Water
Users on the Defensive in Recent In
the past decade, the contentious nature of long-simmering water and
environmental disputes in the
In the past year, local water users have generally intervened only in support of the U.S. government, which has generally been on the defensive end of litigation, particularly since the September 2002 Klamath River fish die-off. However, in past years, the Klamath Water Users Association (KWUA), local irrigation districts and landowners have also filed their own lawsuits, particularly when government actions threaten water deliveries to Klamath Project irrigators.
In
the recent past, there have been a number of lawsuits affecting the interests of
the Klamath Project and the
This
Weekly Update is intended to provide a brief overview of the more detailed
summary, copies of which
are available at the KWUA office in
In
the recent past, there have been a number of lawsuits affecting the interests of
the Klamath Project and the
Adjudications
An
adjudication can loosely be considered a “quiet title” action to water or
water rights among competing users. In
recent years, there has been activity in adjudication of both the Klamath and
Lost River Basins.
Klamath
River Adjudication: In re the Determination of Rights to the Use of Water of the
Klamath River and its Tributaries*
Water
rights to some sub-basins of the Klamath watershed were adjudicated years ago.
The largest claimed water rights have not been adjudicated.
The
Klamath River adjudication will confirm and quantify two types of water rights:
(1) water rights initiated under Oregon law prior to 1909 (including
Klamath Project and other Upper Basin irrigation rights); (2) federal
“reserved” water rights, including instream tribal rights to Upper Klamath
Lake and its tributaries, irrigation rights of individual Indians on the former
Klamath Reservation (Allottees) and various other rights claimed by federal
agencies (federal wildlife refuges, Forest Service lands, etc.).
In United States v. Oregon, 44 F.3d
758 (9th Cir. 1994), the Ninth Circuit Court of Appeals ruled that
federal agencies and tribes are subject to Oregon’s adjudication procedure and
must file claims.
The
adjudication is presently at an administrative hearing stage.
Contested claims have been referred to a panel of administrative law
judges, and “cases” on individual claims are proceeding.
After the contested case hearing and recommendation by the presiding
administrative law judge, the Water Resources Department’s “Adjudicator”
will issue an Order of Determination, which will be the basis of regulating
rights according to priority. Additionally,
exceptions to the Order of Determination can be expected to be filed in Circuit
Court. Ultimately, the Court’s
Decree will be the basis of regulation, and certificates will be issued to water
rights owners.
Most
Klamath Project districts, and many other Upper Basin irrigators, are parties to
the adjudication, along with federal agencies and the Klamath Tribes.
Administrative Law Judge Maurice Russell II held the evidentiary hearing
for all Klamath Project claims in April 2004.
Other contested cases are at various stages.
Water for Life v. State of Oregon
This
case sought to enjoin the Klamath Basin adjudication on primarily procedural
grounds. The Court denied the
injunction but indicated the plaintiffs’ objections could be raised in the
adjudication process.
Lost
River Adjudication: In the Matter of Lost River
The
Klamath County Circuit Court concluded an adjudication of the Lost River in
1918. The decree recognized vested
rights both within and without the Klamath Project.
In 1999, Klamath Project irrigators taking water from the Lost River
system petitioned for an amendment of the decree, to correct property
descriptions. The United States
made a “special appearance” in opposition.
The United States argued, in essence, that when the Lost River was
adjudicated in 1918, Congress had not yet waived the sovereign immunity of the
United States to allow it to be joined in state adjudication.
It further argued that the United States is now an indispensable party to
Lost River adjudication proceedings. The
government asserted that the petition should be dismissed, because the United
States cannot be joined except in a general stream adjudication.
The Court agreed and dismissed the petition.
The broad implication is that the 1918 decree is not effective as against the United States, and seemingly that Lost River rights in the Klamath Project may not have been adjudicated at all.
