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In a two-part decision favorable to Klamath Project irrigators, Judge William Orrick of the United States District Court for the Northern District of California, denied the Klamath Tribes’ motion for preliminary injunction seeking management of Upper Klamath Lake at levels that would result in an immediate shutdown of the Klamath Project.  Among the rulings in the 29-page opinion, Judge Orrick noted that it is “an open question among competing expert opinions whether the relief requested will really improve the plight of the sucker fish,” and that the science presented with the motion did not support the granting of the extraordinary remedy sought by the Klamath Tribes.  In addition to denying the motion for preliminary injunction, Judge Orrick transferred the case to the District of Oregon.  A copy of the July 25, 2018 order is available here.

Background

 The Klamath Tribes filed a citizen suit in the Northern District of California on May 23, 2018, against the United States Bureau of Reclamation, Fish & Wildlife Service, and National Marine Fisheries Service alleging various ESA violations related to endangered sucker species in Upper Klamath Lake.  On May 29, 2018, the Klamath Tribes filed a motion for preliminary injunction seeking interim management of Upper Klamath Lake at lake levels above those required by the operative 2013 Biological Opinion for operation of the Klamath Project.  The Klamath Water Users Association, Sunnyside Irrigation District, and an individual irrigator, all represented by Somach Simons & Dunn, intervened.  The United States and Intervenors both filed motions to dismiss on grounds including that venue was improper in the Northern District of California.

Denial of Preliminary Injunction

 In the July 25, 2018 decision, Judge Orrick denied the motion for preliminary injunction.  In addition to declarations submitted by the Klamath Tribes in support of their motion, scientists on behalf of the United States, Intervenors, and amici submitted expert declarations relating to the alleged connection between lake level management of Upper Klamath Lake and sucker populations.  Judge Orrick ruled that “the scientific evidence is very much in dispute, and I cannot conclude that the Klamath Tribes are likely to prevail on the merits nor that the sucker fish are suffering irreparable injury as a result of the lake elevation levels.”  Additionally, he ruled that “[the] Klamath Tribes have failed to show that their proposed remedy is in the sucker fish’s best interest.”  The decision references evidence submitted to the Court about the likelihood of up to $380 million in crop and other losses resulting from the proposed injunction.

The denial of the preliminary injunction means that Klamath Project water should remain available for irrigation for the remainder of the 2018 season, consistent with the 2018 Klamath Project Operations Plan.

Transfer of Venue

 Judge Orrick transferred the case to the District of Oregon.  Judge Orrick found that while venue may be proper in the Northern District of California, it is more appropriate in the District of Oregon.  Upper Klamath Lake is located in Oregon, the Klamath Tribes are headquartered in Oregon, the subject fish are all located in Oregon, and offices of the Bureau of Reclamation and Fish & Wildlife Service, the agencies tasked with managing the Klamath Project and protecting sucker species, are located in Oregon.

Although Judge Orrick’s decision provides relief for Klamath Project irrigators, particularly for the 2018 season, the case will continue in the District of Oregon.  The ruling does, however, make clear that the Klamath Tribes’ existing arguments on lake level management will not provide the support for the kind of relief they unsuccessfully sought this summer.

For more information on this case, please contact Rich Deitchman at (916) 446-7979 or rdeitchman@somachlaw.com.

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