Hutchinson, Cox,
Coons & DuPriest
STEPHEN A. HUTCHINSON, ESQ. (OR Bar #67053)
DOUGLAS M. DuPRIEST, ESQ. (OR Bar #77168)
777 High Street, Suite 200
Eugene, Oregon 97401
Telephone: (541) 686-9160
Facsimile: (541) 343-8693
Somach,
Simmons & Dunn
A Professional Corporation
STUART L. SOMACH, ESQ. (CA Bar #090959; Pro Hac Vice)
PAUL S. SIMMONS, ESQ. (OR Bar #97138; CA Bar #127920)
JOHN A. MENDEZ, ESQ. (CA Bar #95450; Pro Hac Vice)
400 Capitol Mall, Suite 1900
Sacramento, California 95814
Telephone: (916) 446-7979
Facsimile: (916) 446-8199
WILLIAM M. GANONG, ESQ. (OR Bar
#78213)
514 Walnut Street
Klamath Falls, Oregon 97601
Telephone: (541) 882-7228
Facsimile: (541) 883-1923
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVEN LEWIS KANDRA; DAVID
CACKA;
)
Case No.
KLAMATH IRRIGATION DISTRICT; TULELAKE
)
IRRIGATION DISTRICT, and KLAMATH WATER
)
USERS ASSOCIATION
)
COMPLAINT FOR|
) DECLARATORY AND
Plaintiffs,
) INJUNCTIVE
RELIEF
) AND PRELIMINARY
v.
)
INJUNCTION
)
UNITED STATES OF AMERICA; GALE NORTON,
)
Secretary of the Interior, DON EVANS, Secretary of
)
Commerce,
)
)
Defendants.
)
)
Plaintiffs allege as follows:
JURISDICTION, SOVEREIGN IMMUNITY AND VENUE
1. This action involves claims that federal officers or agencies have acted, are acting, or will act unlawfully, including violations of contracts and Reclamation Law, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), and Endangered Species Act (“ESA”), and other federal law. Plaintiffs seek declaratory and injunctive relief and other relief not including money damages. The United States has waived immunity to suit pursuant to 5 U.S.C. § 702, 28 U.S.C. § 1346(a)(2), 28 U.S.C. § 1791 and 43 U.S.C. § 390uu.
2. This Court has jurisdiction over the claims against the United States and federal agencies or officers, pursuant to 28 U.S.C. §§ 1331, 1346(a)(2), 1361, 1491, 2201-2202 and 43 U.S.C. § 390uu.
3. This is an action in which an officer of the United States and an agency of the United States are defendants; and a substantial part of the events which give rise to the events giving rise to the claim occurred in this judicial district; and a substantial part of the property that is the subject of this action is located in this judicial district. Venue properly lies within the District of Oregon, pursuant to 28 U.S.C. § 1391(e) and 43 U.S.C. § 390uu.
4. By seeking declaratory and injunctive relief herein, plaintiffs do not waive any rights to seek damages in the Court of Federal Claims against the United States for any conduct of the federal defendants.
PARTIES
5. Plaintiff Klamath Irrigation District (“KID”) is an irrigation district formed and existing pursuant to section 545.001 and following, Oregon revised statutes. KID diverts and delivers water for beneficial irrigation use on approximately 75,000 acres through facilities of the federal Klamath Irrigation Project (“Project”). Such water is delivered to lands within KID, and to other irrigation districts, improvement districts, and individuals. KID is authorized under law to take any action necessary to protect its interests and those of its water users.
6. Plaintiff Tulelake Irrigation District (“TID”) is an irrigation district formed and existing pursuant to California Water Code section 20500 and following. TID diverts and delivers water through facilities of the Project for beneficial irrigation use on approximately 60,000 acres. Such water is delivered to lands within the boundaries of TID and to other areas to which TID has committed to provide service. TID is authorized under law to take any action necessary to protect its interest and the interests of water users in TID.
7. Plaintiff Steven Lewis Kandra is a farmer and owner of land within the Klamath Project. Kandra owns and farms land in both KID and TID.
