Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) The Klamath River adjudication will confirm and quantify two types of water rights: (1) water rights initiated under Oregon law prior to 1909 (including Klamath Project and other Upper Basin irrigation rights); (2) federal "reserved" water rights, including instream tribal rights to Upper Klamath Lake and its tributaries, irrigation rights of individual Indians on the former Klamath Reservation (Allottees) and various other rights claimed by federal agencies (federal wildlife refuges, Forest Service lands, etc.). In United States v. Oregon, 44 F.3d 758 (9th Cir. 1994), the Ninth Circuit Court of Appeals ruled that federal agencies and tribes are subject to Oregon’s adjudication procedure and must file claims. The adjudication is presently at an administrative hearing stage. Contested claims have been referred to a panel of administrative law judges, and "cases" on individual claims are proceeding. After the contested case hearing and recommendation by the presiding administrative law judge, the Water Resources Department’s "Adjudicator" will issue an Order of Determination, which will be the basis of regulating rights according to priority. Additionally, exceptions to the Order of Determination can be expected to be filed in Circuit Court. Ultimately, the Court’s Decree will be the basis of regulation, and certificates will be issued to water rights owners. Most Klamath Project districts, and many other Upper Basin irrigators, are parties to the adjudication, along with federal agencies and the Klamath Tribes. Administrative Law Judge Maurice Russell II held the evidentiary hearing for all Klamath Project claims in April 2004. Other contested cases are at various stages. Klamath Litigation (Continued) Water for Life v. State of Oregon This case sought to enjoin the Klamath Basin adjudication on primarily procedural grounds. The Court denied the injunction but indicated the plaintiffs’ objections could be raised in the adjudication process. Lost River Adjudication: In the Matter of Lost River The Klamath County Circuit Court concluded an adjudication of the Lost River in 1918. The decree recognized vested rights both within and without the Klamath Project. In 1999, Klamath Project irrigators taking water from the Lost River system petitioned for an amendment of the decree, to correct property descriptions. The United States made a "special appearance" in opposition. The United States argued, in essence, that when the Lost River was adjudicated in 1918, Congress had not yet waived the sovereign immunity of the United States to allow it to be joined in state adjudication. It further argued that the United States is now an indispensable party to Lost River adjudication proceedings. The government asserted that the petition should be dismissed, because the United States cannot be joined except in a general stream adjudication. The Court agreed and dismissed the petition. The broad implication is that the 1918 decree is not effective as against the United States, and seemingly that Lost River rights in the Klamath   Continued on page 3   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) Project may not have been adjudicated at all. Klamath Project Operations Plans/ESA Since the early 1990s, there have been various suits against the United States concerning the operation of the Klamath Project. The underlying issues include water rights of irrigators, Endangered Species Act, tribal trust obligations, and wildlife refuge water rights. Since 1995, the Bureau of Reclamation has prepared annual operation plans for the Klamath Project. Oregon Natural Resources Council v. Bureau of Reclamation This case was originally filed in 1991. Various theories (Endangered Species Act, National Environmental Policy Act, and others) were asserted to reduce or eliminate Klamath Project irrigation deliveries and increase mainstem river flows and Upper Klamath Lake levels. Both the U.S. District Court and the Ninth Circuit Court of Appeals rejected plaintiffs’ contentions. Bennett v. Spear Bennett v. Badgeley In this case, Lost River irrigators established precedent in the U.S. Supreme Court that economic interests have "standing" to challenge ESA biological opinions. On subsequent remand to the Federal District Court, the Lost River irrigators successfully established that lake level requirements for suckers in Clear Lake and Gerber Reservoirs imposed in 1992 and 1994, were arbitrary and capricious and those requirements were invalidated. Klamath Litigation (Continued) capricious, Klamath Water Users Association v. Patterson This case began as a lawsuit by the Association and various water users challenging the Bureau of Reclamation’s 1997 operations plan. Ultimately, when it was clear there would be sufficient water in 1997, the case was dismissed and there were no final decisions on any of the claims brought by water users. The issue that was actually litigated concerned a counterclaim filed by Pacificorp against the water users. Under a 1956 contract, Pacificorp operates Link River Dam through the year 2006. The issue was whether the contract creates obligations for Pacificorp, enforceable by irrigators, to protect Klamath Project water supply in the operation of the dam, i.e., whether irrigators are "intended third party beneficiaries" of the contract. The Ninth