Note: this has been copied from .pdf and pasted to .html .. so some formatting, line numbers, and pagination are lost
I isn't pretty .. but all the text is here  37 pages of it .....

OPINION AND ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STEVEN LEWIS KANDRA; DAVID CACKA; ) KLAMATH IRRIGATION DISTRICT; )TULELAKE IRRIGATION DISTRICT; and ) KLAMATH WATER USERS ASSOCIATION, )
) Plaintiffs, )) and )Civ. No. 01-6124-AA ) CITY OF KLAMATH FALLS, KLAMATH ) COUNTY, MODOC COUNTY, and ) LON BAILEY, ) ) Plaintiffs-Intervenors, ) )
v. ) )OPINION AND ORDER
UNITED STATES OF AMERICA; GALE ) NORTON, Secretary of the ) Interior; DON EVANS, Secretary )of Commerce, ) )
Defendants, ) )
and ) ) KLAMATH TRIBES; YUROK TRIBE; )
THE WILDERNESS SOCIETY, et al., ) )
Defendants-Intervenors, ) )
Stephen A. Hutchinson Douglas M. DuPriest Hutchinson, Cox, Coons & DuPriest 777 High Street, Suite 200 Eugene, OR 974028 2 - OPINION AND ORDER
Stuart L. Somach Paul S. Simmons John A. Mendez Somach, Simmons & Dunn 400 Capital Mall, Suite 1900 Sacramento, CA 9581William M. Ganong 514 Walnut Street Klamath Falls, OR 97601 Attorneys for plaintiffs
Richard C. Whitlock City Attorney 500 Klamath Avenue Klamath Falls, OR 97601 Attorney for plaintiff-intervenor City of Klamath Falls
Reginald R. Davis Klamath County Counsel 305 Main Street, 2nd Floor Klamath Falls, OR 97601 Attorney for plaintiff-intervenor Klamath County
Thomas M. Buckwalter Modoc County Counsel P.O. Box 1171 Alturas, CA 96101 Attorney for plaintiff-intervenor Modoc County
Laura A. Schroeder Steven Lee Shropshire Schroeder Law Offices 1915 N.E. 39th Avenue P.O. Box 12527 Portland, OR 97212-0527 Attorneys for plaintiff-intervenor Lon Bailey
James L. Sutherland Assistant United States Attorney 701 High Street Eugene, OR 9740Lyn Jacobs United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section P.O. Box 7369, Ben Franklin Station Washington, D.C. 20044-736Stephen M. MacFarlane United States Department of Justice Environment & Natural Resources Division 501 I Street, Suite 9-700 Sacramento, CA 95814-232David W. Harder United States Department of Justice Environment & Natural Resources Division Indian Resources Section 999 18th Street, Suite 945 Denver, CO 80202-2449 Attorneys for defendants
Carl V. Ullman Klamath Tribes Water Adjudication Project Box 957 Chiloquin, OR 97624-095Lea Ann Easton Native American Program Oregon Legal Services 812 S.W. Washington, Suite 700 Portland, OR 9720Walter Echo-Hawk Native American Rights Fund 1506 Broadway Boulder, CO 80302 Attorneys for defendant-intervenor Klamath Tribes
Curtis G. Berkey Scott W. Williams Alexander & Karshmer 2150 Shattuck Avenue, Suite 725 Berkeley, CA 94704 Attorneys for defendant-intervenor Yurok Tribe
Jan E. Hasselman Todd D. True Earthjustice Legal Defense Fund 705 Second Avenue, Suite 203 Seattle, WA 9810Peter M.K. Frost Western Environmental Law Center 1216 Lincoln Street Eugene, OR 9740
OPINION AND ORDER
 Robert G. Hunter 27 North Ivy Medford, OR 97501 Attorneys for defendants-intervenors The Wilderness Society, Waterwatch of Oregon, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, Northcoast Environmental Center, and Klamath Forest Alliance
Frank DeMarco Siskiyou County Counsel William Standley Assistant County Counsel Donald R. Langford Mary Frances McHugh Deputies County Counsel P.O. Box 659 Yreka, CA 96097 Attorneys for amicus curiae Siskiyou County
AIKEN, Judge:
Plaintiffs move for a preliminary injunction against defendant
United States of America, Department of Interior, enjoining the
Bureau of Reclamation ("Reclamation") from implementing the Klamath
Reclamation Project 2001 Annual Operations Plan ("2001 Plan" or
"Plan"). Under the 2001 Plan, water elevations of Upper Klamath Lake
and water flows below Iron Gate Dam will be maintained to support
endangered sucker fish and threatened coho salmon. Due to inadequate
water supplies, no irrigation water deliveries will be made to the
majority of land within the Klamath Reclamation Project ("Project").
Plaintiffs seek an order enjoining Reclamation from implementing the
Plan and ordering Reclamation to release unspecified "historic"
amounts of irrigation water. In the alternative, plaintiffs request
that the court order Reclamation to release 262,000 acre feet of
water, resulting in an Upper Klamath Lake elevation of 4138 at the
end of September, which allocates roughly fifty percent of stored
5 - OPINION AND ORDER
water and inflow to Project irrigators.
Plaintiffs claim that the 2001 Plan breaches their contractual
rights to irrigation water and is arbitrary and capricious under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in that its
implementation violates the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et seq., and the Endangered Species Act
("ESA"), 16 U.S.C. § 1531, et seq.
BACKGROUND
The Project is a water storage and irrigation project serving
over 200,000 acres of land in Southern Oregon and Northern
California. The Project was authorized in 1905 pursuant to the
Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371, et seq. In
accordance with state water law and the Reclamation Act, the United
States "appropriated all available water rights in the Klamath River
and Lost River and their tributaries in Oregon and began constructing
a series of water diversion projects." Klamath Water Users
Association v. Patterson, 204 F.3d 1206, 1209 (9 th Cir. 2000)
("Patterson").
Water for the Project is stored primarily in Upper Klamath Lake
("UKL") on the Klamath River. The Link River Dam, constructed near
the mouth of UKL, regulates flows in the lower Klamath River. It is
owned by Reclamation, but operated and maintained pursuant to
contract by PacifiCorp, a power company. PacifiCorp also owns and
operates the canals that carry water from UKL to the Link River, and
it operates several hydroelectric and re-regulating dams on the
Klamath River pursuant to a license issued by the Federal Energy
Regulatory Commission. The furthest downstream of these dams is the
8 4 - OPINION AND ORDER
 Robert G. Hunter 27 North Ivy Medford, OR 97501 Attorneys for defendants-intervenors The Wilderness Society, Waterwatch of Oregon, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, Northcoast Environmental Center, and Klamath Forest Alliance
Frank DeMarco Siskiyou County Counsel William Standley Assistant County Counsel Donald R. Langford Mary Frances McHugh Deputies County Counsel P.O. Box 659 Yreka, CA 96097 Attorneys for amicus curiae Siskiyou County
AIKEN, Judge:
Plaintiffs move for a preliminary injunction against defendant
United States of America, Department of Interior, enjoining the
Bureau of Reclamation ("Reclamation") from implementing the Klamath
Reclamation Project 2001 Annual Operations Plan ("2001 Plan" or
"Plan"). Under the 2001 Plan, water elevations of Upper Klamath Lake
and water flows below Iron Gate Dam will be maintained to support
endangered sucker fish and threatened coho salmon. Due to inadequate
water supplies, no irrigation water deliveries will be made to the
majority of land within the Klamath Reclamation Project ("Project").
Plaintiffs seek an order enjoining Reclamation from implementing the
Plan and ordering Reclamation to release unspecified "historic"
amounts of irrigation water. In the alternative, plaintiffs request
that the court order Reclamation to release 262,000 acre feet of
water, resulting in an Upper Klamath Lake elevation of 4138 at the
end of September, which allocates roughly fifty percent of stored
 OPINION AND ORDER
water and inflow to Project irrigators.
Plaintiffs claim that the 2001 Plan breaches their contractual
rights to irrigation water and is arbitrary and capricious under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in that its
implementation violates the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et seq., and the Endangered Species Act
("ESA"), 16 U.S.C. § 1531, et seq.
