IN THE UNITED STATES FEDERAL COURT OF CLAIMS

 

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                                                                              )

KLAMATH IRRIGATION DISTRICT, et .al.,      )

                                                                              )                                                    

Plaintiffs,                                      )

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v.                                                               )     No. 01-591 L

                                                                              )    

      )      Judge Diane Gilbert Sypolt

UNITED STATES OF AMERICA,                     )

                                                                              )

Defendant.                                   )

_________________________________  _)                

 

 

DECLARATION OF COUNSEL FOR YUROK TRIBE

IN SUPPORT OF BRIEF OF AMICUS CURIAE

 

 

I,  Scott W. Williams, declare as follows:

 

1.  I am an attorney and a principal in the firm of Alexander, Berkey, Williams & Weathers LLP.  I am admitted to practice before the United States Supreme Court,  the U.S. Courts of Appeal in the Fourth and Ninth Circuits, before numerous federal district courts, and to the bars of the states of California and Virginia.  We are general counsel to the Yurok Tribe.  Along with the Klamath Tribes, the Yurok Tribe has applied to appear in this action as amicus curiae.  This declaration is submitted by the  Tribes as “friends of the court” to draw the court’s attention to facts and legal issues that might otherwise escape attention.

2.  In general, this declaration sets forth matters subject to judicial notice by this court pursuant to Rule 201, Federal Rules of Evidence.  The documents to be judicially noticed demonstrate that the United States Department of the Interior, Bureau of Reclamation, was obligated to suspend water deliveries to the plaintiffs in April, 2001.  The plaintiffs assert in this court that water deliveries were suspended solely because the water “was deemed necessary to protected endangered fish.”  Memorandum Supporting Plaintiffs’ Revised Motion for Partial Summary Judgment at 3 (referred to here as “Plaintiffs’ Memorandum”).  That assertion is not correct, as the attached documents to be judicially noticed demonstrate.  In previous litigation initiated by these plaintiffs, the plaintiffs and the federal government acknowledged that water deliveries in 2001 were suspended for several reasons.  Kandra, Cacka, Klamath Irrigation District, et al. vs. United States of America, Klamath Tribes, Yurok Tribe, et al., 145 F.Supp.2d 1192 (D. Or. 2001) (referred to here as “Kandra”).^[1]  Among those reasons were the federal government’s obligations under the Endangered Species Act to protect three species of fish and bald eagles, as well as the federal government’s obligations to the Klamath Basin Tribes, including the Yurok Tribe, Klamath Tribes, and Hoopa Valley Tribe, to protect the Tribes’ trust resources (their fisheries, water and other resources in the Basin).  Kandra, Declaration of Mendez [counsel for irrigators], Exhibit C, Klamath Project 2001 Annual Operations Plan, at page 1 (filed by irrigators 4/11/01).   (Attached to this Declaration.)

3.  We set forth here descriptions of the pleadings, motions, memoranda, declarations, and portions of the administrative record in the Kandra proceeding which affirm the fact that the federal government withheld water deliveries to the plaintiffs in part to meet obligations to protected species, and in part to meet federal trust obligations to Klamath Basin tribes.  The pertinent Kandra documents are attached as exhibits to this declaration, with the request that the court take judicial notice of them.  See, Taylor v. Charter Medical Corp., 162 F.3d 827, 828 (5^th Cir. 1998)(court may take judicial notice of existence and content of court files of another court); Rule 201, Fed.R.Evid. (court may take judicial notice of fact not subject to reasonable dispute).  The Kandra documents are described below: 

 

A.                 Plaintiffs’ Motion for Preliminary Injunction filed April ll, 2001.  In their “background” statement, the Plaintiffs argued and admitted that Reclamation “reprioritize[d] and reallocate[d] water” to meet both ESA and tribal trust obligations.  Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction at 11-17.  (Attachment 1 to this declaration.)  The Plaintiffs referred to this as a “fundamental change” in Klamath Project operations.  Id. at 12.    The plaintiffs complained that the Klamath Project operation was no longer “based on primarily serving irrigation needs” because of this allegedly new priority assigned to ESA and tribal trust obligations.  Id. at 15.

B.          In support of their characterization of the “fundamental change” in priorities in Klamath Project Operations,  Plaintiffs’ counsel submitted a declaration and attached copies of the 2001 Bureau of Reclamation Operations Plan for the Klamath Project.  Declaration of John Mendez [Plaintiffs’ attorney], Exhibit C, Klamath Project 2001 Annual Operations Plan.  (Attachment 2 to this declaration.)  The Operations Plan lists the “guiding principles and objectives” which formed the “legal framework” for the Bureau’s water operations for 2001.  Id. at 1.  They include “meeting the requirements of the Endangered Species Act” and the “trust responsibility of the United States to federally recognized Tribes within the Klamath River Basin.”  That trust responsibility included providing water for the tribal “fishery and other resources in the Klamath River, [and] Upper Klamath Lake . . .”  Id. at 1.  The water Operations Plan set forth the government’s acknowledgment of its obligation to continue consultation with “tribal governments, project water users, . . [and others]” concerning 2001 operations.  Id. at 2-3. 

 

C.         Another of the Plaintiffs’ lawyers, Paul Simmons, submitted a declaration in April, 2001, in support of the Plaintiffs’ motion for preliminary injunctive relief.  The declaration was lengthy and was accompanied by nearly 50 exhibits.  The exhibits submitted by the Plaintiffs contain frequent references to the federal government’s obligation to protect the trust resources of the Klamath Basin Indian tribes in the course of its operation of the Klamath Project.  Examples follow:

 

1.                  Exhibit 22 to the Plaintiffs’ attorney’s declaration is a summary of a 1994 meeting between Klamath Basin Indian tribes and the Bureau of Reclamation and summarizing the discussion of the Bureau’s acknowledgment of its trust obligations to provide water for the tribes’ resources while operating the Klamath Project.  (Attachment 3.)

