A federal judge denied the Klamath Tribes’ efforts on Thursday to have the Bureau of Reclamation reduce flows on the Klamath River and keep Upper Klamath Lake’s elevation more suitable for spring sucker spawning.
“Here, the Defendant Bureau, in coordination with expert agencies and all competing interests, is better equipped to serve the public interest than a judge with a law degree,” wrote United States District Judge Michael McShane.
The Tribes sued the Bureau earlier this year on Endangered Species Act grounds, arguing that the agency violated Sections 7 and 9 of the law by allowing Upper Klamath Lake to dip below 4,142 feet in elevation during April and May in two consecutive years: 2020 and 2021. Those levels were established by the U.S. Fish and Wildlife Service’s 2020 biological opinion, based on research showing that low lake levels in the spring result in reduced spawning activity among C’waam and Koptu.
The BiOp had stated that failing to meet those conditions would put the Bureau in violation of the incidental take statement and thus in violation of the ESA, the Tribes argued.
The Tribes also requested the judge issue a preliminary injunction and temporary restraining order to immediately have the Bureau reduce baseline river flows released from Link River Dam by more than half while the remainder of the lawsuit was being heard. That would have resulted in less water to combat salmon disease outbreaks on the Klamath River below Iron Gate Dam.
Reclamation argued that violating the incidental take statement wasn’t immediate grounds for litigation under the ESA and that the BiOp instead required the agency to consult with USFWS in the event that incidental take was exceeded. The Bureau said it did undergo adequate consultation with the Services to that effect, using its temporary operating procedures for 2021 as evidence. The judge agreed.
“To the extent that the Bureau was required to engage in informal consultation with USFWS, they have satisfied this burden by maintaining regular communication with the Services as they determined the causes for the low elevation of Upper Klamath Lake and developed temporary operating procedures to address the situation,” Judge McShane wrote.
The Bureau also said it wasn’t liable for harm done to suckers in 2021 because of the exceptionally bad hydrology present this water year. They argued that while they can control how much water is released from the lake, they can’t control how much enters it.
Reclamation said temporarily suspending irrigation deliveries to the Klamath Project was proof of them doing their best to keep Upper Klamath Lake levels as high as possible.
“The Bureau cannot control the current hydrologic conditions; they can only work within these natural limitations,” Judge McShane wrote. “The Bureau is not responsible for the unprecedented drought this year.”
Paul Simmons, executive director of the Klamath Water Users Association, said that the organization agrees with the court that “judicial operation of the Klamath Project is not needed or appropriate. That said, the decision does not change the fact that farmers and ranchers and wildlife supported by the Project can expect only a paltry amount of water this year.”
Jay Weiner, the Klamath Tribes’ ESA lawyer, said the Tribes were still reviewing the ruling and were not able to comment on the specifics.
“It’s safe to say we’re disappointed,” he said.
This story will be updated. Check back at heraldandnews.com.