclamation Act, the United
States "appropriated all available water rights in the Klamath River
and Lost River and their tributaries in Oregon and began constructing
a series of water diversion projects." Klamath Water Users
Association v. Patterson, 204 F.3d 1206, 1209 (9 th Cir. 2000)
("Patterson").
Water for the Project is stored primarily in Upper Klamath Lake
("UKL") on the Klamath River. The Link River Dam, constructed near
the mouth of UKL, regulates flows in the lower Klamath River. It is
owned by Reclamation, but operated and maintained pursuant to
contract by PacifiCorp, a power company. PacifiCorp also owns and
operates the canals that carry water from UKL to the Link River, and
it operates several hydroelectric and re-regulating dams on the
Klamath River pursuant to a license issued by the Federal Energy
Regulatory Commission. The furthest downstream of these dams is the
8 4 - OPINION AND ORDER
 Robert G. Hunter 27 North Ivy Medford, OR 97501 Attorneys for defendants-intervenors The Wilderness Society, Waterwatch of Oregon, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, Northcoast Environmental Center, and Klamath Forest Alliance
Frank DeMarco Siskiyou County Counsel William Standley Assistant County Counsel Donald R. Langford Mary Frances McHugh Deputies County Counsel P.O. Box 659 Yreka, CA 96097 Attorneys for amicus curiae Siskiyou County
AIKEN, Judge:
Plaintiffs move for a preliminary injunction against defendant
United States of America, Department of Interior, enjoining the
Bureau of Reclamation ("Reclamation") from implementing the Klamath
Reclamation Project 2001 Annual Operations Plan ("2001 Plan" or
"Plan"). Under the 2001 Plan, water elevations of Upper Klamath Lake
and water flows below Iron Gate Dam will be maintained to support
endangered sucker fish and threatened coho salmon. Due to inadequate
water supplies, no irrigation water deliveries will be made to the
majority of land within the Klamath Reclamation Project ("Project").
Plaintiffs seek an order enjoining Reclamation from implementing the
Plan and ordering Reclamation to release unspecified "historic"
amounts of irrigation water. In the alternative, plaintiffs request
that the court order Reclamation to release 262,000 acre feet of
water, resulting in an Upper Klamath Lake elevation of 4138 at the
end of September, which allocates roughly fifty percent of stored
 OPINION AND ORDER
water and inflow to Project irrigators.
Plaintiffs claim that the 2001 Plan breaches their contractual
rights to irrigation water and is arbitrary and capricious under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in that its
implementation violates the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et seq., and the Endangered Species Act
("ESA"), 16 U.S.C. § 1531, et seq.
BACKGROUND
The Project is a water storage and irrigation project serving
over 200,000 acres of land in Southern Oregon and Northern
California. The Project was authorized in 1905 pursuant to the
Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371, et seq. In
accordance with state water law and the Reclamation Act, the United
States "appropriated all available water rights in the Klamath River
and Lost River and their tributaries in Oregon and began constructing
a series of water diversion projects." Klamath Water Users
Association v. Patterson, 204 F.3d 1206, 1209 (9 th Cir. 2000)
("Patterson").
Water for the Project is stored primarily in Upper Klamath Lake
("UKL") on the Klamath River. The Link River Dam, constructed near
the mouth of UKL, regulates flows in the lower Klamath River. It is
owned by Reclamation, but operated and maintained pursuant to
contract by PacifiCorp, a power company. PacifiCorp also owns and
operates the canals that carry water from UKL to the Link River, and
it operates several hydroelectric and re-regulating dams on the
Klamath River pursuant to a license issued by the Federal Energy
Regulatory Commission. The furthest downstream of these dams is the
8 6 - OPINION AND ORDER
Iron Gate Dam in California.