Circuit issued its ruling in the case on January 28, 2000. The Court held that irrigators are not intended third party beneficiaries of the contract. The decision also states that the Bureau of Reclamation can assert control of the dam to meet Endangered Species Act obligations and to meet unquantified obligations related to tribal rights. Langell Valley Irrigation District v. Babbitt During the summer of 2000, the Bureau of       Continued on page 4   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) Reclamation released significant water from Clear Lake for irrigation of lands in the west side of the Klamath Project. The purpose was to lessen irrigation demand from the Klamath River and Upper Klamath Lake, in order to maintain high instream levels in those water bodies. The districts who have historically relied on Clear Lake sought a preliminary injunction, concerned about the effect on their own supply and carryover storage. In the preliminary injunction context, the Court found this action to be within the Bureau of Reclamation’s authority, and that it had complied with applicable legal procedures. The districts dismissed their lawsuit without prejudice, and there was no final judgment. Pacific Coast Federation of Fisherman’s Associations v. Bureau of Reclamation This case was filed by environmental groups after release of the Bureau of Reclamation’s 2000 operations plan. In June of 2000, they sought a preliminary injunction prohibiting Project deliveries based on alleged violations of NEPA and Reclamation law/state law. The preliminary injunction was denied. Plaintiffs subsequently added claims based on the ESA, specifically with regard to coho salmon. The Court’s ESA decision was issued on April 3, 2001. In essence, it found that Reclamation had violated required ESA procedures, and the Court issued an injunction disallowing irrigation deliveries until required procedures had been satisfied. Three days later, on April 6th, biological opinions were actually issued meeting procedural requirements. Of course, the result of these opinions was a zero allocation. Due to Reclamation giving incomplete information   Klamath Litigation (Continued) to the Court, the Court re-issued its injunction in the midst of the briefing on the Kandra case, below. Kandra v. United States This case challenged the zero allocation decision of 2001. A hearing on preliminary injunction was briefed and heard on an expedited basis. The preliminary injunction challenges were based, in addition to hardship to Project interests, on NEPA, the ESA, and Reclamation law and contracts. The preliminary injunction was denied. The case, which was directed at water deliveries in 2001, was eventually dismissed without prejudice, and there was no final judgment. Klamath Irrigation District, et al. v. United States In this case, Klamath Project water users seek compensation under the Fifth Amendment to the Constitution, for taking of their property rights (water rights) in 2001. The case also includes claims based on Klamath River Basin Compact provisions which require just compensation for impairment of water rights. Finally, it also includes claims for damages based on breach of contract. There have as yet been no definitive substantive rulings in the case. The government moved to stay the takings portion of the case pending the conclusion of the Klamath River adjudication. The Court allowed the case to proceed. Currently, two issues are before the court. These are: whether interest of water users in Klamath Project water rights is a compensable property right; and whether   Continued on page 5   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) individual water users are intended third party beneficiaries of contracts between districts and the United States. Resolution of these questions will determine the nature of further proceedings. California State Grange, et al. v. Evans* In this case, the plaintiffs contend that coho salmon in the Klamath River and other northern California and southern Oregon streams were improperly listed as threatened, and should be de-listed. In Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001), the District Court for the District of Oregon ruled that Coastal Oregon coho had been improperly listed, in that, generally, hatchery-born fish that are biologically indistinguishable from "wild" fish were not counted in determining whether the species was threatened. Proceedings in the California State Grange case were stayed pending the Ninth Circuit decision in Alsea Valley. In February 2004, the Ninth Circuit Court of Appeals refused to review the District Court decision in Alsea Valley because the District Court had not entered a final judgment, but rather had remanded the case to the NOAA Fisheries. In Alsea Valley Alliance v. Evans, 358 F.3d 1181 (2004), the Ninth Circuit Court of Appeals dissolved the stay of the California State Grange case. In response to the decision in the Alsea Valley case, which rejected the NOAA Fisheries’ treatment of hatchery fish in listing decisions, the National Oceanic and Atmospheric Administration (NOAA) devised a new hatchery policy and commenced comprehensive status reviews for various west coast fish species, including the coho salmon. On June 3, 2004, NOAA proposed a new hatchery policy, 69 Fed. Reg. 33102, which requires the quantification   Klamath