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September 8, 2022  |  Written by Richard S. Deitchman

Ninth Circuit Restricts Irrigators' Rights to Seek Judicial Review of Klamath Project Operational Decisions

On September 8, 2022, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Klamath Irrigation District et al. v. United States et al., Case No. 20-36009, affirming the United States District Court for the District of Oregon’s dismissal of two actions filed by various Klamath Project (Project) irrigation parties challenging United States Bureau of Reclamation’s (Reclamation) operating procedures for the Project.

In April 2019, Project irrigation parties, including the Klamath Irrigation District (KID) and a group that included the Klamath Water Users Association (KWUA) and several Project districts and individual farmers filed two complaints challenging Reclamation’s 2019-2024 operating plans or procedures for the Project in the District Court. KWUA’s Administrative Procedure Act (APA) complaint sought to address outstanding legal issues relating to the operation of the Project and relied on in the operating procedures, including the scope of Reclamation’s Section 7 Endangered Species Act discretion as it relates to Project operations, and other issues. KID’s complaint emphasized that Reclamation’s operations were unlawful in light of Oregon’s enforceable final order determining water rights in the administrative phase of the Klamath Basin Adjudication (KBA).

The Hoopa Valley Tribe and the Klamath Tribes (collectively, “Tribes”) intervened for the limited purpose of filing motions to dismiss claiming that they were necessary parties to the two actions who could not be joined as a result of sovereign immunity. The District Court dismissed both actions on those grounds.

In its September 8, 2022, decision, the Ninth Circuit applied a two-step procedure set forth in Federal Rule of Civil Procedure 19. The appellate court first examined whether the tribal parties must be joined under Rule 19(a), and upon determining that joinder was unfeasible as a result of sovereign immunity, addressed whether in “equity and good conscience” the case may still proceed. Accepting the arguments of the federal government and the Tribes, the Ninth Circuit found that both complaints “implicate[] the Tribes’ long-established reserved water rights,” even though the Hoopa Valley Tribes’ federal reserved rights are unquantified, and the Klamath Tribes do not presently have an enforceable water right as it relates to Project irrigators due to a stipulation in the ongoing KBA proceeding.

The Ninth Circuit further concluded that under its own recent precedent, “Reclamation’s and the Tribes’ interests, though overlapping, are not so aligned as to make Reclamation an adequate representative of the Tribes.” Although the two dismissed cases challenged Reclamation’s decision and actions only, and the United acts as trustee for the federal reserved fishing and water rights of Native American tribes, the Ninth Circuit found that Reclamation is not an adequate representative for the Tribes, so they are required parties to the suit.

The Ninth Circuit rejected KID’s argument that the suit should proceed because the McCarran Amendment waives the Tribes’ sovereign immunity and concluded that the lawsuit was not an administration of previously determined rights under the McCarran Amendment, but it is an APA challenge to federal agency action. Finally, the Ninth Circuit applied the “equity and good conscience” factors and found that there was no way for the cases to proceed in the absence of the Tribes.

Failing any further judicial review, the opinion virtually closes all courthouses in the Ninth Circuit to irrigators pursuing APA judicial review of federal decision making regarding the Klamath Project that they believe are illegal. This has major implications for irrigators seeking to protect their interests in water, and has potential application to other basins where tribal interests are present. In the meantime, the court has identified no similar limits on rights of other parties to challenge Reclamation decisions, meaning that other parties remain free to challenge Reclamation’s actions with the goal of reducing irrigators’ water supply.

For more information on this case, please contact Rich Deitchman at (916) 446-7979 or

Somach Simmons & Dunn represents Shasta View Irrigation, Tulelake Irrigation District, KWUA, Rob Unruh, and Ben DuVal who are parties in the consolidated action and among the plaintiffs/appellants who filed the action captioned Shasta View Irrigation District et al. v. United States Bureau of Reclamation et al.

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