Reclamation must balance diverse, and often competing, demands
for Project water. Reclamation must deliver water to Project
irrigators in accordance with the rights held by the United States
and the irrigators' individual repayment contracts, subject to the
availability of water. Plaintiffs Klamath Irrigation District and
Tulelake Irrigation District have rights to receive appropriated
water pursuant to their contracts with Reclamation. Two national
wildlife refuges, the Lower Klamath and Tule Lake National Wildlife
Refuges, depend on the Project for water and receive large quantities
of return irrigation flows and other Project waters.
Under the ESA, Reclamation must not engage in any action that is
likely to jeopardize the continued existence of an endangered or
threatened species or result in the destruction or adverse
modification of the critical habitat of such a species. See 1U.S.C. § 1536(a)(2). In 1988, two fish, the Lost River and shortnose
suckers, were listed as "endangered" due to a decline in the species'
population resulting from a fragmentation of aquatic habitat through
damming, flow diversion, and decreased water quality. 53 Fed. Reg.
27130, 27131-32 (July 18, 1988). The suckers live only in UKL and
nearby Project waters. They are adfluvial, in that the suckers live
mostly in UKL, migrating up tributaries to spawn.
Below Iron Gate Dam, the Klamath River is used by various species
of fish, including the Southern Oregon/Northern California Coast coho
salmon ("coho salmon" or "salmon"). The coho salmon was listed as
"threatened" under the ESA in 1997, in part due to habitat
degradation resulting from water diversions. 62 Fed. Reg. 24588,
8 7 - OPINION AND ORDER
24592 (May 6, 1997). The Klamath River from Iron Gate Dam to the
Pacific Ocean has been designated as a "critical habitat" for the
coho salmon. See 64 Fed. Reg. 24049 (May 5, 1999). The coho are
anadromous, in that they migrate from the ocean to fresh water to
spawn.
Large numbers of bald eagles migrate into the Klamath Basin
during fall and winter. The eagles, listed as "threatened" under the
ESA, rely heavily on the abundant waterfowl that use the Lower
Klamath National Wildlife Refuge, which receives water from Project
operations.
Finally, Reclamation must also consider the rights of Indian
tribes, including defendants-intervenors Klamath and Yurok Tribes,
who hold fishing and water treaty rights in the Klamath River Basin.
The Tribes retained these rights pursuant to treaties in which they
ceded millions of acres of land to the United States. See Parravano
v. Babbitt, 70 F.3d 539, 541-42, 545 (9 th Cir. 1995); United States v.
Adair, 723 F.2d 1394, 1414 (9 th Cir. 1983). The endangered suckers,
called "c’wam" by the Klamath Tribes, play an integral role in the
Klamath Tribes’ customs and traditions. Prior to its closing in
1986, Klamath Tribes maintained a c’wam fishery which provided a
source of food and income for tribal members. Declaration of Elwood
Miller, ¶¶ 5- The threatened coho salmon are equally important to
the Yurok Tribe, providing a source of food, opportunities for
employment and income, and the basis of Yurok customs and traditions.
Declaration of Glenn Moore, ¶¶ 4, 6, 8, 11. Reclamation has an
obligation to protect tribal trust resources such as the sucker fish
and salmon. Patterson, 204 F.3d at 1213; Parravano, 70 F.3d at 547;
8 8 - OPINION AND ORDER
Adair, 723 F.2d at 1408-11, 1415.
Several constraints force Reclamation "to walk a water-management
tightrope in dry years." Defendants’ Opposition to Motion for
Preliminary Injunction, p. 6. Unlike other Reclamation projects, the
Project does not have a major water storage reservoir. Yearly water
levels of UKL vary, largely depending on the previous winter's
snowfall and the amount of precipitation during the spring and
summer. UKL is relatively shallow and unable to capture and store
large quantities of water from spring run-off. Consequently, the
Project’s storage capacity is limited, and Reclamation cannot store
water during years of heavy precipitation to meet water needs in dry
years.
To prepare Project operation plans, Reclamation relies on the
Natural Resources Conservation Service ("NRCS") Streamflow Forecast
for the Upper Klamath Basin. NRCS issues its forecasts on a monthly
basis, between January and June, for the period from April 1 to
September 30. The Project’s primary irrigation season begins in late
March, shortly after Reclamation receives the first streamflow
forecasts.