Litigation (Continued) of both the hatchery and naturally-spawning populations for listing determinations. However, the listings can focus solely on the naturally-spawning populations to indicate whether the ecosystem meets the species’ survival needs. NOAA is accepting public comments on the draft policy until September 1. NOAA will then review the comments and hopes to publish a final policy in fall 2004. Applying the new hatchery policy to southern Oregon-northern California coho (which includes Klamath River coho), NOAA proposed to relist the species as threatened on June 14, 2004. See 69 Fed. Reg. 33102. Under the ESA, NOAA must make final decisions on the proposed relisting of the wild and hatchery southern-Oregon-northern California coho by June 14, 2005. In the meantime, the plaintiffs in the California State Grange case will seek to have the stay of that case listed. Rio Grande Silvery Minnow v. Keys While not involving the Klamath Project directly, this case was closely watched in the Klamath Project; Klamath Water Users Association filed a brief amicus curiae. In the Middle Rio Grande Basin, a federal project imports water from the lower Colorado River Basin for storage and ultimate delivery to contractors. The plaintiff environmental groups argue that the water must be released downstream for the listed Rio Grande Silvery Minnow. The groups prevailed in the District Court. See Rio Grande Silvery Minnow v. Keys. On appeal, the United States and other parties contended that the water must be Continued on page 6

Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) NOAA Fisheries, challenging both technical and delivered to the contractors and that the government lacks discretion to do otherwise. By a 2-1 decision, the Tenth Circuit Court of Appeals affirmed the District Court’s ruling. See Rio Grande Silvery Minnow, et al. v. Keys, 333 F.3d 1109 (10th Cir 2003). Subsequently, the United States and water users petitioned for rehearing "en banc." Thereafter, Congress enacted legislation to deny the Secretary of the Interior discretion to release water downstream for endangered species, which effectively reversed the appellate decision for purposes of the affected basin. See Pub. L. No. 108-137 § 208(a), 117 State 1827 (Dec. 1, 2003). The Court of Appeals then dismissed the litigation as moot. See Rio Grande Silvery Minnow, et al. v. Keys, 355 F.3d 1215 (10th Cir. 2004). As a result, there is effectively no decision on the legal issue presented. Pacific Coast Federation of Fisherman’s Associations, et al. v. U.S. Bureau of Reclamation and National Marine Fisheries Service* The plaintiff environmental organizations brought suit in April of 2002 in the U.S. District Court for the Northern District of California, claiming that the Bureau of Reclamation was in procedural violation of the Endangered Species Act with respect to coho salmon. They sought a temporary restraining order that would preclude irrigation diversions if certain Klamath flows were not met. The application for temporary restraining order was denied on May 3, 2002. Plaintiffs appealed this denial and the parties have briefed their arguments on appeal to the Ninth Circuit Court of Appeal. Subsequently, NOAA Fisheries completed a biological opinion for   Klamath Litigation (Continued) legal matters in the biological opinion,fv clegal matters operation of the Klamath Project for 2002 through 2012. Plaintiffs filed an amended complaint against NOAA Fisheries, challenging both technical and legal matters in the biological opinion, and against Reclamation, alleging that Reclamation is in violation of the Act. On July 14, 2003, the District Court upheld NOAA Fisheries’ specified flow levels and decision to adopt a phased approach to implementation. However, the court found that the reasonable and prudent alternative adopted in NOAA Fisheries’ 2002 biological opinion violates the ESA because NOAA Fisheries relies on actions by states and private parties in future years that are not reasonably certain to occur. The court also found that NOAA Fisheries violated the ESA in adopting an incidental take statement that does not establish an unacceptable level of "take" that would trigger reinitiation of section 7 consultation. The court remanded the biological opinion to NOAA Fisheries for amendment. The court refused to issue an injunction and, rather, held that the 2002 biological opinion would remain in effect until NOAA Fisheries issues an amended biological opinion. The plaintiff environmental groups appealed the aspects of the decision that were adverse to their position. This appeal has been fully briefed in the Ninth Circuit Court of Appeals. The United States originally filed an appeal as well, but withdrew that appeal. The Yurok Tribe and Hoopa Valley Tribe have       Continued on page 7   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) Reclamation violated their fishing rights in 2002 by intervened in the case. In addition to joining in the ESA claims, the two Tribes contend that Reclamation violated their fishing rights in 2002 by providing inadequate mainstem Klamath River flows, and that Reclamation must avoid violations of the fishing rights in the future. The Tribes have stated that they do not seek quantification of water rights, but there is some ambiguity as to how this would be separate from the claims of