Klamath
Project Operations Plans/ESA
Since the early 1990s, there have been various suits against the United States concerning the operation of the Klamath Project. The underlying issues include water rights of irrigators, Endangered Species Act, tribal trust obligations, and wildlife refuge water rights. Since 1995, the Bureau of Reclamation has prepared annual operation plans for the Klamath Project.
Oregon
Natural Resources Council v. Bureau of Reclamation
This
case was originally filed in 1991. Various
theories (Endangered Species Act, National Environmental Policy Act, and others)
were asserted to reduce or eliminate Klamath Project irrigation deliveries and
increase mainstem river flows and Upper Klamath Lake levels.
Both the U.S. District Court and the Ninth Circuit Court of Appeals
rejected plaintiffs’ contentions.
Bennett
v. Spear
Bennett
v. Badgeley
In
this case, Lost River irrigators established precedent in the U.S. Supreme Court
that economic interests have “standing” to challenge ESA biological
opinions. On subsequent remand to
the Federal District Court, the Lost River irrigators successfully established
that lake level requirements for suckers in Clear Lake and Gerber Reservoirs
imposed in 1992 and 1994, were arbitrary and capricious and those requirements
were invalidated.
Klamath
Water Users Association v. Patterson
This
case began as a lawsuit by the Association and various water users challenging
the Bureau of Reclamation’s 1997 operations plan.
Ultimately, when it was clear there would be sufficient water in 1997,
the case was dismissed and there were no final decisions on any of the claims
brought by water users.
The
issue that was actually litigated concerned a counterclaim filed by Pacificorp
against the water users. Under a
1956 contract, Pacificorp operates Link River Dam through the year 2006.
The issue was whether the contract creates obligations for Pacificorp,
enforceable by irrigators, to protect Klamath Project water supply in the
operation of the dam, i.e., whether irrigators are “intended third party
beneficiaries” of the contract. The
Ninth Circuit issued its ruling in the case on January 28, 2000.
The Court held that irrigators are not intended third party beneficiaries
of the contract. The decision also
states that the Bureau of Reclamation can assert control of the dam to meet
Endangered Species Act obligations and to meet unquantified obligations related
to tribal rights.
Langell
Valley Irrigation District v. Babbitt
During
the summer of 2000, the Bureau of Reclamation released significant water from
Clear Lake for irrigation of lands in the west side of the Klamath Project.
The purpose was to lessen irrigation demand from the Klamath River and
Upper Klamath Lake, in order to maintain high instream levels in those water
bodies. The districts who have
historically relied on Clear Lake sought a preliminary injunction, concerned
about the effect on their own supply and carryover storage.
In the preliminary injunction context, the Court found this action to be
within the Bureau of Reclamation’s authority, and that it had complied with
applicable legal procedures. The
districts dismissed their lawsuit without prejudice, and there was no final
judgment.
Pacific
Coast Federation of Fisherman’s Associations v. Bureau of Reclamation
This
case was filed by environmental groups after release of the Bureau of
Reclamation’s 2000 operations plan. In
June of 2000, they sought a preliminary injunction prohibiting Project
deliveries based on alleged violations of NEPA and Reclamation law/state law.
The preliminary injunction was denied.
Plaintiffs
subsequently added claims based on the ESA, specifically with regard to coho
salmon. The Court’s ESA decision
was issued on April 3, 2001. In
essence, it found that Reclamation had violated required ESA procedures, and the
Court issued an injunction disallowing irrigation deliveries until required
procedures had been satisfied. Three
days later, on April 6th, biological opinions were actually issued
meeting procedural requirements. Of
course, the result of these opinions was a zero allocation.
Due to Reclamation giving incomplete information to
the Court, the Court re-issued its injunction in the midst of the briefing on
the Kandra case, below.
Kandra
v. United States
This
case challenged the zero allocation decision of 2001.
A hearing on preliminary injunction was briefed and heard on an expedited
basis. The preliminary injunction
challenges were based, in addition to hardship to Project interests, on NEPA,
the ESA, and Reclamation law and contracts.
The preliminary injunction was denied.