8. Plaintiff David Cacka is a farmer and landowner within KID and the Project. Cacka also owns and operates an agricultural support business.
9. Plaintiffs Kandra and Cacka support their families through irrigated agriculture in the Klamath Project. Each also employs other persons who in turn support their families. Each also desires to continue to farm successfully and to continue to live in their communities. Each derives personal enjoyment and satisfaction from living and working in their rural communities. Further, each derives aesthetic, recreational, and other enjoyment from the abundant wildlife resources that make use of irrigated farmland in the Klamath Project, as well as from the wildlife resources of Lower Klamath National Wildlife Refuge and Tule Lake National Wildlife Refuge.
10. Plaintiffs KID, TID, Kandra, and Cacka are hereinafter referred to as “water users.”
11. Plaintiff Klamath Water Users Association (“Association”) is a non-profit corporation organized under the laws of the State of Oregon. A major purpose of the Association is to protect the common interests of its members in the use of water for irrigation. Members of the Association include irrigation and drainage districts and individuals who obtain, deliver, and receive water through facilities constructed by defendant United States Bureau of Reclamation as part of the Klamath Project.
Most Association members are contractors of the U.S. Bureau of Reclamation, and distribute water for irrigation through Klamath Project facilities. In addition, some private individuals and businesses or other organizations are members of the Association or participate in its activities.
The current members of the Association who are water purveyors distribute water to nearly 230,000 acres of land for irrigation in southern Klamath County, Oregon, and northern Modoc and Siskiyou Counties in California. With few exceptions, this land is irrigated and farmed by private individuals or firms. The total value of agricultural products produced by the Klamath Project has been estimated at $120 million annually, and the economic multiplier for agriculture in Klamath County is 2.7. In addition to the families directly supported by agriculture, numerous businesses provide goods and services to farmers. Agriculture supports a significant portion of the local tax base.
The Association provides information and representation for its members on matters in which they have common interest, and to persons in the Klamath Basin generally. The Association also makes information available to the public by participation in public or civic functions. The Association provides representation and information to its members regarding matters that affect the availability of water for use on lands within the Klamath Project. Actions or events that adversely affect the availability of water supplies of any type will injure the interests of the Association members. The Association, on behalf of its members, also promotes and provides information and leadership on issues regarding land stewardship and resource management. This includes, for example, protection of the continued viability of land for farming purposes and the preservation of soils. The Association also promotes and advocates the interests of its members in the continued viability of rural communities. Actions or events that adversely affect these resources will also injure the interests of Association members.
The Association, on behalf of its members, also promotes other natural resource values and the protection and enhancement of such values. In these areas, it also provides information and representation of its members’ interests. For example, the Association has for several years been active in environmental or ecosystem restoration efforts in the Klamath River Basin. In 1992, the Association prepared and published the Initial Ecosystem Restoration Plan for the Upper Klamath River Basin. This plan proposed measures to restore and enhance wildlife and fishery habitats throughout the Upper Klamath Basin. The Association and its members have advocated the implementation of these measures. The Association has also published a report entitled “Protecting the Beneficial Uses of Waters of Upper Klamath Lake: A Plan to Accelerate Recovery of the Lost River and Shortnose Suckers.”
In addition, the Association has also provided support, funding, and implementation services for ecosystem restoration projects in the Klamath Basin, such as fencing of streams and marsh and riparian restoration projects. The Association and its members have also advocated the development of supplies for wildlife refuges within the Klamath Project.
12. Defendant Gale Norton is the Secretary of the United States Department of the Interior. The United States Bureau of Reclamation (“Reclamation”) and the United States Fish and Wildlife Service (“USFWS”) are agencies within the Department of the Interior. Through Reclamation and USFWS, defendant Norton is directly responsible for administration of, and compliance with, federal reclamation law, laws pertaining to fish and wildlife, and other federal laws.