BACKGROUND
The Project is a water storage and irrigation project serving
over 200,000 acres of land in Southern Oregon and Northern
California. The Project was authorized in 1905 pursuant to the
Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371, et seq. In
accordance with state water law and the Reclamation Act, the United
States "appropriated all available water rights in the Klamath River
and Lost River and their tributaries in Oregon and began constructing
a series of water diversion projects." Klamath Water Users
Association v. Patterson, 204 F.3d 1206, 1209 (9 th Cir. 2000)
("Patterson").
Water for the Project is stored primarily in Upper Klamath Lake
("UKL") on the Klamath River. The Link River Dam, constructed near
the mouth of UKL, regulates flows in the lower Klamath River. It is
owned by Reclamation, but operated and maintained pursuant to
contract by PacifiCorp, a power company. PacifiCorp also owns and
operates the canals that carry water from UKL to the Link River, and
it operates several hydroelectric and re-regulating dams on the
Klamath River pursuant to a license issued by the Federal Energy
Regulatory Commission. The furthest downstream of these dams is the
8 6 - OPINION AND ORDER
Iron Gate Dam in California.
Reclamation must balance diverse, and often competing, demands
for Project water. Reclamation must deliver water to Project
irrigators in accordance with the rights held by the United States
and the irrigators' individual repayment contracts, subject to the
availability of water. Plaintiffs Klamath Irrigation District and
Tulelake Irrigation District have rights to receive appropriated
water pursuant to their contracts with Reclamation. Two national
wildlife refuges, the Lower Klamath and Tule Lake National Wildlife
Refuges, depend on the Project for water and receive large quantities
of return irrigation flows and other Project waters.
Under the ESA, Reclamation must not engage in any action that is
likely to jeopardize the continued existence of an endangered or
threatened species or result in the destruction or adverse
modification of the critical habitat of such a species. See 1U.S.C. § 1536(a)(2). In 1988, two fish, the Lost River and shortnose
suckers, were listed as "endangered" due to a decline in the species'
population resulting from a fragmentation of aquatic habitat through
damming, flow diversion, and decreased water quality. 53 Fed. Reg.
27130, 27131-32 (July 18, 1988). The suckers live only in UKL and
nearby Project waters. They are adfluvial, in that the suckers live
mostly in UKL, migrating up tributaries to spawn.
Below Iron Gate Dam, the Klamath River is used by various species
of fish, including the Southern Oregon/Northern California Coast coho
salmon ("coho salmon" or "salmon"). The coho salmon was listed as
"threatened" under the ESA in 1997, in part due to habitat
degradation resulting from water diversions. 62 Fed. Reg. 24588,
8 7 - OPINION AND ORDER
24592 (May 6, 1997). The Klamath River from Iron Gate Dam to the
Pacific Ocean has been designated as a "critical habitat" for the
coho salmon. See 64 Fed. Reg. 24049 (May 5, 1999). The coho are
anadromous, in that they migrate from the ocean to fresh water to
spawn.
Large numbers of bald eagles migrate into the Klamath Basin
during fall and winter. The eagles, listed as "threatened" under the
ESA, rely heavily on the abundant waterfowl that use the Lower
Klamath National Wildlife Refuge, which receives water from Project
operations.
Finally, Reclamation must also consider the rights of Indian
tribes, including defendants-intervenors Klamath and Yurok Tribes,
who hold fishing and water treaty rights in the Klamath River Basin.
The Tribes retained these rights pursuant to treaties in which they
ceded millions of acres of land to the United States. See Parravano
v. Babbitt, 70 F.3d 539, 541-42, 545 (9 th Cir. 1995); United States v.
Adair, 723 F.2d 1394, 1414 (9 th Cir. 1983). The endangered suckers,
called "c’wam" by the Klamath Tribes, play an integral role in the
Klamath Tribes’ customs and traditions. Prior to its closing in
1986, Klamath Tribes maintained a c’wam fishery which provided a
source of food and income for tribal members. Declaration of Elwood
Miller, ¶¶ 5- The threatened coho salmon are equally important to
the Yurok Tribe, providing a source of food, opportunities for
employment and income, and the basis of Yurok customs and traditions.
Declaration of Glenn Moore, ¶¶ 4, 6, 8, 11. Reclamation has an
obligation to protect tribal trust resources such as the sucker fish
and salmon. Patterson, 204 F.3d at 1213; Parravano, 70 F.3d at 547;
8 8 - OPINION AND ORDER
Adair, 723 F.2d at 1408-11, 1415.
Several constraints force Reclamation "to walk a water-management
tightrope in dry years." Defendants’ Opposition to Motion for
Preliminary Injunction, p. 6. Unlike other Reclamation projects, the
Project does not have a major water storage reservoir. Yearly water
levels of UKL vary, largely depending on the previous winter's
snowfall and the amount of precipitation during the spring and
summer. UKL is relatively shallow and unable to capture and store
large quantities of water from spring run-off. Consequently, the
Project’s storage capacity is limited, and Reclamation cannot store
water during years of heavy precipitation to meet water needs in dry
years.
To prepare Project operation plans, Reclamation relies on the
Natural Resources Conservation Service ("NRCS") Streamflow Forecast
for the Upper Klamath Basin. NRCS issues its forecasts on a monthly
basis, between January and June, for the period from April 1 to
September 30. The Project’s primary irrigation season begins in late
March, shortly after Reclamation receives the first streamflow
forecasts.
In light of the diverse water demands, Reclamation initiated a
public process to establish a new long-term operating plan. For the
past several years, Reclamation has issued one-year interim plans
while formulating a long-term plan for water distribution.
Reclamation issues the annual plans in order to provide operating
criteria and to assist water users and resource managers in planning
for the water year. Although anticipated several years ago, a long-term
plan has not been completed.
8 9 - OPINION AND ORDER
Based on NRCS forecasts, Reclamation has defined the 2001 water
year as "critical dry." As of April 6, 2001, Reclamation determined
that inflow volume into UKL would be 108,000 acre feet during the
period of April through September, the smallest amount of inflow on
record.
On January 22, 2001, Reclamation forwarded a biological
assessment of the Project’s effects on the coho salmon to the
National Marine Fisheries Service ("NMFS") and requested the
initiation of formal consultation under the ESA. Similarly, on
February 13, 2001, Reclamation forwarded a biological assessment of
the Project’s effects on the shortnose and Lost River suckers to the
United States Fish and Wildlife Service ("FWS") and requested formal
consultation. Reclamation’s biological assessments concluded that
the Project’s continuing operations were likely to adversely affect
the sucker species and the coho salmon.
FWS began formal consultation and issued a draft Biological
Opinion ("BiOp") on March 13, 2001. The draft BiOp concluded that
the sucker populations in UKL are at risk from adverse water quality,
loss of habitat, entrainment, and lack of passage. The BiOp stated
that development and operations of the Project were major factors
contributing to the loss and degradation of aquatic habitat and the
endangered status of the suckers. In accordance with the ESA and
governing regulations, FWS proposed "reasonable and prudent
alternatives" ("RPAs") to the proposed operation of the Project that
would not cause jeopardy. 16 U.S.C. § 1536(b)(3)(A). FWS proposed
an RPA of minimum UKL surface elevations between 4140 and 4142.5 feet
1 A FWS BiOp prepared in 1992 recommended lower lake elevations in UKL. Relying on new information regarding potential adverse effects of low lake levels and massive fish kills in the 1990s, FWS concluded that higher UKL levels than those recommended in the 1992 BiOp were necessary to reduce the risk of extinction.
10 - OPINION AND ORDER
from January through October 15. NMFS completed a draft BiOp on March 19, 2001. The draft BiOp
concluded that the Project’s operations would jeopardize coho salmon
and proposed RPAs of minimum water flows in Klamath River below Iron
Gate Dam.
Upon review of the draft BiOps, Reclamation informed FWS and NMFS
that the forecasted water supplies for 2001 were not adequate to meet
the needs of both RPAs. On April 6, 2001, FWS and NMFS released
their final BiOps on the effects of the Project on the suckers, coho
salmon, and bald eagles. FWS Administrative Record ("FWS AR"),
Addendum 2; NMFS Administrative Record ("NMFS AR"), Volume III, 105.