The case, which was directed at water deliveries in 2001, was eventually
dismissed without prejudice, and there was no final judgment.
Klamath Irrigation District, et al. v. United States
In
this case, Klamath Project water users seek compensation under the Fifth
Amendment to the Constitution, for taking of their property rights (water
rights) in 2001. The case also
includes claims based on Klamath River Basin Compact provisions which require
just compensation for impairment of water rights.
Finally, it also includes claims for damages based on breach of contract.
There
have as yet been no definitive substantive rulings in the case.
The government moved to stay the takings portion of the case pending the
conclusion of the Klamath River adjudication.
The Court allowed the case to proceed.
Currently, two issues are before the court.
These are: whether interest of water users in Klamath Project water
rights is a compensable property right; and whether individual
water users are intended third party beneficiaries of contracts between
districts and the United States. Resolution
of these questions will determine the nature of further proceedings.
California
State Grange, et al. v. Evans*
In
this case, the plaintiffs contend that coho salmon in the Klamath River and
other northern California and southern Oregon streams were improperly listed as
threatened, and should be de-listed. In
Alsea Valley Alliance v. Evans, 161
F. Supp. 2d 1154 (D. Or. 2001), the
District Court for the District of Oregon ruled that Coastal Oregon coho had
been improperly listed, in that, generally, hatchery-born fish that are
biologically indistinguishable from “wild” fish were not counted in
determining whether the species was threatened. Proceedings in the
California State Grange case were stayed pending the Ninth Circuit decision
in Alsea Valley.
In February 2004, the Ninth Circuit Court of Appeals refused to review
the District Court decision in Alsea
Valley because the District Court had not entered a final judgment, but
rather had remanded the case to the NOAA Fisheries.
In Alsea Valley Alliance v. Evans,
358 F.3d 1181 (2004), the Ninth Circuit Court of Appeals dissolved the stay
of the California State Grange case.
In
response to the decision in the Alsea
Valley case, which rejected the NOAA Fisheries’ treatment of hatchery fish
in listing decisions, the National Oceanic and Atmospheric Administration (NOAA)
devised a new hatchery policy and commenced comprehensive status reviews for
various west coast fish species, including the coho salmon.
On June 3, 2004, NOAA proposed a new hatchery policy, 69 Fed. Reg. 33102,
which requires the quantification of both the hatchery and
naturally-spawning populations for listing determinations. However, the listings
can focus solely on the naturally-spawning populations to indicate whether the
ecosystem meets the species’ survival needs.
NOAA is accepting public comments on the draft policy until September 1.
NOAA will then review the comments and hopes to publish a final policy in
fall 2004. Applying the new
hatchery policy to southern Oregon-northern California coho (which includes
Klamath River coho), NOAA proposed to relist the species as threatened on June
14, 2004. See
69 Fed. Reg. 33102. Under the ESA,
NOAA must make final decisions on the proposed relisting of the wild and
hatchery southern-Oregon-northern California coho by June 14, 2005.
In the meantime, the plaintiffs in the California State Grange case will
seek to have the stay of that case listed.
Rio
Grande Silvery Minnow v. Keys
While
not involving the Klamath Project directly, this case was closely watched in the
Klamath Project; Klamath Water Users Association filed a brief amicus
curiae.
In
the Middle Rio Grande Basin, a federal project imports water from the lower
Colorado River Basin for storage and ultimate delivery to contractors.
The plaintiff environmental groups argue that the water must be released
downstream for the listed Rio Grande Silvery Minnow.
The groups prevailed in the District Court.
See Rio Grande Silvery Minnow v.
Keys. On appeal, the United
States and other parties contended that the water must be NOAA
Fisheries, challenging both technical and delivered
to the contractors and that the government lacks discretion to do otherwise.