13. Defendant Don Evans is the Secretary of the United States Department of Commerce. The National Marine Fisheries Service (“NMFS”) is an agency within the U.S. Department of Commerce. Through NMFS, defendant Evans is directly responsible for administration of, and compliance with, federal law.
GENERAL ALLEGATIONS
14. Beginning in the nineteenth century, private individuals, firms, and districts began to develop systems and works for the diversion and beneficial use of water for irrigation within the geographic area that is currently the Klamath Project. Appropriations were made and initiated, and water rights were perfected for substantial acreage prior to the authorization of the Klamath Project.
15. In 1902, Congress enacted the Reclamation Act of 1902 (32 Stat. 388) (“1902 Act”). In the 1902 Act, the United States sought to promote the settlement of western states and the production of food to feed the nation. The 1902 Act provided authority for the construction by the Reclamation Service of irrigation systems for the purpose of storing and distributing water for irrigation of arid lands. Reclamation is the successor to the Reclamation Service. The 1902 Act provided for the repayment by irrigators using these systems of costs of construction of irrigation project works, in exchange for which the irrigators obtained a water right wholly distinct from any ownership of the Reclamation or the United States in Project works.
16. Section 8 of the 1902 Act provides that “the right to use water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” Similarly, under the laws of Oregon and California, water rights which provide water for irrigated land are appurtenant to the land irrigated.
17. In and by Chapter 5, Oregon Laws of 1905 (“Chapter 5”), the State of Oregon granted to the United States, for purposes of irrigation and reclamation, authorization to lower the water level of certain lakes including Upper Klamath Lake, and to use all or any part of the beds of such lakes for the storage of water in connection with reclamation or irrigation. By the same enactment, the State of Oregon ceded to the United States title to any land uncovered by the lowering of such lakes, to use for purposes in furtherance of the 1902 Act.
18. In and by the Act of February 3, 1905 (1905 Cal. Stat. at 4), the State of California authorized the United States to lower the level of certain lakes in California, and ceded to the United States title to lands uncovered by such lowering, for use and disposal in pursuance of the purposes of the 1902 Act.
19. In and by Chapter 228, Oregon Laws 1905 (“Chapter 228”), the State of Oregon enacted a statute providing, in part, the following:
. . . Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within this State, shall file in the office of the state engineer a written notice that the United States intends to utilize certain specified waters, the water described in such notice and unappropriated at the date of filing thereof shall not be subject to further appropriation under the laws of this State, but shall be deemed to have been appropriated by the United States.
20. Pursuant to Chapter 228, on May 19, 1905, the Reclamation Service filed in the Office of the State Engineer a notice appropriating all of the then unappropriated waters of the Klamath watershed in Oregon, including Upper Klamath Lake and the Klamath River and all their tributaries. Thereafter, the Reclamation Service, within three years from the date of such notice of appropriation, filed plans for the construction of a U.S. Reclamation Project in Oregon and California, and within four years from the date of such notice filed authorization of construction of said project.
21. Pursuant to Chapter 5, Chapter 228, the California Act of February 3, 1905, the 1902 Act, and other state and federal laws, the United Sates and the plaintiffs and their predecessors proceeded with diligence in the reclamation of lands, the construction of facilities to deliver water to arid lands, and the irrigation of lands. Of this, a portion was made available for entry pursuant to the homestead laws.
22. The Lower Klamath National Wildlife Refuge was established in 1908. Executive Order No. 924 (Aug. 8, 1908). The Tule Lake National Wildlife Refuge was established in 1928. Executive Order No. 4975 (Oct. 4, 1928). A substantial source of the water for these refuges is return flows from Klamath Project irrigation water. In addition, water is diverted directly to the Lower Klamath Refuge via facilities also used for irrigation. Water use on the refuges occurs throughout the year. Water use increases during the growing season, and is at its greatest during the Fall, when refuge lands are flooded for migratory waterfowl. The refuges support a great diversity and abundance of waterfowl and other wildlife.