FWS and NMFS again concluded that operation of the Project, as
initially proposed by Reclamation, would jeopardize the continued
existence of the suckers and the coho salmon. The FWS BiOp concluded
that the Project’s operations would cause harm, but not jeopardy, to
the continued existence of the bald eagles.
FWS and NMFS adjusted the minimum UKL elevations and Klamath
River flows to reflect the reduced water available for the 2001 water
year. FWS proposed a minimum UKL elevation of 4139, provided a
minimum surface level of 4140 was sustained on a long-term basis.
The minimum elevation RPA is intended to increase water quality and
the physical habitat for juvenile and adult suckers, and provide for
access to spawning areas.
2 Defendant intervenor The Wilderness Society suggests that
this allocation of irrigation water violates the ESA because no water is allocated to the Lower Klamath National Wildlife Refuge, which could result in the incidental take of numerous bald eagles. See The Wilderness Society’s Opposition to Plaintiffs’ Motion for Preliminary Injunction, pp. 28-2
11 - OPINION AND ORDER
NMFS proposed a range of minimum instream flows in the Klamath
River below Iron Gate Dam from April through September, from a low of
1,000 cubic feet per second ("cfs") in July through September, to a
high of 2,100 cfs between June 1-15. The river flows are recommended
in order to increase riparian habitat for coho salmon. The RPAs in
the NMFS BiOp are limited in duration, because NMFS expects
additional information regarding flow and salmon habitat will become
available in the near future. NMFS represents that it will prepare
a comprehensive BiOp by June 7, 2001, addressing minimum water flows
below Iron Gate Dam in future critical dry years.
Also on April 6, 2001, Reclamation issued its 2001 Operations
Plan, which incorporates the conclusions contained in the BiOps and
implements the RPAs proposed by FWS and NMFS. After implementation
of the RPAs, the availability of irrigation water is severely
limited, and most Project lands will receive no water deliveries.
The Plan makes available for irrigation 70,000 acre feet of water
from Clear Lake and Gerber Reservoirs.Plaintiffs filed this action on April 9, 2001, and moved for
preliminary injunctive relief on April 11. The court held a status
conference on April 12, 2001, and ordered the defendants (hereinafter
"the government") and proposed defendants-intervenors to respond by
April 24, 2001, and plaintiffs to reply by April 26, 2001. The
government filed the administrative record on April 18, 2001, with an
8 12 - OPINION AND ORDER
Addenda filed April 25 (docs. #46 and #85).
Much litigation over the Project and its operations has ensued
in recent years, including a case particularly relevant to
plaintiffs’ motion for preliminary injunction. In May 2000, various
conservation and fishing interests, including several defendants-intervenors
in this case, filed a lawsuit challenging Reclamation's
2000 Plan. Pacific Coast Federation of Fishermen's Ass’n v. Bureau
of Reclamation, F. Supp.2d , 2001 WL 360146 (N.D. Cal. April
3, 2001). The plaintiffs there alleged that Reclamation violated
ESA, by releasing water for irrigation and water flows in the Klamath
River prior to consultation with NMFS regarding the Project’s effects
on threatened coho salmon. The District Court for the Northern
District of California agreed and issued an injunction prohibiting
Reclamation from releasing any water for irrigation until Reclamation
complied with its ESA obligations.
Specifically, the court ordered: "[T]he Bureau of Reclamation
hereby is enjoined from sending irrigation deliveries from Klamath
Project whenever Klamath River flows at Iron Gate Dam drop below the
minimum flows recommended in the Hardy Phase I report, until such
time as the Bureau completes a concrete plan to guide operations in
the new water year, and consultation concerning that plan is
completed, either by (1) formal consultation to a "no jeopardy"
finding by the NMFS, or (2) the Bureau's final determination, with
the written concurrence of the NMFS, that the proposed plan is
unlikely to adversely affect the threatened coho salmon." 2001 WL
360146, *21.
On April 16, 2001, the court clarified its April 3 Order in
3 Here, neither NMFS nor FWS issued a BiOp on the effects of the final 2001 Plan; rather, the Plan and the BiOps were issued the same day, with the Plan incorporating the RPAs contained in the BiOps.
13 - OPINION AND ORDER
response to a "Notice of Completion of Consultation" filed by the
government. The court stated that to fulfill the requirements for
termination of the injunction, Reclamation must finalize a concrete
2001 Plan, formally consult with NMFS regarding that plan, and obtain
from NMFS a BiOp on the effects of the 2001 Plan. Conversely, if
NMFS finds that the 2001 Plan is not likely to jeopardize the
existence of coho salmon or adversely modify critical habitat, the
injunction may be lifted. If NMFS finds that the 2001 Plan does
cause jeopardy or adversely affect critical habitat, Reclamation must
notify NMFS whether it intends to proceed with the Plan, and if so,
whether it will adopt any RPAs proposed by NMFS. If Reclamation
intends to proceed despite a jeopardy finding and absent the RPAs
proposed by NMFS, it must state the basis for its conclusion that
such action does not violate the ESA. Pacific Coast Federation of
Fishermen’s Ass’n v. Bureau of Reclamation, Civ. No. 00-01955-SBA
(N.D. Cal. April 16, 2001).On April 23, 2001, all parties to the litigation at bar
participated for three full days in mediation proceedings directed by
Magistrate Judge Thomas Coffin. Despite intense and genuine efforts
by Judge Coffin and the parties, no resolution for the 2001 water
year could be agreed upon, although the parties expressed an interest
in continued long-term mediation with Judge Coffin. The court heard
oral argument on April 27, 2001.
8 14 - OPINION AND ORDER
STANDARD
The party seeking a preliminary injunction must show either (1)
a combination of probable success on the merits and the possibility
of irreparable injury; or (2) that serious questions are raised and
the balance of hardships tips sharply in its favor. Stuhlbarg Int’l
Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839-4(9 th cir. 2001). While stated as alternatives, "[t]hese formulations
are not different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the probability
of success on the merits decreases." Big Country Foods v. Board of
Educ, 868 F.2d 1085, 1088 (9 th Cir. 1989). "Even if the balance of
hardships tips sharply in plaintiffs' favor, it must be shown as an
irreducible minimum that there is a fair chance of success on the
merits." Stanley v. University of Southern California, 13 F.3d 1313,
1319 (1994). Additionally, where the public interest is involved,
the court must consider whether the balance of public interests
weighs in favor of granting or denying the injunctive relief sought.
Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d
457, 459 (9 th Cir. 1994).
DISCUSSION
A. Balance of Hardships
Plaintiffs contend that they are entitled to preliminary
injunctive relief primarily because plaintiffs, and those they
represent, will suffer great harm if the 2001 Plan is implemented.
There is no question that farmers who rely on irrigation water and
their communities will suffer severe economic hardship if the 200Plan is implemented. The declarations of Steven Kandra and David
8 15 - OPINION AND ORDER
Cacka, Klamath Basin farmers, describe the hardships they will suffer
if their lands receive no irrigation water, including loss of income,
inability to pay debts, potential loss of land and equipment, and
immeasurable harm to their way of living. Declaration of Steven
Kandra, ¶¶ 5-9; Declaration of David Cacka, ¶¶ 8-11. Local
governmental entities in the Klamath River Basin anticipate
agricultural losses in the millions of dollars, loss in revenues, and
additional burdens on social services. See, e.g., Declarations of
William J. Stephens, Gary W. Anderson, Sharron L. Molder, Mary
Frances McHugh. The court recognizes the harm that could be suffered
by plaintiffs and surrounding communities. However, the court must
balance that harm against the harm to the suckers and salmon, those
who rely on the fish, as well as the public interest.
NMFS and FWS have determined that Project operations will cause
jeopardy to the continuing existence of the suckers and coho salmon
and adversely affect the critical habitat of the coho salmon.
