Yurok Tribe files amended motion to curtail and take control of the Klamath Reclamation Project undermining the Klamath Adjudication 032423

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Yurok Tribe files amended motion to curtail and take control of the
Klamath Reclamation Project undermining the Klamath Adjudication.
from Klamath Irrigation District Newsletter March 24, 2023

Amy Cordalis (Yurok Tribal Counsel) and Patti Goldman (Earth Justice) claim "This Supplemental Complaint challenges the U.S. Bureau of Reclamation’s Klamath Project January 2023 Temporary Operating Procedure...Mismanagement of the Klamath Project has severely diminished the Tribe’s

ability to exercise its reserved fishing rights...

NMFS concluded that the 2021 and 2022

TOPs would not cause adverse effects on SONCC Coho Salmon and Southern Resident Killer Whales beyond what NMFS considered in the 2019 Biological Opinion.

This Supplemental Complaint challenges the 2023 TOP for violating the ESA because: (1) Reclamation has not engaged in ESA Section 7(a)(2) consultation with NMFS on going below mandatory Klamath River minimum flows; and (2) implementation of the 2023 TOP is likely to cause and in fact has already caused the unlawful take of threatened SONCC Coho Salmon by desiccating salmon redds, the depressions where female salmon lay their eggs, and diminishing rearing habitat for young salmon in early spring.

This Supplemental Complaint also challenges the 2023 TOP for failing to provide the mandatory minimum flows required by the 2019 Plan and IOP. In addition, the Supplemental Complaint challenges Reclamation’s Finding of No Significant Impact (“FONSI”) and Supplemental Environmental Assessment (Supplemental “EA”) prepared on the 2023 TOP under the National Environmental Policy Act (“NEPA”) because they are arbitrary and capricious and contrary to the record before Reclamation.

In addition to seeking declaratory relief as to these claims, the Yurok Tribe asks the Court to issue an injunction prohibiting Reclamation from delivering water for irrigation unless it can meet its full ESA obligations to SONCC Coho Salmon and Southern Resident Killer Whales as set out in the 2019 NMFS Biological Opinion, 2019 Plan, and IOP, and have sufficient water in UKL at the end of the water year to meet such obligations the following year."

Read the Amended Motion here...

Read the Yurok Drafted Injunction...

Read the draft literature review of coho biology which counters all of the Yurok claims.

YUROK TRIBE PRAYER FOR RELIEF

WHEREFORE, plaintiffs (Yurok Tribe) respectfully request that this Court:

A. Declare that Reclamation is in violation of Section 7 of the ESA because it has adopted and is implementing the 2023 TOP without completing formal consultation and/or

because Reclamation and NMFS have not completed reinitiated formal consultation on

operations of the Klamath Project that allow Klamath River flows to go below the mandatory minimum flows in the 2019 Biological Opinion and the 2019 Plan;

B. Declare that Reclamation’s reduction of Klamath River flows below the minimum flows in the 2019 Biological Opinion and 2019 Plan is reasonably certain to cause the take of threatened SONCC Coho Salmon in violation of Section 9 of the ESA;

C. Declare that the 2023 TOP is arbitrary and capricious and violates Reclamation’s 2019 Plan as amended by the IOP, in violation of the Reclamation Act of 1905 and the APA, 5 U.S.C. § 706(2)(A);

D. Issue an injunction prohibiting Reclamation from delivering water for irrigation unless Reclamation can meet its full ESA obligations to SONCC Coho Salmon and Southern Resident Killer Whales, including providing at least the Biological Opinion’s minimum flows every month of the year, allocating water to and distributing water from the Environmental Water Account in accordance with the 2019 Biological Opinion, providing enhanced flows in accordance with the 2019 Biological Opinion, providing augmentation flows in accordance with

the IOP, and providing a full surface flushing flow complying with the provisions of the 2019

Biological Opinion;

E. Further prohibit Reclamation from delivering water for irrigation unless it UKL will have an elevation of 4139.2 feet on September 30th, while complying with 2019 NMFS Biological Opinion and IOP, to ensure that UKL will refill over the fall-winter to levels needed for Reclamation to meet its full ESA obligations to SONCC Coho Salmon and Southern Resident Killer Whales;

F. Declare that Reclamation’s Supplemental EA and FONSI are arbitrary, capricious, and contrary to NEPA in violation of the APA, 5 U.S.C. § 706(2)(A); G. Award plaintiffs their reasonable fees, expenses, costs, and disbursements, including attorneys’ fees associated with this litigation under the ESA, 16 U.S.C. § 1540(g)(4), and the Equal Access to Justice Act 28 U.S.C. § 2412; and

H. Grant plaintiffs such further and additional relief as the Court may deem just and

proper.

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