www.klamathbasincrisis.org · A Voice for Klamath River Basin Families, Wildlife, and the Future of the Klamath Project

This Could Be the End of the Klamath Project Under the Trump Administration —
At the Hand of Earthjustice and Amy Cordalis

10 lawsuits in 25 years by the same lawyers - now racing to kill the Trump administration's Klamath policy reset before it ever gets used.
2002 2005 2016 2017 2019 2021 2022 2023 2024 2026

by KBC News editors, Klamathbasincrisis.org · May 6, 2026

We warned ourselves about this eight months ago. We told each other it was coming. And on May 5, 2026, it came — exactly as predicted, from exactly the same lawyers, on exactly the same playbook. This time, the target is not just our farms. It is one of the Trump administration's most consequential Western water decisions, and Earthjustice is asking the same federal judge in California to throw it out before this water year ends.

Amy Cordalis, the former Yurok Tribe attorney who has built a career and FAME on suing the Klamath Project, and Patti Goldman of Earthjustice — the same Patti Goldman who has been filing these cases against our families and communities for over two decades — moved in federal court in San Francisco to throw out the entire 2026 Annual Operations Plan. Right in the middle of irrigation season. With our crops already in the ground. And right on top of the Trump administration's May 2025 legal reset, which finally restored the rule of contract in this basin after thirty years of erosion and continued lawfare

This is the tenth lawsuit in twenty-five years. Same lawyers. Same court. Same season. Same families left to absorb the loss.

Klamath Irrigation District has been educating the Trump Administration on Groundhog Day Lawfare — a repetitive, predictable, calculated attempt to harm the Pacific Flyway, ecosystem, our farmers, our refuges, our communities, our culture, and our economy by creating "waiting waste" through the courts. The wait is the weapon. Every year a family does not know if the water is coming, ground is lost that cannot be recovered. Every season under a cloud is a season a young farmer decides not to take over from his father. Every cycle thins out the basin a little more, exactly the way it was designed to.

And this time, they may finish the job — by undoing the only federal action in a generation that has tried to stop them.

What the Trump Administration Actually Did — And Why Earthjustice Is Panicking

In May 2025, the Department of the Interior under Secretary Doug Burgum issued an Updated Analysis from the Solicitor's Office that reset the legal framework governing how Reclamation operates the Klamath Project. In January 2026, Reclamation followed with its own Reassessment Report. Together, those two documents do something that has not happened in three decades: they put the irrigation contracts back where the law actually places them — as binding federal commitments that cannot be wished away to satisfy ESA flow demands the basin and watershed physically cannot meet.

This was not a radical action. It was a return to the plain text of the 1902 Reclamation Act, the 1905 Klamath Project authorization, and a century of contract law. It restored what every farmer in this basin has known all along: a contract is a contract. Water deliveries to the Klamath Project are not optional, nor opinion-based, and they are not subordinate to flow targets manufactured by Interior advisors operating completely outside the law.

The Updated Analysis is the most important federal action affecting this basin in twenty plus years. And Earthjustice knows it. That is why their motion does not just challenge the 2026 Operations Plan. It asks Judge Orrick to declare the May 2025 Updated Analysis and the January 2026 Reassessment unlawful and vacate them. They are not trying to win a single water year. They are trying to wipe out the Trump administration's Klamath policy entirely, before any future Section 7 consultation can ever rely on it.

What Cordalis and Goldman Are Asking the Court to Do

The motion is set for hearing June 10, 2026, before Judge William Orrick — the same judge who has ruled in Earthjustice's favor before. The Tribe has signaled it intends to file for summary judgment shortly after June 12, with the open intent of getting the case decided before this water year ends — and before the Trump administration can defend its policy on a normal litigation timeline.

First, Cordalis and Goldman want the court to declare unlawful the Department of Interior Solicitor's May 2025 Updated Analysis and Reclamation's January 2026 Reassessment Report. These are the documents that finally put on paper what every farmer in this basin has known for a hundred years. Earthjustice wants those documents wiped off the books before they ever get used in a single Section 7 consultation. If they win, the Trump administration's Klamath reset is a dead letter on arrival.

Second, they want Judge Orrick to vacate the entire 2026 Annual Operations Plan, including the 221,000 acre-foot agricultural allocation announced on April 6. If they win, the Drought Response Agency, the contractors, and every family who has already planted are operating on a number that no longer governs the season. Mid-water-year. After every operational decision has been made.

Right now, today, more than 1,000 cubic feet per second is rolling over Keno Dam. Inflows to Upper Klamath Lake are running about 910 cfs. The river below Keno is already getting more water than is naturally coming in. The lawsuit asks for more. It asks for water that does not exist except in the wettest one-in-three years on record, based on Hardy Flow numbers cooked up by Clinton-Obama-Biden Interior advisors that have never matched the actual hydrology of this basin.

MEET THE ARCHITECT OF THE FRAMEWORK TRUMP JUST RESET

Behind every legal theory Earthjustice deploys against this basin is the work of one man: Robert Anderson, Interior Solicitor under three Democratic administrations, including Joe Biden.

Anderson advanced the "stored water" doctrine that pretends our irrigation contracts don't exist. He helped build the legal framework that elevated Hardy Flow numbers — flows the basin and watershed physically cannot produce — above every other use of Klamath water. He spent decades shaping a body of law whose endpoint is exactly what we are watching now: a federal judge being asked to dismantle the Klamath Project family farmers, and our contracts, mid-water-year.

The May 2025 Updated Analysis Secretary Burgum's Interior Department issued is the first federal document in over twenty years that begins to undo Anderson's work. That is exactly why Cordalis and Goldman are racing to kill it before it ever gets used.

Cordalis and Goldman did not invent this strategy. They are executing Anderson's blueprint, on a deadline tied to the Trump administration's window of action. This is not three lawyers. It is a thirty-year project agenda, and 2026 is the year they intend to finish it — by erasing the policy reset before the new administration can defend it or initially implementing it.

The Real Body Count Earthjustice Will Not Talk About

Earthjustice puts coho salmon on its fundraising page and calls itself a champion of fish. Let us talk about the fish and the birds Earthjustice does not raise money for.

When water gets diverted away from the Lower Klamath and Tule Lake National Wildlife Refuges to satisfy Earthjustice's demands for downstream flows, the refuge wetlands shrink. When wetlands shrink and warm, avian botulism — Clostridium botulinum type C — explodes through the duck and goose populations of the Pacific Flyway. Every year we have buried tens of thousands of birds in this basin from botulism outbreaks driven by exactly the water management Earthjustice keeps demanding. We have watched mallards, pintails, and shovelers convulse and drown in inches of stagnant, oxygen-starved water that should have been flushed and refreshed. We have seen the endangered fish that live in our refuges — the very species the ESA is supposed to protect — die in the same water.

These are federal wildlife refuges. They sit on the Pacific Flyway, the largest migratory bird corridor in North America. They are among the most ecologically important wetlands on the continent. And they are starved every year while Earthjustice argues in court that more water must go past them, down the river, to Hardy Flow numbers that exceed what the watershed produces.

Amy Cordalis and Patti Goldman do not file lawsuits for the birds in our refuges. They do not file lawsuits for the fish in our refuges. They file lawsuits for one species, in one stretch of one river, and they let everything else in this basin die to make their point. The Trump administration's reset is the first federal action that even acknowledges this trade-off honestly — which is precisely why it has to be killed before it can be used to defend a refuge water allocation.

The Ninth Circuit Front Has Been Open for Two Years

While Cordalis and Goldman open this new attack at the trial court, their old attack is still pending. The Ninth Circuit Court of Appeals heard oral argument in Yurok Tribe v. Bureau of Reclamation on June 12, 2024 — the appeal of Judge Orrick's 2023 ruling on stored water. Twenty-three months later, that panel still has not ruled.  The water is the weapon.

In September 2025, the Ninth Circuit declined to dismiss the appeal as moot, holding that the underlying question — whether the ESA can override our adjudicated water rights — remains live. So Earthjustice is now fighting on two fronts at once. They appeal what they lose. They sue again on what they have already won. They do not stop. They were never going to stop. And our farms wait, and wait, and wait, and the wait itself is what kills us.

The Trump administration's Department of Justice will be the team defending the May 2025 Updated Analysis in court. Earthjustice has timed this attack to land before that defense can fully mature, before Reclamation can apply the Updated Analysis in a single completed Section 7 consultation, and before any appellate court can rule on the broader question. This is a deliberate effort to deny the new administration the chance to put its policy on the ground and analyze the improvements before a friendly judge wipes it out.
Front One - Appeal, 9th Circuit, argued June 2024. Still pending - 23 months
Front Two - New Motion, N.D Cal. - filed May 5, 2026. Hearing June 10, 2026

Same plaintiff team. Same lead attorneys. Two simultaneous attacks on the 2026 water year.

A two-front legal pincer around the 2026 water year.

Cordalis and Goldman's Vision of the Future of Klamath and Modoc Counties

Strip away the legal jargon and read what they are actually asking for in plain English:

No water to small family farms = No crops = No family income = No payment of O&M costs to the District = Liens = Foreclosure = Failed county tax assessments = Reduced county programs = Economic collapse of Klamath and Modoc counties.

That is not a slippery-slope argument. That is a description of what is in their motion papers. Read them. They want the 2026 allocation thrown out. They want the contracts declared subordinate to ESA flows that the basin physically cannot provide. They want every future operations plan written from the assumption that contract deliveries are the last priority, not the first. And they want the Trump administration's Updated Analysis vacated so no future Reclamation policy can ever lean on it. They have spent thirty years building the legal scaffolding to get exactly this outcome, and now they are asking a friendly judge to put the keystone in.

If Judge Orrick gives them what they want, the Klamath Project as we have known it for 120 years is over — and the new administration's signature Western water policy is dead before it ever moved a single acre-foot. Not in some distant theoretical future. This year. With this ruling. With these crops already in the ground.
Cordalis & Goldman's vision of the future of Klamath and Modoc Counties:
No water to family farms
No crops no harvest
No Income family farm
Unpaid O&M to the districts
Liens on the land
Foreclosure, land lost
Tax base fails, county assessments
Economic collapse, Klamath and Modoc counties

What collapses with the counties: seniors, schools, roads, refuges, waterfowl, refuge fish.

The cascade Earthjustice is asking the court to trigger.

What We Are Asking Of the Trump Administration

To President Trump, to Secretary Burgum, to Acting Commissioner Cameron, to Acting Solicitor of the Interior, to the Department of Justice's Environment and Natural Resources Division, and to the Western delegation in Congress: this is your fight as much as it is ours.  We all share the benefits.

The May 2025 Updated Analysis is your policy. The January 2026 Reassessment is your policy. The 221,000 acre-foot allocation announced April 6 is your policy. Every one of those decisions is now in the crosshairs of a motion designed to be heard, ruled on, and appealed before this water year ends — before your administration has had a single full irrigation season to demonstrate that the rule of contract can be restored to a Western reclamation project without ecological catastrophe.

WHY D.C. SHOULD BE WATCHING THIS MOTION

This case is not local. It is the test case for whether a new administration can reset the legal framework on a Western reclamation project at all, or whether thirty years of Solicitor's opinions issued under Democratic administrations have become so entrenched that no Republican policy can survive judicial review in California.

If Judge Orrick vacates the May 2025 Updated Analysis on Earthjustice's expedited timeline, every other Western water reset under consideration at Interior is on notice: the Northern District of California is where your administration's policy goes to die, and the timeline is set by Earthjustice, not by you.

This is the moment to defend the policy in court with everything the Department of Justice has — full briefing, expert hydrology, refuge mortality data, and the operational record that shows the basin physically cannot meet the flows Earthjustice is demanding. Half measures lose this case. And losing this case loses the basin, the refuges, the Pacific Flyway, and the ability to adhere to Federal contracts.

This is not litigation. It is a strategy for the deliberate dismantling of an entire federal reclamation project and the rural communities built around it — timed to land at the moment a new administration is most exposed. Earthjustice files the same pre-suit notice every time Reclamation issues a plan they do not like. They file in the Northern District of California, where they have a favorable judge. They stack procedural and substantive ESA claims so we have to win every one. They time every filing to coincide with the irrigation allocation. They cite each prior ruling as "settled law" against the next plan. They coordinate with the Tribe, with commercial fishermen, and with environmental nonprofits so the case looks bigger than it is.

We are not the villains in this story. We are the people, and military veterans, who built the canals, who feed the country, who steward the refuges that shelter the Pacific Flyway, who pay the property taxes that keep the schools open, and who are now being told by lawyers in Seattle and San Francisco that none of that matters because of one fish in one river.

Earthjustice wants the Klamath Project to end. Amy Cordalis has said as much in her own words, in her own interviews, for over a decade. The only question left is whether the Trump administration — its Department of Justice, its Department of the Interior, and its allies in Congress — will fight for the policy reset they have already issued, or whether they will let a federal judge in California undo it on a sixty-day timeline that nobody outside Earthjustice's office building got to set.

One season. One season where the families who feed this country, the refuges that shelter the flyway, and the fish in our own waters are not held hostage to a sixty-day notice and a friendly judge. One season for the Trump administration to prove that its Klamath policy is real, defensible, and durable.

