[env-trinity] Judge advances lawsuit over disputed rights to water in Oregon lake

[Tom Stokely]

https://www.courthousenews.com/judge-advances-lawsuit-over-disputed-rights-to-water-in-oregon-lake/ 
Judge advances lawsuit over disputed rights to water in Oregon lake
  
A state court made Oregon tell a federal agency to stop taking water from a freshwater lake, but the U.S. government says that demand is preempted by federal law.
    Nicholas Iovino / March 2, 2022       The view of Upper Klamath Lake from The Sunrise Place, as two bald eagles fly nearby. (Courthouse News photo / Karina Brown) 
SAN FRANCISCO (CN) — In the midst of a devastating Western drought, a massive freshwater lake in Southern Oregon has become the focal point of the latest battle in a long-running legal dispute over water rights in the Pacific Northwest.

Farmers, ranchers, fishermen, tribes and a slew of government agencies have been fighting in court for over two decades for rights to obtain water from the Klamath Project, a massive system of dams, tunnels and canals that irrigates 230,000 acres of agricultural land and supplies water for four national wildlife refuges.

The most recent dispute erupted in April last year when the state of Oregon issued an order directing the U.S. government to immediately stop taking water from the Upper Klamath Lake to provide flows that help ensure the survival of endangered coho salmon.

The state subsequently issued notices claiming that the Bureau of Reclamation — a federal agency that manages the Klamath Project — violated state law by taking “stored water” earmarked for farms, ranches and others with existing water rights.

A Marion County Circuit Court judge had ordered Thomas Byler, director of the Oregon Water Resources Department, to issue those demands after the Klamath Irrigation District sued to halt the removal of water from Oregon’s 96-square-mile lake.

In October, the Bureau filed a cross-claim in a previously stayed federal lawsuit arguing the state's demands are preempted by federal laws, which require water for endangered species and tribal rights be prioritized over commercial interests.

In a virtual hearing on Oregon’s motion to dismiss that claim Wednesday, U.S. District Judge William Orrick said he would advance the federal government’s case despite Oregon’s insistence that its directives are fully consistent with federal law.

“I’m not going to grant the motion to dismiss the government,” Orrick said.

Oregon Senior Assistant Attorney General Jeanne Nicole DeFever argued the state's directives to the Bureau clearly provide enough leeway for the agency to meet its obligations under federal law.

“The April 6 order and notices of violation say you can come forward and say why you’re not complying with state law, and one of the reasons openly stated in the order is 'you’re complying with federal law,'” DeFever said.

DeFever argued the federal government’s claim hinges on a theoretical situation — one in which the state of Oregon would enforce its orders against the Bureau despite its past assurances that compliance with other laws is a valid justification for disobeying the state’s demands.

“We have an attenuated hypothetical that there could be enforcement,” DeFever said. “I do not think we have that concrete and certain kind of injury.”

Noting that the state issued two notices of violation with an intent to enforce, Orrick said he believes the controversy is more than merely hypothetical. He signaled that the Bureau has good reason to seek relief in federal court.

“That creates the well-founded fear,” Orrick said. “I think that issue is ripe.”

Turning to a separate supplemental complaint filed by the Yurok Tribe and two fishing industry groups, Orrick said he was inclined to dismiss those claims because the federal government seems to adequately represent the groups’ interests.

The state of Oregon says the groups’ supplemental complaint is invalid because they failed to file an intent to sue 60 days in advance as required by the Endangered Species Act.

Noting that her clients previously obtained an injunction requiring water flows to help save threatened salmon, Yurok Tribe attorney Patti Goldman of Earthjustice argued her clients deserve a chance to weigh in on this dispute, which could affect their tribal rights and the survival of endangered fish.

“We want to be heard on these issues,” Goldman said.

The judge indicated that all stakeholders will get a chance to weigh in, whether by filing briefs as intervenors or amici, a Latin term for “friends” of the court.

“Your fundamental concern is being heard,” Orrick said. “There’s lots of ways to make that happen.”

The judge set an ambitious timetable for resolving the dispute, requiring both sides to finish gathering evidence by early April and to file motions for summary judgment by May 27.

Orrick previously denied a request by the Klamath Tribes for a court order to raise water levels in the Upper Klamath Lake to help protect endangered sucker fish.

In 2020, the judge rejected another motion by the Yurok Tribe to require additional water flows for threatened salmon, a request the Klamath Tribes opposed over concerns that it would reduce low water levels in the Upper Klamath Lake and harm sucker fish.


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