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Ruling invalidates Klamath irrigators' injunction

  • Herald and News 9/9/22

The United States Court of Appeals for the Ninth Circuit has thrown out a lawsuit in which Klamath Basin irrigators won an injunction against federally authorized releases of stored water from Upper Klamath Lake.

The court ruled the lawsuit shouldn’t have been allowed to proceed because the U.S. Bureau of Reclamation, which is under court orders to protect tribal water rights and comply with the Endangered Species Act (ESA), wasn’t named as a defendant and can't be compelled to participate in state court litigation.

The complaint was filed against the Oregon Water Resources Department (OWRD) for failing to protect the irrigators' water rights.

“The relief ordered by trial court is inconsistent with those requirements and brings OWRD into direct conflict with the Bureau, the ESA, tribal rights, and federal case law,” wrote Douglas Tookey, the presiding judge.

The dispute put the state's authority over water rights against the federal government’s ability to manage water levels in Upper Klamath Lake. The lake stores irrigation water but also provides habitat for endangered sucker fish.

The injunction ordered the OWRD to stop the federal government from releasing lake water to improve stream flows until uncertainties about water rights are resolved.

“This is hard to process,” Klamath Water Users Association (KWUA) President Ben DuVal said in a news release. “Any number of tribal and non-tribal parties can sue the government to take water away from irrigators, but irrigators can’t sue to protect their own interests in water.”

KWUA was one of several parties that filed a lawsuit in 2019 against Reclamation, with a parallel lawsuit also filed by the Klamath Irrigation District (KID). Others involved in the lawsuit were the Shasta View Irrigation District, Tulelake Irrigation District, the Klamath Drainage District, the Van Brimmer Ditch Company, DuVal and Rob Unruh.

The irrigation parties claimed Reclamation adopted decisions and actions that were outside its legal authority, to the detriment of Klamath Project irrigation.

The Federal District Court for the District of Oregon - where the cases were filed - agreed and dismissed the cases. Thursday, the Ninth Circuit upheld the dismissal.

“We believe the government is acting outside its legal authority,” DuVal said. “We may be right, or we may be wrong. But it’s beyond disappointing that we can’t get our day in court.”

Rich Deitchman, an attorney who represented KWUA and other districts in the appeal, said that he, and the attorneys representing KID in its appeal, will confer with their boards of directors about whether to pursue the cases further. Legally, he said, the irrigation parties could seek a rehearing in the Ninth Circuit or petition the U.S. Supreme Court to review the decision.

“It’s too early to say whether or not this is the end of the road in this case,”  Deitchman said in a news release.


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