That is all we are asking. And it is more than this basin has been given in twenty-five years.

https://earthjustice.org/about/financial-statements
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Sixty-Day Notice of Violations of the Endangered Species Act with Respect to the
2026 Annual Klamath Project Operations Plan

YUROK TRIBE
190 Klamath Boulevard • P.O. Box 1027 • Klamath, CA 95548
810 THIRD AVENUE, SUITE 610
SEATTLE, WA 98104
April 13, 2026
VIA EMAIL & CERTIFIED MAIL, RETURN RECEIPT REQUESTED
The Honorable Doug Burgum
Secretary of the Interior
U.S. Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
douglas_burgum@ios.doi.gov
ExcSec@ios.doi.gov
Scott J. Cameron
Acting Commissioner
U.S. Bureau of Reclamation
1849 C Street, N.W. (91-00000)
Washington, D.C. 20240-0001
scott_cameron@ios.doi.gov
Adam Nickels
Acting Regional Director
California-Great Basin Regional Office
U.S. Bureau of Reclamation, Region 10
2800 Cottage Way (MP-100)
Sacramento, CA 95825-1898
anickels@usbr.gov
Alan Heck
Area Manager
Klamath Basin Area Office
6600 Washburn Way (KO-100)
Klamath Falls, OR 97603-9365
aheck@usbr.gov
Eugenio Piñeiro Soler
Assistant Administrator
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910
eugenio.e.pineirosoler@noaa.gov
Re: Sixty-Day Notice of Violations of the Endangered Species Act with Respect to the
2026 Annual Klamath Project Operations Plan
Dear Secretary Burgum, Acting Commissioner Cameron, Acting Regional Director Nickels,
Area Manager Heck, and Assistant Administrator Piñeiro Soler:
On behalf of the Yurok Tribe, we hereby provide notice pursuant to the Endangered
Species Act (“ESA”), 16 U.S.C. § 1540(g)(2)(A), of violations of the Endangered Species Act
(“ESA”) with regard to the 2026 Annual Operations Plan for the Klamath Project. The 2026 Plan
incorporates a legal analysis by the Department of the Interior (“Interior”) and Bureau of
Reclamation (“Reclamation”) that reverses longstanding legal priorities and elevates irrigation
Sixty-Day Notice
April 13, 2026
Page 2
over the ESA and the Yurok Tribe’s senior water rights. Reclamation is violating the ESA
§ 7(a)(2) by failing to complete reinitiated consultation on the 2026 Plan, which deviates
fundamentally from the National Marine Fisheries Service’s (“NMFS”) 2024 biological opinion
(also “2024 BiOp”) on Reclamation’s long-term operations plan and exceeding the incidental
take statement’s limits on allowable take of threatened Southern Oregon/Northern California
Coast (“SONCC”) Coho Salmon.
Interior’s revisionist legal analysis is fundamentally flawed and blatantly incorrect
because no law or irrigation contract gives irrigators legal priority to water over the needs of
ESA-listed species that are also subject to the Yurok Tribe’s senior water right to support its
fishery. The courts have continuously rebuffed irrigators’ arguments that sought to prioritize
irrigation over the ESA and senior Tribal water rights, including in the years since the first
Trump administration prepared legal analyses suggesting otherwise. Notably, while the irrigators
have embraced the arguments made in the 2020 analysis, neither Interior nor Reclamation have
to date put forward those arguments in court; instead they have argued to the contrary that the
legal priorities to water remain as they have been for decades with the ESA and Tribal rights
taking precedence over irrigation when water is too scarce to meet all demands.
Now, Interior and Reclamation are trying to make the case for upending these
longstanding legal priorities by misreading a recent law and a recent case that do not stand for
the propositions asserted and by ignoring the overwhelming weight of contrary legal authority.
This selective and poor legal reasoning cannot withstand the headwinds of consistent precedent
holding that the ESA and senior Tribal water rights take precedence in Reclamation’s operation
of the Klamath Project.
Reclamation must reinitiate consultation on the 2026 Plan for two interrelated reasons.
First, under the Plan, Reclamation is delivering more water for irrigation than allowed under the
NMFS 2024 biological opinion and the terms and conditions in the applicable incidental take
statement. Second, the 2026 Plan abandons the methodology required by the 2024 biological
opinion, which has resulted in lower river flows. In doing so, Reclamation is violating the
incidental take statement’s surrogate limits on the amount of allowable take. Both of these
deviations are resulting in fundamental changes in Klamath Project operations that were not
analyzed in the 2024 biological opinion.
Sixty-Day Notice
April 13, 2026
Page 3
TABLE OF CONTENTS
LEGAL BACKGROUND ...............................................................................................................5
I. RECLAMATION MUST ENSURE ITS OPERATION OF THE KLAMATH
PROJECT COMPLIES WITH ESA SECTION 7(A)(2). ....................................................5
A. The Klamath Project Caused Severe Salmon Declines that Led to ESA
Listings.....................................................................................................................5
B. Reclamation Has a Legal Obligation to Engage in Section 7(a)(2)
Consultation to Ensure Its Operation of the Klamath Project Will Avoid
Jeopardy to Listed Salmon or Adverse Modification of Salmon Critical
Habitat. .....................................................................................................................6
C. Longstanding Precedent Holds that Reclamation’s ESA Obligations Take
Precedence Over Water Deliveries for Irrigation. ...................................................8
1. Patterson held more than 25 years ago that Reclamation must
ensure its operation of the Klamath Project complies with Section
7(a)(2). .........................................................................................................8
2. Baley held that Reclamation’s compliance with Section 7(a)(2) is
necessary to prevent extinction of the Yurok Tribe’s fishery. .....................9
THE REASSESSMENT ................................................................................................................11
THE UPDATED ANALYSIS IS UNLAWFUL ...........................................................................12
I. THE UPDATED ANALYSIS MISAPPLIES THE ESA CONSULTATION
REGULATIONS................................................................................................................12
II. NO STATUTE REMOVES RECLAMATION DISCRETION TO OPERATE
THE KLAMATH PROJECT TO BENEFIT LISTED SALMON. ...................................14
A. Home Builders Held That Section 7(A)(2) Is Inapplicable Where a Statute
Deprives the Agency of Any Power to Benefit Listed Species. ............................15
B. The 2025 Klamath Basin Water Agreement Support Act in No Way
Precludes Reclamation Compliance With Section 7(a)(2) or Absolves
Reclamation of Liability for Violating Section 9. .................................................16
Sixty-Day Notice
April 13, 2026
Page 4
III. THE KLAMATH IRRIGATION CONTRACTS LEAVE RECLAMATION
AMPLE AUTHORITY TO REDUCE CONTRACT DELIVERIES TO
PROTECT ESA-LISTED SALMON. ...............................................................................19
A. Longstanding Precedent Limits Water Available Under Water Supply
Contracts When Necessary to Comply With the ESA. ..........................................19
B. NRDC v. Haaland Did Not Overturn Legal Precedent That Held That the
Amount of Water Available for Irrigation Contracts Is Subject to ESA
Section 7(A)(2). .....................................................................................................20
IV. IRRIGATOR WATER RIGHTS AND STORED WATER ..............................................22
1. Interior’s 2021 “Stored Water” Analysis is Legally Erroneous.................23
2. The Updated Analysis Runs Counter Runs Counter to Oregon
Water Law. .................................................................................................24
3. The Updated Analysis Ignores Recent Developments Requiring
Release of “Stored Water” When Needed to Comply with the ESA. ........25
4. 2025 Act Lends No Support to the Updated Analysis’ Approach to
Senior Tribal Water Rights. .......................................................................26
5. Interior’s Updated Analysis Misstates the Relevance of Arizona v.
Navajo Nation. ...........................................................................................26
THE 2026 ANNUAL OPERATIONS PLAN IMPLEMENTING THE UPDATED
ANALYSIS VIOLATES THE ESA. .................................................................................27
CONCLUSION ..............................................................................................................................37
Sixty-Day Notice
April 13, 2026
Page 5
LEGAL BACKGROUND
I. RECLAMATION MUST ENSURE ITS OPERATION OF THE KLAMATH PROJECT
COMPLIES WITH ESA SECTION 7(A)(2).
A. The Klamath Project Caused Severe Salmon Declines that Led to ESA Listings.
The Klamath Basin in southern Oregon and northern California is the drainage basin for
the Klamath River. The Klamath River was once the third most productive salmon river in the
continental United States.
The Yurok Tribe is a sovereign, federally recognized Indian Tribe. Since time
immemorial, the Yurok Tribe has lived and fished on the Lower Klamath River in northern
California. An 1855 Executive Order set aside the Reservation as a permanent homeland for the
Yurok Tribe. The Yurok Reservation extends for one mile on each side of the Klamath River in
northern California from the mouth at the Pacific Ocean approximately 45 miles upriver.
The Executive Order that created the Reservation vested the Yurok Tribe’s federally reserved
fishing and water rights. Parravano v. Babbitt, 70 F.3d 539, 541 (9th Cir. 1995); Baley v. United
States (Baley II), 942 F.3d 1312, 1337, 1340-41 (Fed. Cir. 2019). The Tribe’s fishing rights are
integral to the Yurok way of life. The Klamath River and its fishery are “not much less necessary
to the existence of the [Yurok] than the atmosphere they breathe[.]” Blake v. Arnett, 663 F.2d
906, 909 (9th Cir. 1981) (quoting United States v. Winans, 198 U.S. 371, 381 (1905)). The
Yurok Tribe has federally reserved water rights that include, but are not limited to, sufficient
water to support its fishery.
Congress authorized creation of the Klamath Irrigation Project in the Reclamation Act of
1902 and a 1905 Act allowing the raising and lowering of Upper Klamath Lake levels. Upper
Klamath Lake, Oregon’s largest lake, is shallow, making it dependent on inflows and susceptible
to droughts. The lake drains into the Link River and then eventually into the Klamath River.
The federal government paid for and built a massive complex system of irrigation works
to enable farming by settlers in the arid upper basin. It owns Link River Dam, which controls the
flow of water out of Upper Klamath Lake, which has come to serve as a reservoir for the Project.
The Klamath Project facilitates the withdrawal of large volumes of water for irrigated agriculture
in the upper basin. The withdrawals have significantly reduced the amount of water available for
flows in the Klamath River.
Before the Klamath Project, the Klamath River supported robust salmon populations and
thriving fisheries. Several species of anadromous fish still inhabit the Klamath River and its
tributaries, including spring and fall-run chinook and coho Salmon. Populations of salmon
plummeted with depleted flows resulting from the Klamath Project.
In 1997, NMFS listed SONCC Coho Salmon as threatened under the ESA. 62 Fed. Reg.
24588 (May 6, 1997). In 1940, SONCC Coho Salmon, which includes the Klamath River coho
salmon population, were estimated to range between 150,000 and 400,000 naturally spawning
Sixty-Day Notice
April 13, 2026
Page 6
fish annually. By the 1970s, this coho population had become very depressed with naturally
producing adults declining to approximately 10,000. The California portion of the population had
by then declined to six percent or less of its abundance during the 1940s. NMFS identified
agricultural development and water withdrawals for irrigation as major activities responsible for
the decline of SONCC Coho Salmon. Id. at 24592-93. NMFS designated critical habitat for
SONCC Coho Salmon in 1999 and included most of the Klamath River below Iron Gate Dam in
northern California in the designation. 64 Fed. Reg. 24049 (May 5, 1999). NMFS found that
irrigation water withdrawals and dam operations were “[a]ctivities that may require special
management considerations” for juvenile coho salmon. Id. at 24059.
In its five-year status review completed in 2024, NMFS found that SONCC Coho Salmon
continue to be at high risk of extinction. The most important action to safeguard these coho
salmon against extinction is to ensure sufficient instream flows, including by limiting water
diversions. NOAA Fisheries, NMFS West Coast Region, Five-Year SONCC Coho Salmon
Review (2024).1
In September 2024, the Klamath River Renewal Project completed the removal of four
dams on the mainstem Klamath River in the largest dam removal project in history. Dam
removal made hundreds of miles of stream habitat accessible to salmon for the first time in
nearly one hundred years. Already in 2024, salmon made their way back to streams in Oregon to
spawn and the number of returning salmon increased exponentially in 2025.
Before dam removal, Iron Gate Dam blocked fish passage to the upper basin and served
as the point of compliance in biological opinions. With the removal of the dams, the Keno
Reservoir has become a key point at which water flows and ESA compliance is determined.
While PacifiCorp previously operated Link River Dam under direction from Reclamation, the
operation of Link River Dam has now shifted to Reclamation.
B. Reclamation Has a Legal Obligation to Engage in Section 7(a)(2) Consultation to
Ensure Its Operation of the Klamath Project Will Avoid Jeopardy to Listed
Salmon or Adverse Modification of Salmon Critical Habitat.
Under Section 7(a)(2) of the ESA, federal agencies must ensure that their actions are not
likely to jeopardize the continued existence of any threatened or endangered species or result in
the destruction or adverse modification of the species’ critical habitat. 16 U.S.C. § 1536(a)(2).
Such agencies, called “action agencies,” must discharge this obligation in consultation with, and
with the assistance of, the expert fish and wildlife agency—NMFS in the case of salmon. Id.
“Action” is defined broadly to encompass “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal agencies.” 50 C.F.R. § 402.02;
accord 16 U.S.C. § 1536(a)(2). Reclamation is an agency subject to the ESA, and its operation of
the Klamath Project is an action subject to Section 7 of the ESA. Klamath Water Users
Protective Ass’n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999).
1 https://www.fisheries.noaa.gov/s3//2024-12/soncc-coho-5yr-review.pdf.
Sixty-Day Notice
April 13, 2026
Page 7
Under the joint consultation regulations issued by NMFS and the Fish and Wildlife
Service (“FWS”), “Section 7 and the requirements of this part apply to all actions in which there
is discretionary Federal involvement or control.” 50 C.F.R. § 402.03. Reclamation has
discretionary involvement and control of Klamath Project operations, which it has exercised for
decades to provide flows to the Klamath River to sustain salmon. While it provides water
deliveries for irrigation, it also operates the Project to provide flood control, to provide flows for
salmon, and to provide water for federal wildlife refuges in and adjacent to the Project area. See
Baley v. United States (Baley I), 134 Fed. Cl. 619, 636 (Ct. Cl. 2017), aff’d, 942 F.3d 1312 (Fed.
Cir. 2019) (Klamath Project purposes include fish and wildlife); Pac. Coast Fed’n of
Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1230-31 (N.D. Cal.
2001) (same). Indeed, at the time of the Ninth Circuit’s 1999 affirmation that Reclamation has
control to direct Klamath Project operations to support salmon, Reclamation had long been
