The U.S. Court of Appeals for the 9th Circuit has denied irrigators in the Klamath Basin the right to challenge federal agency decisions in court.
In a Sept. 8 decision, the panel of judges reaffirmed the U.S. District Court for the District of Oregon’s dismissal, which recognized that declaring the Bureau of Reclamation’s (BOR) operating procedures unlawful would put water levels in the Upper Klamath Lake, the Endangered Species Act (ESA) and the Hoopa and Klamath Tribes’ water and fishing rights at risk. The panel also affirmed the district court’s conclusion the Tribes “were required parties who could not be joined due to sovereign immunity.”
In 2019, the Klamath Irrigation District (KID) and Klamath Water Users Association (KWUA), along with other irrigation districts, filed suit against BOR, seeking relief and a declaration that BOR’s operation of the Klamath Project was unlawful under the Administrative Procedures Act. The groups sought to enjoin BOR from using water in Upper Klamath Lake for instream purposes.
The Tribes were allowed to intervene in parallel cases brought by KID and KWUA to argue the cases should be dismissed, as they were required parties who could not be joined due to their Tribal sovereign immunity.
According to court documents, a magistrate judge recommended the district court grant the Tribes’ motions and dismiss the case. On Sept. 25, 2020, the district court adopted the magistrate’s decision in full. The irrigation districts appealed the decision.
Upon their appeal in November 2020 to the 9th Circuit, KID and KWUA argued the Tribes were not required parties in the suit because BOR adequately represented their interests. The judges disagreed and found that BOR does not sufficiently represent the Tribes. The judges continued that in equity and good conscience, “There was no way to shape relief to avoid the prejudice here because the plaintiffs’ claims and the Tribes’ claims are mutually exclusive.”
KWUA President Ben DuVal said in a statement that the decision by the Court of Appeals is hard to process and expressed disappointment that “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.
“We believe the government is acting outside its legal authority,” DuVal continued. “We may be right, or we may be wrong. But it’s beyond disappointing that we can’t get our day in court.”
Overturned injunction
The decision was another setback for the irrigation districts after a three-judge panel for the Oregon Court of Appeals on Sept. 8 overturned a May 2020 injunction won by the irrigation districts because the BOR was not named as a defendant.
KID filed suit against the Oregon Water Resources Department (OWRD), directing the agency to order BOR to stop releasing water for instream use from the Link River Dam, which regulates flows from the Upper Klamath Lake reservoir.
The Marion County Circuit Court issued an order directing OWRD to take charge of the Upper Klamath Lake and to divide the water with the relative rights of users of the lake. OWRD issued the required orders to BOR but did not take physical control of the dam to prevent the agency from releasing water for nonirrigation instream purposes. In response, the irrigators sought and won the injunction ordering OWRD’s local water master to enforce the order against the federal water releases. OWRD appealed the case on the grounds of failing to include BOR and the Tribes.
The judges ruled, “The relief ordered by (the) trial court is inconsistent with those requirements and brings OWRD into direct conflict with the Bureau, the ESA, Tribal rights, and federal case law. An order to the Bureau to cease the release of stored waters from Upper Klamath Lake would impair the Bureau’s obligations under the ESA and to the tribes and would be but a pyrrhic victory for the plaintiff that would likely be overturned in federal court. We conclude for those reasons that the Bureau was a necessary party that should have been joined.”
According to Rich Deitchman, an attorney representing KWUA and other districts in the appeal, they will confer with the boards of directors about whether to pursue the cases further. Deitchman said the irrigation districts could seek rehearing in the 9th 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. — Charles Wallace, WLJ editor