By a 2-1 decision, the Tenth Circuit Court of Appeals affirmed the
District Court’s ruling. See
Rio Grande Silvery Minnow, et al. v. Keys, 333 F.3d 1109 (10th
Cir 2003). Subsequently, the United
States and water users petitioned for rehearing “en banc.” Thereafter,
Congress enacted legislation to deny the Secretary of the Interior discretion to
release water downstream for endangered species, which effectively reversed the
appellate decision for purposes of the affected basin.
See Pub. L. No. 108-137
§ 208(a), 117 State 1827 (Dec. 1, 2003).
The Court of Appeals then dismissed the litigation as moot.
See Rio Grande Silvery Minnow, et al. v. Keys, 355 F.3d 1215 (10th
Cir. 2004). As a result, there is
effectively no decision on the legal issue presented.
Pacific
Coast Federation of Fisherman’s Associations, et al. v. U.S. Bureau of
Reclamation and National Marine Fisheries Service*
The
plaintiff environmental organizations brought suit in April of 2002 in the U.S.
District Court for the Northern District of California, claiming that the Bureau
of Reclamation was in procedural violation of the Endangered Species Act with
respect to coho salmon. They sought
a temporary restraining order that would preclude irrigation diversions if
certain Klamath flows were not met. The
application for temporary restraining order was denied on May 3, 2002.
Plaintiffs appealed this denial and the parties have briefed their
arguments on appeal to the Ninth Circuit Court of Appeal.
Subsequently, NOAA Fisheries completed a biological opinion for operation
of the Klamath Project for 2002 through 2012.
Plaintiffs filed an amended complaint against NOAA
Fisheries, challenging both technical and legal matters in the biological
opinion, and against Reclamation, alleging that Reclamation is in violation of
the Act. On July 14, 2003,
the District Court upheld NOAA Fisheries’ specified flow levels and decision
to adopt a phased approach to implementation.
However, the court found that the reasonable and prudent alternative
adopted in NOAA Fisheries’ 2002 biological opinion violates the ESA because
NOAA Fisheries relies on actions by states and private parties in future years
that are not reasonably certain to occur. The
court also found that NOAA Fisheries violated the ESA in adopting an incidental
take statement that does not establish an unacceptable level of “take” that
would trigger reinitiation of section 7 consultation.
The court remanded the biological opinion to NOAA Fisheries for
amendment. The court refused to
issue an injunction and, rather, held that the 2002 biological opinion would
remain in effect until NOAA Fisheries issues an amended biological opinion.
The
plaintiff environmental groups appealed the aspects of the decision that were
adverse to their position. This
appeal has been fully briefed in the Ninth Circuit Court of Appeals.
The United States originally filed an appeal as well, but withdrew that
appeal.
The
Yurok Tribe and Hoopa Valley Tribe have
intervened in the case. In addition
to joining in the ESA claims, the two Tribes contend that Reclamation violated
their fishing rights in 2002 by providing inadequate mainstem Klamath River
flows, and that Reclamation must avoid violations of the fishing rights in the
future. The Tribes have stated that
they do not seek quantification of water rights, but there is some ambiguity as
to how this would be separate from the claims of insufficient flow.
The trial of this issue is scheduled for September 20-23, 2004.
In the meantime, water user intervenors and federal defendants recently
filed separate motions to dismiss the case.
Moden, et al. v. U.S. Fish and Wildlife Service
This
status concerns the listing of the shortnose sucker and Lost River sucker as
“endangered.” The plaintiffs
filed a petition with the USFWS to remove the species from the list of
endangered species. The petition
contended that new information demonstrates that the distribution, abundance,
and recruitment of the species is much greater than was believed at the time of
the original listing in 1988. USFWS
determined that the petition did not present substantial evidence that the
delisting may be warranted. See 16 U.S.C.
§ 1533(b)(3). In the
litigation, the plaintiffs challenge this determination.
On
September 3, 2003, the District Court for the District of Oregon found that
USFWS had not adequately explained its conclusions on the petition to delist,
and that the administrative record does not appear to support the conclusion not
to delist. The court remanded the
case to USFWS to provide more information on the methods used to measure the
sucker populations, and to explain the reasoning for concluding that populations
did not increase within the last decade. The
USFWS recently announced that it has concluded that it is not warranted to
propose delisting and that it will conduct a five year status review of the
species.
