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Klamath water users argue tribes’ lawsuit filed in wrong court

The Klamath Water Users Association, Sunnyside Irrigation District and California farmer Ben DuVal are seeking to have the Klamath Tribes’ lawsuit dismissed from a federal court in San Francisco, arguing it should be heard in a different venue.
George Plaven

Capital Press

Published on June 11, 2018 10:31AM

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The Klamath Water Users Association is asking a federal judge in San Francisco to dismiss a lawsuit filed in May by the Klamath Tribes, arguing the case should be heard in a different venue.

The tribes are suing three federal agencies, including the U.S. Fish and Wildlife Service, Bureau of Reclamation and National Marine Fisheries Service, seeking an injunction to hold more water in Upper Klamath Lake for endangered shortnose and Lost River suckers.

Both species of fish were listed as endangered in 1988. According to the tribes, harvests decreased from more than 10,000 to just 687 suckers between 1968 and 1985. Today, just two fish are harvested every year for ceremonial purposes.

The lawsuit was filed in federal district court in San Francisco before Judge William Orrick — the same judge that recently upheld a separate injunction for the Hoopa Valley and Yurok tribes in Northern California that requires greater flows in the Klamath River to protect threatened salmon from a deadly waterborne virus.

Both Klamath Basin suckers and salmon are managed under the same 2013 joint biological opinion, or BiOp.

The KWUA, along with the Sunnyside Irrigation District and California farmer Ben DuVal, filed Thursday to intervene in the Klamath Tribes’ lawsuit and have it dismissed from Orrick’s court.

In a statement, KWUA Executive Director Scott White the lawsuit must be heard “where the parties are or where they claim an injury happened, which is primarily Oregon.”

The water users’ motion states that a federal court in Oregon or Sacramento, Calif. would be allowable, but not in San Francisco.

“There are laws about where a lawsuit can be filed,” DuVal said. “You can’t just file a lawsuit in New Jersey because that is where you want to go. That’s what our motion says. The Klamath Tribes lawsuit claims that part of the Klamath Project is in the judicial district based in San Francisco, but that’s not correct.”

Don Gentry, Klamath tribal chairman, could not immediately be reached for comment. A hearing in the case will be held July 11 before Orrick.

According to the tribes’ lawsuit, the Bureau of Reclamation has allowed the water level in Upper Klamath Lake to dip below minimum conservation levels for the suckers on multiple occasions. It seeks both a preliminary injunction to keep higher water levels in the lake, and also calls upon the agencies to correct management deficiencies in the 2013 BiOp.

The Bureau of Reclamation is also responsible for diverting irrigation water into the Klamath Project, which serves roughly 2,000 irrigators and 200,000 acres of farmland.

Brad Kirby, KWUA president and operations committee chairman, previously said the group would intervene and oppose any action further limiting irrigation supplies. If a preliminary injunction is granted, Kirby said it would likely force the Klamath Project to shut off completely for up to several years.

“They want to require Upper Klamath to be held at unprecedented and artificially high elevations for suckers year-round,” Kirby said. “I wouldn’t expect there to be any water at all available for Klamath Project irrigation and wildlife refuges until there are new biological opinions, which is not expected until 2020.”


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