subject to mandatory minimum instream flow requirements to support salmon downstream of
Link River Dam required by the FERC license. Klamath Water Users Protective Ass’n v.
Patterson, 15 F. Supp. 2d 990, 992 (D. Or. 1998), aff’d, 204 F.3d 1206 (9th Cir. 1999).
For actions that may adversely affect a listed species or its critical habitat, a formal
consultation with the fish and wildlife agency is required. 50 C.F.R. § 402.14. Reclamation’s
operation of the Klamath Project is an action subject to Section 7 that is likely to adversely affect
listed salmon and therefore must undergo formal Section 7 consultation. Pac. Coast Fed’n of
Fishermen’s Ass’ns, 138 F. Supp. 2d at 1230-31, 1244-47. The updated legal analysis
acknowledges as much.
At the conclusion of a formal consultation, the expert fish and wildlife agency issues a
biological opinion assessing the effects of the action on listed species and designated critical
habitat, determining whether the action is likely to jeopardize the continued existence of the
species or adversely modify its critical habitat and, if so, offering a reasonable and prudent
alternative that will avoid jeopardy or adverse modification. 16 U.S.C. § 1536(b)(3)(A);
50 C.F.R. § 402.14(g)-(h).
Under the ESA, NMFS can issue an incidental take statement authorizing some amount
of take when it has found the proposed action is not likely to cause jeopardy or adverse
modification of critical habitat; an incidental take statement must impose restrictions to minimize
the effects of the take. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). Such an incidental take
statement provides a safe harbor, insulating from take liability activities undertaken in
compliance with the incidental take statement’s terms and conditions. 16 U.S.C. § 1536(o)(2);
16 U.S.C. § 1536(b)(4)(C).
Exceeding the amount of allowable take requires reinitiating consultation. 50 C.F.R.
§ 402.16(a)(1). Reinitiation is also required when an action is subsequently modified in a manner
that has effects on listed species that were not considered in the biological opinion. 50 C.F.R.
§ 402.16(a)(3).
Violation of incidental take statement’s terms and conditions eliminates the safe harbor
afforded by the incidental take statement. 16 U.S.C. § 1536(o)(2). When stripped of the safe
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harbor, any take of listed species by Reclamation and irrigation districts obtaining water from the
Project violates the ESA’s take prohibition. Id.
C. Longstanding Precedent Holds that Reclamation’s ESA Obligations Take
Precedence Over Water Deliveries for Irrigation.
1. Patterson held more than 25 years ago that Reclamation must ensure its
operation of the Klamath Project complies with Section 7(a)(2).
In Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d at 1213, the Ninth
Circuit held that Reclamation must comply with Section 7(a)(2) in operating the Klamath
Project, holding:
Because Reclamation retains authority to manage the Dam, and because it remains
the owner in fee simple of the Dam, it has responsibilities under the ESA as a
federal agency. These responsibilities include taking control of the Dam when
necessary to meet the requirements of the ESA, requirements that override the water
rights of the Irrigators. Accordingly, we hold that the district court did not err in
concluding that Reclamation has the authority to direct Dam operations to comply
with the ESA.
Patterson upheld Reclamation’s authority to direct PacifiCorp, which operated the dam under a
federal contract, to release flows to the river to meet Reclamation’s ESA 7(a)(2) obligations.
These holdings withstand the test of time. In ongoing litigation brought by the United
States, joined by the Yurok Tribe and other Klamath Basin Tribes, a federal district court held
that Patterson remains the controlling law on whether the ESA applies to the Klamath Project
and overrides water deliveries for Klamath irrigation. See Yurok Tribe v. U.S. Bureau of
Reclamation (Yurok II), 654 F. Supp. 3d 941 (N.D. Cal. 2023), appeals pending, Nos. 23-15499
& 23-15521 (9th Cir.).
In defending the district court’s ruling, the United States explained that “Patterson
remains good law.” U.S. Answering Br. at 29, Yurok Tribe v. U.S. Bureau of Reclamation,
Nos. 23-15499 & 23-15521 (9th Cir.) (ECF No. 60). “[W]hen there is a conflict with a demand
for water storage or supply under Project contracts, the ESA’s mandates ‘override the water
rights of [Project] irrigators.” Id. at 33 (quoting Patterson); see also id. at 34 (finding further
support in the “‘well settled’ principle that ‘contractual arrangements can be altered by
subsequent Congressional legislation.’”)
Another district court also recently reaffirmed and applied the legal priorities confirmed
in Patterson in Klamath Tribes v. U.S. Bureau of Reclamation, 2024 WL 472047, No. 1:22-cv-
00680-CL, *4-5 (D. Or. Feb. 7, 2024). The district court held that Reclamation’s 2022 temporary
operations plan violated both Section 7 and Section 9 because it allocated approximately 60,000
acre-feet of water to irrigation beyond what would be allowed under the controlling Fish and
Wildlife Service biological opinion. This outcome contrasted with the same court’s rejection of
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the Klamath Tribes’ challenge to the 2021 temporary operations plan because the court refused
to elevate endangered fish in Upper Klamath Lake over ESA-listed salmon in the Klamath River,
as the Klamath Tribes had urged. See Klamath Tribes v. U.S. Bureau of Reclamation, 2024 WL
471977, No. 1:21-cv-00556-CL (D. Or. Feb. 7, 2024) (denying Klamath Tribes’ motion for
summary judgment); see also Klamath Tribes v. U.S. Bureau of Reclamation, 537 F.Supp.3d
1183 (D. Or. 2021) (denying Klamath Tribes’ motion for preliminary injunction). In 2022,
Reclamation elevated irrigation over the ESA, which the court held is impermissible under Ninth
Circuit precedent beginning in Patterson. Klamath, 2024 WL 472047, at *4-5.
2. Baley held that Reclamation’s compliance with Section 7(a)(2) is
necessary to prevent extinction of the Yurok Tribe’s fishery.
It has long been recognized that the Yurok Tribe has federally reserved water rights that
include sufficient water to support its fishery. See Parravano, 70 F.3d at 541. It has also been
recognized that these rights are senior to and have priority over Reclamation’s and irrigators’
rights to use water for irrigation in the Klamath Basin. Baley II, 942 F.3d at 1337, 1340-41.
In Baley, Klamath Basin irrigators brought a Fifth Amendment takings case based on
Reclamation’s 2001 limitations on diversions for irrigation made to comply with the ESA. The
irrigators failed to prove an unconstitutional taking because their water rights were subordinate
to the Yurok Tribe’s senior Tribal water rights, and Reclamation’s actions in temporarily halting
irrigation deliveries to meet its ESA obligations to avoid extinction of salmon supported by the
Yurok Tribe’s water rights for its fishery. Three holdings in Baley are instructive.
First, due to the territorial limits on state jurisdiction over water, it has long been settled
that an adjudication of water rights in one state cannot cause prejudice to water users in a
downstream state. See Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92, 102-03 (1938). Respecting the limits on state authority, the Oregon Water
Resources Department (“OWRD”) limits its general stream adjudication to the use of water in
Upper Klamath Lake, its tributaries, and the upper most reaches of the Klamath River. Klamath
Irrigation Dist. v. Or. Water Res. Dep’t (KID v. OWRD), 321 Or. App. 581, 585 (2022). In 2014,
the administrative phase of the adjudication concluded with the issuance of what is called the
Amended Corrected Findings of Fact and Order of Determination (“ACFFOD”), which is
currently being reviewed in the Klamath County Circuit Court. Klamath Irrigation Dist. v. U.S.
Bureau of Reclamation (KID v. BOR), 48 F.4th 934, 941 (9th Cir. 2022), cert. denied, 144 S.Ct.
342 (2023).
The Federal Circuit in Baley explained that Oregon’s stream adjudication could not
include federal and state rights in California; “states have the ability to adjudicate rights in a
water or river system within their jurisdiction, but they cannot adjudicate water rights in another
state.” Baley II, 942 F.3d at 1335, 1341 quoting United States v. Dist. Ct. for Eagle Cnty., Colo.,
401 U.S. 520, 523 (1971) (“No suit by any State could possibly encompass all of the water rights
in the entire Colorado River which runs through or touches many states. The ‘river system’ must
be read as embracing one within the particular State’s jurisdiction.”). Accordingly, the Yurok
Tribe did not waive its water rights, nor were they extinguished, because the Yurok Tribe did not
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participate in the Klamath Basin Adjudication (“KBA”). Id. at 1341. The Ninth Circuit has
embraced this holding in two recent cases. See KID v. BOR, 48 F.3d at 947 (rights of California-
based Tribes “were not adjudicated in the Oregon KBA”); In re Klamath Irrigation Dist. (In re
KID), 69 F.3d 934, 941-43 (9th Cir. 2023), cert. denied, 144 S.Ct. 552 (2024) (Yurok Tribe’s
water rights were not and could not be adjudicated in the KBA because of limits to Oregon’s
territorial jurisdiction).
Second and related, Reclamation has obligations to protect the senior Tribal water rights
regardless of whether they have been adjudicated or quantified. Baley II, 942 F.3d at 1340, 1341.
The Ninth Circuit cited this holding with approval in In re KID, stating that the “Tribes did not
participate in the KBA, but the Federal Circuit concluded in related litigation that their rights are
protected even though they were not adjudicated because ‘there is no need for a state
adjudication to occur before federal reserved rights are recognized.’” 69 F.3d at 939, citing
Baley II, 942 F.3d at 1340-41.
Third, Baley II rejected the Klamath irrigators’ Fifth Amendment takings claim because:
“[a]t the bare minimum, the Tribes’ rights entitle them to the government’s compliance with the
ESA in order to avoid placing the existence of their important tribal resources in jeopardy.” 942
F.3d at 1337. The Ninth Circuit recently cited this standard from Baley II with approval.
In KID v. BOR, 48 F.4th at 940, irrigation districts challenged the 2019 Klamath Project
operations plan, seeking to prevent Reclamation from using water from Upper Klamath Lake
(“UKL”) for flows in the Klamath River or otherwise limiting the amount of water available for
irrigation. Two Klamath Basin Tribes intervened and obtained dismissal under Rule 19 for
failure to join the Tribes. The Ninth Circuit upheld the dismissal because “the Tribes’ water
rights are ‘at a minimum coextensive with Reclamation’s obligations to provide water for
instream purposes under the ESA,’” and the lawsuit seeking to “reprioritize or otherwise alter
Reclamation’s ability or duty to fulfill the requirements of the ESA implicates the Tribes’ long-
established reserved water rights.” Id. at 943-44.
In re KID, 69 F.4th at 943 n.9, upheld removal to federal court of a lawsuit seeking to
preclude ESA compliance based on Oregon-issued water rights to irrigators. The case began
when KID, invoking its water rights, filed a motion in the Oregon trial court reviewing the KBA
seeking to enjoin Reclamation from releasing flows to the Klamath River. After Reclamation
removed the case to federal court, the district court denied KID’s motion to remand, because
KID did not seek to administer rights determined in the KBA but rather sought to relitigate
Reclamation’s authority to release water to satisfy the ESA and senior Tribal rights. The Ninth
Circuit refused to issue a writ of mandamus directing remand because the KBA did not
adjudicate Yurok Tribe’s water rights or Reclamation’s ESA obligations and therefore KID’s
motion belonged in federal court. In the course of this ruling, the court cited the Baley standard
with approval, as well as precedent holding that KID’s rights are subservient to Tribal rights and
Reclamation’s ESA responsibilities. Id. at 939 (“‘At the bare minimum,’ the Tribes hold rights to
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an amount of water that is at least equal, but not limited to, the amount necessary to fulfill
Reclamation’s ESA responsibilities.”).2
THE REASSESSMENT
In the Trump administration’s first term, the Solicitor of Interior issued several
memoranda purporting to find a basis to reorder the legal priorities to water in the Klamath
Basin. Interior never implemented the reordered priorities because of the change of
administrations. Secretary Haaland rescinded the memorandum, and during her tenure, Interior
repeatedly argued in court that the ESA continues to take precedence over irrigation contracts
and water rights. Most prominently in Yurok Tribe v. Bureau of Reclamation, the United States
challenged an Oregon Water Resources Department order prohibiting the use of “stored water”
for Klamath River flows, arguing that the Oregon order was preempted by the ESA and
Reclamation’s authority and discretion to release such flows in support of the Yurok Tribe’s
senior water rights to support its fishery. Reclamation also opposed KID’s position in In re KID
that its adjudicated water rights prohibit the release of flows to the Klamath River for ESA
purposes. And Reclamation brought a breach of contract case against the Klamath Drainage
District when the District took water against Reclamation’s orders, predicated on its operations
plan developed to comply with the ESA. These legal developments are described more fully
below. See infra pp. 19-22.
The United States has now switched sides. Secretary of Interior Doug Burgum directed
the Interior Solicitor to reinstate the legal analyses from the first Trump administration. Mem.
from Secretary Doug Burgum to Solicitor (Feb. 10, 2025) (rescinding withdrawal of 2020 ESA
analyses). In May 2025, the Acting Interior Solicitor released an updated analysis of
Reclamation’s ESA obligations, in which he concluded that irrigators’ water contracts and water
rights are nondiscretionary and take precedence over water releases to the Klamath River to
comply with the ESA and sustain salmon. Acting Solicitor Klamath Updated Analysis of
Endangered Species Act Obligations (May 14, 2025) (“Updated Analysis”). The Updated
Analysis further concluded that water “stored” in Upper Klamath Lake must be used for irrigator
water rights and only “natural flow” can be released to the Klamath River to support Tribal water
rights. In January 2026, Reclamation issued its reassessment concluding that water releases for
irrigation and fulfillment of Klamath irrigation contracts are nondiscretionary and must be part of
the environmental baseline for ESA compliance purposes. Report on Reassessment for
Conforming Operations of Klamath Project to Legal Requirements (Jan. 2026) (“Reclamation’s
Reassessment”). It reiterated that Reclamation must operate the Klamath Project to meet the
needs of irrigators before releasing water to comply with the ESA. This notice refers to the
Updated Analysis and Reclamation Reassessment collectively as the “Reassessments.”
2 While the Ninth Circuit cited a Regional Solicitor’s opinion that the May 2025 Acting Solicitor
rescinded, id. at 940, the court did not reach a legal conclusion by deferring to that opinion.
Instead, the court relied on the common-sense proposition that Klamath irrigation contracts are
“subject to the availability of water,” a well-settled proposition confirmed by the contracts’ terms
and in other cases construing the contracts. See infra pp. 19-22.
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The Updated Analysis acknowledges that Reclamation has extensive authority and
discretion to operate the Klamath Project to benefit listed fish species and therefore must ensure
its operation of the Project complies with Section 7(a)(2). It then adopts a revisionist legal
analysis that shrinks the reach of Section 7(a)(2) so that it extends only to water that is available
