Klamath Water Users
U.S., Water Users Prepare Defense Against Environmentalists’ Lawsuit
Attorneys for the U.S. Department of Justice and local water users recently
submitted motions and statements in preparation for an April 29, 2003
hearing before a federal district court judge in Oakland, California. The
litigation is entitled Pacific Coast Federation of Fishermen’s Association,
et al. v. U.S. Bureau of Reclamation, et al, and the Klamath Water Users
Association (KWUA), Tulelake Irrigation District and two local growers have
intervened on behalf of the federal defendants in this case, which is
scheduled for hearing on April 29, 2003. This case – due in part to the
complexity of the subject matter – has raised many questions in the local
community, not only about the arguments of each side, but also about
potential implications to 2003 Klamath Project operations. This Weekly
Update is dedicated to further explain this issue.
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. A few weeks later,
the National Marine Fisheries Service (NMFS) completed a biological opinion
(BO) for operation of the Klamath Project for 2002 through 2012. Several
months later, plaintiffs filed an amended complaint against NMFS after the
lower Klamath River fish die-off, challenging both technical and legal
matters in the biological opinion, and against Reclamation, for allegedly
violating the ESA. Lower Basin tribes also are parties to this case and
contend, among other things, that inadequate flows in 2002 violated their
The Gang’s All Here…Plaintiffs in PCFFA v. USBR
Plaintiffs in PCFFA et al. v. USBR et al. are fast becoming familiar names
to Klamath Project farmers and ranchers, who have seen these same
organizations involved with numerous lawsuits, press releases, and political
pressuring directed towards the Project in the past year. Environmental
advocacy groups involved with this lawsuit include:
Pacific Coast Federation of Fishermen’s Associations
Institute for Fisheries Resources
Northcoast Environmental Center
Klamath Forest Alliance
Oregon Natural Resources Council
The Wilderness Society
WaterWatch of Oregon
Defenders of Wildlife
California Congressman Mike Thompson is also a plaintiff in this case, and
the Yurok and Hoopa Valley Tribes are plaintiff-intervenors.
Plaintiffs allege that, for various reasons, the NMFS BO on the ten-year
operation of the Klamath Project is unlawful. Key arguments presented by the
environmentalist plaintiffs are summarized below.
PCFFA et al. v. USBR et al.
The Reasonable and Prudent Alternative (RPA) for the Klamath Project fails
to prevent jeopardy.
The RPA Requires A Fraction Of The Flows Necessary To Prevent Jeopardy.
Plaintiffs object to the BO’s finding that the Klamath Project is
responsible for 57% of the flow schedule at Iron Gate Dam. Plaintiffs
contend instead that the Project should provide 100% of these flows, despite
Klamath River depletions from other sources, including agriculture outside
of the Project, Trinity River diversions and Klamath Basin exports to the
Rogue Valley, and national wildlife refuges.
The RPA Improperly Relies On Actions By State, Tribal, And Private Parties
That Are Not “Reasonably Certain To Occur.” Plaintiffs claim that BO actions
must be likely to be implemented before they may be considered “reasonably
certain to occur.” According to the plaintiffs, the state and private
actions proposed in the NMFS BO are not “reasonably certain to occur.”
NMFS Relies On Actions That Are Too Poorly Defined To Be Part Of An RPA
NMFS Fails To Explain Changes In RPA Flow Levels
The BO Fails to include an incidental take statement that specifies the
amount of take of listed salmon.
Because the biological opinion is arbitrary and contrary to law, Reclamation
is in violation of its duty to avoid jeopardy.
PCFFA et al. v. USBR et al. (Cont’d)
For the reasons discussed above, PCFFA has asked the Court to:
1. Declare the final BO for the Klamath Project arbitrary and capricious and
in violation of the ESA;
2. Order NMFS to rescind the biological opinion and its accompanying
incidental take statement;
3. Declare that Reclamation is in violation of its duties under the ESA;
4. Order Reclamation to reinitiate consultation with NMFS on a schedule set
by the Court;
5. Enjoin any and all irrigation deliveries from the Klamath Project that
would cause Klamath River flows at Iron Gate Dam to fall below 100% of the
flow levels identified by NMFS in the May 16 draft biological opinion
The Hoopa Valley Tribe and Yurok Tribe further contend that Klamath Project
operations violated their fishing rights, and claim that Project operations
caused the fish die-off that occurred last September.
The U.S. Justice Department finds itself in a challenging position defending
this case because it represents two agencies that do not necessarily see
eye-to-eye on the NMS biological opinion. Although Reclamation agreed to
operate under the 2002-2012 NMFS BO, it also sharply disagreed with parts of
the BO in a June 2002 letter to NMFS. Pacific Legal Foundation (PLF) –
working with Sacramento attorney Paul Simmons – are representing KWUA as
defendant-intervenors in this case.