In light of the diverse water demands, Reclamation initiated a
public process to establish a new long-term operating plan. For the
past several years, Reclamation has issued one-year interim plans
while formulating a long-term plan for water distribution.
Reclamation issues the annual plans in order to provide operating
criteria and to assist water users and resource managers in planning
for the water year. Although anticipated several years ago, a long-term
plan has not been completed.
8 9 - OPINION AND ORDER
Based on NRCS forecasts, Reclamation has defined the 2001 water
year as "critical dry." As of April 6, 2001, Reclamation determined
that inflow volume into UKL would be 108,000 acre feet during the
period of April through September, the smallest amount of inflow on
record.
On January 22, 2001, Reclamation forwarded a biological
assessment of the Project’s effects on the coho salmon to the
National Marine Fisheries Service ("NMFS") and requested the
initiation of formal consultation under the ESA. Similarly, on
February 13, 2001, Reclamation forwarded a biological assessment of
the Project’s effects on the shortnose and Lost River suckers to the
United States Fish and Wildlife Service ("FWS") and requested formal
consultation. Reclamation’s biological assessments concluded that
the Project’s continuing operations were likely to adversely affect
the sucker species and the coho salmon.
FWS began formal consultation and issued a draft Biological
Opinion ("BiOp") on March 13, 2001. The draft BiOp concluded that
the sucker populations in UKL are at risk from adverse water quality,
loss of habitat, entrainment, and lack of passage. The BiOp stated
that development and operations of the Project were major factors
contributing to the loss and degradation of aquatic habitat and the
endangered status of the suckers. In accordance with the ESA and
governing regulations, FWS proposed "reasonable and prudent
alternatives" ("RPAs") to the proposed operation of the Project that
would not cause jeopardy. 16 U.S.C. § 1536(b)(3)(A). FWS proposed
an RPA of minimum UKL surface elevations between 4140 and 4142.5 feet
1 A FWS BiOp prepared in 1992 recommended lower lake elevations in UKL. Relying on new information regarding potential adverse effects of low lake levels and massive fish kills in the 1990s, FWS concluded that higher UKL levels than those recommended in the 1992 BiOp were necessary to reduce the risk of extinction.
10 - OPINION AND ORDER
from January through October 15. NMFS completed a draft BiOp on March 19, 2001. The draft BiOp
concluded that the Project’s operations would jeopardize coho salmon
and proposed RPAs of minimum water flows in Klamath River below Iron
Gate Dam.
Upon review of the draft BiOps, Reclamation informed FWS and NMFS
that the forecasted water supplies for 2001 were not adequate to meet
the needs of both RPAs. On April 6, 2001, FWS and NMFS released
their final BiOps on the effects of the Project on the suckers, coho
salmon, and bald eagles. FWS Administrative Record ("FWS AR"),
Addendum 2; NMFS Administrative Record ("NMFS AR"), Volume III, 105.
FWS and NMFS again concluded that operation of the Project, as
initially proposed by Reclamation, would jeopardize the continued
existence of the suckers and the coho salmon. The FWS BiOp concluded
that the Project’s operations would cause harm, but not jeopardy, to
the continued existence of the bald eagles.
FWS and NMFS adjusted the minimum UKL elevations and Klamath
River flows to reflect the reduced water available for the 2001 water
year. FWS proposed a minimum UKL elevation of 4139, provided a
minimum surface level of 4140 was sustained on a long-term basis.
The minimum elevation RPA is intended to increase water quality and
the physical habitat for juvenile and adult suckers, and provide for
access to spawning areas.