after meeting the demands of Klamath Basin irrigators. As to Reclamation’s contracts with
Klamath irrigators, the Updated Analysis claims that Reclamation lacks discretion to use water
the irrigators seek under their contracts to benefit salmon in the Klamath River (or listed fish
populations in Upper Klamath Lake). The Updated Analysis also takes the position that
Reclamation is not legally required to provide flows to support the Yurok Tribe’s senior water
right because that right is unquantified and that it will release only what it characterizes as
“natural flow” to the River. In these ways, the Updated Analysis reverses longstanding precedent
holding that the ESA and senior Tribal water rights have priority over irrigation. Reclamation’s
Reassessment concludes that the new paradigm redefines the parameters of the ESA’s
applicability and which aspects of Project operations are not discretionary and must be included
in the environmental baseline.
The Updated Analysis asserts that “Patterson stands for the simple proposition that
Reclamation must meet the requirements of the ESA,” ignoring Patterson’s holding that
Reclamation has authority to direct contractors to comply with Reclamation’s ESA compliance
plans. Parting company with that holding, the Updated Analysis eviscerates its ESA obligations
by placing water sought by irrigators off limits for ESA compliance. Updated ESA Analysis at 6.
THE UPDATED ANALYSIS IS UNLAWFUL
The Updated Analysis is fatally flawed. It misapplies the ESA consultation regulations,
asserts that a 2025 law elevates irrigation over the ESA when implementation of the law is
expressly made subject to the ESA and the United States’ obligations with respect to Tribal
rights, and that the Klamath contracts do the same based on NRDC v. Haaland, 102 F.4th 1045
(9th Cir. 2024), which never addressed their provisions.
I. THE UPDATED ANALYSIS MISAPPLIES THE ESA CONSULTATION
REGULATIONS.
The Updated Analysis purports to apply the ESA consultation regulations jointly
promulgated by NMFS and FWS. The regulations require that action agencies—here
Reclamation—initiate consultation on proposed action and provide a description of the action
and all available information related to the nature and scope of the proposed action relevant to its
effects on listed species or critical habitat. 50 C.F.R. § 402.14(c)(1)(i), (iv), (vi).
There can be no question that Reclamation’s operation of a massive federal reclamation
project built and managed by the federal government is an action subject to Section 7(a)(2). The
consultation regulations define “action” very “broadly to encompass “all activities or programs
of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.” 50
C.F.R. § 402.02; accord 16 U.S.C. § 1536(a)(2). The federal government authorized, funded, and
built the Klamath Project, entered into and administers contracts for irrigation deliveries from the
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Project, and operates the Project to prevent disastrous floods, provide water to support federal
wildlife refuges, and maintain UKL levels for endangered fish needs and Klamath River flows
for salmon and Tribal fisheries that depend on salmon. Even if some discrete aspects of the
Klamath Project might be viewed as not fully under Reclamation’s control, which the Yurok
Tribe disputes, operation of the Klamath Project is overwhelmingly within its control.
Not only is the “in whole or in part” threshold easily met, but the discretionary control
regulation similarly makes it clear Klamath Project operations are subject to Section 7(a)(2). The
discretionary control regulation provides: “Section 7 and the requirements of this part apply to all
actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03.
Reclamation has ample discretionary involvement and control over how to balance all the
competing demands for water from the Klamath Project. It is, therefore, unsurprising that the
Updated Analysis acknowledges that Section 7(a)(2) applies to Klamath Project operations.
Reclamation’s Reassessment asserts that irrigation diversions are not effects of
Reclamation’s operation of the Klamath Project and therefore must be placed in the
environmental baseline. This assertion cannot be reconciled with the consultation regulations or
common sense.
The regulations define “effects of the action,” 50 C.F.R. § 402.02, as:
all consequences to listed species or critical habitat that are caused by the proposed
action, including the consequences of other activities that are caused by the
proposed action but that are not part of the action. A consequence is caused by the
proposed action if it would not occur but for the proposed action and it is reasonably
certain to occur.
The proposed action is Reclamation’s operation of the Klamath Project embodied in its
long-term operations plan and annual operations plans tiering to the long-term plan. These plans
determine the distribution of water between UKL, the agricultural allocation, the Klamath River,
and the refuges and allow for releases in flood conditions. The agricultural allocation leads to
water diversions that diminish the amount of water released to the Klamath River. The severe
consequences for listed salmon from diminished river flows “are caused by the proposed action,”
even if they could be characterized as “not part of the action,” which is doubtful given that water
is a finite resource; giving more water to irrigators means less water for the river and its salmon.
The diminished river flows and harm to salmon would also not occur but for Reclamation’s
exercise of its contractual authority to determine how much water is available for irrigation in
times of drought or when water supplies are insufficient to meet all demands for the water.
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The regulations define “environmental baseline,” id., as follows:
Environmental baseline refers to the condition of the listed species or its designated
critical habitat in the action area, without the consequences to the listed species or
designated critical habitat caused by the proposed action. The environmental
baseline includes the past and present impacts of all Federal, State, or private
actions and other human activities in the action area, the anticipated impacts of all
proposed Federal projects in the action area that have already undergone formal or
early section 7 consultation, and the impact of State or private actions which are
contemporaneous with the consultation in process. The impacts to listed species or
designated critical habitat from Federal agency activities or existing Federal agency
facilities that are not within the agency's discretion to modify are part of the
environmental baseline.
At its heart, the environmental baseline is meant to reflect the real-world conditions of the listed
species and its habitat. It is not meant to concoct a theoretical concept that has no relation to this
real world. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 928-29 (9th Cir.
2008).
While the Klamath Project has degraded environmental conditions for a century,
Reclamation delivers water for irrigation every year and those deliveries degrade salmon habitat.
Water diversions for irrigation cannot properly be considered an independent private action
because they occur pursuant to federal contracts that allow irrigators to take public resources—
water—via irrigation works constructed with taxpayer dollars and managed by Reclamation.
Reclamation’s Reassessment tries to squeeze Reclamation’s water deliveries under the
federal contracts into the last sentence in the definition of “environmental baseline,” which
provides that “[t]he impacts to listed species or designated critical habitat from Federal agency
activities or existing Federal agency facilities that are not within the agency's discretion to
modify are part of the environmental baseline.” 50 C.F.R. § 402.02. Specifically, Reclamation
contends that water deliveries pursuant to the federal contracts is nondiscretionary and
“Reclamation lacks the authority to modify them.” Reclamation’s Reassessment at 3. This
contention is erroneous because no statute or contractual language eliminates Reclamation’s
discretion, indeed legal duty, to reduce water deliveries under the contracts when necessary to
comply with the ESA.
II. NO STATUTE REMOVES RECLAMATION DISCRETION TO OPERATE THE
KLAMATH PROJECT TO BENEFIT LISTED SALMON.
Contrary to the Updated Analysis, no statute removes Reclamation’s discretion and
authority to operate the Klamath Project to avoid extinction of Klamath River salmon. Under the
Reclamation Act of 1902 and a 1905 Act authorizing aspects of the Klamath Project,
Reclamation has long operated the Klamath Project for multiple purposes, including ESA
compliance, and courts have consistently rejected irrigators’ arguments that Reclamation must
operate the Project solely for irrigation. The 2025 Klamath Basin Water Agreement Support Act
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cannot be read to override decades of precedent when it expressly directs Reclamation to comply
with the ESA in implementing the Act.
A. Home Builders Held That Section 7(A)(2) Is Inapplicable Where a Statute
Deprives the Agency of Any Power to Benefit Listed Species.
The Updated Analysis relies on National Association of Home Builders v. Defenders of
Wildlife (Home Builders), 551 U.S. 644, 666-67 (2007), where the Supreme Court held that ESA
Section 7(a)(2) does not apply to actions that an agency is required by statute to take. Home
Builders addressed the Clean Water Act mandate that the Environmental Protection Agency
(“EPA”) transfer water permitting authority to states when nine exclusive statutory criteria are
met, leaving no room to ensure the transfer will avoid jeopardizing endangered species. Id. at
662-64. The Supreme Court avoided an irreconcilable conflict between the two statutes by
applying the ESA discretionary control regulation to harmonize them. Id. at 665. Under that
regulation, Section 7(a)(2) applies “to all actions in which there is discretionary Federal
involvement or control” that can be exercised to benefit endangered species, but not where a
statute mandates that the agency take a specific action that leaves it no power to avoid
jeopardizing endangered species. Id. at 665, 667, 669.
Since Home Builders, the Ninth Circuit has confirmed, including in two en banc
decisions, that federal agencies are subject to Section 7(a)(2) when they have “some discretion to
influence or change the activity for the benefit of a protected species.” Karuk Tribe v. U.S.
Forest Serv., 681 F.3d 1006, 1021 (9th Cir. 2012) (en banc) (Section 7(a)(2) applies because
Forest Service has some discretion to protect endangered species in approving mining activities);
NRDC v. Jewell (Jewell I), 749 F.3d 776, 779, 783, 785 (9th Cir. 2014) (en banc) (Section
7(a)(2) applies whenever agency has “some discretion” to benefit protected species; another legal
obligation must “strip” the agency of all discretion to benefit the listed species); see also
National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 928 (9th Cir.
2008) (Section 7(a)(2) applies to operation of the Federal Columbia River Power System because
no statute mandates specific, immutable actions); San Luis & Delta-Mendota Water Authority v.
Jewell (Jewell II), 747 F.3d 581, 640 (9th Cir. 2014) (Section 7(a)(2) applies to operation of the
Central Valley Project because no statute imposed inconsistent mandatory obligations on
Reclamation).
In Yurok II, irrigators argued, based on Interior’s 2020 legal analyses, that the
Reclamation Act of 1902 made irrigation the single and sole purpose of the Klamath Project and
gave state water rights priority over the ESA. 654 F. Supp. 3d at 968-69. The district court ruled
against the irrigators, holding that an Oregon Water Resources Department order prohibiting the
release of “stored water” to the Klamath River was preempted by the ESA, which required such
releases. Id. In the course of that ruling, the district court rejected Klamath Water User’s
Association’s (“KWUA”) argument that the Reclamation Act authorizes Reclamation to operate
the Klamath Project only for irrigation. Id. at 966-67.
In defending Yurok Tribe v. U.S. Bureau of Reclamation on appeal, the United States
explained that the Reclamation Act imposes no nondiscretionary duty to deliver water to Project
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contractors when doing so would be likely to cause jeopardy to ESA-listed species. U.S.
Answering Br. at 37-41. Section 10 of the Reclamation Act gives Reclamation broad authority,
including to take “any and all acts” that “may be necessary and proper” for operating reclamation
projects. 43 U.S.C. § 373. Under this authority, Reclamation has substantial discretion over
operational decisions, including by providing for the needs of endangered species. See, e.g.,
Jewell II, 747 F.3d at 639-40 (discretion to comply with ESA). Moreover, the only legislation
specific to the Klamath Project, Act of Feb. 9, 1905, ch. 567, 33 Stat. 714, authorized
Reclamation to raise or lower Upper Klamath Lake levels as may be necessary, without
imposing any mandates to exercise this authority solely for irrigators. U.S. Answering Br. at 38-
39. These reclamation laws did not limit management of the Klamath Project to a single purpose
—irrigation—but instead merely authorized Reclamation to work toward broad goals. Id. at 40.
While Section 8 of the Reclamation Act requires Reclamation to appropriate water for
irrigation from reclamation projects in accordance with state water law, this direction gives way
when inconsistent with other congressional directives. California v. United States, 438 U.S. 645
(1978). The Supremacy Clause and conflict preemption principles control. Because the ESA
requires certain flows to prevent extinction and promote recovery of Klamath River salmon, it
overrides state water law that might be read to preclude such flows.
This has long been the state of the law. The Updated Analysis argues that a newly
enacted law changed everything even though it never explicitly says so and it subjects
implementation of the law to the ESA.
B. The 2025 Klamath Basin Water Agreement Support Act in No Way Precludes
Reclamation Compliance With Section 7(a)(2) or Absolves Reclamation of
Liability for Violating Section 9.
The Updated Analysis contends that a newly enacted law—the Klamath Basin Water
Agreement Support Act, Pub. L. No. 118-246, 138 Stat. 2933 (Jan. 4, 2025) (“2025 Act”)—
upends the priorities established in Patterson, reaffirmed by subsequent judicial decisions,
adopted by Reclamation in practice, and defended by Reclamation in court in the irrigators’
pending Ninth Circuit appeals in Yurok Tribe v. Bureau of Reclamation. This reading of the 2025
Act fails under scrutiny of the context and plain language of that Act and the agreement
referenced in the Act.
The 2025 Act, a noncontroversial act that moved through committee by unanimous
consent, gives the Interior authority to pursue restoration activities to reduce fish entrainment, to
reduce harm to aquatic resources from Klamath Project storage and diversion facilities, and to
“restore habitats in the Klamath Basin watershed, including Tribal fishery resources held in
trust.” 2025 Act, § 2(a); see also id. § 2(e) (stating a goal as the protection, preservation, and
restoration of Klamath River Tribal fishery resources). The Updated Analysis seizes on Section
2(g), which states in full:
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KENO AND LINK RIVER DAMS—The Secretary of the Interior shall comply
with the terms of the agreement entitled “2016 Klamath Power and Facilities
Agreement” (‘Agreement’), including Attachment A to the Agreement.
The Act offers no description of the Klamath Power and Facilities Agreement’s terms, nor does
it offer any indication that this direction might change the legal priorities to water in the Klamath
Basin. To the contrary, the 2025 Act provides that that Interior “shall comply with” the ESA and
all other applicable laws in implementing the Act, id. § 2(b)(1)(B)-(C), and that none of the Act’s
