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Fight over Oregon’s Klamath water can stay in federal court, Ninth Circuit rules

A Ninth Circuit panel ruled against the Klamath Irrigation District in its attempt to move a dispute over the allocation of water within the Klamath Basin from federal court to an Oregon state court.

(CN) — A lawsuit seeking to stop the U.S. Bureau of Reclamation from releasing water from Oregon's Lake Klamath for the benefit of Native American tribes in California and protected coho salmon can remain in federal court, a split Ninth Circuit panel said Monday.

In a 2-1 opinion, the three-judge panel rejected the Klamath Irrigation District's argument that an Oregon state court has the exclusive right to decide the issue as part of the Klamath Basin Adjudication that is pending before it. The two-judge said the Bureau of Reclamation's obligations under the Endangered Species Act and the tribes' senior rights had not been part of the state court's adjudication of water rights.

The appellate panel didn't rule on the merits of the the irrigation district's motion for a preliminary injunction against the Bureau of Reclamation.

"By filing its underlying motion in state court, Klamath Irrigation District sought to litigate in a new forum, one it presumably hoped would be less concerned with the commands of the [Endangered Species Act] and the rights of parties not before the court," Senior U.S. Circuit Judge Rick Clifton, a George W. Bush nominee, wrote for the majority. "With this perspective, it might fairly be said that KID seeks to deny other affected entities a meaningful forum and remedy."

The case before the Ninth Circuit is part of a larger mosaic of litigation over water rights in Oregon that has become more intense as years of drought have pitted farmers, and the irrigation districts that serve them, against tribal interests and conservationists seeking to ensure the survival of endangered species.

In September 2022, a different Ninth Circuit panel affirmed the dismissal of a lawsuit brought by the Klamath Irrigation District and other Oregon irrigation districts against the Bureau of Reclamation over the distribution of water to Northern California tribes. The irrigation district vowed to take its case to the U.S. Supreme Court, alleging that the ruling threatened the livelihoods of thousands of Oregon farmers, jeopardized stablished water rights, and challenged "the foundations of domestic tranquility."

The Upper Klamath Lake is a large freshwater lake in Oregon that is part of the Klamath Basin, about 12,000 square miles of interconnected rivers, lakes, dams, marshes, wildlife refuges, and wilderness areas in Southern Oregon and Northern California. Starting in 1975, Oregon began the Klamath Basin Adjudication to determine claims to water rights in Upper Klamath Lake and portions of the Klamath River within Oregon.

The Klamath County Circuit Court has been handling the "the judicial phase" of the adjudication process. Two years ago, the Klamath Irrigation District filed its motion for a preliminary injunction before this court, but the Bureau of Reclamation removed it to federal court, and the federal judge rejected the irrigation district's attempt to send it back.

"It’s undisputed that the Klamath County Circuit Court has in rem jurisdiction over rights to the stored water (the
res) of Upper Klamath Lake in Oregon," Judge M. Miller Baker, a Donald Trump appointee on the U.S. Court of International Trade who sat on the panel by designation, wrote in dissent. "It’s similarly undisputed that the Klamath Basin Adjudication] order provisionally governs Reclamation’s distributions from that res pending a final adjudication by the state court."

Klamath Irrigation District Executive Director Gene Souza believes Baker's interpretation is correct.

"It is important to have this case returned to the court with the jurisdiction to bring all parties involved in the dispute together," Souza said in an email. "The Klamath County Circuit Court has the express jurisdiction over all parties involved which cover a much larger number of stakeholders over a 40+ year period where the court is familiar with the evidence on record, familiar with the complaints, and has the authority to issue binding water-rights decisions."

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Categories / Appeals, Courts, Environment, Government, Regional

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