insufficient flow. The trial of this issue is scheduled for September 20-23, 2004. In the meantime, water user intervenors and federal defendants recently filed separate motions to dismiss the case. Moden, et al. v. U.S. Fish and Wildlife Service This status concerns the listing of the shortnose sucker and Lost River sucker as "endangered." The plaintiffs filed a petition with the USFWS to remove the species from the list of endangered species. The petition contended that new information demonstrates that the distribution, abundance, and recruitment of the species is much greater than was believed at the time of the original listing in 1988. USFWS determined that the petition did not present substantial evidence that the delisting may be warranted. See 16 U.S.C. § 1533(b)(3). In the litigation, the plaintiffs challenge this determination. On September 3, 2003, the District Court for the District of Oregon found that USFWS had not adequately explained its conclusions on the petition to delist, and that the administrative record does not appear to support the conclusion not to delist. The court remanded the case to USFWS to provide more information on the methods used to measure the     Klamath Litigation (Continued) sucker populations, and to explain the reasoning for concluding that populations did not increase within the last decade. The USFWS recently announced that it has concluded that it is not warranted to propose delisting and that it will conduct a five year status review of the species. Environmental Protection Information Center, et al. v. National Marine Fisheries Service The case concerns whether the North American green sturgeon, which inhabits the Klamath River and other waters, should be listed as threatened or endangered. The plaintiff environmental groups challenge the determination of NOAA Fisheries that listing is not justified. The plaintiffs contended that the species has been extirpated from most of its historic range and is now reduced to only three known spawning populations: the Klamath/Trinity, the Rogue, and the Sacramento. Plaintiffs argued that the decline in species is principally due to over-fishing and habitat alteration, including water projects and that the species is at risk. The District Court for the Northern District of California ruled in favor of the plaintiff environmental groups on March 2, 2004. Specifically, the court found that NOAA Fisheries had failed to consider whether several lost spawning habitats collectively constitute a major geographical area for the green sturgeon. The court remanded the NOAA Fisheries’ 2003 decision to reject listing the green sturgeon back to NOAA Fisheries for reconsideration. Continued on page 8   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) Litigation Challenging Diversions to Rogue River Basin Oregon Natural Resources v. Keys On January 30, 2003, two environmental groups served a 60-day notice of intent to sue under the ESA concerning exports of water from the Klamath River Basin to the Rogue River basin. The notice asserts that Reclamation Projects divert approximately 30,000 acre-feet of water to use in the Rogue River basin, and there has been a failure to comply with the ESA with respect to Klamath Basin coho and suckers, Rogue Basin coho, and other listed species. The environmental groups filed a lawsuit against Reclamation on July 3, 2003. The parties settled the case in early July 2003 based on Reclamation’s agreement to complete ESA consultations. Reclamation issued a biological assessment in October 2003, and the biological opinion was completed in April 2004. Tribal Water Rights Water rights claims of the Klamath Tribes are being adjudicated in the Oregon adjudication of the Klamath River. Additionally, the Department of Interior takes unadjudicated tribal water rights into consideration in its Project operations plans. In the meantime, there have been various decisions and proceedings regarding tribal water rights. United States v. Adair This case originally began as a suit by the United States to determine its water rights to Klamath   Klamath Litigation (Continued) Marsh relative to upstream irrigators on the Williamson River. It eventually grew to include the Klamath Tribes and certain rulings on rights of the Klamath Tribes, as well as the rights of various federal agencies. It was argued in this case by the State of Oregon and others that the Federal Court should abstain from deciding water rights issues, and leave this task to the State in adjudication. The Federal Courts disagreed, and stated they would rule on the nature of the federal and tribal rights, but leave quantification of the rights to the State adjudication. The decision in the case technically applies only to the defined "litigation area" upstream of Kirk Reef, but its principles are asserted with respect to other Upper Basin waters. With regard to Klamath Tribes’ rights, the Court ruled that the Tribes have instream water rights, with a priority of "time immemorial" to support hunting and fishing on the former Klamath Reservation. United States v. Braren This case is a continuation of the Adair case discussed immediately above. The Klamath Tribes and Bureau of Indian Affairs recently returned to Federal Court, asking the District Court to clarify rulings from the 1983 Adair case. BIA and the Tribes disagreed with the way in which