In life, you will succeed in some situations and lose in others. Such was the case with several lawsuits presented by environmentalists, farmers, and a native tribe regarding the Klamath Basin National Wildlife Refuge Complex.
The Klamath Basin National Wildlife Refuge Complex straddles the Oregon/California border and is operated by the U.S. Fish and Wildlife Service (USFWS). The Klamath Basin is home to six National Wildlife Refuges: Klamath Marsh, Upper Klamath, and Bear Valley are in southern Oregon; Clear Lake, Lower Klamath, and Tule Lake are in Northern California.
U.S. District Judge Michael McShane earlier this month rejected challenges filed in 2017 by environmental groups regarding livestock grazing, pesticide usage and wildlife management. In addition, he dismissed claims filed by farmers and irrigation organizations regarding a conservation plan which restricted agriculture leases on refuge land.
Separately, the Yurok Tribe and fishermen groups successfully obtained a new three-year plan from the Bureau of Reclamation for operating the Klamath Irrigation Project to increase springtime flows in the Klamath River.
Lawsuits rejected
The rulings adopted by McShane were based on earlier findings and recommendations of U.S. Magistrate Judge Mark Clarke, who determined the USFWS should prevail against all claims it had violated federal statutes governing the refuge complex.
The Tulelake Irrigation District, Klamath Water Users Association and farmers claimed the service’s 2017 plan will reduce the area within the refuges they are allowed to lease as farmland. The reduction goes against the mandate of the 1965 Kuchel Act, which they claim directs the government to prioritize agriculture equally alongside wildlife protection there. Paul Simmons argued on behalf of the Tulelake Irrigation District that farming helps create food for migrating birds, and said the practice was too entrenched to end now.
“I do not believe Fish and Wildlife can kick the farmers off the lease[d] lands,” Simmons said. “If they leave, there will just be dust or the crops will just grow up into knee-high weeds, so what do you do then? Spray it? Agriculture is the purpose of this leased land. It has been for 114 years, it’s never been used for anything else.”
McShane stated claims of harm to farmers fell outside the “zone of interests” under the National Environmental Policy Act (NEPA) and lacked legal standing. The agriculture plaintiffs also failed to prove USFWS didn’t take a “hard look” at the conservation plans as required by NEPA. The ruling went on further to state it was “a remote and highly speculative possibility” USFWS didn’t have to analyze the impacts of refuge lease lands being fallowed.
Environmental suits
Western Watersheds Project had challenged continued cattle grazing in the 33,400-acre Clear Lake Refuge. The group’s lawyer Paul Ruprecht said the service hadn’t properly analyzed whether to allow grazing using guidelines under NEPA. Ruprecht pointed to a dramatic decline in sage grouse at the Clear Lake Wildlife Refuge, from 14,000 in the 1970s now down to 150 birds.
McShane agreed with the USFWS’s findings that reducing or banning grazing wouldn’t be consistent with its policy goals. The agency looked at the environmental impacts under NEPA, such as controlling the spread of juniper and its cumulative effects on the sage grouse and sucker fish species.
The Center for Biological Diversity claimed the service’s widespread use of pesticides, fungicides, and insecticides on the Lower Klamath and Tulelake can “harm wildlife, drift, runoff and persist in the soil.”
However, against the Center’s arguments against pesticide usage, McShane stated the federal government’s “scientific judgment” on the matter deserves deference.
The Audubon Society argued that the USFWS illegally diverts water from lakes where millions of migratory birds rest and reproduce. Audubon claimed farming on the refuges was reducing already scarce water needed by birds. During some years, Audubon said, water was so low at the Lower Klamath Refuge that birds from multiple lakes all squeezed onto the Tulelake Refuge, where crowded conditions caused bird deaths to spike.
Citing that the agency “does not have the authority to change the Refuges’ junior priority water rights within the Klamath Basin,” McShane determined it hadn’t violated the Clean Water Act because it complied with non-point source discharge.
Tribe and fishing groups win
A California federal judge granted a stipulated pause of a lawsuit by the Yurok Tribe that seeks to protect a species of salmon the tribe says is vital to its livelihood and cultural identity from impacts of an irrigation project in the Klamath River.
The tribe, Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources filed litigation in 2019 to protect threatened salmon and avoid more closures of valuable salmon fisheries in most water years.
The groups filed litigation to secure adequate water flows necessary to prevent further collapse of Klamath salmon populations, which were lacking in the Federal Bureau of Reclamation’s 2019-2024 water operations plan. The tribe sought a preliminary injunction to alter the plan by adding another 50,000 acre-feet of reserve water supply for 2020, expected to be a drought year, to ensure there would be enough.
Under the 2019-2024 Klamath Project Operations Plan, both plaintiffs stated the Klamath fishery experienced a disease outbreak and degraded habitat due to artificial drought conditions created by the plan. Because of “weak stock management” constraints, the health of Klamath River salmon stocks also determines whether ocean coastal commercial Chinook fisheries are open or closed, affecting coastal communities across a large portion of the West Coast.
The stay will allow the U.S. Bureau of Reclamation more time to work on and implement an interim plan to operate the Klamath Project—which provides irrigation to agricultural land in south-central Oregon and north-central California by diverting water from the river—with the threatened species in mind.
The interim 2020-2024 operations plan is expected to provide additional habitat for the salmon, which would help meet habitat conservation standards and potentially reduce the risk of disease for the species, according to an agency letter. — Charles Wallace, WLJ correspondent