Threats to the continued existence of endangered and threatened
species constitute ultimate harm. "Congress has spoken in the
plainest of words, making it abundantly clear that the balance has
been struck in favor of affording endangered species the highest of
priorities, thereby adopting a policy which it described as
‘institutionalized caution.’" Tennessee Valley Authority v. Hill,
437 U.S. 153, 194 (1978); accord Sierra Club v. Marsh, 816 F.2d 1376,
1383-84, 1387 (9 th Cir. 1987).
The Klamath and Yurok Tribes rely on the fish as a vital
component of the Tribes’ cultures, traditions, and economic vitality.
Members of the Klamath and Yurok Tribes, Elwood Miller and Glenn
8 14 - OPINION AND ORDER
STANDARD
The party seeking a preliminary injunction must show either (1)
a combination of probable success on the merits and the possibility
of irreparable injury; or (2) that serious questions are raised and
the balance of hardships tips sharply in its favor. Stuhlbarg Int’l
Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839-4(9 th cir. 2001). While stated as alternatives, "[t]hese formulations
are not different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the probability
of success on the merits decreases." Big Country Foods v. Board of
Educ, 868 F.2d 1085, 1088 (9 th Cir. 1989). "Even if the balance of
hardships tips sharply in plaintiffs' favor, it must be shown as an
irreducible minimum that there is a fair chance of success on the
merits." Stanley v. University of Southern California, 13 F.3d 1313,
1319 (1994). Additionally, where the public interest is involved,
the court must consider whether the balance of public interests
weighs in favor of granting or denying the injunctive relief sought.
Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d
457, 459 (9 th Cir. 1994).
DISCUSSION
A. Balance of Hardships
Plaintiffs contend that they are entitled to preliminary
injunctive relief primarily because plaintiffs, and those they
represent, will suffer great harm if the 2001 Plan is implemented.
There is no question that farmers who rely on irrigation water and
their communities will suffer severe economic hardship if the 200Plan is implemented. The declarations of Steven Kandra and David
8 15 - OPINION AND ORDER
Cacka, Klamath Basin farmers, describe the hardships they will suffer
if their lands receive no irrigation water, including loss of income,
inability to pay debts, potential loss of land and equipment, and
immeasurable harm to their way of living. Declaration of Steven
Kandra, ¶¶ 5-9; Declaration of David Cacka, ¶¶ 8-11. Local
governmental entities in the Klamath River Basin anticipate
agricultural losses in the millions of dollars, loss in revenues, and
additional burdens on social services. See, e.g., Declarations of
William J. Stephens, Gary W. Anderson, Sharron L. Molder, Mary
Frances McHugh. The court recognizes the harm that could be suffered
by plaintiffs and surrounding communities. However, the court must
balance that harm against the harm to the suckers and salmon, those
who rely on the fish, as well as the public interest.
NMFS and FWS have determined that Project operations will cause
jeopardy to the continuing existence of the suckers and coho salmon
and adversely affect the critical habitat of the coho salmon.
Threats to the continued existence of endangered and threatened
species constitute ultimate harm. "Congress has spoken in the
plainest of words, making it abundantly clear that the balance has
been struck in favor of affording endangered species the highest of
priorities, thereby adopting a policy which it described as
‘institutionalized caution.’" Tennessee Valley Authority v. Hill,
437 U.S. 153, 194 (1978); accord Sierra Club v. Marsh, 816 F.2d 1376,
1383-84, 1387 (9 th Cir. 1987).
The Klamath and Yurok Tribes rely on the fish as a vital
component of the Tribes’ cultures, traditions, and economic vitality.
Members of the Klamath and Yurok Tribes, Elwood Miller and Glenn
8 16 - OPINION AND ORDER
Moore, describe the past and continuing hardship suffered by Tribal
members as a result of the decline of their fisheries. Declaration
of Elwood Miller, ¶¶ 5-11, 15, 16; Declaration of Glenn Moore, ¶¶ 6-
8, 11. Many customs and traditions revolve around the fish harvest,
which is now reduced, or in the case of the suckers, non-existent.
Loss of fish results in a loss of food, income, employment
opportunities, and sense of community.
Similarly, fishermen and fishing communities rely on coho salmon
to sustain economic viability and their way of life. The public
interest weighs heavily on both sides of the dispute.
Balancing these harms is a difficult task, and one that leads to
no concrete determination. Given the high priority the law places on
species threatened with extinction, I cannot find that the balance of
hardship tips sharply in plaintiffs’ favor.
B. Breach of Contract Claim
Plaintiffs allege that Reclamation breached its contracts with
plaintiffs Klamath Irrigation District and Tulelake Irrigation
District by using Project water for purposes other than irrigation.
However, as recognized by this court and the Ninth Circuit,
plaintiffs’ contract rights to irrigation water are subservient to
ESA and tribal trust requirements. Patterson, 204 F.3d at 1214.
Therefore, plaintiffs cannot assert breach of contract based on
Reclamation’s allocation of water to protect the suckers and salmon.
Plaintiffs also allege breach of contract based on Reclamation’s
failure to preserve and maintain the water supply for users entitled
to take or receive water under their contracts. Plaintiffs do not
8 17 - OPINION AND ORDER
explain what precise action Reclamation should take to protect its
water supply, although they suggest that Reclamation take legal
action against junior water users outside the Project.
Under federal reclamation law, the Secretary of the Interior is
required to proceed in conformity with state laws with respect to the
control, appropriation, use, or distribution of water used in
irrigation, provided such state laws are consistent with directives
of Congress. See California v. United States, 438 U.S. 645, 668-6(1978).
Water rights adjudication for the Klamath River Basin to perfect
asserted water rights is pending in state court. See United States
v. Oregon, 44 F.3d 758, 762 (9 th Cir. 1994). Apparently, numerous
parties have filed pre-1909 water right claims to the UKL and its
tributaries. See Klamath Tribes’ Memorandum in Opposition to
Plaintiffs’ Motion for Preliminary Injunction, p. 7. According to
the government, the State of Oregon has taken the position that it
will not deny existing water rights based on the claim of an alleged
senior water holder during the water rights adjudication. Therefore,
it appears that Reclamation is precluded from pursuing action against
junior water users until all rights have been adjudicated.
Regardless, plaintiffs present no specific information as to the
identity of junior water users or whether Reclamation could
successfully assert water rights claims against them.
Finally, plaintiffs fail to explain why Reclamation must deliver
irrigation water while legal action is contemplated, particularly in
light of Reclamation's obligation to protect ESA species and tribal
trust resources. Thus, plaintiffs fail to show a likelihood of
8 18 - OPINION AND ORDER
success on the merits of their contract claim.
C. Administrative Procedure Act Claims
Plaintiffs allege that the Reclamation violated NEPA by issuing
the 2001 Plan without preparing an Environmental Impact Statement,
and that FWS and NMFS violated the ESA by failing to utilize the
best scientific evidence available in their respective BiOps.
Neither NEPA nor the ESA provide a private cause of action for the
claims asserted by plaintiffs. See Bennett v. Spear, 520 U.S. 154,
172-73 (1997) (judicial review of biological opinions available under
the APA); Northwest Resource Information Center, Inc. v. National
Marine Fisheries Service, 56 F.3d 1060, 1066 (9 th Cir. 1995) (NEPA
claim reviewable under APA). Therefore, judicial review of the
challenged agency actions is governed by § 706 of the APA. 5 U.S.C.
§ 706(2); Pyramid Lake Paiute Tribe of Indians v. United States Dep’t
of Navy, 898 F.2d 1410, 1414 (9 th Cir. 1990).
Under the APA, an agency decision must be upheld unless it is
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A); see also, Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 376 (1989) (arbitrary and
capricious standard applies to agency findings which involve agency
expertise). Although the "inquiry into the facts is to be searching
and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the
agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). "When specialists express conflicting views, an
agency must have discretion to rely on the reasonable opinions of its
own qualified experts even if, as an original matter, a court might
8 19 - OPINION AND ORDER
find contrary views more persuasive." Marsh, 490 U.S. at 378.