2 Defendant intervenor The Wilderness Society suggests that
this allocation of irrigation water violates the ESA because no water is allocated to the Lower Klamath National Wildlife Refuge, which could result in the incidental take of numerous bald eagles. See The Wilderness Society’s Opposition to Plaintiffs’ Motion for Preliminary Injunction, pp. 28-2
11 - OPINION AND ORDER
NMFS proposed a range of minimum instream flows in the Klamath
River below Iron Gate Dam from April through September, from a low of
1,000 cubic feet per second ("cfs") in July through September, to a
high of 2,100 cfs between June 1-15. The river flows are recommended
in order to increase riparian habitat for coho salmon. The RPAs in
the NMFS BiOp are limited in duration, because NMFS expects
additional information regarding flow and salmon habitat will become
available in the near future. NMFS represents that it will prepare
a comprehensive BiOp by June 7, 2001, addressing minimum water flows
below Iron Gate Dam in future critical dry years.
Also on April 6, 2001, Reclamation issued its 2001 Operations
Plan, which incorporates the conclusions contained in the BiOps and
implements the RPAs proposed by FWS and NMFS. After implementation
of the RPAs, the availability of irrigation water is severely
limited, and most Project lands will receive no water deliveries.
The Plan makes available for irrigation 70,000 acre feet of water
from Clear Lake and Gerber Reservoirs.Plaintiffs filed this action on April 9, 2001, and moved for
preliminary injunctive relief on April 11. The court held a status
conference on April 12, 2001, and ordered the defendants (hereinafter
"the government") and proposed defendants-intervenors to respond by
April 24, 2001, and plaintiffs to reply by April 26, 2001. The
government filed the administrative record on April 18, 2001, with an
8 12 - OPINION AND ORDER
Addenda filed April 25 (docs. #46 and #85).
Much litigation over the Project and its operations has ensued
in recent years, including a case particularly relevant to
plaintiffs’ motion for preliminary injunction. In May 2000, various
conservation and fishing interests, including several defendants-intervenors
in this case, filed a lawsuit challenging Reclamation's
2000 Plan. Pacific Coast Federation of Fishermen's Ass’n v. Bureau
of Reclamation, F. Supp.2d , 2001 WL 360146 (N.D. Cal. April
3, 2001). The plaintiffs there alleged that Reclamation violated
ESA, by releasing water for irrigation and water flows in the Klamath
River prior to consultation with NMFS regarding the Project’s effects
on threatened coho salmon. The District Court for the Northern
District of California agreed and issued an injunction prohibiting
Reclamation from releasing any water for irrigation until Reclamation
complied with its ESA obligations.
Specifically, the court ordered: "[T]he Bureau of Reclamation
hereby is enjoined from sending irrigation deliveries from Klamath
Project whenever Klamath River flows at Iron Gate Dam drop below the
minimum flows recommended in the Hardy Phase I report, until such
time as the Bureau completes a concrete plan to guide operations in
the new water year, and consultation concerning that plan is
completed, either by (1) formal consultation to a "no jeopardy"
finding by the NMFS, or (2) the Bureau's final determination, with
the written concurrence of the NMFS, that the proposed plan is
unlikely to adversely affect the threatened coho salmon." 2001 WL
360146, *21.
On April 16, 2001, the court clarified its April 3 Order in
3 Here, neither NMFS nor FWS issued a BiOp on the effects of the final 2001 Plan; rather, the Plan and the BiOps were issued the same day, with the Plan incorporating the RPAs contained in the BiOps.