Federal defendants have respond to these challenges, relying in large part
on the Interim Report prepared by a National Research Council committee on
Klamath threatened and endangered fishes. Regarding the fish die-off, the
U.S. attorneys note that the cause is not known, while making indirect
reference to the Trinity River. KWUA’s motion as defendant-intervenors also
addresses these issues, and further focuses on contract and stored water
arguments that are not taken up the United States (see inset, this page).
Plaintiffs’ Reliance on NMFS Whistleblower
Plaintiffs have already responded to the federal motion, claiming in part
that Federal defendants do not address the allegations made by NMFS
biologist Michael Kelly that the agency never performed the analysis
necessary to verify that the BO water levels would not jeopardize the
continued existence of coho. Kelly filed for protection under the federal
Whistleblower Statute in October 2002, immediately after the lower Klamath
River fish die-off. Jim Lecky, a senior supervisor for NMFS, refuted the
idea that the fish kill would have been averted if NMFS had done what Kelly
said should have been done.
"A lot of folks are saying if we had listened to [Kelly], we wouldn't have
had the fish kill. But I'm not sure about that," Lecky said this week in
It is KWUA’s understanding that the Office of Special Counsel – charged with
reviewing the whistleblower incident - has determined that further
investigation into Kelley’s charge was not warranted.
Three Klamath Basin counties on March 11th voiced formal support for Klamath
Project water users in PCFFA et al. v. USBR et al. The Klamath County Board
of Commissioners and the Boards of Supervisors in Modoc and Siskiyou
counties all unanimously authorized the filing of briefs as amicus curiae
(“friend of the court”) in support of local water users. Counties from the
lower Klamath basin have already filed briefs supporting the plaintiffs,
emphasizing the importance of fisheries to those counties.
PCFFA et al. v. USBR et al. Water Users Arguments
The Reasonable and Prudent Alternative (RPA) is a comprehensive program
for avoiding jeopardy, of which the long-term flow target is only a part.
The ESA does not require actions proposed in RPAs to be “reasonably
likely to occur.”
Plaintiffs have not shown that Project operations will cause jeopardy to
The Tribes’ claim includes disputed facts and are not appropriate for
resolution by the Court.
The Tribes’ argument is a dispute about the quantity of water to which
the tribes are entitled – the Court should decline to exercise jurisdiction.
The Tribes’ causes of action relate entirely to events that occurred
during 2002, and the remedy sought by the Tribes cannot correct the wrongs
they have allegedly suffered.
Since ESA consultation is required only for actions which Reclamation has
discretionary control, any injunction issued by the court because of errors
in the BO must be limited and narrow. Reclamation does not have discretion
to deliver less than contracted-for amounts of water to Project irrigators.
Because the diversion and use of stored water does not have impacts on
coho salmon, any injunction must be limited to Reclamation’s diversion of
“Takings” Hearing Scheduled
Roger and Nancie Marzulla of Marzulla and Marzulla law firm in Washington
D.C. announced today that Judge Dianne Sypolt will conduct a hearing in the
Klamath Irrigation District, et. al. v. United States Takings Case in the
United States Court of Federal Claims Case No. 01-591L. The hearing is
tentatively scheduled for April 29th, 2003 at 2:00 p.m., the same day the
PCCFA case (discussed above) will be heard in Oakland.
Local attorney Bill Ganong believes that heightened local public awareness
and a recent grassroots effort drawing attention to the fact that this case
has been stalled in court for over a year have been effective.
“All the letters, faxes and phone calls placed to Washington have done the
job,” said Ganong.
The Court of Federal Claims will entertain argument on all issues pending
before it at that time. 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 that 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.
Local rancher Mike Byrne commented, “It’s very exciting to finally get our
case heard—and that the judge is going to listen to our arguments.”
Please contact Marzulla & Marzulla at 202-822-6760 or William Ganong at
882-7228 for more information.
Klamath Hydro Relicensing Meetings
Monday, April 7. 12:00 – 6:00 p.m. Water Quality Work Group
Tuesday, April 8. 8:30 a.m. – 4:00 p.m. Recreation Work Group and Aquatics
Wednesday, April 9. 8:30 a.m.-12:00 p.m. Cultural Resources Work Group and
Fish Passage Technical Modelers Workshop- KlamRAS. 1:00 p.m. – 5:00 p.m.
Fish Passage Work Group.
Thursday, April 10. 8:30 a.m. – 12:00 p.m. Socioeconomics Work Group. 1:00 –
5:00 p.m. Plenary
Friday, April 11. 8:30 a.m. – 3:00 p.m. Lamprey Workshop
All meetings will be held at the Windmill Inn in Ashland, OR
Klamath Water Users
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 firstname.lastname@example.org
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