the State of Oregon was apparently applying the prior case in the context of the State adjudication, and sought clarification. The District Court, over the objection of the State of   Continued on page 9   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) Oregon and others, agreed to hear the case and issued a decision in early 2002 (followed by an amended opinion order on April 9, 2002). The decision rules that the Tribes’ rights include a water right to support gathering. It also interprets the standard of measurement of the Tribes’ rights, essentially in the manner requested by the Tribes and BIA. CV No. 75-914 PA (D. Or.). In July 2003, the Ninth Circuit Court of Appeals vacated the District Court’s ruling. United States v. Braren. The Ninth Circuit found that Federal Courts cannot rule on the adjudication standards until Oregon makes final water right determinations in the adjudication. The result of the decision is that the District Court’s decision is of no consequence and any further Federal Court action regarding Klamath Tribes’ water rights claims is very unlikely before the completion of the state adjudication. California Tribes There are no Court decisions specifically ruling on rights that may be held by the Yurok, Hoopa, or Karuk Tribes in California. The Department of Interior has determined that the Yurok and Hoopa Tribes hold instream water rights in the Klamath River to support fisheries, and that the priority of these rights is 1855 or 1891. In Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), the Ninth Circuit Court of Appeals ruled that these two tribes have federally reserved fishing rights. In other contexts, courts have found that the existence of fishing rights supports finding an implied water right. See also discussion of PCFFA II (above) concerning tribal claims for failure to protect fishing rights. Klamath Litigation (Continued) Lease Lands Northwest Coalition for Alternatives to Pesticides and ONRC v. Babbitt In 1994, the parties stipulated to a judgment that required, among other things, that the Department of the Interior prepare an Integrated Pest Management (IPM) Plan for farming on the Tule Lake and Lower Klamath National Wildlife Refuges. In March 1998, the plaintiffs filed a motion claiming that the Department of the Interior has not complied with the judgment, and sought to reopen the case. Plaintiffs sought an order prohibiting any pesticide use until an IPM Plan is completed. On March 8, 1999, the Magistrate Judge adopted findings and recommendations that the amended complaint be dismissed, and the Court subsequently entered judgment against the plaintiff environmental groups. Klamath Forest Alliance, et al. v. Babbitt Plaintiffs objected to farming practices, pesticide use, water use, etc., on the lease lands in the Tule Lake and Lower Klamath National Wildlife Refuges and claimed violations of the Kuchel Act and legislation applicable to national wildlife refuges generally. They sought an order requiring the elimination or modification of farming on the lease lands. On December 28, 1998, the Court granted motions for summary judgment filed by defendant and the intervenors. With minor modifications, this became Continued on page 10   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) the final judgment of the Court. Thus, the case was resolved against the plaintiff environmental groups. Tulelake Irrigation District, et al. v. Stewart, et al. This case was filed on February 23, 1999, on behalf of Tulelake Irrigation District and two growers on the lease lands. In 1999, the Fish and Wildlife Service required that lessees on the lease lands agree that, if there is a risk of water shortage to the Lower Klamath or Tule Lake Refuges, lessees may be required to forego the use of irrigation water. The lawsuit challenged this requirement and others as being: in violation of TID’s contract with the United States; in violation of the Kuchel Act; in violation of the National Environmental Policy Act; in violation of rights to renew leases from past years, and on other grounds. The case was settled based on recognition of sufficient water in 1999 and USFWS’s commitment to re-evaluate this policy for future years. Tulelake Irrigation District, et al. v. Norton, et al. In December of 1999, it was announced that the objectionable water terms that were the subject of the case above would again be included in leases in 2000. A new lawsuit was filed raising similar challenges and also contending that USFWS had not complied with the stipulation from the previous case prior to making a decision. TID and the growers that joined in the case also sought a preliminary injunction to enjoin the new policy pending a final decision in the case. After the case and preliminary injunction motion were filed, USFWS recognized that it had not complied with the requirements of the stipulation from the old case that was settled in 1999. The Klamath Litigation (Continued) parties stipulated to a court order that the objectionable terms would not be in effect in 2000, and leases for 2000 were revised or amended to state that the limitations on water would not be in force. The Wilderness Society, et al v. Norton Plaintiffs challenged farming practices on the lease lands. The complaint was very similar to the Klamath Forest Alliance v. Babbitt case, above, in that it objects to row