Ruling on multiple
water rights lawsuits favor endangered species
Magistrate's decision goes against Reclamation and
Project...Klamath Drainage District
O'Brien, Herald and News 9/16/23
Rulings on multiple federal cases over
local water rights and contracts were announced in
congruence with each other earlier this week, all of which
determined that the Endangered Species Act takes precedence.
Last year, the Bureau of Reclamation
filed a suit against Klamath Drainage District for diverting
flows from the Klamath River in 2021.
KDD General Manager Scott White said
the district was allowed to divert water in years when the
Klamath Project received insufficient water to provide
allocations to KDD under a state permitted use granted in
“Since the right was permitted, it was
treated as a private and separate right to any Project
allocation,” White said. “During times of shortage, the
Bureau would inform the district that there was no more
Project water available and that the district must use its
permit to continue irrigating. That was how operations
worked since the ‘70s and just until last year when the
United States changed their mind and sued us.”
In 2022, Reclamation instructed KDD to
discontinue diversions from the river, claiming the usage
broke the agreed upon contract between the two
The breach of contract case was
presided over and ruled on by U.S. Magistrate Mark Clarke.
The same magistrate also presided over
two separate lawsuits filed by the Klamath Tribes against
Reclamation for violating ESA requirements, defying both the
2021 and 2022 annual operation plans.
A release from KDD said, “In one case,
the court found Reclamation violated the ESA in 2022 by
providing farmers even a diminished supply when not all
species goals could be met.”
Endangered C’waam and Koptu, two of
the Klamath Tribes’ sacred fish species, are protected under
The minimum water elevation necessary
for a healthy spawning season in spring is 4,142 feet,
according to the act.
Klamath Tribes Chairman Clayton Dumont
said Reclamation knew minimum water levels couldn’t be met
prior to allocating water to irrigators.
“What they did was to give a project
allocation when there was not water there to meet ESA
obligations,” Dumont said. “There’s a formula they use that
has to do with what the lake looks like, what the
expectations are, snowpacks and such … and the formula they
used returned with a product of zero.”
Although the results determined no
waters could be allowed for Project irrigation, Reclamation
proceeded to allocate about 60,000-acre feet in 2022, Dumont
said, with a secondary allocation later in the year.
“It has a lasting impact on the
ecosystem,” Dumont said. “Whenever they don’t meet the
minimums, it’s a problem. It’s a problem in terms of
spawning in the Lakeside Springs. It’s a problem when they
don’t meet them later in the year because that carries over
to the next year and spawning season in spring.”
The Tribes’ two suits received a joint
ruling, as did the separate breach of contract case against
“Our case wasn’t even an ESA case,”
White said. “Our case is completely separate, but the judge
chose to lump them all in together in his ruling.”
In Reclamation’s case against KDD, the
magistrate ruled against KDD and ordered an injunction to
cease water diversions from the river.
KWUA and Reclamation are given a two
week period following the April 11 ruling to file for an
assessment of the findings and recommendations of the
Should a review be granted, the
assessment is conducted by an Article III judge with
approval from the senate.
A release from KWUA said the districts
have not yet decided whether they will request a review.
In accordance with Title 17 U.S.C.
section 107, any copyrighted material
herein is distributed without profit or
payment to those who have expressed a
prior interest in receiving this
information for non-profit research and
educational purposes only. For more
information go to: