The 65th Annual Meeting of the Klamath Basin Improvement District is scheduled for Tuesday, 19 November 2024, at 10am. Location: 6640 KID Lane, Klamath Falls Oregon, 97603 The public may call in to the meeting at 425-436-6347, Access Code 8826661# In accordance with ORS 192.630(1) all meetings of the governing

The Klamath Irrigation District, described in Article 1, Section 1 of the By-Laws of the Klamath Water Users Association, was officially named in 1905. The District was formally established as a special government district after the popular vote in 1917.

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The Klamath Irrigation District is asking the Ninth Circuit to certify two questions to the Oregon Supreme Court concerning the U.S. Bureau of Reclamation's authority to use and control the use of water under Oregon law.

In a motion filed on Thursday, the irrigation district said authoritative guidance from Oregon's highest court is critical, given that the federal issues in this case hinge on two essential questions: Whether the Bureau of Reclamation can divert stored water from the Upper Klamath Lake for instream use and whether it can decide how private water rights owned by Klamath Irrigation District landowners and other nonfederal parties are exercised.

"As explained in Pacheco v. United States, '[c]ertification is appropriate where a case presents complex issues of state law with significant policy implications.' Similarly, in this case, the federal questions involving the Endangered Species Act hinge on complex issues of Oregon property law, which courts have deemed appropriate for certification," the irrigation district said. 

The dispute between the irrigation district and the Bureau of Reclamation stems from an order issued by the Oregon Water Resources Department in 2021 barring the bureau from releasing stored water in the Upper Klamath Lake for any purposes other than irrigation.

The lake was previously modified by the bureau in the early 1900s with the construction of the Link River Dam, which now provides the primary means of storage for the federal Klamath Project. That project provides water for the irrigation of up to approximately 230,000 acres in southern Oregon and northern California, according to the bureau. 

The U.S. government, as well as the Yurok Tribe and fishing industry groups, which are plaintiffs in the suit, subsequently turned to California federal court, lodging motions for summary judgment in May 2022 that urged the court to declare the Oregon department's order preempted under the U.S. Constitution's supremacy clause because it conflicts with the Endangered Species Act. 

Persuaded by their stance, U.S. District Judge William H. Orrick ruled in February 2023 that the Oregon department's order is barred by the ESA, given that if the bureau were to comply with the order by not releasing Upper Klamath Lake flows for any purposes other than irrigation, it would also jeopardize downstream coho salmon populations and the Southern Resident killer whales that prey on them. 

Since turning to the Ninth Circuit, the irrigation district maintained in its opening brief that the district court's decision violates the Fifth Amendment's guarantee that the government will not take private property for public use without payment of just compensation or due process of law. The irrigation district subsequently urged the Ninth Circuit to certify its two questions to the Oregon Supreme Court during oral argument — a request it expanded upon in its Thursday motion. 

"Resolving these questions regarding reclamation's authority under its water rights and Oregon law is essential, as it will establish a critical precedent for water rights across Oregon, particularly in the Klamath Basin," the irrigation district said in its motion. "This decision will affect the legal landscape for water rights throughout Oregon and directly impact the livelihoods of thousands of Oregonians in the Klamath Basin. Furthermore, it will shape how Reclamation achieves ESA compliance in the future." 

Certification of the questions is also necessary to ensure that the Ninth Circuit's ruling on federal issues like the ESA are grounded in authoritative interpretations of Oregon law, the irrigation district added, noting that if the Ninth Circuit and the Oregon Supreme Court were to reach disparate conclusions with regard to the state law issues, it could undermine the Ninth Circuit's rulings on the ESA and create uncertainty for all parties. 

Moreover, certification to the Oregon Supreme Court further ensures that these issues are "resolved in their proper context — focusing solely on the interpretation of Oregon's water rights system under state law," the irrigation district said. 

Representatives for the parties did not immediately respond to requests for comment Friday. 

The Yurok Tribe, Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources are represented by Patti A. Goldman and Kristen Boyles of Earthjustice. 

The Bureau of Reclamation is represented by Thomas K. Snodgrass, Robert P. Williams, Kevin McArdle and John L. Smeltzer of the U.S. Department of Justice's Environment and Natural Resources Division, Lance C. Wenger of the U.S. Department of the Interior and Megan J. Walline of the National Oceanic and Atmospheric Administration. 

Klamath Irrigation District is represented by Nathan R. Rietmann of Rietmann & Kim LLP.

The cases are Yurok Tribe et al. v. Klamath Water Users Association et al., case number 23-15499, and Yurok Tribe et al. v. Klamath Irrigation District et al., case number 23-15521, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Ali Sullivan and Joyce Hanson. Editing by Rich Mills.

Read more at: https://www.law360.com/nativeamerican/articles/1891501?nl_pk=6f6a28ec-3c22-487e-bc63-a655f24f7066&utm_source=newsletter&utm_medium=email&utm_campaign=nativeamerican&utm_content=2024-10-21&read_main=1&nlsidx=0&nlaidx=3?copied=1

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“A progressive civil servant who led the Bureau of Reclamation under former President Clinton is now urging the incoming Trump administration to eliminate his former agency — an entity he has long deemed superfluous. Daniel Beard, who served as commissioner from 1993-95, said in a statement shared with The Hill that if the “administration is serious about reducing government bureaucracy, cutting wasteful expenditures and restructuring federal agencies, it should start by abolishing the Bureau of Reclamation.” Beard argued Congress only maintains the Bureau of Reclamation for political reasons, stressing that the agency’s every function could be overseen by the private sector or other federal, state, regional or local entities. … ”  Read more from The Hill.

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