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Klamath Water Users Association brings legal challenge to Klamath Project operations

KWUA News Release 4/22/21

On April 19, Klamath Water Users Association filed court papers to re-open a lawsuit and seek a ruling that the Bureau of Reclamation’s current approach to regulating water deliveries for the Klamath Project is illegal.KWUA filed a motion in federal court asking the court to lift a stay of existing litigation and then rule on critical legal issues that affect irrigation water availability.
KWUA’s Executive Director and Counsel Paul Simmons emphasized that the action will not affect irrigation water supplies this year. “As much as I wish otherwise, there is no litigation path insight that will change our terrible situation this year. KWUA wants to establish sideboards that will control future years’ operations in a more reasonable way.”
The existing litigation was filed in 2019 in the U.S. District Court for the Northern District of California in San Francisco. The Yurok Tribe and Pacific Coast Federation of Fishermen’s Associations (PCFFA) sued the Bureau of Reclamation and National Marine Fisheries Service for alleged violations of the Endangered Species Act (ESA) related to Project operations that had been adopted to control Project operations from 2019-2024. In April 2020, the lawsuit was stayed based on Reclamation’s decision to modify that plan and pursue an “Interim Plan” that would apply in 2020 through 2022.
KWUA submitted two motions to the court. The first argues that the court should lift the stay of litigation. The second, which can be heard only if the stay is lifted, asks for rulings on important legal issues that affect Project irrigators.
Specifically, it requests a ruling that under the current interpretation of the ESA, Reclamation does not have an obligation or authority to curtail irrigation deliveries. It also asks that the court rule that there is no right or obligation to release stored water from Upper Klamath Lake down the Klamath River.
Mr. Simmons said that KWUA and other Project irrigators have been focused on these issues for years. KWUA, Klamath Irrigation District, and other districts tried to raise the issues in a federal lawsuit in early 2019. But their case was dismissed based on arguments by two tribes that they were indispensable parties to the case, and the case could not proceed without them. But because those same tribes have sovereign immunity and could not be joined without their consent and did not give their consent, the case had to be dismissed.
“That was a surprise,” said Klamath Drainage District counsel Reagan Desmond, who represented KDD in the case. “Anyone else can sue the Project to take away water, but we weren’t allowed to sue in order to protect our water.”KID has also pursued the stored water issue in other cases in state court.
In the meantime, the Klamath Tribes have filed a lawsuit in Oregon challenging Reclamation’s plan for 2021 Klamath Project operations. KWUA has filed papers to become an intervenor in that case and argue against the tribe’s claims. A hearing on a motion for preliminary injunction will occur on Monday, April 25, at 9 a.m.
KWUA’s motion to lift the stay of the litigation in San Francisco is scheduled for a hearing on May 26 before Judge William Orrick. According to Mr. Simmons, “we hope the stay will be lifted, and we can litigate in a federal court in a case where the federal government is a party.”
He also emphasized that the litigation will not resolve all of the complex water and resources affecting the Klamath Project. “As much as we need to clarify the rules, we also need to work with other parties for solutions and stability.”



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