amendments “modify any authority or obligation of the United States with respect to any Tribal
trust or treaty obligation of the United States” or create, determine, or affect any water right. Id.
§ 2(b)(2).
Anticipating that the United States would control releases of flows from Link River Dam
to the Klamath River after the removal of four Klamath River dams, the 2016 Klamath Power
and Facilities Agreement has the following provision:
Upon assumption of operational responsibility for Link River Dam, Reclamation
shall operate Link River Dam to provide water for diversion for the Klamath
Reclamation Project, and consistent with existing contracts between Klamath
Reclamation Project contractors and Reclamation and for flood control and subject
to Applicable Law.
2016 Agreement, § II(A)(3)(a) (emphasis added). Attachment A to the Agreement contains
identical language.
The House Report on the Klamath Support Act indicates the purpose of this provision of
the 2016 Agreement is “to help Klamath Basin irrigators avoid adverse financial and regulatory
impacts associated with the return of [salmon] to the Upper Klamath Basin, which [is]
anticipated after the dams are removed.” H.R. Rep. 118-847, 118th Cong., 2d Sess. at 4 (2024).
Indeed, Interior signed the 2016 Agreement, committing to abide by the above commitment, but
not to “[a]ny cost related issues,” addressed in Attachment A, which it had not determined it had
authority to do. 2016 Agreement § II(A)(3); see also Id. § IV(A)(1) (each party represented that
it believed the Agreement was consistent with its legal authority).3 Notably, Attachment A(1)
adds that irrigation contracts shall not bear any cost associated with Link River Dam, which is
not germane to Reclamation’s Section 7(a)(2) obligations. The Klamath Support Act appears to
have provided the missing congressional authorization for this provision of the 2016 Agreement.
The Updated Analysis asserts that the 2025 Act directs Reclamation to operate Link
River Dam, a critical facility for the Klamath Project, “for water diversion to the Project
consistent with existing contracts” and for no other purpose if detrimental to Project contractors.
Updated ESA Analysis at 3. This conclusion cannot be reconciled with the fact that the 2025 Act
3 At the time the 2016 Agreement was negotiated, Reclamation was defending its prioritization
of the ESA over irrigation deliveries in Baley. A statute incorporating the 2016 Agreement by
reference cannot supply authority that did not exist in 2016 to override the ESA.
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requires Reclamation to comply with the ESA in implementing the Act and does not modify any
water right or fishing right, nor any authority or obligation of the United States with respect to
Tribal trust resources, id. § IV(A)(1), (3)(k)-(l), which Baley II, 942 F.3d at 1337, held “[a]t the
bare minimum, the Tribes’ rights entitle them to the government’s compliance with the ESA in
order to avoid placing the existence of their important tribal resources in jeopardy.”
Nor does anything in the 2016 Agreement suggest that it was purporting to give legal
priority to water deliveries pursuant to Klamath irrigation contracts over the ESA. Indeed, the
parties to the 2016 Agreement lack the power to set priorities to water or preclude ESA
compliance. Only Congress has the power to override the ESA’s applicability to the Klamath
Project. The 2016 Agreement was negotiated against the backdrop of the longstanding legal
priorities established in Patterson and Reclamation’s prioritization of the ESA over contract
deliveries in keeping with legal precedent. Moreover, the Agreement expressly provides that
Public Agency Parties, which include Interior and National Marine Fisheries Service, “shall
comply with all applicable legal authorities, including . . . [the] Endangered Species Act.” Id. §
IV(A)(1); see also id. § IV(A)(3)(a) (nothing in the Agreement “shall be construed to affect or
limit the authority or obligation of any Party to fulfill its constitutional, statutory, and regulatory
responsibilities, or comply with any judicial decision”); id. § IV(A)(3)(k) (“[n]othing in this
Agreement is a determination of rights to water.”).
By expressly making Reclamation’s operation of Link River Dam subject to the ESA, the
2016 Agreement reflects the fact that Reclamation’s water releases are not confined to irrigation.
The 2025 Act likewise mandates Reclamation compliance with the ESA. Its incorporation of the
Agreement, therefore, imposes no specific, mandatory obligation confining the Klamath Project
to the delivery of water for irrigation so as to preclude applicability of ESA Section 7(a)(2) under
Home Builders.
The Updated Analysis’ argument to the contrary is circular. It acknowledges the ESA’s
applicability to Reclamation’s operation of the Klamath Project. However, it contends that the
2025 Act’s direction to comply with the 2016 Agreement placed water deliveries under Klamath
contracts off limits for Section 7(a)(2) compliance purposes. This argument reads too much into
the cryptic reference to the 2016 Agreement. The Act directs the Secretary to comply with the
Agreement, which authorizes the Secretary to operate Link River Dam to provide water for
diversion consistent with the Klamath contracts but also subject to applicable law. Neither the
reference to the Agreement nor the Agreement itself contains the type of clear mandate for a
specific, immutable action that is required to eliminate discretion to operate a massive
government project developed with public resources solely for the benefit of irrigators. This is
particularly so when the 2025 Act and the 2016 Agreement require Interior to comply with the
ESA and all other applicable laws and make it clear that they have no effect on federal trust
obligations or rights to water. Neither can fairly be read to elevate the irrigation contracts over
applicable law, which has long been understood to give priority to ESA compliance over
irrigation deliveries under Klamath contracts.
Under the Updated Analysis’ convoluted reasoning, the 2025 Act precipitated a
wholesale overhaul of decades of precedent and agency practice without ever saying so directly
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and in the face of numerous clauses making the 2025 Act and the 2016 Agreement fully subject
to the ESA. The 2025 Act is too thin a reed to support such a draconian and fundamental change
in the legal landscape governing priorities to water in the Klamath Basin.
III. THE KLAMATH IRRIGATION CONTRACTS LEAVE RECLAMATION AMPLE
AUTHORITY TO REDUCE CONTRACT DELIVERIES TO PROTECT ESA-LISTED
SALMON.
A. Longstanding Precedent Limits Water Available Under Water Supply Contracts
When Necessary to Comply With the ESA.
While Reclamation has entered into contracts with irrigation districts, those contracts are
subject to later congressional enactments and contain provisions that limit the amount of water
available for irrigation when necessary to comply with the ESA. As explained below, the Ninth
Circuit has recognized that such water delivery contracts are subject to ESA compliance, as
explained below.
The Klamath Irrigation District (“KID”) and Tule Irrigation District (“TID”) are the
primary beneficiaries of the Klamath Project, and their contracts have priority over the
subsequent contracts for excess water not needed under the KID and TID contracts, which were
authorized by the Warren Act, 43 U.S.C. §§ 523-525, or subsequent leases. As a result, if there is
insufficient water for the KID and TID contracts as a result of ESA compliance, the later, lower
priority contracts are not entitled to water deliveries. The U.S. appellate brief in Yurok Tribe v.
U.S. Bureau of Reclamation described these legal priorities afforded the Klamath contracts, see
U.S. Answering Br. at 50-51, as did the Court of Claims decision in Baley I, 134 Fed. Cl. at 627-
30.
The KID and TID contracts contain provisions that the Ninth Circuit has construed to
leave ample room for Reclamation to comply with Section 7(a)(2). O’Neill v. United States, 50
F.3d 677, 683-84, 686 (9th Cir. 1995). First, the KID and TID contracts are expressly subject to
modification to conform to the Reclamation Act “and all acts amendatory thereof or
supplementary thereto.” 1956 TID Contract ¶ 1; accord 1954 KID Contract ¶ 1(c), ¶ 6. O’Neill
read similar language to contemplate changes in the law occasioned by the ESA’s passage.
O’Neill, 50 F.3d at 683-84. While the ESA altered the amount of water available for irrigation
under the contract, “[t]here is nothing in the contract that precludes such a shift.” Id. at 686.
Second, the KID and TID contracts contain water shortage clauses that provide:
On account of drought or other causes, there may occur at times a shortage in the
quantity of water available in Project reservoirs and, while the United States will
use all reasonable means to guard against such shortage, in no event shall any
liability accrue against the United States or any of its officers, agents, or employees
for any damage, direct or indirect, arising therefrom and the payments to the United
States provided for herein shall not be reduced because of any such shortages.
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KID Contract ¶ 26; TID Contract ¶ 26. O’Neill held that the phrase “drought, or any other
causes” in a similar shortage clause unambiguously “contemplates the effects of subsequent
Congressional mandates,” including the ESA, and “an unavailability of water resulting from the
mandates of valid legislation constitutes a shortage by reason of “any other causes.” O’Neill, 50
F.3d at 683-84; accord NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (Reclamation
may reduce amount of water available for irrigation deliveries if necessary to comply with the
ESA); Patterson, 204 F.2d at 1213 (followed O’Neill in upholding Reclamation’s modification
of contract to meet its ESA compliance obligations).
Third, the TID contract authorizes Reclamation to apportion the available water supply in
times of shortages. The TID contract contains an apportionment clause, which provides that
Reclamation “may apportion that available supply” of water “[i]n the event a shortage of water
available from the Klamath Project arises as a result of drought or other unavoidable causes.”
1956 TID Contract ¶ 33(c); see United States v. Klamath Drainage Dist., 2023 WL 5899910,
No. 1:22-cv-00962-CL, *12-15 (D. Or. Sept. 11, 2023), aff’d, 2025 WL 262346 (9th Cir. 2025)
(under authority to prorate deliveries in times of shortage and contractor obligation to comply
with Reclamation rules and regulations, Reclamation had authority to reduce water deliveries
under its operation plans developed to meet its ESA obligations). Most other Klamath contracts
contain similar water shortage and apportionment clauses. See U.S. Answering Br. at 51-52.
B. NRDC v. Haaland Did Not Overturn Legal Precedent That Held That the Amount
of Water Available for Irrigation Contracts Is Subject to ESA Section 7(A)(2).
NRDC v. Haaland, 102 F.4th 1045 (9th Cir. 2024), is the other development marking
what the Updated Analysis calls a fundamental change to the legal and operational paradigm in
the Klamath Basin. NRDC v. Haaland does not support exempting Klamath contract deliveries
from Reclamation’s obligations to ensure its operation of the Klamath Project complies with
Section 7(a)(2). NRDC v. Haaland concerned Reclamation’s discretion to change the terms of a
renewed contract. It in no way changed Reclamation’s obligation to consult and ensure that its
operation of the Central Valley Project as a whole, including water deliveries under the contracts
at issue in NRDC v. Haaland, would avoid jeopardizing the survival and recovery of listed
species.
In NRDC v. Haaland, NRDC sought reinitiation of consultation between Reclamation
and the National Marine Fisheries Service on already renewed settlement contracts based on new
information that arose after the renewal contracts were finalized in 2005. The Ninth Circuit held
that Reclamation lacked discretion to require measures benefiting listed salmon beyond those
compelled by the renewal contracts’ terms. One provision mandated contractor compliance with
the biological opinion resulting from Section 7 consultation on the contract renewals. 102 F.4th
at 1075. Another—a shortage clause—immunized Reclamation from damages for reductions in
water deliveries “to meet legal obligations,” which the majority construed to encompass
mandatory ESA obligations but not to give Reclamation discretion to alter the settlement
contracts to require more than what had already been required by the biological opinion on the
renewal. Id. Yet another shortage clause immunized Reclamation from liability for “[a]ny
damage . . . caused by a shortage of water whether such shortage be on account of errors in
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operation, drought, or unavoidable causes,” which the court held similarly did not allow
Reclamation to alter the contracts to reduce water deliveries. Id. at 1076.
In contrast, the Klamath contracts give Reclamation authority to apportion water
deliveries due to ESA compliance. See Yurok Tribe’s Answering Br. (ECF 62 at 41-45); United
States v. Klamath Drainage Dist., 2023 WL 5899910 at *15. Significantly, the Ninth Circuit in
O’Neill held that a shortage clause materially identical to the ones in the key Klamath contracts
allows Reclamation to reduce irrigation to comply with the ESA. O’Neill, 50 F.3d at 683-84.
NRDC v. Haaland does not purport to narrow O’Neill in any manner; it never even cites
O’Neill, and a panel cannot overrule a prior panel decision. The reason is obvious. NRDC v.
Haaland concerned the discretion Reclamation retained in an already renewed contract to alter
the contract’s terms. It had nothing to do with Reclamation’s obligation to ensure that its
operation of the Central Valley Project, as a whole, complies with Section 7(a)(2). Reclamation
engaged in Section 7(a)(2) consultations on its operation of the Central Valley Project. As
explained in NRDC v. Haaland, Reclamation conducted a two-track consultation. In the first
track, it consulted on its plan for operating the Central Valley Project, resulting in a
programmatic biological opinion. In that consultation, it assumed full deliveries of water under
the contracts at issue in NRDC v. Haaland. In the second track, it conducted a consultation on its
renewal of the contracts that tiered to the programmatic biological opinion, and the renewed
settlement contracts obligate the contractors to comply with the resulting biological opinion.
Nothing in NRDC v. Haaland changed Reclamation’s obligation to consult on Central
Valley Project operations or the contract renewals. NRDC v. Haaland asked whether
Reclamation retained discretion to add to the ESA-protection requirements in the renewal
contracts after those contracts had been finalized. The court found such discretion lacking, but
that holding did not leave a void in terms of ESA protection. The contractors must comply with
the biological opinions on the contract renewals and most importantly, Reclamation must comply
with the Section 7(a)(2) on its operation of the Central Valley Project.
NRDC v. Haaland is inapposite for another reason. As the United States told the Ninth
Circuit:
NRDC specifically addressed renewed “Settlement Contracts” that resolved
disputes between the Bureau of Reclamation and Sacramento River water users
over water rights that preexisted the Central Valley Project (“CVP”) . . . These
contracts recognize the water users’ preexisting rights to divert specified amounts
of water, subject to conditions, through privately-owned diversion structures,
without interference from the CVP . . . In NRDC, Reclamation argued that
disclaimers in the Settlement Contracts that relieve the United States from liability
in the event of water shortages do not give Reclamation authority to “alter” or
“amend” these stipulated diversion rights exercised by the water users. This Court
