The 9th Circuit Court of Appeals has ruled the Bureau of Reclamation (BOR) is permitted to regulate the Klamath Drainage District’s (KDD) water withdrawals from the Klamath River, even if it’s through the drainage district’s facilities.
The appeals court affirmed on Jan. 17 a district court’s grant of summary judgment for BOR and an injunction in a suit for breach of contract. The U.S. brought the breach of contract case against KDD in 2022, alleging the drainage district breached its contract by irrigating after the U.S. said there was no water allocated for the district that year.
“We agree with the district court that the Contract’s plain language, given its ordinary meaning, authorizes Reclamation to control KDD’s diversions from the Klamath River and provides for Reclamation to administer the Project through reasonable rules and regulations,” the court wrote in a memo.
Reclamation has operated the Klamath River Basin Project since 1905. In 1943, the agency signed a contract with the drainage district for delivery of excess water from the project, authorizing BOR to control KDD’s water appropriations from the river.
The district court ruled the drainage district undermined BOR’s ability to operate the water project and risked irreparable harm to endangered species under the Endangered Species Act (ESA).
“Notably, the United States provided no evidence of harm to any species as a result of KDD’s diversions in 2022,” KDD said in 2023.
The district court issued a permanent injunction that required authorization from the U.S. to divert water, including any diversions under the drainage district’s separate state permit through the district’s private facilities.
The drainage district said it irrigated under its separate state water right permit as it has done since 1977 when it was issued, and that BOR shouldn’t have the authority to curtail irrigation because it’s outside the agency’s jurisdiction.
Appeals court affirms ruling
“KDD had a contractual duty to adhere to Reclamation’s allocations and not divert water from the Klamath River, which KDD does not dispute it disregarded,” the court wrote.
The appeals court ruled there was no provision in the contract requiring water allocations during water shortages and that the lower court did not abuse its discretion when it permanently enjoined the drainage district from diverting water against Reclamation’s plans.
“Reclamation’s ability to regulate the Project affects ESA-listed species, Native American tribes, and other irrigators and stakeholders,” the appeals court wrote. “The harm to KDD in barring its unauthorized diversions is a consequence of the priority of Project obligations and the harsh fact that there is not enough water to satisfy all demands.”
KDD owns and operates its own infrastructure and said it pays more than double the percentage of any other district for project operation and maintenance costs, regardless of if BOR supplies water.
“The United States and their courts are taking the tools right out of the hands wanting to do the hard work it takes for recovery,” Tracey Liskey, KDD board member, said at the time of the district court’s ruling. “All we want is for these fish to recover and thrive so we can go back to what we love and here we have another ruling that hamstrings our ability to utilize our resources in that effort.” — Anna Miller, WLJ managing editor
