court stays injunction against Upper Klamath Lake releases
Upper Klamath Lake shimmers in the sun in June 2021 near Modoc
County Circuit Court of Appeals recently halted an
injunction requiring the Oregon Water Resources Department
to prevent the release of stored water from Upper Klamath
ruling wasn’t in favor of Klamath Basin irrigators, the
courts still have yet to address the tension between federal
and state law in the watershed.
Irrigation District sued OWRD last year, claiming that the
department violated state water law by allowing the Bureau
of Reclamation to release flows from Link River Dam greater
than the inflows to Upper Klamath Lake to satisfy Endangered
Species Act requirements for Coho salmon on the Klamath
River. Because Reclamation did not secure a water right in
Oregon for Klamath River flows during the Klamath Basin
Adjudication, it’s not technically allowed to use the stored
water in Upper Klamath Lake for any purpose other than
irrigation — at least under state law.
But as a
federal agency, Reclamation has to comply with ESA and
tribal trust requirements, which imply enough water in the
Klamath River to support a productive salmon fishery for the
Karuk, Yurok and Hoopa Valley tribes. The fact that those
rights aren’t quantified in Oregon creates a legal gray area
that OWRD must operate in, despite its mission to uphold
state water law.
late last year, getting a trial court to issue an injunction
against OWRD compelling them to “immediately stop the
distribution, use and release of stored water from the Upper
Klamath Lake without determining that the distribution, use
and/or release is for a permitted purpose by users with
existing water rights of record or determined claims to use
stored water in the UKL.”
continued to let Reclamation release stored water from Upper
Klamath Lake, concerned that it may not have the authority
to override the bedrock federal legislation that drives
Reclamation’s management of water in the Klamath Basin. They
appealed the injunction this summer, requesting that it be
stayed through the remainder of the appeals process.
court granted that request on December 17, due to a largely
procedural issue related to KID’s case against OWRD.
KID brought up
Oregon Revised Statute 540.740, which allows anyone
“injured” by the action of any OWRD watermaster to seek an
injunction against them. However, the statute stipulates
that an injunction can only be granted if the watermaster is
in violation of an order of the Oregon Water Resources
Commission or a court decree determining the division of
water rights in a given area.
are existing, enforceable water rights in the Klamath Basin,
they aren’t finalized through a court order yet. And the
OWRC, an appointed committee which crafts the regulations
OWRD must then enforce, hasn’t issued an order either. That,
OWRD argued, means an injunction can’t be sought in this
briefings, KID argued that the Water Resources Commission
should include OWRD and its director, since the department
is beholden to the regulations drafted by the Commission.
Citing other statutes that define the roles within the
Oregon Water Resources nexus, the court felt otherwise.
legislature did not use the terms ‘director,’ ‘department,’
and ‘commission’ interchangeably,” Appellate Commissioner
Theresa M. Kidd wrote in the order granting the stay.
concern that deeming ORS 540.740 inapplicable in this case
would “completely neuter” OWRD’s ability to enforce
determined water right claims, but the court pointed out
that other statutes allow OWRD’s director to fire a
watermaster who doesn’t abide by those claims.
didn’t address the more complicated legal questions of
whether OWRD has the authority to prevent the use of stored
state water for federal purposes, but it stayed the
injunction partly because it believes OWRD’s appeal is
“supported in fact and law.” Additionally, the lack of an
injunction won’t change the way water is currently flowing
in the basin, because the presence of an injunction didn’t
do so either.
taking multiple legal routes to secure the stored water in
Upper Klamath Lake, arguing in federal court that
Reclamation isn’t as beholden to ESA requirements as it
thinks it is. But if those arguments don’t prevail and a
legal conflict does indeed exist between state water law and
federal responsibilities, they hope to prove in state court
that Oregon law trumps the feds.
The court did
agree to expedite the appeal in the OWRD case, suggesting
that it may get to the meat of the issue relatively soon.
That, said Klamath Water Users Association executive
director Paul Simmons, is where things will get interesting.
“What they will
do when they take up the merits of the appeal is anybody’s
guess,” he said.
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