13 - OPINION AND ORDER
response to a "Notice of Completion of Consultation" filed by the
government. The court stated that to fulfill the requirements for
termination of the injunction, Reclamation must finalize a concrete
2001 Plan, formally consult with NMFS regarding that plan, and obtain
from NMFS a BiOp on the effects of the 2001 Plan. Conversely, if
NMFS finds that the 2001 Plan is not likely to jeopardize the
existence of coho salmon or adversely modify critical habitat, the
injunction may be lifted. If NMFS finds that the 2001 Plan does
cause jeopardy or adversely affect critical habitat, Reclamation must
notify NMFS whether it intends to proceed with the Plan, and if so,
whether it will adopt any RPAs proposed by NMFS. If Reclamation
intends to proceed despite a jeopardy finding and absent the RPAs
proposed by NMFS, it must state the basis for its conclusion that
such action does not violate the ESA. Pacific Coast Federation of
Fishermen’s Ass’n v. Bureau of Reclamation, Civ. No. 00-01955-SBA
(N.D. Cal. April 16, 2001).On April 23, 2001, all parties to the litigation at bar
participated for three full days in mediation proceedings directed by
Magistrate Judge Thomas Coffin. Despite intense and genuine efforts
by Judge Coffin and the parties, no resolution for the 2001 water
year could be agreed upon, although the parties expressed an interest
in continued long-term mediation with Judge Coffin. The court heard
oral argument on April 27, 2001.
8 14 - OPINION AND ORDER
STANDARD
The party seeking a preliminary injunction must show either (1)
a combination of probable success on the merits and the possibility
of irreparable injury; or (2) that serious questions are raised and
the balance of hardships tips sharply in its favor. Stuhlbarg Int’l
Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839-4(9 th cir. 2001). While stated as alternatives, "[t]hese formulations
are not different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the probability
of success on the merits decreases." Big Country Foods v. Board of
Educ, 868 F.2d 1085, 1088 (9 th Cir. 1989). "Even if the balance of
hardships tips sharply in plaintiffs' favor, it must be shown as an
irreducible minimum that there is a fair chance of success on the
merits." Stanley v. University of Southern California, 13 F.3d 1313,
1319 (1994). Additionally, where the public interest is involved,
the court must consider whether the balance of public interests
weighs in favor of granting or denying the injunctive relief sought.
Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d
457, 459 (9 th Cir. 1994).
DISCUSSION
A. Balance of Hardships
Plaintiffs contend that they are entitled to preliminary
injunctive relief primarily because plaintiffs, and those they
represent, will suffer great harm if the 2001 Plan is implemented.
There is no question that farmers who rely on irrigation water and
their communities will suffer severe economic hardship if the 200Plan is implemented. The declarations of Steven Kandra and David
8 15 - OPINION AND ORDER
Cacka, Klamath Basin farmers, describe the hardships they will suffer
if their lands receive no irrigation water, including loss of income,
inability to pay debts, potential loss of land and equipment, and
immeasurable harm to their way of living. Declaration of Steven
Kandra, ¶¶ 5-9; Declaration of David Cacka, ¶¶ 8-11. Local
governmental entities in the Klamath River Basin anticipate
agricultural losses in the millions of dollars, loss in revenues, and
additional burdens on social services. See, e.g., Declarations of
William J. Stephens, Gary W. Anderson, Sharron L. Molder, Mary
Frances McHugh. The court recognizes the harm that could be suffered
by plaintiffs and surrounding communities. However, the court must
balance that harm against the harm to the suckers and salmon, those
who rely on the fish, as well as the public interest.
NMFS and FWS have determined that Project operations will cause
jeopardy to the continuing existence of the suckers and coho salmon
and adversely affect the critical habitat of the coho salmon.
Threats to the continued existence of endangered and threatened
species constitute ultimate harm. "Congress has spoken in the
plainest of words, making it abundantly clear that the balance has
been struck in favor of affording endangered species the highest of
priorities, thereby adopting a policy which it described as
‘institutionalized caution.’" Tennessee Valley Authority v. Hill,
437 U.S. 153, 194 (1978); accord Sierra Club v. Marsh, 816 F.2d 1376,
1383-84, 1387 (9 th Cir. 1987).
The Klamath and Yurok Tribes rely on the fish as a vital
component of the Tribes’ cultures, traditions, and economic vitality.