In other words, a court "may reverse the agency's decision as
arbitrary or capricious only if the agency relied on factors Congress
did not intend it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation that ran
counter to the evidence before the agency, or offered one that is so
implausible that it could not be ascribed to a difference in view or
the product of agency expertise." Western Radio Service Co. v. Espy,
79 F.3d 896, 900 (9 th Cir. 1996) (citing Dioxin/Organochlorine Center
v. Clarke, 57 F.3d 1517, 1521 (9 th Cir. 1995)).
1. National Environmental Policy Act
NEPA requires all federal agencies to prepare a detailed
Environmental Impact Statement ("EIS") for "every recommendation or
report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment." 4U.S.C. § 4332(2)(C). Implementing regulations provide for the
preparation of an environmental assessment ("EA"), a brief
preliminary evaluation which either determines that an EIS is
required or concludes with a finding of no significant impact
("FONSI"). 40 C.F.R. § 1508. Agencies may also choose to prepare
an EA as an aid to agency planning. Id. § 1501.3(b).
NEPA’s purpose is to ensure informed agency action. Swanson v.
United States Forest Service, 87 F.3d 339, 343 (9 th Cir. 1996). "NEPA
does not mandate particular substantive results, but instead imposes
only procedural requirements." Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 473 (9 th Cir. 2000) (quoting Laguna Greenbelt,
Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9 th Cir.
4 In their Reply brief, plaintiffs contend that the government, by issuing an EA, admits that the 2001 Plan triggered NEPA and that they have failed to comply with NEPA requirements. I disagree. The regulations clearly allow an agency to prepare an EA "on any action at any time" to assist in planning. 40 C.F.R. § 1501.3(b).
20 - OPINION AND ORDER
1994)).
Although Reclamation did not prepare an EIS, it prepared an EA
for the 2001 Plan. The EA examined potential environmental effects
of proposed operations in 2001 under a critical dry forecast. The EA
took into account the RPAs proposed by FWS and NMFS, and the
operational effects on the Projects if the RPAs were implemented.
The EA also suggested five alternative operations for the Project and
addressed the impacts of each alternative. Reclamation’s EA did not
conclude with a FONSI. In light of the extreme drought conditions
and the proposed RPAs, Reclamation found that the plan could
significantly affect the environment. However, the EA did not
specifically find that an EIS was required for the 2001 Plan.a. Standing
Defendants-intervenors representing conservation and fishing
interests (hereinafter "The Wilderness Society") argue that
plaintiffs lack standing to pursue their NEPA claim. The Wilderness
Society claims that plaintiffs’ alleged harm is purely economic and
outside the zone of interests protected by NEPA. I disagree.
"NEPA’s purpose is to protect the environment, not the economic
interests of those adversely affected by agency decisions." Nevada
Land Action Ass’n v. United States Forest Service, 8 F.3d 713, 71(9 th Cir. 1993). Accordingly, "a plaintiff who asserts purely
5 Three declarants, however, do not appear to be parties to
this litigation. See Declarations of Larry Turner, Robert L. Crawford, and Rick Woodley. Nevertheless, the court considers the interests stated by those individuals to be similar to those which could be asserted by actual plaintiffs or plaintiff-intervenors.
6 The court notes that plaintiffs do not challenge explicitly the implementation of the RPAs in their Complaint; rather, plaintiffs limit their NEPA challenge to Reclamation’s "determin[ation] that the Klamath Project will be operated for purposes other than irrigation and refuge use." Plaintiffs’
21 - OPINION AND ORDER
economic injuries does not have standing to challenge an agency
action under NEPA." Id.; accord Western Radio Services, 79 F.3d at
902-03. Plaintiffs must assert more than economic harm or a
"lifestyle loss" to invoke standing; plaintiffs must also assert that
the 2001 Plan "will have a primary impact on the natural
environment." Id. at 903 (quoting Port of Astoria v. Hodel, 595 F.2d
467, 476 (9 th Cir. 1979)); Nevada Land Action, 8 F.3d at 716.
Although plaintiffs emphasize their potential economic losses,
they also allege harm to the natural environment. Plaintiffs allege
that the 2001 Plan will impact air, water, and soil quality, as well
as waterfowl and wildlife which inhabit the wildlife refuges.
Complaint, ¶¶ 22, 3 Plaintiffs submit declarations in support of
their allegations.5 Accordingly, I find that plaintiffs’ allegations
of economic harm are coupled with environmental concerns and suffice
to establish standing under NEPA.
b. Application to Ongoing Operations
Plaintiffs argue that the "changed" operating criteria of
prioritizing water for fish over irrigation purposes and the
implementation of the RPAs recommended by the BiOps render the Plan
a "major federal action" triggering the requirements of NEPA.Complaint for Declaratory and Injunctive Relief, ¶ 38. However, plaintiffs refer to the RPAs in their Complaint, and plaintiffs raised challenges to the implementation of the RPAs in their briefs and during oral argument. In fact, during oral argument, plaintiffs conceded that Reclamation was bound by the ESA, but that Reclamation’s discretionary action of implementing the RPAs requires an EIS. Nevertheless, plaintiffs rely heavily on their "change in operations" argument in their briefs, and I will therefore address it.
22 - OPINION AND ORDER
Plaintiffs allege that Reclamation cannot implement the 2001 Plan
before it prepares an EIS describing the purpose and need for the
Plan, the environmental effects of the Plan, alternatives to the
Plan, and means by which the impacts of the Plan could be mitigated.
Plaintiffs argue that the failure to analyze alternative sources of
water hampered Reclamation’s ability to meet its contractual
irrigation obligations and renders the 2001 Plan arbitrary and
capricious. The government responds that practical constraints
preclude the application of NEPA to annual operating plans such as
the 2001 Plan.
NEPA does not apply retroactively. See Westside Prop. Owners v.
Schlesinger, 597 F.2d 1214, 1223 (9 th Cir. 1979). Therefore, an EIS
cannot be required on the basis of the Project's construction.
"However, if an ongoing project undergoes changes which themselves
amount to 'major Federal actions,' the operating agency must prepare
an EIS." Upper Snake River Chapter of Trout Unlimited v. Hodel, 92F.3d 232, 234-35 (9 th Cir. 1990) (citing Andrus v. Sierra Club, 44U.S. 347, 363 n. 21 (1979)). Thus, the issue is whether the 200Plan constitutes a "major federal action" under NEPA.
As an initial matter, plaintiffs’ characterization of
Reclamation’s duty to protect ESA species and tribal resources as a
8 23 - OPINION AND ORDER
"change in operations" implemented in response to various "demands"
is inaccurate. See Plaintiffs’ Memorandum in Support of Preliminary
Injunction, pp. 1-2, 11. Reclamation "has responsibilities under the
ESA as a federal agency. These responsibilities include taking
control of the [Project] when necessary to meet the requirements of
the ESA, requirements that override the water rights of the
Irrigators." Patterson, 204 F.3d at 1213.
Similarly, the United States, as a trustee for the Tribes, is
obligated to protect the Tribes’ rights and resources. See Mitchell
v. United States, 463 U.S. 206, 224-26 (1982); Patterson, 204 F.3d at
1213. Water rights for the Klamath Basin Tribes "carry a priority
date of time immemorial." Adair, 723 F.2d at 1414. These rights
"take precedence over any alleged rights of the Irrigators."
Patterson, 204 F.3d at 1214. Reclamation, therefore, has a
responsibility to divert the water and resources needed to fulfill
the Tribes' rights.
As such, Reclamation's "change in operation" is mandated by law,
and the requirements of NEPA do not apply. National Wildlife
Federation v. Espy, 45 F.3d 1337, 1343 (9 th Cir. 1995) (citing
Forelaws on Board v. Johnson, 743 F.2d 677, 681 (9 th Cir. 1984)).
Whether an EIS is required for the Plan’s implementation of the
recommended RPAs is a closer question. As plaintiffs maintain, the
consequences of the 2001 Plan are unprecedented and will undoubtedly
have an effect on the environment. The government concedes this
point. However, under these specific circumstances, I find that the
issue is "not whether the actions are of sufficient magnitude to
require the preparation of an EIS, but rather whether NEPA was
8 24 - OPINION AND ORDER
intended to apply at all to the continuing operations of completed
facilities." County of Trinity v. Andrus, 438 F. Supp. 1368, 138(E.D. Cal. 1977).