23. Commencing in or about 1905 and for several years thereafter, Reclamation solicited and executed contracts with individual landowners in the Klamath Project. Such contracts provided for the repayment by the individuals of the cost of constructing the Project, and granted to the landowners a water right for beneficial use of water on such lands. Land represented directly or indirectly by water users was included in such contracts.
24. KID, TID, and other members of the Association have entered into contracts with Reclamation providing for the use of water obtained through Klamath Project facilities. Each provides that the contracting district shall take or receive the water supply for the lands within the contracting district and distribute the same to lands eligible to receive the water service. For example, KID’s contract with Reclamation provides that KID will operate and maintain substantial portions of the Project facilities, including the A Canal. KID and TID have also assumed the obligation to deliver water to persons or agencies whose water service was previously provided by Reclamation.
25. Plaintiff KID and TID and other members of the Association have paid all sums that have come due under their contracts and have complied with the contracts in all other material respects. Plaintiffs water users have satisfied all conditions to be entitled to water through Klamath Project facilities.
26. Water users and other members of plaintiff Association obtain waters of Upper Klamath Lake and the Klamath River through facilities diverting and rediverting water at Klamath Lake, Link River, and the Klamath River. Plaintiffs and water users represented by plaintiffs, by their actions and those of their predecessors, and through the use of Klamath Project works, have perfected water rights under the laws of the States of Oregon and California.
27. In 1957, by their respective Legislatures, the States of Oregon and California approved the Klamath River Basin Compact (“Klamath Compact”). Chap. 1432, Oregon State Laws 1957; Chap. 113 Calif. Statutes 1957. The Klamath Compact was consented to by an act of Congress of the United States (Public Law 85‑222, 71 Stat. 497) and is in full force and effect. The Klamath Compact specifically recognizes vested rights to the use of water for irrigation and domestic use within the Klamath Project. It also recognizes the rights to all uses of water thereafter reasonably needed for irrigation or domestic use within the Klamath Project. The Klamath Compact further sets out the methods by which junior water rights may be obtained, including rights by direct diversion or by diversion to storage for later use.
28. Defendants are bound by the laws of the State of Oregon related to the control, use, or distribution of water used in irrigation, or any vested right acquired thereunder. Defendants are required to proceed in conformity with such laws.
29. The historical primary operation or plan of operation of the Klamath Project, including operation of dams and diversion and conveyance facilities is to conserve water for authorized Klamath Project irrigation use and use on wildlife refuges, and optimize water deliveries for these purposes. Such operation had, prior to 2001, not been modified, save and except on a single‑year basis where such modification did not cause injury to water users.
30. On April 6, 2001, Reclamation adopted a plan for operation of Klamath Project facilities in 2001 entitled Klamath Project 2001 Annual Operations Plan (“2001 Plan”). The 2001 Plan provides standards for operation of Klamath Project facilities to include Upper Klamath Lake elevation standards and Klamath River flow at Iron Gate, California, standards. If implemented, the 2001 Plan will result in no water deliveries to 150,000‑170,000 acres of land in the Klamath Project. Such a result would severely injure the interests of plaintiffs as provided herein.
FIRST CLAIM FOR RELIEF
(Breach of Contract and Reclamation Law)
31. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this complaint.
32. KID and TID are parties to contracts with Reclamation under which KID and TID are entitled to take or receive water for benefit of themselves and persons within KID and TID. Further, under such contracts and reclamation law, Reclamation is required to preserve and maintain the water supply for water users.
33. By the adoption of the 2001 Plan, Reclamation breached its obligations to water users under the contracts and reclamation law. Unless enjoined by this Court, Reclamation will continue to violate said obligation, injuring the rights and interests of water users.
34. An actual dispute has arisen between water users and defendants as to whether Reclamation’s action constitutes a breach of Reclamation’s legal obligations.
SECOND CLAIM FOR RELIEF
(Administrative Procedure Act/NEPA) – Reclamation)
35. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this complaint.