crops, pesticide use, water use, etc. The case focuses particularly on water use. Subsequent to Tulelake v. Norton (above), USFWS evaluated the actual effects on refuge water supply that would occur if lease lands were not irrigated, and concluded that there would be essentially no benefit. Plaintiffs challenged this decision and have narrowed the case to allege violations of the National Environmental Policy Act (NEPA). The parties submitted cross-motions for summary judgment on the alleged NEPA violation. On June 10, 2003, the District Court entered judgment in favor of the USFWS and the districts. The court found that maintenance of the status quo operation of the agricultural lease program was not subject to additional environmental review under NEPA. Other Issues Water Quality: Klamath Forest Alliance, et al. v. Bureau of Reclamation* Plaintiffs contend that the Klamath Straits Drain is a "point source" discharging pollutants to the Klamath River. Under the Clean Water Act, a permit is - Continued on Page 11 -   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) required for the discharge of pollutants from a point source to rivers, streams, etc. A permit could likely require treatment of water in the Straits Drain before it flows into the Klamath River. Settlement discussions have been occurring between the government and the plaintiffs for some time. FOIA: Department of Interior v. Klamath Water Users Association The U.S. Supreme Court ruled that, under the Freedom of Information Act (FOIA), the Department of Interior must provide Klamath Water Users Association documents constituting communications between the government and Klamath Basin tribes. The Court ruled that FOIA’s exemption for "intra-agency correspondence" is not applicable. Water Quality and Endangered Species Act (ESA): Oregon Natural Resources Council, et al. v. Hallock, et al.* A recent decision of the Ninth Circuit Court of Appeals holds that parties applying aquatic herbicides in canals must hold a National Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act. In 2002, Klamath Irrigation District (KID) sought and obtained an NPDES permit, issued by the Oregon Department of Environmental Quality (DEQ). The plaintiff environmental groups allege a violation of the ESA; in particular, they contend that DEQ and U.S. External Protection Agency were required, prior to permit issuance, to consult with US Fish and Wildlife Service with respect to impacts to endangered suckers. They seek rescission of the permit pending DEQ and EPA compliance with section 7 of the ESA. Klamath Litigation (Continued) After plaintiffs filed the case, separate litigation in a federal District Court in Washington called into question whether certain provisions of KID’s permit are unlawful.  Based on that decision and related regulatory issues, DEQ rescinded KID’s permit and similar permits held by other Oregon irrigation districts.  KID then pursued an administrative appeal of the rescission of the permit, resulting in the permit remaining in effect pending the resolution of the administrative appeal.  The court in the ONRC v. Hallock case stayed that case pending the resolution of the administrative appeal. That stay expired on July 29, 2004. Water Quality, ESA and Lease Lands: Aquatic Herbicides and Lease Lands Oregon Natural Resources Council, et al. v. Keys Federal agencies have historically obtained ESA biological opinions and incidental take authorization concerning various activities within the Klamath Project. The activities include authorizing use of aquatic herbicides, and pesticide use on lease lands. In this case, the plaintiffs contend Reclamation has not complied with terms and conditions (primarily related to monitoring and reporting) of the biological opinions and incidental take statements. They seek an order enjoining both the use of aquatic herbicides (acrolein) throughout the Klamath Project and the use of copper-containing pesticides on the lease lands. Reclamation denied any violations, and there was no evidence of any injury due to the alleged violations. During litigation of Plaintiffs’ case, Reclamation indicated its intention to reinitiate ESA Continued on page 12   Klamath Water Users Association 2455 Patterson Street, Suite 3 Klamath Falls, Oregon 97603 Phone (541) 883-6100 FAX   (541) 883-8893   kwua@cvcwireless.net  Weekly Update August 6, 2004 Klamath Litigation (Continued) consultation on the use of aquatic herbicides in Project canals and pesticides on lease lands for reasons unrelated to the lawsuit. A magistrate judge found that Reclamation’s steps to reinitiate consultation were reason enough not to address the alleged violations, and recommended either staying the case until completion of the new consultations or dismissing the case altogether. The U.S. District Court for the District of Oregon upheld the magistrate judge’s findings, and adopted the latter recommendation to completely dismiss the case. On July 1, 2004, the District Court entered final judgment dismissing the case.     CALENDAR OF EVENTS Tuesday, August 10, 2004 - KWUA Power Committee Meeting. 6:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls, OR. Wednesday, August 18, 2004 – KWUA Executive Committee Meeting. 6:00 p.m. KWUA Office 2455 Patterson Street, Suite 3, Klamath Falls, OR.

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