If NEPA applies to the 2001 Plan, Reclamation could not comply
with the mandates of NEPA and prepare an EIS before irrigation water
deliveries normally begin. An EIS takes at least several months to
complete. Reclamation relies on NRCS forecasts to estimate the
amount of available water and prepare an operations plan for the
year. Forecasts begin in January, some two months prior to the
commencement of irrigation season. These time constraints render it
impossible for Reclamation to complete an EIS for an annual operating
plan.
In Trinity, the plaintiffs sought to enjoin Reclamation from
lowering the level of a reservoir during a drought year because of
the potential damage to fish populations. The district court
rejected the plaintiffs' NEPA claims, finding that the proposed
action was nothing more than the continued operation of the facility.
Id. Additionally, the court explained:
If . . . an EIS were to be required to cover continuing operations over a timespan short enough to allow realistic adjustments of operations to meet changed conditions, the Bureau and most other federal agencies would be condemned to an endless round of paperwork. . . . Thus, for projects . . . which have an annual planning cycle, an EIS would virtually always be in progress.
Trinity, 438 F. Supp. at 138 The court concluded that if NEPA
required such an "operational" EIS, "the resulting interference with
the intended functions of federal agencies could be so great as to
render compliance ‘impossible’ within the meaning" of NEPA. Id. I
agree. It makes no sense to impose upon Reclamation a requirement it
7 The court is not convinced that prior years with low UKL
elevations and Klamath River flow did not harm the fish and would not harm the fish under the unprecedented conditions of this water
25 - OPINION AND ORDER
can never fulfill.
Plaintiffs rely on a decision from the Eastern District of
California, where the district court held that the implementation of
statutorily-mandated water allocations required an EIS. Westlands
Water District v. United States, 850 F. Supp. 1388 (E.D. Cal. 1994).
There, however, the alleged federal action involved implementation of
a newly-legislated statutory scheme which reduced the amount of water
available to irrigators by fifty percent. Id. at 1416. Westlands
did not involve the implementation of a short-term annual water plan
prepared under drought conditions.
Finally, even if plaintiffs could show a likelihood of success
on the merits of their NEPA claim, they would not be entitled to an
injunction. The APA authorizes the court to "set aside, rather than
compel," agency actions. 5 U.S.C. § 706(2). Accordingly, the
appropriate remedy would be to set aside the 2001 Plan and require
Reclamation to prepare an EIS. Plaintiffs argue that, while the EIS
is pending, the court should order historic amounts of water
deliveries. Plaintiffs claim that no evidence shows that historic
irrigation deliveries in prior dry years caused greater harm to the
suckers or the salmon than in any other year. Plaintiffs fail to
recognize that Project operations remain subject to the requirements
of the ESA and Reclamation’s tribal trust obligations, which would
preclude the delivery of any irrigation water if the 2001 Plan is set
aside.7 See 40 C.F.R. § 1506.1(c). Moreover, absent a concrete and
8 24 - OPINION AND ORDER
intended to apply at all to the continuing operations of completed
facilities." County of Trinity v. Andrus, 438 F. Supp. 1368, 138(E.D. Cal. 1977).
If NEPA applies to the 2001 Plan, Reclamation could not comply
with the mandates of NEPA and prepare an EIS before irrigation water
deliveries normally begin. An EIS takes at least several months to
complete. Reclamation relies on NRCS forecasts to estimate the
amount of available water and prepare an operations plan for the
year. Forecasts begin in January, some two months prior to the
commencement of irrigation season. These time constraints render it
impossible for Reclamation to complete an EIS for an annual operating
plan.
In Trinity, the plaintiffs sought to enjoin Reclamation from
lowering the level of a reservoir during a drought year because of
the potential damage to fish populations. The district court
rejected the plaintiffs' NEPA claims, finding that the proposed
action was nothing more than the continued operation of the facility.
Id. Additionally, the court explained:
If . . . an EIS were to be required to cover continuing operations over a timespan short enough to allow realistic adjustments of operations to meet changed conditions, the Bureau and most other federal agencies would be condemned to an endless round of paperwork. . . . Thus, for projects . . . which have an annual planning cycle, an EIS would virtually always be in progress.
Trinity, 438 F. Supp. at 138 The court concluded that if NEPA
required such an "operational" EIS, "the resulting interference with
the intended functions of federal agencies could be so great as to
render compliance ‘impossible’ within the meaning" of NEPA. Id. I
agree. It makes no sense to impose upon Reclamation a requirement it
7 The court is not convinced that prior years with low UKL
elevations and Klamath River flow did not harm the fish and would not harm the fish under the unprecedented conditions of this water
25 - OPINION AND ORDER
can never fulfill.
Plaintiffs rely on a decision from the Eastern District of
California, where the district court held that the implementation of
statutorily-mandated water allocations required an EIS. Westlands
Water District v. United States, 850 F. Supp. 1388 (E.D. Cal. 1994).
There, however, the alleged federal action involved implementation of
a newly-legislated statutory scheme which reduced the amount of water
available to irrigators by fifty percent. Id. at 1416. Westlands
did not involve the implementation of a short-term annual water plan
prepared under drought conditions.
Finally, even if plaintiffs could show a likelihood of success
on the merits of their NEPA claim, they would not be entitled to an
injunction. The APA authorizes the court to "set aside, rather than
compel," agency actions. 5 U.S.C. § 706(2). Accordingly, the
appropriate remedy would be to set aside the 2001 Plan and require
Reclamation to prepare an EIS. Plaintiffs argue that, while the EIS
is pending, the court should order historic amounts of water
deliveries. Plaintiffs claim that no evidence shows that historic
irrigation deliveries in prior dry years caused greater harm to the
suckers or the salmon than in any other year. Plaintiffs fail to
recognize that Project operations remain subject to the requirements
of the ESA and Reclamation’s tribal trust obligations, which would
preclude the delivery of any irrigation water if the 2001 Plan is set
aside.7 See 40 C.F.R. § 1506.1(c). Moreover, absent a concrete and
year. Coho salmon were not listed until 1997, and the suckers remain endangered more than twelve years after they were listed. As the government noted in argument, lowering UKL even one foot lower than the minimum RPA of 4139 would reduce the suckers’ habitat by 50%.
26 - OPINION AND ORDER
final 2001 Plan, the injunction issued by the Northern District of
California would remain in full force and effect. Therefore,
plaintiffs cannot obtain the injunctive relief they seek under NEPA.
I am disturbed, however, that Reclamation has failed to complete
an EIS analyzing the effects and proposed alternatives of a long-term
plan. Reclamation represented in past proceedings that such a plan
would be completed long before 2001. Yet, no plan exists. In
essence, Reclamation is avoiding its duties under NEPA by relying on
annual plans to which NEPA cannot realistically apply. During oral
argument, government counsel represented that the long-term EIS is
scheduled to be completed in February 2002. However, it awaits the
completion of an updated NMFS BiOp, slated to be completed in June
2001. The court intends to monitor Reclamation’s compliance with its
representations. This dispute highlights the need for long-term
planning to minimize the effects of future dry years.
b. ESA Claims
Plaintiffs allege that Reclamation’s implementation of the FWS
and NMFS BiOps violates the ESA, because: 1) the RPAs outlined in
the BiOps are not consistent with the intended purpose of the
Project; 2) NMFS improperly determined that the ESA compels agency
actions; 3) FWS and NMFS failed to develop an environmental baseline
to determine the actual effects of the Project; 4) FWS failed to
consider scientific evidence of variable lake elevations and the
8 27 - OPINION AND ORDER
impact on sucker fish populations; and 5) NMFS relied on a lack of
relevant information about the effects of variable flow regimes on
salmon and the salmon’s utilization of the Klamath River. Plaintiffs
allege that these failures render the BiOps and their adoption by
Reclamation arbitrary and capricious.
