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On February 6, 2023, the District Court for the Northern District of California issued its order on pending motions for summary judgment in Yurok Tribe, et al. v. U.S. Bureau of Reclamation, et al. (N.D. Cal. Case No. 3:19-cv-04405-WHO), ruling that the Endangered Species Act (ESA) preempts an order issued by the Oregon Water Resources Department (OWRD) that prohibits the U.S. Bureau of Reclamation (Reclamation) from releasing water stored by the Klamath Project (Project) for non-irrigation purposes.

In the Klamath Basin Adjudication, OWRD determined in 2013 that the authorized purpose of use for the water rights for the Project is irrigation and that Reclamation stores water for the benefit of Project irrigators. In that proceeding, OWRD rejected arguments by the United States and others that the Project’s water rights may be used to benefit fish and wildlife species.

However, since the listing of species in the Klamath Basin, Reclamation has operated the Project according to minimum lake levels in Upper Klamath Lake and minimum flows in the Lower Klamath River set in biological opinions issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service. Following litigation in state court by the Klamath Irrigation District over the release of stored water from the Project, OWRD issued an order to Reclamation directing that stored water not be released for purposes for which there is no water right. In 2021, Reclamation claimed that its Endangered Species Act obligations under federal law require Reclamation to release stored water downstream to the Klamath River to benefit protected salmon consistent with the applicable biological opinions. In pending litigation in the Northern District of California, the United States brought a claim against OWRD and Klamath Water Users Association (KWUA), challenging the OWRD Order under the Supremacy Clause and arguing that the ESA preempts the OWRD Order.

The court granted summary judgment in favor of the United States as well as the Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources, and denied the summary judgment motions filed by OWRD, KWUA, and Klamath Irrigation District. In its preemption analysis, the court considered whether it is physically impossible for Reclamation to comply with both the Endangered Species Act and the OWRD Order, or whether the OWRD Order stands as an obstacle to accomplishing the purposes of the ESA. As part of this analysis, the court addressed KWUA’s argument that Reclamation does not have “discretionary authority” under the ESA to use stored water in Upper Klamath Lake for purposes other than irrigation. The court rejected this argument, instead holding that “Congress gave [Reclamation] a broad mandate in carrying out the Reclamation Act [of 1902], meaning it has discretion in deciding how to do so.” Under the Supreme Court precedent in National Association of Builders v. Defenders of Wildlife from 2007, “that discretion means that section 7(a)(2) applies.”

After finding ESA section 7(a)(2) applies to the Project because discretionary authority exists under the Reclamation Act of 1902, the court found that the OWRD Order stands as an obstacle to Reclamation’s release of stored water from the Project for ESA purposes and is thus preempted under the Supremacy Clause. The court declined to opine on other challenges to the OWRD Order under the intergovernmental immunity doctrine raised by the United States, and other arguments on discretion under ESA section 7(a)(2) by KWUA.

Since the expiration of the Klamath Basin Restoration Agreement in 2016, the Klamath Basin has been embroiled in nonstop ESA litigation, including at least ten different lawsuits in federal court filed by various stakeholders, in addition to the state court litigation mentioned above. As of the issuance of this ruling, two notices-of-intent to sue have been sent regarding 2023 Project operations.

For more information on this litigation, or application of the ESA in the Klamath Basin, please contact Brittany K. Johnson at (916) 446-7979 or bjohnson@somachlaw.com. Somach Simmons & Dunn represents KWUA in this action.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.