36. NEPA requires that federal agencies consider the environmental effects of any proposed action prior to approval or implementation of the proposed action. For any contemplated major federal action which could significantly affect the quality of the human environment, an action agency must prepare an environmental impact statement (“EIS”). The EIS must, among other things, describe the purpose and need for the proposed action, the environmental effects of the proposed action, alternatives to the proposed action, and means by which impacts of the proposed action could be mitigated.
37. The Klamath Project was authorized for reclamation and irrigation purposes. The Klamath Project was constructed and operated for irrigation purposes long before the enactment of NEPA. The refuges were authorized and provided with water supplies through the Klamath Project prior to the enactment of NEPA.
38. Defendant Reclamation has determined that the Klamath Project will be operated for purposes other than irrigation and refuge use. Such purposes include the maintenance of specific flows in the Klamath River and water surface elevations in Upper Klamath Lake. Such determination has or will adversely affect the quantity of water available for irrigation in the Klamath Project and the quantity of water available for use on the Tule Lake and Lower Klamath National Wildlife Refuges. By its issuance of the 2001 Plan, a final agency action, Reclamation determined to proceed with the operation. Further, the 2001 Plan and opinions and alternative operations issued by USFWS are actions connected with the 2001 Plan.
39. The direct and indirect adverse environmental effects of defendants’ action may include economic, social, and cultural impacts to persons and communities dependent on water supplies from the Klamath River system, impacts to air quality, impacts to water quality, impacts to soils, impacts to groundwater, impacts to aquatic and riparian habitat, impacts to waterfowl and wildlife populations, and aesthetic and recreational interests.
40. Defendants failed to prepare an EIS or even an environmental assessment to determine whether an EIS is required. Such failure is arbitrary and capricious, and an abuse of discretion.
41. Unless defendants are restrained and enjoined from implementing the 2001 Plan prior to compliance with NEPA by this Court, plaintiffs’ interests will be irreparably injured.
42. Plaintiffs have no adequate remedy at law.
THIRD CLAIM FOR RELIEF
(Administrative Procedure Act)
43. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this complaint.
44. Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), provides that federal agencies are to ensure that their actions do not jeopardize the continued existence of species that have been listed as threatened or endangered. Procedurally, if an action may affect a listed species, the agency must consult with USFWS or NMFS and obtain the biological opinion of the USFWS or NMFS as to whether the action is likely to result in jeopardy to the species. In the determination of whether the action may cause jeopardy, USFWS or NMFS must define the “environmental baseline” and determine the effects of the action when added to the environmental baseline. 50 C.F.R. § 402.02. If USFWS or NMFS concludes jeopardy is likely, it must identify reasonable and prudent alternatives (“RPAs”) to the proposed action available to the action agency to avoid jeopardy. “Reasonable and prudent alternatives” are “those alternative actions that can be implemented in a manner consistent with the intended purpose of the action,” that are within the scope of the action agencies’ authority, and that are economically and technologically feasible. Id. The USFWS and NMFS is also required to authorize any incidental take associated with the proposed action, and prescribe “reasonable and prudent measures” (RPM) to minimize impacts. RPMs, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action, and may involve only minor changes. 50 C.F.R. § 402.14(i)(v)(2).
45. On February 13, 2001, after receiving comments on a draft biological assessment, Reclamation formally reinitiated ESA consultation with USFWS on the effects of operation of the Klamath Project on the Lost River sucker and shortnose sucker and provided USFWS with a biological assessment. The purpose of the proposed action was to provide water for irrigation in the Klamath Project consistent with the authorized purposes of the Project and to provide water for wildlife refuges.
46. On April 6, 2001, USFWS issued a biological opinion which identified RPAs, as well as RPMs to minimize incidental take.
47. The RPAs include alternatives involving maintenance of unprecedented, high lake elevation standards in Upper Klamath Lake. Such alternatives would result in zero water deliveries to 150,000‑170,000 irrigated acres in the Klamath Project and wildlife refuges in 2001 and severely limited or zero deliveries in many years. Reclamation adopted the RPAs in the 2001 Plan.