The ESA requires the Secretary of the Interior to promulgate
regulations listing species of animals that are "threatened" or
"endangered" under certain criteria and to designate their "critical
habitat." 16 U.S.C. § 1533. The ESA further requires each federal
agency to ensure that any agency action "is not likely to jeopardize
the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
[critical] habitat." Id. § 1536(a)(2). If an agency determines that
a proposed action could adversely affect a listed species, it must
engage in formal consultation with the appropriate expert agency,
such as FWS or NMFS. The consulting agency must then provide the
action agency with a BiOp explaining how the proposed action will
affect the species or its habitat, i.e., whether the proposed action
will result in "jeopardy" or "no jeopardy." Id. § 1536(b)(3)(A).
If the consulting agency concludes that the proposed action will
jeopardize the continued existence of a listed species or adversely
affect critical habitat, the BiOp must outline any RPAs that will
avoid those consequences. Id. Alternatively, if the BiOp concludes
that the agency action will not result in jeopardy or adversely
affect habitat, or proposes RPAs to avoid jeopardy, the consulting
agency must provide a written statement specifying the "impact of
such incidental taking on the species," as well as RPAs "necessary or
OPINION AND ORDER
appropriate to minimize such impact." Id. § 1536(b)(4). Finally,
the consulting agency must describe the terms and conditions that
must be complied with to implement the RPAs. Id. During the
consultation process, the ESA forbids "irreversible or irretrievable
commitment of resources" which could foreclose the implementation of
an RPA. Id. § 1536(d).
Plaintiffs first argue that the purpose of the Klamath Project,
pursuant to the Reclamation Act, is irrigation. Plaintiffs allege
that the RPAs adopted by Reclamation benefit fish to the detriment of
irrigation, and the RPAs are therefore inconsistent with the
Project's purpose. Plaintiffs also allege that the RPAs contained in
the BiOps are not "economically feasible." These arguments are
without merit.
True, an RPA is defined as an alternative action which is
"consistent with the purposes of the action" and "economically and
technically feasible." 50 C.F.R. § 402.02. Read in context,
however, the RPAs must be economically and technically feasible for
the government to implement. Additionally, as discussed above,
agency actions taken pursuant to the Reclamation Act must comply with
the requirements of the ESA. See Tennessee Valley Authority v. Hill,
437 U.S. 153, 185 (1978) (ESA obligations take "priority over the
‘primary’ missions’" of federal agencies). Further, agency actions
are subject to the government’s duty to protect tribal resources.
Reclamation’s legal duty to operate the Project consistent with its
ESA and tribal trust obligations does not render the RPAs
inconsistent with the Project’s purpose. Patterson, 204 F.3d at
1213-14.
8 29 - OPINION AND ORDER
Next, plaintiffs attempt to argue that no provision of the ESA
compels Reclamation to take action to release previously stored water
to augment the flow of the Klamath River. The government contends
that the RPAs do not require Reclamation to "manufacture" water, but
that the RPAs are conditioned upon the availability of water.
Defendants’ Opposition to Motion for Preliminary Injunction, p. 22,
n.15. Regardless, the ESA requires an agency to avoid jeopardy to
species, "whatever the cost." TVA v. Hill, 437 U.S. at 184.
Plaintiffs present no support for this novel interpretation of the
ESA.
Plaintiffs also argue that FWS and NMFS failed to develop an
environmental baseline for the suckers and coho salmon in the BiOps.
Plaintiffs contend that an environmental baseline must be established
so as to compare "some thing or some condition" to "something else or
some other condition." Plaintiffs’ Memorandum in Support of
Preliminary Injunction, p. 29-30. Plaintiffs provide no support for
this interpretation, and the regulatory definition of "environmental
baseline" refutes their argument.
A BiOp prepared by FWS or NMFS must "[e]valuate the effects of
the action and cumulative effects on the listed species or critical
habitat." 50 C.F.R. § 402.14(g)(3). "Effects of the action" is
defined as "the direct and indirect effects of an action on the
species or critical habitat, together with the effects of other
activities that are interrelated or interdependent with that action,
that will be added to the environmental baseline." Id. § 402.0(definitions). The "environmental baseline" includes "past and
present impacts of all Federal, State, or private actions and other
8 30 - OPINION AND ORDER
human activities in the action area, the anticipated impacts of all
proposed Federal projects in the action area that have already
undergone formal . . . consultation, and the impact of State or
private actions which are contemporaneous with the consultation in
process." Id.
Therefore, all human activities that impact the listed species
must be considered in the environmental baseline. The effects of the
proposed action are then addressed "in conjunction with the impacts
that constitute the baseline." Defenders of Wildlife v. Babbitt, 13F. Supp.2d 121, 127-28 (D.D.C. 2001) ("The [BiOp] must also include
an analysis of the effects of the action on the species when 'added
to' the environmental baseline--in other words, an analysis of the
total impact on the species."). The environmental baseline is part
of the entire "effects of the action" on the listed species or
habitat that must be considered, rather than some concrete standard
or condition to which other standards or conditions are compared. A
cursory review of the BiOps shows that FWS and NMFS considered the
cumulative impacts on sucker and salmon populations and their
respective habitats.
Finally, plaintiffs argue that the RPAs are not based on the best
scientific evidence available, and that other alternatives supported
by scientific evidence should be employed by Reclamation to preserve
water for irrigation releases.
Upon a finding of jeopardy, the ESA requires the Secretary of the
Interior to "suggest those reasonable and prudent alternatives" which
would not likely jeopardize the continued existence of an endangered
species. 16 U.S.C. § 1536(b)(3)(A). The RPAs must be based on the
8 31 - OPINION AND ORDER
"best scientific and commercial data available." 16 U.S.C. §
1536(a)(2); 50 C.F.R. § 402.14(g)(8).
An agency has wide latitude to determine what is "the best
scientific and commercial data available." The Ninth Circuit has
interpreted this provision to mean an agency cannot ignore available
biological information. "In light of the ESA requirement that the
agencies use the best scientific and commercial data available to
insure that protected species are not jeopardized, the USFWS cannot
ignore available biological information." Connor v. Buford, 848 F.2d
1441, 1454 (9 th Cir. 1988) (internal cite omitted); accord San Luis
& Delta-Mendota Water Authority v. Badgley, F. Supp.2d , 200WL 33174414, 10-11* (E.D. Cal. June 28, 2000); Pacific Coast
Federation of Fishermen's Ass’n v. National Marine Fisheries Service,
71 F. Supp. 2d 1063, 1073 (W.D. Wash. 1999). Thus, it is presumed
that agencies have used the best data available unless those
challenging agency actions can identify relevant data not considered
by the agency. See, e.g, Friends of Endangered Species v. Jantzen,
760 F.2d 976, 985 (9 th Cir. 1985).
Plaintiffs allege that NMFS and FWS selectively reported
information in the BiOps and ignored relevant scientific evidence.
See Declaration of David A. Vogel, ¶¶ 5, 7. For example, plaintiffs
allege that the FWS BiOp fails to recognize evidence demonstrating
that lower levels of UKL will not harm and may benefit the sucker
fish. Apparently, plaintiff Klamath Water Users Association provided
Reclamation with a report titled "Protecting the Beneficial Uses of
Waters of Upper Klamath Lake: A Plan to Accelerate Recovery of the
Lost River and Shortnose Suckers." See Declaration of Alex J. Horne,
8 Plaintiffs complain that some of the evidence that FWS and
NMFS relied upon was performed without public or independent scientific peer review, and that their representatives have not been included in the consultation process. See, e.g., Declaration of Tessa Stuedli. However, as the government correctly pointed out during oral argument, the ESA does not require public review or input during the consultation process. See 50 C.F.R. § 402.14(g). Further, the government noted that it voluntarily made draft and final BiOps and EAs available to plaintiffs and others through a Web site and other sources.
32 - OPINION AND ORDER
Ex. A. According to the report, increasing the depth of UKL in the
summer, as proposed under the 2001 Plan, could promote rather than
inhibit fish kills. Vogel Declaration, ¶¶ 6,7. Plaintiffs recommend
the technique of oxygenation or aeration, to improve water quality
and decrease the risk of fish kills. Horne Declaration, ¶ 4.
Plaintiffs further contend that FWS does not establish the necessity
for vegetated habitat for shortnose and Lost River sucker larval
survival, because the BiOp did not address evidence that larvae
existed at non-vegetated sites at other nearby reservoirs.
