This West Is OUR West

Judge hears oral arguments in Klamath Tribes lawsuit

July 23, 2018

Judge William Orrick heard oral arguments Friday in a case filed by the Klamath Tribes seeking greater protections for endangered sucker fish in Upper Klamath Lake, but did not issue a ruling.

A federal judge in San Francisco heard oral arguments July 20 in a case filed by the Klamath Tribes of southern Oregon seeking greater protections for endangered sucker fish in Upper Klamath Lake.

The lawsuit, which names the Bureau of Reclamation, U.S. Fish and Wildlife Service and National Marine Fisheries Service as defendants, requests an injunction to hold more water in the lake for shortnose and Lost River suckers, a culturally significant food for the tribes.

Farmers and ranchers, however, worry the injunction would essentially shut off surface water irrigation in the Klamath Project, costing roughly $400 million in lost annual economic value.

District Judge William Orrick did not issue a ruling from the bench, and is considering a motion to transfer the case to a different court. He did not give a timetable for his decision.

Mark Johnson, deputy director of the Klamath Water Users Association, said the non-ruling means irrigators in the Klamath Project will be allowed to continue watering their crops — for now.

“Things are looking pretty promising in the short-term,” Johnson said.

The KWUA, Sunnyside Irrigation District and California farmer Ben DuVal filed to intervene in the tribes’ lawsuit. They argue an injunction would have a devastating effect on local agriculture, and claim there is no scientific evidence linking higher water levels in Upper Klamath Lake with healthier sucker populations.

“It’s all across the board. A lot of it is weather-driven, regardless of lake levels,” Johnson said. “Overall, lake levels to play into it, but they’re not a huge driving factor.”

Both the shortnose and Lost River suckers — known to the tribes as C’waam and Koptu — were listed as endangered in 1988. Tribal harvests decreased from more than 10,000 fish in 1968 to 687 in 1985, and today just two suckers are kept every year for ceremonial purposes.

The Bureau of Reclamation manages lake levels for the benefit of suckers under a 2013 biological opinion, or BiOp, along with water deliveries to the Klamath Project for irrigation. The agency must also keep enough water in stream for salmon and steelhead in the lower Klamath River.

The tribes’ lawsuit, filed in May, claims the bureau continues to operate the Klamath Project “in a manner inimical to the continued existence and ultimate recovery of the C’waam and Koptu and in direct violation of the (Endangered Species Act).”

According to the lawsuit, “Dramatic changes to the Klamath River Basin’s hydrology and the rise of agricultural activity within the area since the Project’s inception have caused (Upper Klamath Lake) to change from eutrophic to hypereutrophic, that is, from a lake with high nutrient levels to one that is excessively rich in them.”

Don Gentry, tribal chairman, said the intent is not to harm agriculture, but to do what is necessary to protect the fish.

We’re just backed into a very serious situation,” Gentry said. “If we don’t do whatever we can to protect the fish, and the fish go extinct, they’re gone forever.”

Gentry said Orrick made it clear during the hearing that he would not be dismissing the case. Regardless of venue, Gentry said the tribes will be prepared to proceed.

Orrick is no stranger to water disputes in the Klamath Basin. Last year, he ruled that more water was needed in the Klamath River to flush away a deadly salmon-killing parasite known as C. shasta. The bureau released 38,425 acre-feet of water April 6-15 and 50,000 acre-feet May 7-28 to comply with the order, delaying the water allocation for irrigators until June.

If the Klamath Tribes succeed with their injunction for more water in Upper Klamath Lake, Johnson said it would essentially shut down surface water irrigation for 230,000 acres in the project.

“People wouldn’t be able to irrigate at all,” Johnson said. “It would be catastrophic.”