Environmental
Protection Information Center, et al. v. National Marine Fisheries Service
The
case concerns whether the North American green sturgeon, which inhabits the
Klamath River and other waters, should be listed as threatened or endangered.
The plaintiff environmental groups challenge the determination of NOAA
Fisheries that listing is not justified. The
plaintiffs contended that the species has been extirpated from most of its
historic range and is now reduced to only three known spawning populations: the
Klamath/Trinity, the Rogue, and the Sacramento.
Plaintiffs argued that the decline in species is principally due to
over-fishing and habitat alteration, including water projects and that the
species is at risk.
The District Court for the Northern District of California ruled in favor of the plaintiff environmental groups on March 2, 2004. Specifically, the court found that NOAA Fisheries had failed to consider whether several lost spawning habitats collectively constitute a major geographical area for the green sturgeon. The court remanded the NOAA Fisheries’ 2003 decision to reject listing the green sturgeon back to NOAA Fisheries for reconsideration.
Litigation Challenging Diversions to Rogue River Basin
Oregon
Natural Resources v. Keys
On
January 30, 2003, two environmental groups served a 60-day notice of intent to
sue under the ESA concerning exports of water from the Klamath River Basin to
the Rogue River basin. The notice
asserts that Reclamation Projects divert approximately 30,000 acre-feet of
water to use in the Rogue River basin, and there has been a failure to comply
with the ESA with respect to Klamath Basin coho and suckers, Rogue Basin coho,
and other listed species.
The environmental groups filed a lawsuit against Reclamation on July 3, 2003. The parties settled the case in early July 2003 based on Reclamation’s agreement to complete ESA consultations. Reclamation issued a biological assessment in October 2003, and the biological opinion was completed in April 2004.
Tribal
Water Rights
Water
rights claims of the Klamath Tribes are being adjudicated in the Oregon
adjudication of the Klamath River. Additionally,
the Department of Interior takes unadjudicated tribal water rights into
consideration in its Project operations plans.
In the meantime, there have been various decisions and proceedings
regarding tribal water rights.
United
States v. Adair
This
case originally began as a suit by the United States to determine its water
rights to Klamath Marsh relative to upstream irrigators on the Williamson River.
It eventually grew to include the Klamath Tribes and certain rulings on
rights of the Klamath Tribes, as well as the rights of various federal agencies.
It was argued in this case by the State of Oregon and others that the
Federal Court should abstain from deciding water rights issues, and leave this
task to the State in adjudication. The
Federal Courts disagreed, and stated they would rule on the nature of the
federal and tribal rights, but leave quantification of the rights to the State
adjudication. The decision in the
case technically applies only to the defined “litigation area” upstream of
Kirk Reef, but its principles are asserted with respect to other Upper Basin
waters.
With
regard to Klamath Tribes’ rights, the Court ruled that the Tribes have
instream water rights, with a priority of “time immemorial” to support
hunting and fishing on the former Klamath Reservation.
United States v. Braren
This
case is a continuation of the Adair
case discussed immediately above.
The
Klamath Tribes and Bureau of Indian Affairs recently returned to Federal Court,
asking the District Court to clarify rulings from the 1983 Adair
case. BIA and the Tribes disagreed
with the way in which the State of Oregon was apparently applying the prior case
in the context of the State adjudication, and sought clarification.
The
District Court, over the objection of the State of Oregon and others, agreed to
hear the case and issued a decision in early 2002 (followed by an amended
opinion order on April 9, 2002). The
decision rules that the Tribes’ rights include a water right to support
gathering. It also interprets the
standard of measurement of the Tribes’ rights, essentially in the manner
requested by the Tribes and BIA. CV
No. 75-914 PA (D. Or.). In July
2003, the Ninth Circuit Court of Appeals vacated the District Court’s ruling.
