Klamath Water Users Association 

Weekly Update

March 21, 2003



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 fishing rights.

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
 Headwaters

California Congressman Mike Thompson is also a plaintiff in this case, and the Yurok and Hoopa Valley Tribes are plaintiff-intervenors.

Plaintiffs’ Arguments

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.
Plaintiffs Arguments

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.

Defendants’ Arguments

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 Greeenwire.

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 coho.
  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 inflows.

“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 Work Group

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


Content and Logo: Copyright © Klamath Water Users Association, 2002 All Rights Reserved
Page design: Copyright ©  klamathbasincrisis.org,   2002,  All Rights Reserved