agreed. Op. at 52-54.
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In contrast, in O’Neill v. United States, 50 F.3d 677 (9th Cir. 1995), this Court
construed contracts in which Reclamation agreed to “furnish” water from CVP-
developed facilities, subject to disclaimers of liability for shortages due to drought
or “other causes,” id. at 680. This Court held that these clauses “unambiguously”
excuse nonperformance where Reclamation cannot supply the contracted amount
consistent with its Endangered Species Act (“ESA”) obligations. Id. at 681-83.
U.S. 28(j) Letter (Dkt. Entry No. 108) (June 4, 2024).
As the United States further explained:
The Klamath Project contracts are similar water supply contracts with similar
disclaimers. Fed. App. Br. at 49-53. The contracts do not promise specific quantities
and reserve authority to equitably apportion available water. Id. at 50- 51. In
Klamath Water Users Protective Association v. Patterson, this Court followed
O’Neill in construing the Klamath Project contracts. See Patterson, 204 F.3d 1206,
1213 (9th Cir. 1999), see also Fed. App. Br. at 37, 48-53.
NRDC does not contradict O’Neill or Patterson. NRDC acknowledges that where
Reclamation has affirmative contractual obligations to supply water, the shortage
clauses “allow[]” Reclamation to “reduce” the water “supplied” as necessary “to
comply . . . with . . . the ESA.” Op. at 53 n.12 (quoting Gould, J., dissenting, Op.
at 67); see also Fed. Br. at 53-56.
Id. at 2.
Nothing in NRDC v. Haaland addresses, let alone overrides, Reclamation’s obligation to
ensure that its operation of the Klamath Project as a whole complies with Section 7(a)(2). The
case has no bearing on the very different terms in the Klamath contracts. And as a panel decision
NRDC v. Haaland does not and cannot overrule O’Neill and Patterson, let alone do so sub
silentio.
IV. IRRIGATOR WATER RIGHTS AND STORED WATER
The Updated Analysis reiterates the 2021 determination (never implemented) that
Reclamation will only provide “natural flow” to the Klamath River to support the Yurok Tribe’s
water and fishing rights but will not release “stored water” for that purpose. The Updated
Analysis is mistaken in arguing that this approach is compelled by the 2025 Act or Arizona v.
Navajo Nation, 599 U.S. 555 (2023), and ignores the lack of any such prohibition in Oregon
water law, as well as recent legal developments compelling the release of “stored water” needed
to comply with the ESA.
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1. Interior’s 2021 “Stored Water” Analysis is Legally Erroneous.
The 2021 “Stored Water” Analysis (at 3) recognizes that the Yurok Tribe has reserved
water rights to support its fishery that are senior to the Klamath Project and irrigators’ water
rights. It further acknowledges that “the measure of water required to satisfy the tribal water
rights is necessarily dependent on the health of the fishery, and the needs of the fish” and that the
Tribe is entitled to prevent junior diverters from reducing flows below what is necessary to
protect the Tribal right. Id. at 3. The analysis further acknowledges that Reclamation is “clearly
obligated to prioritize tribal water rights over other junior water rights connected to the Project”
and “to ensure the Tribes receive sufficient water to exercise their federally reserved fishing
rights.” Id. at 4.
In a non sequitur, the memo claims that Reclamation has discretion to determine how to
support the Yurok Tribe’s water rights because they have not been quantified and it has decided
to satisfy its obligations by providing water that would be available absent the Project, which it
equates with what is considered “natural flow” under Oregon water law. Id. at 5. “Water
previously stored in priority would not be available to draw upon to supplement the natural flow
of the river.” Id.
To the extent that Reclamation concedes it has discretion to determine how to protect the
Tribe’s water rights to support its fishery, its analysis dooms its claim that it has no discretion to
release flows to the Klamath River to support salmon. That discretion confirms the applicability
of Section 7(a)(2).
Elsewhere, the 2021 analysis viewed the ACFFOD to constrain its discretion to release
“stored water” for any purpose other than irrigation and argued that releasing “stored water”
would violate state law and Section 8 of the Reclamation Act. Id. at 6. As explained above, this
interpretation of Section 8 is wrong because Section 8 gives way to conflicting federal laws like
the ESA. See California v. United States, 438 U.S. 645 (1978).
This interpretation of the ACFFOD is also wrong because the ACFFOD did not
determine the Yurok Tribe’s senior water rights or Reclamation’s ESA obligations, as the Ninth
Circuit explained in In re KID, 69 F.4th at 941-43, and KID v. BOR, 48 F.4th at 946-47. The
ACFFOD changed the status of Klamath Tribes, whose senior water rights were adjudicated in
the KBA, but did not affect the downstream rights of the Yurok Tribe in California because
states have the ability to adjudicate rights in a water or river system within their jurisdiction, but
they cannot adjudicate water rights in another state. KID v. BOR, 48 F.4th at 947.
For the Yurok Tribe, the situation remains unchanged from the circumstances underlying
Baley II. The Federal Circuit rejected the irrigators’ argument that the Yurok Tribe had to assert
its rights in the Oregon adjudication and that the Tribe’s rights had to be quantified for
Reclamation to be obligated to provide water from the Klamath Project to prevent extinction of
the Tribe’s fishery resources. Baley II, 942 F.3d at 1341 (the Tribe’s federally reserved rights
“need not have been adjudicated or quantified before they were asserted to protect the Tribes’
fishing rights”); see also Winters v .United States, 207 U.S. 564, 576-77 (1908).
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As explained above, the Ninth Circuit recently cited this standard from Baley with
approval in two Klamath Basin cases. See KID v. BOR, 48 F.4th at 947 (upholding dismissal on
sovereign immunity grounds of irrigators’ lawsuits challenge Reclamation’s ESA compliance as
violating irrigator contract and water rights); In re KID, 69 F.4th at 943 n.9 (upholding removal
of lawsuit seeking to preclude ESA compliance based on Oregon-issued water rights to
irrigators).
Moreover, in KID v. OWRD, 321 Or.App. 581, 592 (2022), the Oregon Court of Appeals
reversed and directed dismissal of a case in which KID had obtained an order directing OWRD
to prohibit Reclamation from releasing “stored water” to the Klamath River as required by the
federal ESA. The court held that Reclamation and downstream Tribes are indispensable parties,
who could not be joined due to their sovereign immunity. The relief ordered by the trial court is
inconsistent with and would impair Reclamation’s obligations under the ESA, tribal rights, and
federal case law, and would be “a pyrrhic victory for plaintiff that would likely be overturned in
federal court.” Id. at 592.
2. The Updated Analysis Runs Counter Runs Counter to Oregon Water Law.
The Updated Analysis, like the Solicitor’s 2021 Stored Water Analysis at 5, cite
Nebraska v. Wyoming, 325 U.S. 589 (1945), for the proposition that “water previously stored in
priority under state law is not available for release to downstream water users with unquantified
water rights, or water rights dependent on natural flow.” Nebraska is inapposite because it is an
equitable apportionment case between two states that did not involve any Tribal reserved water
rights. Equitable apportionment principles and state water law do not govern Tribal reserved
water rights. Arizona v. California, 373 U.S. 546, 596-97 (1963).4 Tribal water rights are not
limited to flows that would have existed under when the Reservation was established; rather,
satisfaction of the Tribe’s water rights may be from water stored in reservoirs. Id. at 596-601.
The concept of “stored water” is a creature of some state’s water laws. It is not a feature
of federally reserved water rights, which are determined based on the purposes of the reservation,
which, for the Yurok Tribe, includes, but is not limited to, supporting its fishery, and depends on
the amount and timing of flows needed to do so. Historically, Reclamation has used ESA
compliance as a proxy for the minimum that is required for fisheries purposes, and courts have
appropriately refused to exclude “stored water” from Reclamation’s ESA compliance for the
Klamath Project. See Baley II, 942 F.3d at 1341 (rejecting argument that “stored” water is
unavailable for Klamath Project’s ESA compliance); Kandra v. United States, 145 F. Supp. 2d
1192, 1207 (D. Or. 2001) (same).
4 Nebraska v. Wyoming involved a distinguishable factual setting where the upstream storage
projects at issue had created substantial amounts of artificial storage, including carryover storage,
which far exceeded the annual average flow of the river. Nebraska v. Wyoming, 325 U.S. at 596-
97.
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Not only does the Updated Analysis’ “stored water” approach run afoul of Baley and the
legal reality that federally reserved rights are not governed by state water law concepts, but it
also finds no support in Oregon water law. In the Yurok Tribe v. Bureau of Reclamation appeal,
not only did OWRD concede that the OWRD order was preempted to the extent that it conflicted
with Reclamation’s ESA compliance obligations, but it also explained that Oregon water law
does not tie Reclamation’s hands in the way the Updated Analysis would. OWRD Br. at 1
(Dkt. 59). Specifically, “[a]lthough Reclamation has the right to store water in Upper Klamath
Lake under KA 294, nothing in Oregon law prevents the bureau from either deciding not to store
water or to release water that has already been stored.” Id. at 22; see also id. at 1 (“Reclamation’s
right to store water does not impose an obligation to do so. Accordingly, it is not a violation of
Oregon law for Reclamation to release stored water from Upper Klamath Lake.”); id. at 23
(“When an entity that is entitled to store water instead allows it to flow past the impounding
structure without the intent to deliver it to a secondary use, that water is natural flow and it
becomes public water rather than water protected for the purpose for which it was initially
impounded. Or. Rev. Stat. § 540.045(3).”). Moreover, OWRD reminded the court that it is not
water rights, but rather the contracts between Reclamation and irrigation districts that govern
their reciprocal obligations: “those contractual rights are not governed by Oregon water law and
are not addressed in Reclamation’s or appellants’ water rights, as established in the Klamath
Basin Adjudication.” Id. at 1-2.
3. The Updated Analysis Ignores Recent Developments Requiring Release of
“Stored Water” When Needed to Comply with the ESA.
The Reassessment fails to account for recent developments that compel the release of
“stored water” when needed to comply with the ESA for Klamath River salmon.
The OWRD order challenged in Yurok II achieved the same outcome as Reclamation
now seeks to implement under its approach to “stored water.” That Order prohibited Reclamation
from releasing “stored water” to the Klamath River because Reclamation lacked an Oregon-
based water right for the releases. The United States, joined by the Yurok Tribe, challenged the
OWRD order under the Supremacy Clause, arguing successfully that the ESA preempted the
order.
In the case, KWUA asserted a counterclaim arguing that “stored water” could not be
released to comply with the ESA. As the district court explained, “KWUA contends that the
agency action at issue is the use of stored water in UKL and that under the controlling legal
authority, the Bureau has no discretion to use that water for purposes other than irrigation—
meaning section 7(a)(2) does not apply, so the ESA does not preempt the OWRD Order.” Yurok
II, 654 F.Supp.3d at 964-65. The court rejected the contention that “stored water” can only be
used for irrigation. Id. at 965-67.
As OWRD has explained, Oregon water law does not limit Reclamation’s ability to use
“stored water” when needed to comply with the ESA. It is the Klamath contracts not the
ACFFOD that govern the respective obligations of Reclamation and the irrigation districts, but,
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as explained above, nothing in the contracts bars Reclamation from meeting its ESA obligations.
See U.S. Answering Br. at 10-11, 44, citing Baley I, 134 Fed. Cl. at 627-33.
4. 2025 Act Lends No Support to the Updated Analysis’ Approach to Senior
Tribal Water Rights.
The Updated Analysis is predicated on the view that previous laws made irrigation the
sole purpose of the Klamath Project, but none did so, as explained above. Nothing in the 2025
Act fills this void. The 2025 Act’s only references to Tribal water rights preserves them, as well
as the United States’ obligations to satisfy them. Nothing in the 2025 Act or the 2016 Agreement
addresses water rights or the concept of “stored water,” which is a creature of Oregon water law,
not the Klamath contracts.
5. Interior’s Updated Analysis Misstates the Relevance of Arizona v. Navajo
Nation.
The Updated ESA Analysis tries to draw support from Arizona v. Navajo Nation, 599
U.S. 555 (2023), but it misstates the relevance of Navajo Nation to Reclamation’s ESA
obligations. Navajo Nation brought a breach of trust action against the United States for failing
to secure water for the Nation’s unquantified reserved water rights. The majority characterized
the Nation’s claim as seeking affirmative actions to secure water, including by potentially
building pipelines, pumps, wells, and other water infrastructure. It held that, to maintain a breach
of trust action, “the Tribe must establish . . . that the text of a treaty, statute, or regulation
impose[s] certain duties on the United States.” Id. at 563.
Here, the issue is Reclamation’s exercise of its authority to manage a massive federal
reclamation project and to deliver water under federal contracts without complying with the
ESA. Reclamation takes affirmative actions in managing the Klamath Project on a daily basis,
and it must exercise that authority to comply with the ESA, which the Updated Analysis
concedes. As Navajo Nation explained:
Congress and the President may update the law to meet modern policy priorities
and needs. To that end, Congress may enact—and often has enacted—legislation
to address the modern water needs of Americans[.]
599 U.S. at 566.
The ESA is such a law. It imposes legal obligations on the federal government (and
others) not to take actions that harm or are likely to jeopardize the survival and recovery of ESA-
listed species. Reclamation must affirmatively utilize its programs to promote the species
recovery and must avoid taking actions likely to cause jeopardy to listed species or destruction of
their critical habitat. 16 U.S.C. § 1536(a)(1) & (2). The ESA creates judicially enforceable duties
that inure to the benefit of the Yurok Tribe’s fishery because of the overlap between listed
salmon and the fishery.
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The Updated ESA has it backwards when it asserts that no court decisions state that the
United States must use “stored water” for the benefit of downstream Tribes. Instead, the question
is whether Reclamation is legally prohibited from operating the Klamath Project to prevent
depleting Klamath River flows in ways that harm the listed salmon on which the Yurok Tribe’s
fishery depend. As Baley held, Reclamation must exercise its ESA authority to avoid jeopardy to
salmon on which the Yurok fishery depends, even though the Tribe’s reserved water rights have
not been quantified. As the United States averred in its crossclaim in Yurok Tribe v. U.S. Bureau
of Reclamation:
prior to the quantification of the federal reserved water rights to support fisheries
of the Yurok and Hoopa Valley Tribes, which are senior to the irrigation water
rights of the Project, Reclamation has authority in its operation of the Project,
