Irrigators clash with US government and Yurok Tribe over Klamath water rights at Ninth Circuit

SAN FRANCISCO (CN) —The Klamath Water Users Association, along with the U.S. Bureau of Reclamation and other plaintiff appellants asked a Ninth Circuit appeals panel Wednesday morning to reverse summary judgment from a case that confirmed the bureau and other actors must comply with the Endangered Species Act when operating the Klamath Irrigation Project.

Managed by the Bureau of Reclamation, the Klamath Irrigation Project supplies water to over 225,000 acres of farmland and two wildlife refuges in the Klamath Basin along the Oregon-California border. The project, however, decimated the local Chinook and Coho salmon population, which the Yurok tribe rely on to survive.

Dams are currently being removed from the upper Klamath Basin, allowing the river to flow freely for the first time in 100 years.

In a victory for the fish and the tribe, U.S. District Judge William Orrick ruled in 2023 that the federal government must follow its own laws, such as the Endangered Species Act, and isn't obligated to comply with an Oregon order to stop releasing water from the Upper Klamath Lake, which is the source of the Klamath River.

Orrick’s ruling upheld the notion that irrigators’ rights come after the bureau’s obligations to protected fish species and tribal rights in the Klamath Basin.

At the Ninth Circuit hearing on Wednesday, Brittany Johnson, counsel for the Klamath Water Users Association, which represents ranchers as well as water districts in the region, asked the panel for a “clear declaration” that the bureau does not have authority to curtail the delivery of water from the project for irrigation.

Johnson said that centuries-old contracts require irrigation responsibilities to be filled at the expense of anything else, and said that now is the perfect time because Upper Klamath Lake is full for the first time in four years.

“The contract language says things like the United States ‘will store,’ ‘will impound’ ‘will deliver water.’ So that is the focus of the language, that there’s a non discretionary obligation to deliver water, and there's nothing in the contract that allows reclamation to curtail that diversion for the benefit of species,” Johnson said.

Nathan Rietmann, counsel for the Klamath Irrigation District, said that the district court’s ruling finding the Endangered Species Act preempts Oregon’s order to release water from the lake violates the Fifth Amendment.

“It takes an adjudicated water rate determined in the Klamath adjudication that belongs to Klamath Irrigation District and gives it to the United States of America for public use without payment of just compensation. The Endangered Species Act does not give agencies any authority they don’t otherwise have,” Rietmann said.

Rietmann said the judge erred when he granted summary judgment because there are genuine issues of fact in the case that can only be solved at trial, such as whether the United States can simultaneously comply with the Endangered Species Act, Oregon law and other acts, and, just as importantly, there is still a lot that parties simply do not know.

“In light of the federal court ruling, I mean, how much water under the ESA is Reclamation entitled to divert down the river? We don't know this decision. This case doesn't say,” Rietmann said.

Patti Goldman, representing the Yurok Tribe, told the panel that renewed contracts for the project mandate that contractors comply with Section 7 of the Endangered Species Act that federal agencies aid in the conservation of listed species such as the Coho and Chinook salmon.

“There's a very unusual provision in the renewed contract that obligates the contractors to abide by any requirements in the biological opinion on the renewal. So Section 7 consultation and requirements were baked into the contract. There's really no question that Section 7 applied to the project as a whole and to the renegotiation,” Goldman said.

U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, called the case “odd.”

“If there’s not enough water, it’s like the ESA says ‘well, the fish get it first.’ I mean, I guess that’s the rule. But it seems counterintuitive that at some point, we can have farmers who can't grow enough food for us,” Nelson said.

Jay Weiner, representing the Klamath Tribe, told Nelson that the tribes have “time immemorial water rights” that are senior to the rights of irrigators. These rights are predicated on the tribe’s treaty rights to hunt, fish, trap and gather along the river, he said.

The panel, which also consisted of Circuit Judges Mary Schroeder, a Jimmy Carter appointee, and Ronald Gould, a Bill Clinton appointee, took the matter under submission.

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