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Yurok Tribe responds to 'Takings' outcome

Herald and News 11/19/19

The Yurok Tribe see the outcome of the opinion issued by the U.S. Court of Appeals for the Federal Circuit regarding the long-standing case Baley v. United States stemming from 2001 as defining for their senior in-stream water rights.

The court concluded that the Klamath Basin tribes – Yurok, Hoopa Valley, and the Klamath Tribes – had senior, federally reserved water rights that predate the water rights of Klamath Irrigation Project irrigators, and that the tribes’ water rights require at least enough instream water to ensure the continued existence of tribal trust species listed under the Endangered Species Act (ESA).

In its decision, the court stated that Yurok and other tribes’ water rights “entitles them, at a minimum, to prevent junior appropriators from withdrawing water from the Klamath River in amounts that would cause the endangerment and extinction of the SONCC (Southern Oregon Northern California Coho Salmon).”

The court also determined that the Yurok Tribe has “an implied water right that includes the Klamath River and the flows therein as controlled by the Iron Gate Dam” to support fish habitat.

Officials representing the tribes interests said this means two things: (1) that Yurok water rights require the Bureau of Reclamation to provide, at minimum, enough water to the Klamath River to support salmon habitat and ensure the persistence of coho salmon and, (2) that Klamath Irrigation Project water withdrawals can only occur when there is enough water in the river to ensure the persistence of the fish.

“This decision is very important to define our rights in the basin vis-à-vis other interests,” stated Amy Cordalis, Yurok general counsel, in a news release. “By definitively affirming that our water rights ensure, at a minimum, the persistence of ESA listed species, rather than fighting irrigators or the federal agencies about the existence of our rights, we can move forward in determining what water the ailing fish populations need. This is a key step forward in reclaiming and restoring the Klamath River ecosystem.”

“This ruling affirms the duty of the United States to ensure that the fish in the river are taken care of first before other water uses. The river has far more at stake than just threatened and endangered species, and adequate water to support the entire river ecosystem is a necessary first step in restoring the Klamath River,” said Senior Water Policy Analyst, Michael Belchik, in a news release.

In the Baley case, initiated in fall 2001, Klamath Project irrigators sued the United States after the Bureau of Reclamation temporarily stopped water deliveries to Project users that summer, in a drought year, to meet tribal trust obligations and Endangered Species Act in-stream flow requirements in the Klamath River. This case then followed a complicated procedural path before landing in the Court of Appeals for the Federal Circuit.

Irrigators argued that Yurok did not have water rights to protect coho or Chinook salmon, relying on several novel, and ultimately, losing legal arguments.

The Yurok Tribe is currently in other litigation over the amount of water necessary to ensure the salmon’s survival.

In spring 2019, the Bureau of Reclamation issued a Klamath Irrigation Project operations plan and the National Marine Fisheries Service filed a biological opinion burdened with errors that authorizes insufficient in-stream flows that threaten the existence of salmon. Yurok and Pacific Coast Federation of Fisherman’s Associations are challenging the agencies’ 2019 decisions in federal court.




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