consistent with those rights, to release from UKL at least as much water to the
Klamath River as is necessary to prevent jeopardizing the continued existence of
the SONCC coho salmon and/or destruction or adverse modification of its critical
habitat within the meaning of Section 7 of the ESA.
United States Cross-cl. ¶ 113, No. 3:19-cv-04405-WHO, Dkt. 963 (N.D. Cal. Oct. 1, 2021). The
crossclaim accurately presents the scope of Reclamation’s authority. And under the logic of
Baley, a failure by Reclamation to exercise its authority in this manner could expose the federal
government to a Fifth Amendment takings case by the Yurok Tribe.5
THE 2026 ANNUAL OPERATIONS PLAN IMPLEMENTING THE UPDATED
ANALYSIS VIOLATES THE ESA.
Reclamation has incorporated its draconian reversal of legal priorities into its 2026
annual operations plan without reinitiating consultation. In doing so, Reclamation has violated its
ESA obligations in at least two ways. First, the 2026 annual operations plan deviates from what
was analyzed by NMFS in the 2024 biological opinion and the incidental take statement. Second,
the 2026 Plan also violates the surrogate limits on the amount of allowable take. For both
5 The Solicitor’s 2021 Stored Water Memorandum (at 4) misreads the order dismissing the
Yurok Tribe’s breach of trust claim in Pac. Coast Fed’n of Fishermen’s Assn’ns v. U.S. Bureau
of Reclamation, No. 4:02-cv-02006-SBA (N.D. Cal. Mar. 8, 2005), when it asserts that the
dismissal turned on the lack of a quantified water right. Instead, the court dismissed the claim on
grounds of mootness because of lack of evidence that a recurrence of the 2002 massive fish kill
was imminent, failure to challenge a final agency action as required for the Administrative
Procedure Act claim, and lack of a cause of action to assert a common law breach of trust claim
outside the APA. Id. at 6-7, 12-14, 15. Moreover, the court indicated that a Tribe might have a
justiciable cause of action to assert a Fifth Amendment taking of its rights. Id. at 16. Finally, the
court indicated that federal agencies often discharge their general trust obligations to Tribes
through compliance with federal environmental laws. Id. at 17. This 60-day notice is a step in
that direction; the Yurok Tribe seeks to hold Reclamation to its obligations under the ESA,
which will benefit its fishery.
Sixty-Day Notice
April 13, 2026
Page 28
reasons, Reclamation must complete reinitiated consultation before implementing the 2026
annual operations plan.
The 2024 biological opinion and long-term operations plan prescribed rules reflecting
hydrological conditions for setting the agricultural allocation and Klamath River flows. At its
heart, the 2026 Plan abandons the prescribed rules in order to provide more water for irrigation.
Without adherence to the prescribed rules that have undergone ESA consultation, it is impossible
to know how Reclamation will operate the Klamath Project this year. The lower river flows
provided this spring and the bloated irrigation allocation locked in this month are the first
manifestations of Reclamation’s elevation of irrigation over the ESA. More deviations may well
occur without adherence to the rules that bind Reclamation under the 2024 BiOp.
I. RECLAMATION IS VIOLATING SECTION 7(A)(2) BY FAILING TO REINITIATE
CONSULTATION ON THE 2026 ANNUAL OPERATIONS PLAN.
In the early years after the coho salmon listing, Reclamation operated the Klamath
Project under annual plans and acknowledged that these plans were actions subject to Section 7,
although it consulted on only some of these annual plans. See Pac. Coast Fed’n of Fishermen’s
Ass’ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) (holding
Reclamation violated ESA by failing to consult on annual plan and limiting irrigation deliveries
when flows fell below minimums to meet coho salmon needs). Reclamation then began
consulting on long-term operations plans. It then conforms its annual operations to the long-term
operations plan and relies on NMFS’s 2024 biological opinion on the long-term plan to meet its
Section 7 consultation obligation.
Klamath Project operations are currently governed by the 2024 long-term Klamath
Project operations plan and the NMFS’ 2024 biological opinion on that plan. The 2026 Annual
Operations Plan hews to the Updated Analysis and departs dramatically from the 2024 biological
opinion and incidental take statement.
The situation is reminiscent of Reclamation’s 2022 temporary operations plan where it
gave agriculture an approximately 60,000 acre-feet in the summer above and beyond the spring
allocation made in accordance with the controlling biological opinion. In a challenge to the
temporary operations plan brought by the Klamath Tribes, the district court held that
Reclamation violated the legal priorities to water by giving additional water to irrigators when it
could not satisfy its ESA obligations to listed species. Klamath, 2024 WL 472047 at *4-5.
Under the ESA consultation regulations, action agencies must reinitiate consultation in
two situations implicated here. First, reinitiation is required if the action “is subsequently
modified in a manner that causes an effect to the listed species or critical habitat that was not
considered in the biological opinion.” 50 C.F.R. § 402.16(a)(3). Second reinitiation is required
“[i]f the amount or extent of taking specified in the incidental take statement is exceeded.” Id. §
402.16(a)(1).
Sixty-Day Notice
April 13, 2026
Page 29
A. The Flow Regime Underlying the Long-term Operations Plan and 2024 Biological
Opinion.
The 2024 long-term Klamath Project operations plan was based on the rules and
parameter settings from the Proposed Action’s Klamath Basin Planning Model (KRM version) in
the model run titled, “Viewer_v11d for MST11b_Draft PA_Jan26.” The results of this model run
provided the basis for analysis of NMFS’ 2024 Biological Opinion.
The 2024 long-term Klamath Project operations plan made two significant changes from
prior operations plans. First, Iron Gate Dam had been the compliance point for Klamath River
flows. With the removal of four Klamath River dams, the compliance point moved to Keno Dam.
2024 BiOp at 7, 19. Second, Klamath River flow releases are now based on an Operations Index.
The Operations Index is obtained by averaging the Normalized Wetness Index, which is a
calculation of how wet or dry the basin is, and Upper Klamath Lake Status, which is a
calculation of how full or empty the lake is for that date. These variables are calculated every day
and vary with hydrologic conditions and UKL status. 2024 BiOp at 19-26.
• Normalized Wetness Index (“NWI”) is a calculation that analyzes key variables to
assess how wet or dry the basin is compared to the period of record used in the
BiOp analysis (1981-2023). The NWI is normalized (scaled) from 0 to 1, with 0
representing the driest conditions in the period of record and 1 representing the
wettest. It uses variables such as snowpack, precipitation levels, UKL inflow for
the last 30 days, and UKL inflows over longer periods. Different variables can
have different weights at different times of year. For example, in the March
timeframe, snowpack is a primary driver of the NWI. 2024 BiOp at 19-23.
• The UKL Status Index is an indication of lake level for a specific date based on
the 1981-2023 period of record. It is also expressed as a number between 0 and 1,
with zero representing the lowest lake level recorded for a specific date, and 1
being the highest. 2024 BiOp at 24-25.
• These two numbers are averaged to calculate the Operations Index, which is the
main variable that guides Klamath River flows and project operations. 2024 BiOp
at 25-26.
The Operations Index is used to calculate daily Keno Release Target Flows at Keno Dam
above baseline minimums through the use of an additional variable called the Keno Multiplier.
The Keno Multiplier is similarly a number between 0 and 1, and each day the Operations Index
is computed and used to look up the associated Keno Multiplier value. So for a given Operations
Index value, the Keno multiplier is determined in a look-up table (2024 BiOp at 28). Then the
River Base Flow minimum for the given month is multiplied by the identified Keno Multiplier,
as determined by the corresponding Operations Index. This calculation (River Base Flow
multiplied by Keno Multiplier) is then added to the River Base Flow for the given month, to
calculate the daily Keno Release Target Flow ,which is the flow that will be released from Keno
Dam above the baseline minimums. The Keno Multiplier changes throughout the year and
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April 13, 2026
Page 30
provides for the magnitude and variability of flows necessary for coho salmon. 2024 BiOp at 27-
29.
The 2024 biological opinion establishes a daily River Base Flow regime that comprises
the lowest flow that will ever be released at Keno Dam to the Klamath River. The flows will be
at this baseline level only when the Operations Index or the Keno Release Multiplier are 0.2024
BiOp at 27.
A key feature of this system is its ability to adjust on a daily basis to current conditions.
The Operations Index rises and falls with hydrologic conditions and lake levels, and thus Keno
Release Target Flows rise and fall depending on the hydrologic conditions and lake levels. In this
way, the biological opinion allows river flows to fluctuate to reflect the natural range of
variability under which salmon evolved. Wetter years or periods of the year lead to above-
minimum river flows, while drought conditions lead to the minimum flows during the driest
months of the year. But even in drought years, spring flows will often be higher than the
minimum flows.
The 2024 BiOp depends on the interaction of all three parts. The Operations Index, and
the corresponding Keno Multiplier, determine the Keno Release Target Flows computation and
how much water will be released through Keno Dam to the Klamath River. Agricultural
deliveries and river releases generally draw down the lake in the spring and summer. As lake
levels decline, the UKL Status Index declines, which reduces the Operations Index. At some
point, declines in the lake levels and Operations Index will lead to lower river flows to
compensate for less water availability. Under the BiOp, however, Keno Release Target Flows
will never be lower than minimum River Base Flows.
To analyze such a complex operational scheme, Reclamation and NMFS relied on a
technique called hindcasting in which they used actual inflow and hydrologic data from the past
40 years to analyze what range of river flows and lake levels would result from implementation
of the plan. River flows that would have occurred under the 2024 BiOp had it been implemented
for the past 40 years were analyzed for magnitude, duration, and frequency. NMFS analyzed the
river flow outputs from the Klamath Basin Planning Model (“KBPM”), which incorporated the
operating rules in the proposed action(2024 BiOp at 18-19). And the biological opinion’s
incidental take statement requires adherence to the KBPM in implementing the operating rules.
Term and Condition 1A.
B. The 2026 Annual Operations Plan Deviates in Fundamental Ways From What was
Analyzed in the 2024 Biological Opinion.
The 2026 annual operations plan deviates from the biological opinion’s formula for
setting the irrigation allocation. It calls for lowering river flows that provide habitat for listed
species in order to come as close as possible to providing 350,000 acre-feet for agricultural
purposes this water year and for storing additional water to achieve that amount of water for
irrigation next year. 2026 AOP at 1. That allocation is to be provided unless UKL elevations are
so low that it proves impossible. Id. at 1-2. The 2026 Plan also injects the concepts of “live flow”
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April 13, 2026
Page 31
and “stored water” into the Klamath Project operations, drawing on the Reassessment to suggest
that river flows are limited to “live flow,” unless more water is needed to provide the minimum
base flows. Id. at 1, 3.
On April 6, 2026, the Bureau of Reclamation announced the initial 2026 Klamath Project
water supply allocations that include 221,000 acre-feet from Upper Klamath Lake, 35,000 acre-
feet from Gerber Reservoir, and 35,000 acre-feet from Clear Lake Reservoir. Reclamation also
announced that it is making $19.1 million in drought resiliency funding available to be
administered through the Klamath Project Drought Response Agency. Reclamation’s press
release announcing the agriculture allocation states that “[t]he allocation reflects ongoing efforts
to maximize available supplies in a year shaped by warm storms, limited snowpack, and
constrained spring inflows.” The press release quotes Acting Commissioner Scott Cameron:
“Even in a year with unpredictable water conditions, Reclamation’s priority remains the same:
deliver as much water as possible to the Klamath Project[.] . . .We are working closely with our
partners to make sure every available acre-foot truly supports producers and the communities
that depend on Klamath Basin agriculture.” (BOR press release, 4/6/2026).
The initial allocation volume of 221,000 acre-feet from UKL is considerably larger, and
committed to earlier in the season than would have been allowed under the 2024 BiOp. Under
the 2024 BiOp, the agricultural allocation is not locked in until June 1. An initial allocation is
made in April that serves as a floor. If forecasts allow, the allocation can be increased through
June. Under the 2026 Plan, Reclamation has locked in an allocation based on forecasts that might
not materialize. Committing to a higher agricultural allocation now based on the forecasts is
problematic because if the water year becomes drier, the risk of the overallocation to agriculture
is placed on listed coho salmon in the Klamath River. The Reclamation press release makes no
guarantee that additional water above the initial 221,000 acre-feet will not be allocated to
irrigation in the future to achieve the 2026 Plan’s stated goal of providing as close to 350,000
acre-feet of water for agriculture as possible. By overallocating water for irrigation, the 2026
Plan creates a substantial risk that Reclamation will allow river flows to violate minimum flow
requirements, particularly in the fall-winter time frame, as it did in 2023.
The 2026 Plan has also reduced river flows from what would have been required under
the 2024 BiOp since early March, 2026. As to precisely how Reclamation will manage water
resources, the 2026 Plan is opaque. What is clear is the Keno Multiplier has been reduced in the
2026 Operations plan compared to the 2024 BiOp rules, as shown in the Reclamation slide
inserted below, which was distributed at the March 19, 2026 Real-Time Operations meeting.
This reduction in turn results in reductions to the Keno Release Target Flows.
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April 13, 2026
Page 32
The 2026 Plan establishes a minimum lake level for UKL and incorporates the biological
opinion’s River Base Flows, but it reduces Keno Release Target Flows based on the reduced
Keno Multiplier, thereby reducing the amount of water released to the river for listed coho
salmon. This reduction in river flows appears to be in furtherance of the 2026 Plan’s goal of
increasing the Klamath Project irrigation allocation in 2026 above what would have been
provided under the 2024 BiOp.
As for Klamath River flows, the 2026 Plan indicates that flows will not fall below River
Base Flows during the spring-summer irrigation season which runs from April 1 through
September 30. Id. at 3. However, the 2026 Plan allows Reclamation to lower the Keno
Multiplier, which lowers Keno Release Target Flows. Id. Reclamation’s Real-Time Operation
(RTO) Team Meeting Slides from March 19, 2026 show the outcome of the modified Keno
Multiplier (inserted above). Slide 26 compares the 2026 Operations plan rule set to the 2024 rule
set and shows lower river flows under the 2026 rule set every month of the year. The way the
