Judge refuses to restrict water releases from
Upper Klamath Lake
A federal judge has denied a temporary
restraining order sought by the Klamath Tribes that would
restrict water releases from Upper Klamath Lake to benefit
threatened sucker fish.
The tribes claim the U.S. Bureau of
Reclamation is prioritizing flows in the Klamath river to
benefit threatened coho salmon at the expense of Lost River
and shortnose suckers, which suffer from lower lake levels.
U.S. District Judge Michael McShane
has now refused to interfere in the agency’s plan to
regulate water in the Klamath Basin, ruling that the tribes
are unlikely to prove the federal government is violating
the Endangered Species Act.
“Here, the Defendant Bureau, in
coordination with expert agencies and all competing
interests, is better equipped to serve the public interest
than a judge with a law degree,” McShane said in the May 6
While the agency’s actions may harm
threatened suckers, it’s taking the “appropriate steps”
under ESA to deal with this year’s severe drought, which
will cause “devastation” to ecosystems and communities from
Upper Klamath Lake to the Pacific Ocean, he said.
The lake has already fallen below the
optimum level for sucker spawning and it’s unlikely to meet
other conditions in a “biological opinion” that guides
operations for the Klamath irrigation project, McShane said.
However, the Bureau expects to keep
the elevation high enough for the fish to migrate through a
shallow area and into a bay with higher-quality water during
the summer, he said.
Though the “terms and conditions” of
the biological opinion are unlikely to be met this year, the
agency has coordinated with the U.S. Fish and Wildlife
Service and National Marine Fisheries Service to adapt to
the drought, McShane said.
“To the extent that the Bureau was
required to engage in informal consultation with USFWS, they
have satisfied this burden by maintaining regular
communication with the Service as they determined the causes
for the low elevation of Upper Klamath Lake and developed
temporary operating procedures to address the situation,”
the judge said.
The government has taken “proactive
steps” to keep the lake’s elevation as high as possible,
such as suspending irrigation deliveries and diversions,
McShane said. “The Bureau cannot control the current
hydrologic conditions; they can only work within these
To obtain a temporary restraining
order, the Klamath Tribes would have to show they’re likely
to prevail in the litigation but McShane said they hadn’t
met this “threshold.”
The Klamath Irrigation District, which
has intervened in the lawsuit, acknowledged that it would
also prefer for the lake level’s to be kept higher to avoid
infringing on its water rights.
However, the district has argued the
agency can’t simply take away water that’s contracted to
irrigators and must instead acquire their water rights.
The Klamath Water Users Association,
which has also intervened, opposed an injunction that would
prohibit the lake from falling below a certain level if that
meant curtailing water available to irrigators.
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