United States v. Braren.
The Ninth Circuit found that Federal Courts cannot rule on the
adjudication standards until Oregon makes final water right determinations in
the adjudication. The result of the
decision is that the District Court’s decision is of no consequence and any
further Federal Court action regarding Klamath Tribes’ water rights claims is
very unlikely before the completion of the state adjudication.
California
Tribes
There are no Court decisions specifically ruling on rights that may be held by the Yurok, Hoopa, or Karuk Tribes in California. The Department of Interior has determined that the Yurok and Hoopa Tribes hold instream water rights in the Klamath River to support fisheries, and that the priority of these rights is 1855 or 1891. In Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), the Ninth Circuit Court of Appeals ruled that these two tribes have federally reserved fishing rights. In other contexts, courts have found that the existence of fishing rights supports finding an implied water right. See also discussion of PCFFA II (above) concerning tribal claims for failure to protect fishing rights.
Lease Lands
Northwest
Coalition for Alternatives to Pesticides and ONRC v. Babbitt
In
1994, the parties stipulated to a judgment that required, among other things,
that the Department of the Interior prepare an Integrated Pest Management (IPM)
Plan for farming on the Tule Lake and Lower Klamath National Wildlife Refuges.
In March 1998, the plaintiffs filed a motion claiming that the Department
of the Interior has not complied with the judgment, and sought to reopen the
case. Plaintiffs sought an order
prohibiting any pesticide use until an IPM Plan is completed.
On March 8, 1999, the Magistrate Judge adopted findings and
recommendations that the amended complaint be dismissed, and the Court
subsequently entered judgment against the plaintiff environmental groups.
Klamath Forest Alliance, et al. v. Babbitt
Plaintiffs
objected to farming practices, pesticide use, water use, etc., on the lease
lands in the Tule Lake and Lower Klamath National Wildlife Refuges and claimed
violations of the Kuchel Act and legislation applicable to national wildlife
refuges generally. They sought an
order requiring the elimination or modification of farming on the lease lands.
On
December 28, 1998, the Court granted motions for summary judgment filed by
defendant and the intervenors. With
minor modifications, this became the final judgment of the Court.
Thus, the case was resolved against the plaintiff environmental groups.
Tulelake
Irrigation District, et al. v. Stewart, et al.
This case was filed on February 23, 1999, on behalf of Tulelake Irrigation District and two growers on the lease lands. In 1999, the Fish and Wildlife Service required that lessees on the lease lands agree that, if there is a risk of water shortage to the Lower Klamath or Tule Lake Refuges, lessees may be required to forego the use of irrigation water. The lawsuit challenged this requirement and others as being: in violation of TID’s contract with the United States; in violation of the Kuchel Act; in violation of the National Environmental Policy Act; in violation of rights to renew leases from past years, and on other grounds. The case was settled based on recognition of sufficient water in 1999 and USFWS’s commitment to re-evaluate this policy for future years.
Tulelake
Irrigation District, et al. v. Norton, et al.
In
December of 1999, it was announced that the objectionable water terms that were
the subject of the case above would again be included in leases in 2000.
A new lawsuit was filed raising similar challenges and also contending
that USFWS had not complied with the stipulation from the previous case prior to
making a decision. TID and the
growers that joined in the case also sought a preliminary injunction to enjoin
the new policy pending a final decision in the case.
After
the case and preliminary injunction motion were filed, USFWS recognized that it
had not complied with the requirements of the stipulation from the old case that
was settled in 1999. The parties
stipulated to a court order that the objectionable terms would not be in effect
in 2000, and leases for 2000 were revised or amended to state that the
limitations on water would not be in force.
The
Wilderness Society, et al v. Norton
Plaintiffs
challenged farming practices on the lease lands.