Members of the Klamath and Yurok Tribes, Elwood Miller and Glenn
8 14 - OPINION AND ORDER
STANDARD
The party seeking a preliminary injunction must show either (1)
a combination of probable success on the merits and the possibility
of irreparable injury; or (2) that serious questions are raised and
the balance of hardships tips sharply in its favor. Stuhlbarg Int’l
Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839-4(9 th cir. 2001). While stated as alternatives, "[t]hese formulations
are not different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the probability
of success on the merits decreases." Big Country Foods v. Board of
Educ, 868 F.2d 1085, 1088 (9 th Cir. 1989). "Even if the balance of
hardships tips sharply in plaintiffs' favor, it must be shown as an
irreducible minimum that there is a fair chance of success on the
merits." Stanley v. University of Southern California, 13 F.3d 1313,
1319 (1994). Additionally, where the public interest is involved,
the court must consider whether the balance of public interests
weighs in favor of granting or denying the injunctive relief sought.
Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d
457, 459 (9 th Cir. 1994).
DISCUSSION
A. Balance of Hardships
Plaintiffs contend that they are entitled to preliminary
injunctive relief primarily because plaintiffs, and those they
represent, will suffer great harm if the 2001 Plan is implemented.
There is no question that farmers who rely on irrigation water and
their communities will suffer severe economic hardship if the 200Plan is implemented. The declarations of Steven Kandra and David
8 15 - OPINION AND ORDER
Cacka, Klamath Basin farmers, describe the hardships they will suffer
if their lands receive no irrigation water, including loss of income,
inability to pay debts, potential loss of land and equipment, and
immeasurable harm to their way of living. Declaration of Steven
Kandra, ¶¶ 5-9; Declaration of David Cacka, ¶¶ 8-11. Local
governmental entities in the Klamath River Basin anticipate
agricultural losses in the millions of dollars, loss in revenues, and
additional burdens on social services. See, e.g., Declarations of
William J. Stephens, Gary W. Anderson, Sharron L. Molder, Mary
Frances McHugh. The court recognizes the harm that could be suffered
by plaintiffs and surrounding communities. However, the court must
balance that harm against the harm to the suckers and salmon, those
who rely on the fish, as well as the public interest.
NMFS and FWS have determined that Project operations will cause
jeopardy to the continuing existence of the suckers and coho salmon
and adversely affect the critical habitat of the coho salmon.
Threats to the continued existence of endangered and threatened
species constitute ultimate harm. "Congress has spoken in the
plainest of words, making it abundantly clear that the balance has
been struck in favor of affording endangered species the highest of
priorities, thereby adopting a policy which it described as
‘institutionalized caution.’" Tennessee Valley Authority v. Hill,
437 U.S. 153, 194 (1978); accord Sierra Club v. Marsh, 816 F.2d 1376,
1383-84, 1387 (9 th Cir. 1987).
The Klamath and Yurok Tribes rely on the fish as a vital
component of the Tribes’ cultures, traditions, and economic vitality.
Members of the Klamath and Yurok Tribes, Elwood Miller and Glenn
8 16 - OPINION AND ORDER
Moore, describe the past and continuing hardship suffered by Tribal
members as a result of the decline of their fisheries. Declaration
of Elwood Miller, ¶¶ 5-11, 15, 16; Declaration of Glenn Moore, ¶¶ 6-
8, 11. Many customs and traditions revolve around the fish harvest,
which is now reduced, or in the case of the suckers, non-existent.
Loss of fish results in a loss of food, income, employment
opportunities, and sense of community.
Similarly, fishermen and fishing communities rely on coho salmon
to sustain economic viability and their way of life. The public
interest weighs heavily on both sides of the dispute.
Balancing these harms is a difficult task, and one that leads to
no concrete determination. Given the high priority the law places on
species threatened with extinction, I cannot find that the balance of
hardship tips sharply in plaintiffs’ favor.
B. Breach of Contract Claim
Plaintiffs allege that Reclamation breached its contracts with
plaintiffs Klamath Irrigation District and Tulelake Irrigation
District by using Project water for purposes other than irrigation.
However, as recognized by this court and the Ninth Circuit,
plaintiffs’ contract rights to irrigation water are subservient to
ESA and tribal trust requirements. Patterson, 204 F.3d at 1214.
