[env-trinity] Monday’s order upholds the notion that irrigators’ rights come after the Bureau of Reclamation’s obligations to protected fish species and tribal rights in the Klamath Basin.

[Tom Stokely]

https://mavensnotebook.com/2023/09/12/courthouse-news-judge-finds-feds-violated-law-by-favoring-irrigators-in-the-klamath-basin/ 

Monday’s order upholds the notion that irrigators’ rights come after the Bureau of Reclamation’s obligations to protected fish species and tribal rights in the Klamath Basin.

By Alanna Madden, Courthouse News Service

A magistrate judge in Oregon sided with the Klamath Tribes on Monday in finding that the U.S. Bureau of Reclamation violated the Endangered Species Act by misallocating limited water supplies from the Upper Klamath Lake, harming endangered sucker fish and other aquatic wildlife.

In the 52-page findings and recommendation, U.S. Magistrate Judge Mark D. Clarke found the central question is whether the federal government broke the law by allocating water for irrigation when it knew it could not comply with its Endangered Species Act obligations to endangered sucker fish in the Upper Klamath Lake, a freshwater reservoir in the southern Oregon portion of the Klamath Basin.

“The answer to this question is yes,” Clarke wrote, adding that the courts have held that irrigators’ rights are subservient to the bureau’s obligations under the Endangered Species Act and the tribes’ fishing and water rights.

Known to the tribes as C’waam and Koptu, the Lost River and shortnose sucker fish represent two species in Oregon’s largest freshwater lake that have “played a central role in the tribes’ cultural and spiritual practices” for millennia, according to the Klamath Tribes.

The two species were listed as endangered in 1988, and since 2001, their populations have decreased substantially. In 2018, the Upper Klamath Lake had an estimated 100,000 Lost River suckers and 20,000 shortnose suckers. Four years later, this number dropped to 27,000 and 3,500, respectively, the tribes claim in their May 2022 lawsuit.

The Klamath Tribes noted in similar lawsuits that the lake’s water levels frequently fall below the historical minimum of 4,140 feet, interfering with the suckers’ spawning, rearing, feeding and access to water quality refuge areas. These changes, they contend, first began after the Link River Dam was built in 1921 to regulate water for the Klamath Project, an undertaking that diverts about 340,000 acre-feet of water annually to farms and ranches.

However, this particular case — initially filed against the bureau and U.S. Fish and Wildlife Service — shines a light on how the Klamath Basin had been experiencing its third straight year of intense drought, making it “nearly impossible” for the bureau to balance competing interests, including that of tribal water and fishing rights, obligations under the Endangered Species Act and project irrigators.

According to the tribes’ complaint, Reclamation consulted with Fish and Wildlife regarding the Endangered Species Act on its proposed action for operating the project from 2020 to 2022. Ahead of that consultation, they say, Fish and Wildlife issued a biological opinion concluding that the project would not harm the endangered fish or adversely modify their critical habitat — a conclusion based on the bureau’s proposed action, including its water allocation formula.

“Reclamation’s response to this year’s poor hydrology, however, has been in direct contravention of that formula,” the tribes say, adding that after the agencies adopted a 2022 operations plan, the bureau began allocating water to project irrigators in the middle of spawning season, cutting the species off from spawning grounds and leaving no rearing habitat for larvae and juvenile fish.

“The net effect of the 2022 ops plan, therefore, is to consign to death 2022’s entire year class of baby C’waam and Koptu,” the tribes say, later noting that Fish and Wildlife had identified several risks to the fish and failed to rescind or modify its incidental take statement from its 2020 biological opinion.

Ultimately, the tribes sought a declaration that the bureau violated the Endangered Species Act and the National Environmental Policy Act for improperly prioritizing irrigators over endangered fish and implementing unpermitted take. Judge Clarke recommended granting the tribes that declaration on Monday, concluding that the agency failed to take a hard look at the environmental consequences of its actions that violated sections seven and nine of the Endangered Species Act.

Clarke wrote that while severe drought made it impossible to maintain sufficient water levels in 2022, “severe drought conditions were not an excuse for Reclamation to abandon its ESA obligations to the suckers in UKL and instead allocate water for Klamath project irrigators.”

The judge said the bureau’s obligations “required it to take all steps necessary to avoid jeopardizing the suckers, even if that meant allocating no water to project irrigators for a second consecutive year.” Yet, instead of heeding Fish and Wildlife’s warnings about failing to meet certain water levels, Clarke noted that the bureau delivered 60,000 acre-feet of water to irrigators by July 2022, deviating from its 2018 water allocation formula that would have directed zero irrigation delivery.

Intervenor defendant Klamath Water Users Association argued in its motion for summary judgment that the tribes had not provided any evidence of fish take, which includes significant habitat modification that harms wildlife by impairing essential behavioral patterns. Clarke disregarded this argument, though, finding lower water levels are directly proportional to decreased reproductive output and increased larvae mortality.

“Even if the precise number of suckers taken is difficult to determine, it is beyond question that the suckers’ spawning behaviors have been impaired,” Clarke wrote. “The tribes need not literally bring a dead fish before this court to show that Reclamation’s operation of the Klamath project under the 2022 TOP has harmed the suckers. As such, KWUA’s argument is unavailing.”

Clarke’s recommendation next goes to a federal judge who will make a final ruling. Representatives for the tribes and the bureau were not immediately available for comment.

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