Declaration of Keith Marine, ¶ 12.
With respect to the NMFS BiOp, plaintiffs contend that it fails
to consider "numerous other factors" other than the flow regime at
Iron Gate Dam which affect coho salmon population. Vogel
Declaration, ¶ 9; Marine Declaration, ¶  Plaintiffs maintain that
little, if any, scientific evidence supports the conclusion that
water releases from Iron Gate Dam affects the salmon. Vogel
Declaration, ¶¶ 9-11. Further, plaintiffs claim that the tributaries
of the Klamath River, rather than the mainstem, is the critical
habitat of the coho salmon.8 Vogel Declaration, ¶ 1 Plaintiffs
also allege that the final BiOp fails to address numerous criticisms
of the draft BiOp. Supplemental Declaration of David A. Vogel.
8 33 - OPINION AND ORDER
Defendants-intervenors The Wilderness Society and the Tribes
present opposing views. "Plaintiffs have based their criticisms on
the [FWS BiOp] on incomplete or cursory analysis of the vast body of
data on UKL, incomplete review of existing literature and research,
a complete misunderstanding and oversimplification of the lake
elevation, water quality, and fisheries dynamics within UKL."
Declaration of Dr. Jacob Kann, ¶ 2. The Klamath Tribes dispute the
contention that the FWS BiOp is not supported by adequate scientific
evidence concluding that vegetated habitats are important to sucker
populations. Declaration of Larry Dunsmoor, ¶ 4. The Tribes also
dispute plaintiffs’ conclusions about fish kill data, describing
plaintiffs’ expert’s approach as simplistic. Dunsmoor Declaration,
¶ 12.
The Wilderness Society and the Yurok Tribe maintain that the
reduced flow in the Klamath River caused by Project Operations over
the last 85 years is one of the major contributing factors to the
decline in salmon populations. Declaration of Ronnie M. Pierce, ¶
17. The Wilderness Society and the Tribe criticize plaintiffs’
assumption that the salmon do not need adequate flow stream in the
mainstem Klamath River to avoid jeopardy. Pierce Declaration, ¶¶ 10,
17; Declaration of Michael Belchik, ¶¶ 9-17. They emphasize that
some evidence plaintiffs rely on is outdated and inapplicable to the
current conditions of the Klamath River and the 1997 listing of the
coho salmon. Belchik Declaration, ¶¶ 14, 18; see also, Declaration
of Michael Rode (attached as Ex. A. to Declaration of Jan Hasselman).
Finally, the government directs the court to the reasoning and
conclusions of the BiOps and evidence in the record which rebuts
plaintiffs’ contentions. See Defendants’ Opposition to Motion for
Preliminary Injunction, pp. 26-36. The government also points out
that others in the scientific community reviewed plaintiffs’
contentions and found them lacking. Id. p. 30; see FWS AR, Volume
25, D-2; D-3; D-5; D-6; D-7; D- Moreover, plaintiffs fail to
identify relevant scientific evidence that FWS or NMFS failed to
consider. The relevant evidence allegedly "ignored" is included in
the administrative record, as plaintiffs emphasize. See Supp.
Declaration of David A. Vogel.
The opposing views and supporting evidence of the parties
demonstrate that plaintiffs simply disagree with the scientific
conclusions reached by FWS and NMFS. See Plaintiffs’ Reply in
Support of Motion for Preliminary Injunction, pp. 15-20. The fact
that such disagreement exists, however, does not render the BiOps
arbitrary and capricious. See Aluminum Co. v. Bonneville Power
Admin., 175 F.3d 1156, 1162 (9 th Cir. 1999), cert. denied, 528 U.S.
1138 (2000) (NMFS’ BiOp was not arbitrary and capricious where
differing scientific views were resolved through expert choices and
plans for further studies). An agency is not required to rely on
evidence that is conclusive or certain; rather, an agency must
utilize the best evidence available when preparing BiOps. Greenpeace
Action v. Franklin, 14 F.3d 1324, 1336-37 (9 th Cir. 1992) (upholding
finding of no jeopardy based on admittedly "weak" evidence"); accord
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 680 (D.D.C.
1997).
The FWS and NMFS BiOps explain how the RPA minimum UKL levels and
9 The government also argues that plaintiffs are not entitled to injunctive relief because APA does not provide for affirmative injunctive relief and that relief pursuant to the citizen suit provision of ESA requires sixty days notice. 16 U.S.C. § 1540(g)(2)(A)(i). The court finds the sixty-day notice requirement inapplicable here, where plaintiffs seek judicial review of their claim pursuant to the APA.
35 - OPINION AND ORDER
Klamath River flows are necessary to avoid jeopardy to suckers and
coho salmon and to preserve their habitat. The BiOps are supported
by voluminous administrative records, rendering it unlikely that they
have no rational basis.
Plaintiffs would have the court substitute plaintiffs’ analysis
of the relevant science for that of the expert agencies. However,
the court cannot force Reclamation to choose one alternative over
another. See Southwest Center for Biological Diversity v. United
States Bureau of Reclamation, 143 F.3d 515, 523 (9 th Cir. 1998) (the
Secretary is not required to choose the best alternative or to
explain why one alternative was chosen over another). Absent a
showing that NMFS or FWS failed to consider relevant, available,
scientific data, plaintiffs are unlikely to prevail on this claim.
Regardless, even if plaintiffs could show a likelihood of success
on the merits of their ESA claims, they would not be entitled to the
injunctive relief they seek. Under the APA, the court has authority
to "set aside" the challenged agency action, i.e., the BiOps.Reclamation has recognized that ongoing operations of the Project
could adversely affect suckers and coho salmon and initiated
consultation with NMFS and FWS. Therefore, if the BiOps are set
aside, Reclamation must reinitiate consultation and obtain valid
BiOps from NMFS and FWS. During that time, ESA prohibits an agency
8 36 - OPINION AND ORDER
from committing resources which would preclude the application of an
RPA:
After initiation of consultation required under subsection (a)(2) of this section, the Federal agency . . . shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.
16 U.S.C. § 1536(d); 50 C.F.R. § 402.0 Here, release of the
requested amounts of Project irrigation water would foreclose the
implementation of any RPA involving higher UKL elevations and higher
instream flows below Iron Gate Dam; the water would be irretrievable.
Moreover, if the BiOps were set aside, the requirements set forth by
Judge Armstrong in Pacific Coast Federation of Fishermen’s
Associations v. Bureau of Reclamation would not be met, and in all
likelihood the injunction enjoining releases of irrigation water, if
lifted, would be reinstated. Therefore, even if plaintiffs could
show a likelihood of success on the merits of their ESA claims, the
ESA explicitly prohibits the relief they seek.
CONCLUSION
In essence, plaintiffs request that this court stand in the place
of Reclamation as the operator of the Project and reallocate Project
water in a manner that is inconsistent with governing law.
Plaintiffs fail to show a likelihood of success on the merits of
their claims, and,
more importantly, plaintiffs fail to establish that they are entitled
to the injunctive relief they seek. While the court sympathizes with
plaintiffs and their plight, I am bound by oath to uphold the law.
The law requires the protection of suckers and salmon as endangered
8 37 - OPINION AND ORDER
and threatened species and as tribal trust resources, even if
plaintiffs disagree with the manner in which the fish are protected
or believe that they inequitably bear the burden of such protection.
The scarcity of water in the Klamath River Basin is a situation
likely to reoccur. It is also a situation which demands effort and
resolve on the part of all parties to create solutions that provide
water for the necessary protection of fish, wildlife and tribal trust
resources, as well as the agricultural needs of farmers and their
communities. Continued litigation is not likely to assist in such a
challenging endeavor. This court hopes and expects that the parties
and other entities necessary to long-term solutions will continue to
pursue alternatives to meet the needs of the Klamath River Basin.
Plaintiffs’ Motion for Preliminary Injunction (doc. # 3) is
DENIED.
IT IS SO ORDERED.
Dated this _____ day of April, 2001.
Ann Aiken
United States District Judge