Therefore, plaintiffs cannot assert breach of contract based on
Reclamation’s allocation of water to protect the suckers and salmon.
Plaintiffs also allege breach of contract based on Reclamation’s
failure to preserve and maintain the water supply for users entitled
to take or receive water under their contracts. Plaintiffs do not
8 17 - OPINION AND ORDER
explain what precise action Reclamation should take to protect its
water supply, although they suggest that Reclamation take legal
action against junior water users outside the Project.
Under federal reclamation law, the Secretary of the Interior is
required to proceed in conformity with state laws with respect to the
control, appropriation, use, or distribution of water used in
irrigation, provided such state laws are consistent with directives
of Congress. See California v. United States, 438 U.S. 645, 668-6(1978).
Water rights adjudication for the Klamath River Basin to perfect
asserted water rights is pending in state court. See United States
v. Oregon, 44 F.3d 758, 762 (9 th Cir. 1994). Apparently, numerous
parties have filed pre-1909 water right claims to the UKL and its
tributaries. See Klamath Tribes’ Memorandum in Opposition to
Plaintiffs’ Motion for Preliminary Injunction, p. 7. According to
the government, the State of Oregon has taken the position that it
will not deny existing water rights based on the claim of an alleged
senior water holder during the water rights adjudication. Therefore,
it appears that Reclamation is precluded from pursuing action against
junior water users until all rights have been adjudicated.
Regardless, plaintiffs present no specific information as to the
identity of junior water users or whether Reclamation could
successfully assert water rights claims against them.
Finally, plaintiffs fail to explain why Reclamation must deliver
irrigation water while legal action is contemplated, particularly in
light of Reclamation's obligation to protect ESA species and tribal
trust resources. Thus, plaintiffs fail to show a likelihood of
8 18 - OPINION AND ORDER
success on the merits of their contract claim.
C. Administrative Procedure Act Claims
Plaintiffs allege that the Reclamation violated NEPA by issuing
the 2001 Plan without preparing an Environmental Impact Statement,
and that FWS and NMFS violated the ESA by failing to utilize the
best scientific evidence available in their respective BiOps.
Neither NEPA nor the ESA provide a private cause of action for the
claims asserted by plaintiffs. See Bennett v. Spear, 520 U.S. 154,
172-73 (1997) (judicial review of biological opinions available under
the APA); Northwest Resource Information Center, Inc. v. National
Marine Fisheries Service, 56 F.3d 1060, 1066 (9 th Cir. 1995) (NEPA
claim reviewable under APA). Therefore, judicial review of the
challenged agency actions is governed by § 706 of the APA. 5 U.S.C.
§ 706(2); Pyramid Lake Paiute Tribe of Indians v. United States Dep’t
of Navy, 898 F.2d 1410, 1414 (9 th Cir. 1990).
Under the APA, an agency decision must be upheld unless it is
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A); see also, Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 376 (1989) (arbitrary and
capricious standard applies to agency findings which involve agency
expertise). Although the "inquiry into the facts is to be searching
and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the
agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). "When specialists express conflicting views, an
agency must have discretion to rely on the reasonable opinions of its
own qualified experts even if, as an original matter, a court might
8 19 - OPINION AND ORDER
find contrary views more persuasive." Marsh, 490 U.S. at 378.
In other words, a court "may reverse the agency's decision as
arbitrary or capricious only if the agency relied on factors Congress
did not intend it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation that ran
counter to the evidence before the agency, or offered one that is so
implausible that it could not be ascribed to a difference in view or
the product of agency expertise." Western Radio Service Co. v. Espy,
79 F.3d 896, 900 (9 th Cir. 1996) (citing Dioxin/Organochlorine Center
v. Clarke, 57 F.3d 1517, 1521 (9 th Cir. 1995)).
1. National Environmental Policy Act
NEPA requires all federal agencies to prepare a detailed