multiplier was modified has not been communicated nor has the basis for the modification been
made clear. But the result is clear—lower river flows. Keno Release Target Flows are lower with
the modified Keno Multiplier under the 2026 Operations plan compared to the Keno Release
Target Flows under the 2024 rules. RTO Slide 25. For the month of March, 2026, Reclamation
released lower river flows (Keno Release Target Flows) than it would have provided under the
2024 rules, and may continue to release reduced Keno Release Target Flows through June, 2026.
Id. The 2026 Plan also vaguely states that Keno Release Target Flows will be based on observed
net inflow and storage volumes in UKL, coupled with the NWI and NRCS inflow forecasts,
rather than the operating rules consistent with the 2024 BiOp. Id. at 3. This will result in lower
flows than would have occurred had the terms of the 2024 BiOp been strictly adhered to as
required.
Sixty-Day Notice
April 13, 2026
Page 33
The modification of the 2024 long-term operations plan has already resulted in lower
spring river flows. For example, using the Keno Multiplier, the flows for March 6 would have
been approximately 900-950 cubic feet per second (“cfs”), but instead Reclamation delivered
only approximately 750 cfs, a deficit of approximately 150-200 cfs. The exact numbers are
difficult to calculate because Reclamation has not clearly communicated how its current
operations differ from the 2024 BiOp.
Reclamation’s departures from the formula in the 2024 biological opinion will have a
cascading effect. Under the 2026 Plan, Reclamation has locked in a higher agricultural allocation
in early April than would be set at that time under the 2024 BiOp. A higher agricultural
allocation than allowed under the 2024 BiOp rules will deplete UKL levels, which in turn will
reduce the UKL Status Index. Reducing the UKL Status Index reduces the Operations Index and
ultimately, Keno Release Target Flows will then be reduced due to a lower Operations Index,
and further reduced due to the modified Keno Multiplier.
The 2026 Plan deviates dramatically from the formula underlying the 2024 biological
opinion. By changing the Keno Multiplier, Reclamation has reduced the Keno Release Target
Flows and thereby reduced spring river flows. Reclamation also locked in a higher agricultural
allocation than would be provided under the 2024 BiOp at this time of year. More water has been
committed for irrigation and less has flowed into the River than is warranted by the hydrology
and the formula in the BiOp.
The 2024 biological opinion did not analyze the operations being implemented this year.
It concluded that a very different operations scenario would not jeopardize the continued
existence of threatened coho salmon or adversely modify their critical habitat, not the operations
that are unfolding this year. Simply being in the range of the lowest flow analyzed in the Period
of Record, does not mean the salmon are experiencing the conditions anticipated in the 2024
BiOp analysis. NMFS analyzed the Keno Release Target Flows that would have been released
under the 2024 Klamath Project Operations plan rule set. NMFS did not analyze the Keno
Release Target Flows currently being released, and projected to be released throughout the
spring, under the 2026 Plan rule set. The changes made in the 2026 Plan allow reduced UKL
levels, reduced Keno Release Target Flows. Reclamation has also locked in a higher agricultural
allocation in April than NMFS analyzed in its 2024 BiOp. Merely maintaining minimum River
Base Flows, assuming that actually occurs, is insufficient to align with the 2024 BiOp analysis,
which predicated its findings on the full flow regime with flows above the minimums as
hydrological conditions allow, even in a drought year.
During the spring salmon rearing period, the 2024 biological opinion would lead to Keno
Release Target Flows above minimums where hydrological conditions dictate under the formula.
Under the 2026 Plan, this may no longer occur. Moreover, by delivering more water for
irrigation than allowed under the 2024 plan, Reclamation is essentially creating a deficit. Both
the lake and the river will receive less water at various times in the water year than would have
otherwise been the case. UKL levels will be reduced in the spring. River flows have already been
reduced. And to refill the deficit created in UKL over the winter, the 2026 Plan will continue to
Sixty-Day Notice
April 13, 2026
Page 34
reduce flows to the river due to the modified Keno Multiplier used in calculating Keno Release
Target Flows.
Reclamation is setting the 2026 agricultural allocation at levels above those dictated by
the Operations Index and water supply forecasts. The 2026 Plan reverts to river flows at or near
minimum baseflow levels, whereas the 2024 biological opinion analyzed a proposed action that
resulted in river flows that varied with water availability and often exceeded minimum
baseflows, particularly in the spring months. The 2026 Plan thereby is modifying the operations
plan in ways that cause effects to salmon that were not anticipated, let alone analyzed, in the
2024 biological opinion, obligating Reclamation to reinitiate consultation. 50 C.F.R. §
402.16(a)(3).
C. The 2026 Annual Operations Plan Will Cause Take in Excess of the Limit on Take in the
Incidental Take Statement.
Consultation must also be reinitiated because the 2026 Annual Operations Plan will result
in take of listed salmon in excess of that allowed in the incidental take statement. The limit on
take functions as a check on the accuracy of the biological opinion’s conclusions. Yurok Tribe v.
U.S. Bureau of Reclamation (Yurok I), 231 F.Supp.3d 450, 472 (N.D. Cal. 2017).
The incidental take statement explained that the proposed action will result in take
through increased disease risks, habitat reductions, elevated water temperatures, reduced water
quality, and decreased smolt outmigration with lower spring flow volumes. 2024 BiOp at 260.
NMFS could not quantify take in terms of individual salmon because of the difficulty in finding
dead or injured salmon, limited data, and the interconnected nature of multiple phenomenon
affecting salmon survival. Id. NMFS accordingly used flow as a surrogate because the various
ways the Klamath operations will take salmon are inextricably linked to flow, and flows can be
monitored and quantified.
Specifically, the incidental take statement uses the following surrogates as a limit on take
of SONCC Coho Salmon:
(1) the daily average RBFs (i.e. Keno Dam minimum flows) as shown in Figure 46 shall
be met or exceeded; (2) the calculated daily average Keno Release Target flows
(above the daily average Keno River Base Flows) shall be met or exceeded; and (3)
the entire FFA volume is released as a pulse flow or augmentation, above the
calculated daily average Keno Release Target flows. If any of these thresholds are not
met, beyond the previously-described maximum reduction of 5% below the daily
required Keno Release Target flows, which are not to exceed 48 hours in duration,
and the noted minor variations in ramp rates, the amount or extent of incidental take
of coho salmon will be considered exceeded.
Id. at 261. As the incidental take statement explains:
Sixty-Day Notice
April 13, 2026
Page 35
The incidental take expected and analyzed in this Opinion reflects the Keno Release
Model operations; thus, operations that result in deviations from the model’s rules,
parameter settings, or outputs could result in changes to flows, lake elevations, or other
physical conditions and cause more take than has been analyzed.
Id. at 267-68.
As explained above, the 2026 Ops Plan significantly reduced the Keno Multiplier
parameter (used to calculate Keno Release Target Flows), and provides more water for the
agricultural allocation, compared to what would have been provided under the 2024 BiOp rules.
These two considerable deviations from the 2024 long-term Klamath Project Operations plan
rule set, result in reductions to UKL levels, and Keno Release Target Flows. NMFS’ 2024 BiOp
analysis used flow as a surrogate because the various ways the Klamath operations will take
salmon are inextricably linked to flow, and flows can be monitored and quantified.
“Given that Keno Dam is the new compliance point for Klamath River flows under the
proposed action, NMFS uses the calculated daily average Keno Release Target Flows as
surrogates for the amount or extent of incidental take to coho salmon as a result of the effects”
Id. at 260-61. The incidental take statement clearly states that the calculated daily average Keno
Release Target Flows (above the daily average River Base Flows) shall be met or exceeded. And
if these daily Keno Release Target Flows are not met, the amount or extent of incidental take of
coho salmon will be considered exceeded. Additionally, the 2026 Plan operations deviate from
the KBPM 2024 model rules and parameter settings, which are currently resulting in reduced
river flows, lake elevations, and other physical conditions and causing more take than has been
analyzed.
These deviations from the Keno Release Target Flows result in take of listed salmon in
excess of the limit on the amount of allowable take in the incidental take statement. That limit on
allowable take serves as a check on whether the 2024 long-term operations plan is being
implemented as intended and having the effects assumed in the 2024 biological opinion. When
the amount of allowable take is exceeded, it eliminates the basis for the 2024 biological
opinion’s jeopardy and adverse modification conclusions. For that reason as well, reinitiation of
consultation is required.
D. Reclamation Must Complete Reinitiated Consultation Before Implementing the 2026
Annual Operations Plan.
Because the 2026 Plan modifies the proposed action in ways not analyzed in the 2024
biological opinion and in ways that exceed the incidental take statement’s limit on allowable
take, Reclamation must reinitiate and complete consultation before implementing the 2026 Plan.
Reclamation might argue that it has no obligation to reinitiate consultation because the
regulation requiring reinitiation applies only when the action agency retains discretionary
involvement and control. 50 C.F.R. § 402.16(a). For the reasons laid out above, such an
argument lacks merit. As a party to the federal contracts with irrigation districts, Reclamation has
Sixty-Day Notice
April 13, 2026
Page 36
ample authority to reduce the amount of water available for water deliveries when the water is
needed for its ESA compliance.
Reclamation has indicated that it will reinitiate consultation on a proposed action
embodying the revised legal priorities by late fiscal year 2026 or early fiscal year 2027 with the
intent of applying the new operating criteria for water year 2027 with April 1, 2027
allocations. Notice of Intent to Initiate Formal Consultation under Section 7(a)(2) of the ESA for
Klamath Project Operations (January 20, 2026). But Reclamation is deviating from the 2024
biological opinion now without reinitiating formal consultation and waiting for a new biological
opinion as required.
In Yurok I, 231 F.Supp.3d at 474-75, the district court held that Reclamation had a legal
obligation to reinitiate formal consultation when the incidental take statement’s limit on
allowable take had been exceeded two years in a row. Mere reinitiation of consultation did not
fulfill Reclamation’s obligations. It had to complete consultation. Id. at 475-76. Until it
completes the consultation, Reclamation cannot determine whether it is violating Section
7(a)(2)’s substantive prohibition on jeopardy and adverse modification of critical habitat. Id. at
478-79 (quoting Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985) (“If a project is allowed
to proceed without substantial compliance with those procedural requirements, there can be no
assurance that a violation of the ESA’s substantive provisions will not result.”).
The appropriate course of action is to adhere to the biological opinion and incidental take
statement to avoid being in violation of the ESA. Reclamation should not jump the gun and start
implementing its reordered priorities before it can complete reinitiated ESA consultation as
required by the ESA. Because Reclamation is forging ahead, it would be appropriate for a court
to order Reclamation to comply with the 2024 biological opinion and terms and conditions
during the reinitiated consultation process to avoid putting listed salmon in jeopardy, degrading
their critical habitat, and subjecting them to illegal take.
E. The 2026 Irrigation Allocation Violates the Terms and Conditions and Thereby
Eliminates the Incidental Take Statement’s Safe Harbor.
Violation of the incidental take statement’s terms and conditions eliminates the safe
harbor afforded by the incidental take statement, making both Reclamation and irrigators taking
water liable for take of listed salmon that results from the diversions. Oddly, the Updated
Analysis never addresses Reclamation’s legal obligation to avoid the take of listed SONCC Coho
Salmon (or the irrigation districts’ liability for take in the absence of a biological opinion and
incidental take statement on a long-term Project operations plan).
The 2026 Plan blatantly violates Term and Condition 1A, which provides:
1A. Monitor and ensure Klamath Project operations do not deviate from the
Klamath Basin Planning Model (KRM version)
Reclamation shall monitor and ensure that Klamath Project operations do not deviate
from the rules and parameter settings from the PA’s KRM run titled, “Viewer_v11d for
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April 13, 2026
Page 37
MST11b_Draft PA_Jan26.” This includes, but is not limited to, ensuring operational
adherence to the following specific model outputs:
1. Daily River Base Flow (RBF) for Keno Dam releases (Keno Dam minimum flows)
2. Daily Upper Klamath Lake (UKL) Status;
3. Daily and Seasonal Normalized Wetness Index (NWI);
4. Daily Operations Index;
5. Daily Keno Release Target calculations;
6. Project Supply calculations; and
7. Tule Lake and Lower Klamath National Wildlife Refuge water supply.
Reclamation will monitor compliance with these key model outputs, ensuring that
operations remain within the modeled parameters and commensurate with observed
previous years’ and current year hydrologic conditions in any given water year consistent
with the proposed action.
Reclamation has violated Term and Condition 1A by failing to conform this year’s
operations to the rules and parameters set out in the body of the biological opinion and
incorporated into the prescribed version of the KBPM. It is setting the agricultural allocation
based on the Reassessment and the new direction in the 2026 Plan, instead of on the prescribed
metrics specified in the BiOp, and it has reduced river flows by modifying the Keno Multiplier,
which in turn lowers the Keno Release Target Flows, in violation of Term and Condition 1A.
Reclamation’s violation of Term and Condition 1A eliminates the incidental take
statement’s safe harbor. Any take under the 2026 Plan by Reclamation or Klamath irrigators is
unpermitted and unlawful.
CONCLUSION
We ask that Interior withdraw the Updated Analysis and Reassessment and revert its
operation of the Klamath Project to the longstanding legal priorities and the 2024 biological
opinion. It is our sincere hope that Reclamation will bring its actions into compliance with the
ESA. If it does not, however, we may need to seek redress in court pursuant to the ESA citizen
suit provision, 16 U.S.C. § 1540(g), and other applicable laws.
Sincerely,
Patti Goldman
Nico Wedekind
EARTHJUSTICE
810 Third Avenue, Suite 610
Seattle, WA 98104-1711
T: (206) 343-7340
pgoldman@earthjustice.org
nwedekind@earthjustice.org
Sixty-Day Notice
April 13, 2026
Page 38
Amy Cordalis
562 A St.
Ashland, OR 97520
T: (541) 915-3033
acordalis@ridgestoriffles.org
Donald Cameron Tredennick II
Yurok Tribe Office of the Tribal Attorney
190 Klamath Blvd.
Klamath, CA 95548
T: (707) 951-5556
ctredennick@yuroktribe.nsn.us

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