2.                  The Plaintiffs submitted a lengthy document entitled “Klamath Project Operations Plan, Management Strategy for Phase I and Phase II” discussing the tribal trust obligation, how best to gather information necessary to meet that obligation, and related tribal data necessary for environmental review of the operations plan.  (Attachment 4.)

 

3.                  The Plaintiffs submitted to the Kandra court a 1996 letter from the U.S. Department of Justice discussing the types of water claims which the federal government might assert in the Oregon State Klamath Basin Adjudication.  The letter contained a  legal analysis of the Klamath Tribes’ reserved water rights  in the Basin.  (Attachment 5.)

 

4.                  The Plaintiffs submitted another meeting summary, from 1996, between Reclamation officials and Basin tribes.  The minutes reflect a discussion of the federal government’s obligations to accommodate the Tribes’ water rights in the operation of the Klamath Project.  (Attachment 6.)

 

5.                  The Plaintiffs submitted to the Kandra court the 1997 and 2000 Annual Klamath Operations Plans which, as with the 2001 Plan (Attachment 1), states as a “guiding principle and objective” for operating the water project,  the “federal trust responsibility to federally recognized tribes within the Klamath Basin.”  (Attachments 7, 9.) 

6.                  Reclamation’s 1998  Klamath Project Annual Operations Plan Environmental Assessment was also provided to the Kandra court.  Exhibit 31 to Simmons Declaration.  On its first page, the environmental assessment listed the Bureau of Reclamation’s “legal requirements and obligations” which included, in order: “The Endangered Species Act; Trust responsibility to Klamath Basin Indian tribes; Klamath Project contract water users; The Klamath Basin National Wildlife Refuges.”  (Attachment 8.)

 

1)          The February 2001, Biological Assessment of Klamath Project Operations was submitted, in part, by the Plaintiffs.  Exh. 39 to Simmons Declaration.  The BA introduction referred to the Basin tribes’ “senior water rights” and asserted that “Reclamation must, pursuant to its trust responsibility and consistent with its other legal obligations, prevent activities under its control that would adversely affect those rights, even though those activities take place off reservation.”  (Attachment 10.)

D.        The Government defended by affirming that its decision to curtail water deliveries to the Klamath Project in 2001 was a product of several legal obligations imposed upon it.  For example, in objecting to an expedited hearing schedule, the federal government outlined the “legal obligations that the Bureau [of Reclamation] must address as it operates the Klamath project, including obligations to endangered species, tribal interests, and differing irrigation interests.”  Defendants’ Opposition . . . .  at 2 (filed 4/11/01).  The government decried the potential impact of the Plaintiffs’ requested injunction “not only on the endangered and threatened species in the Klamath Project, but on the Klamath [Basin] Tribes and others . . .” not then before the court.  Id. at 3.  (Attachment 11.)

 

E.         The Government reminded the Plaintiffs that pursuant to established law Reclamation was obliged to use Klamath Project water first for endangered species and tribal water rights, “before being used to satisfy [the Plaintiffs’] water delivery contracts with BOR.”  Opposition to Plaintiffs’ Request . . .” at 3 (filed 4/24/01).  (Attachment 12.)   The Government’s opposition stated that “BOR is appropriately managing the Project pursuant to multiple legal obligations including those defined by the ESA, trust obligations owed to federally-recognized Indian tribes, and Reclamation law.”  Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction at 1, and again at 7 (filed 4/24/01).  (Attachment 13.) 

F.         The proceedings in the District Court in Kandra were litigated on the basis of an administrative record which also demonstrated that Klamath Project water management and operations decisions were made in part on the basis of tribal trust obligations.  (Attachment 14 [Admin. Rec. 000497:  letter from Dept. of Interior Office of the Secretary, July 11, 2000, to Yurok Tribe reassuring Tribe Department intends to manage the Klamath Project in such a manner as to protect “Tribal Trust resources”); Attachment 15 [AR A-149: scientific study of Upper Klamath Lake water levels prepared for Bureau of Indian Affairs referring to BIA trust obligation to Klamath Tribes]; Attachment 16 [AR A-231: Plaintiffs’ study of Upper Klamath Lake acknowledging the federal government’s water management criteria as including both ESA and tribal trust obligations]; Attachment 17 [AR M-4: testimony of Acting Commissioner of Reclamation to Senate Subcommittee on Water and Power in March, 2001, acknowledging Reclamation’s obligation to operate the Klamath Project consistent with trust obligations to Basin tribes]; Attachment 18 [Reclamation’s Environmental Assessment prepared in April, 2001, “in response to critical dry conditions” in the Basin, analyzing operations’ effects on Klamath Basin Tribes]. 

 

G.        The Kandra court denied the Plaintiffs’ motion for a preliminary injunction.  Order filed April 30, 2001; 145 F.Supp.2d 1192.  The court affirmed that Reclamation was required to “consider the rights of the Indian tribes” and to “protect tribal trust resources.”  Id. at 1197.  The court affirmed settled law that the rights of the Indian tribes in the Klamath Basin “take precedence over any alleged rights of the Plaintiffs.”  Id at 1204 (citing to Klamath Water Users Association v. Patterson, 204 F.3d 1206 (9^th Cir. 2000), cert denied, 531 U.S. 812 (2000).)  The court went on to say that, “Reclamation, therefor, has a responsibility to divert the water and resources needed to fulfill the Tribes’ rights.” Id. at 1204.