48. The determinations regarding the effects of the action and the RPAs issued by USFWS are unlawful, arbitrary and capricious. The RPAs are flatly at odds with the ESA and its implementing regulations in that they are not consistent with the intended purpose of the action. The biological opinion and the RPAs are also unlawful, arbitrary and capricious, in that USFWS did not, in issuing its opinion, develop a proper environmental baseline to determine the effects of the proposed action. The biological opinion and RPAs are also unlawful, arbitrary and capricious in that, among other things, USFWS failed and refused to consider actual evidence of the consequences of variable lake elevations for sucker populations and instead relied on unsupported hypotheses and conjecture.
49. Unless enjoined by this Court, defendants will continue to implement the RPAs.
50. Upon information and belief, the biological opinion identifies as an RPM the reallocation of in excess of 30,000 acre-feet of water. Such provision is not merely a minor change in the proposed action, it exceeds the authority to prescribe RPMs.
51. There exists a dispute between plaintiffs and defendants as to whether major reallocation of water is a “minor change” which can be prescribed under 50 C.F.R. § 402.14(i)(v)(2).
FOURTH CLAIM FOR RELIEF
(Administrative Procedure Act)
52. Plaintiffs reallege and incorporate by reference all allegations of the preceding paragraphs of this Complaint.
53. On January 22, 2001, after receipt of comments on a draft biological assessment, Reclamation formally initiated ESA consultation on the effects of operation of the Klamath Project on the coho salmon in the lower Klamath watershed in California, and provided NMFS with a biological assessment.
54. On April 6, 2001, NMFS issued a biological opinion which identified RPAs.
55. The RPAs include maintenance of high Klamath River flows at Iron Gate in California. Such RPAs would result in zero water deliveries to 150,000‑170,000 irrigated acres in the Klamath Project and wildlife refuges. Reclamation adopted the RPAs in the 2001 Plan.
56. NMFS’s determination of the effects of the action and NMFS’s development of RPAs is unlawful, arbitrary, and capricious. The RPAs are flatly at odds with the ESA and its implementing regulations in that they are not consistent with the intended purpose of the action. NMFS, further, improperly determined that section 7(a)(2) can compel agency action, specifically the release of previously‑stored water. Section 7(a)(2) is merely a limitation on agency action, not a source of authority to compel agency action. The biological opinion and the RPAs are also unlawful, arbitrary and capricious in that NMFS did not, in issuing its opinion, develop a proper environmental baseline to determine the effects of the proposed action. Further, NMFS based its opinion on a lack of relevant information on the utilization by coho salmon of the mainstem Klamath River below Iron Gate. NMFS based its opinion and RPAs on preliminary draft habitat suitability curves of uncertain origin and without knowledge of whether such habitat is at all limiting for coho salmon. Further, and among other factors, NMFS failed and refused to consider actual evidence of variable flow regimes at Iron Gate including past drought year flows.
57. Unless enjoined by this Court, defendants will continue to implement the RPAs.
WHEREFORE, Plaintiffs pray for relief as follows:
1. For a preliminary and permanent injunction ordering defendants from operating, or directing the operation of, Klamath Project facilities in a manner that may result in the unavailability of water for irrigation use in the Klamath Project;
2. For an order declaring that defendant Reclamation may not operate or direct the operation of Klamath Project facilities for purposes other than irrigation and refuge uses without first preparing an Environmental Impact Statement;
3. For a preliminary and permanent injunction enjoining defendants from implementing the RPAs issued and adopted by defendants on April 6, 2001;
4. For an order declaring that implementation of the 2001 Plan violates obligations to plaintiffs under contract and reclamation law;
5. For a preliminary and permanent injunction requiring defendants to modify the 2001 Plan and all associated determinations;
6. For costs of suit, including any attorneys’ fees authorized by law; and
7. For such other relief as the court deems just and proper.
Respectfully submitted,
Hutchinson,
Cox, Coons & DuPriest
DATED: April 9, 2001 By
Attorneys for Plaintiffs