The complaint was very similar to the Klamath
Forest Alliance v. Babbitt case, above, in that it objects to row crops,
pesticide use, water use, etc. The
case focuses particularly on water use. Subsequent
to Tulelake v. Norton (above), USFWS
evaluated the actual effects on refuge water supply that would occur if lease
lands were not irrigated, and concluded that there would be essentially no
benefit. Plaintiffs challenged this
decision and have narrowed the case to allege violations of the National
Environmental Policy Act (NEPA).
The
parties submitted cross-motions for summary judgment on the alleged NEPA
violation. On June 10, 2003, the District Court entered judgment in favor
of the USFWS and the districts. The
court found that maintenance of the status quo operation of the agricultural
lease program was not subject to additional environmental review under NEPA.
Other
Issues
Water
Quality: Klamath Forest Alliance, et al.
v. Bureau of Reclamation*
Plaintiffs
contend that the Klamath Straits Drain is a “point source” discharging
pollutants to the Klamath River. Under the Clean Water Act, a permit is required
for the discharge of pollutants from a point source to rivers, streams, etc.
A permit could likely require treatment of water in the Straits Drain
before it flows into the Klamath River.
Settlement discussions have been occurring between the government and the
plaintiffs for some time.
FOIA:
Department of Interior v. Klamath Water
Users Association
The
U.S. Supreme Court ruled that, under the Freedom of Information Act (FOIA), the
Department of Interior must provide Klamath Water Users Association documents
constituting communications between the government and Klamath Basin tribes.
The Court ruled that FOIA’s exemption for “intra-agency
correspondence” is not applicable.
Water
Quality and Endangered Species Act (ESA): Oregon
Natural Resources Council, et al. v. Hallock, et al.*
A recent decision of the Ninth Circuit Court of Appeals holds that parties applying aquatic herbicides in canals must hold a National Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act. In 2002, Klamath Irrigation District (KID) sought and obtained an NPDES permit, issued by the Oregon Department of Environmental Quality (DEQ). The plaintiff environmental groups allege a violation of the ESA; in particular, they contend that DEQ and U.S. External Protection Agency were required, prior to permit issuance, to consult with US Fish and Wildlife Service with respect to impacts to endangered suckers. They seek rescission of the permit pending DEQ and EPA compliance with section 7 of the ESA.
After plaintiffs filed the case, separate litigation in a federal District Court in Washington called into question whether certain provisions of KID’s permit are unlawful. Based on that decision and related regulatory issues, DEQ rescinded KID’s permit and similar permits held by other Oregon irrigation districts. KID then pursued an administrative appeal of the rescission of the permit, resulting in the permit remaining in effect pending the resolution of the administrative appeal. The court in the ONRC v. Hallock case stayed that case pending the resolution of the administrative appeal. That stay expired on July 29, 2004.
Water
Quality, ESA and Lease Lands: Aquatic Herbicides and Lease Lands
Oregon
Natural Resources Council, et al. v. Keys
Federal
agencies have historically obtained ESA biological opinions and incidental take
authorization concerning various activities within the Klamath Project.
The activities include authorizing use of aquatic herbicides, and
pesticide use on lease lands. In
this case, the plaintiffs contend Reclamation has not complied with terms and
conditions (primarily related to monitoring and reporting) of the biological
opinions and incidental take statements. They
seek an order enjoining both the use of aquatic herbicides (acrolein) throughout
the Klamath Project and the use of copper-containing pesticides on the lease
lands.
Reclamation
denied any violations, and there was no evidence of any injury due to the
alleged violations. During
litigation of Plaintiffs’ case, Reclamation indicated its intention to
reinitiate ESA consultation
on the use of aquatic herbicides in Project canals and pesticides on lease lands
for reasons unrelated to the lawsuit. A
magistrate judge found that Reclamation’s steps to reinitiate consultation
were reason enough not to address the alleged violations, and recommended either
staying the case until completion of the new consultations or dismissing the
case altogether. The U.S. District Court for the District of Oregon upheld the
magistrate judge’s findings, and adopted the latter recommendation to
completely dismiss the case. On
July 1, 2004, the District Court entered final judgment dismissing the case.