Oregon
Water
Resources
Congress
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Hutchinson, Cox,
Coons & DuPriest Somach,
Simmons & Dunn WILLIAM M. GANONG, ESQ. (OR
Bar #78213) Attorneys for Plaintiffs FOR THE DISTRICT OF OREGON STEVEN LEWIS KANDRA; DAVID
CACKA;
)
Case No. 01-6124-TC
TABLE OF CONTENTS Page I. SUMMARY OF ARGUMENT............. 1 II. BACKGROUND 4 A. Klamath Basin Geography............ .............. .................................... .... 4 B. Klamath Basin Irrigation and the Federally-Constructed Project... . 4 1... Early Projects and the Federal Project.. .. 4 2... Current Klamath Project Farming .. 6 C. Water Rights and Contracts in the Klamath Reclamation Project.. . 7 D. Other Relevant Legal Authorities .. 8 1... NEPA.. .. 8 2... Endangered Species Act.. . 9 E. Historic Operations........... ..... ...... 9 F. Demand for Change in Purposes of Operation.......... . ........... 10 1............ Demands to Reprioritize and Reallocate....... .... .......... . 11 2............ Development of New Rules in 1997........... . .......... 12
G. NEPA Litigation Over 1997 Plan........... ......... .. 12 H........
Series of Annual Plans Since 1997, Each Containing a One-Year 1... 1998 Operations Plan .. 15 2... 1999 KPOP .. 15 3... 2000 Operations Plan . . 16 4... 2001 Operations Plan .. 16 III. STANDARD FOR PRELIMINARY INJUNCTION....... .... 17 IV. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION..... 19 TABLE OF AUTHORITIES Page(s) Cases American Motorcyclist Association v. Watt Page(s) United States v. Oregon United
States 5 U.S.C. § 706(2)... .... 24, 28 Regulations Code of Federal Regulations Federal Rules of Civil Procedure Legislative Authority Plaintiffs appear, representative of entire communities terrified and angered by federal agency decisions on April 6 that would destroy livelihoods and those communities. Agencies have placed the plaintiffs at the brink of a disaster, made untimely decisions, issued plans without planning, and not honored their past representations and commitments made before the Court. These untenable actions require immediate correction. I. SUMMARY OF ARGUMENT Plaintiffs are family farmers dependent on water supplies from the Klamath Irrigation Project (“Project”), irrigation districts, and a water users association. Plaintiffs seek a preliminary injunction to protect their rights and livelihoods, prevent destruction of the human environment and their communities, and avoid outright catastrophe. Defendants propose to operate, or direct operation of, Project facilities to eliminate any and all deliveries of water for Klamath Project irrigation on 150,000–170,000 acres of land, this year. In addition, two national wildlife refuges will go dry. First, the water users hold the beneficial interests in water rights established at the turn of the last century and earlier. For a century, they and their ancestors have toiled to support their families and build their communities which are dependent on agriculture. They are entitled to Project water delivered through Project facilities pursuant to contracts with the U.S. Bureau of Reclamation (“Reclamation”) and have done all they promised to do under those contracts. Reclamation has a duty under those contracts and reclamation law to preserve and protect the water supply. It has failed to do so, and instead told plaintiffs and their communities to pack up their lives, schools, churches, and get out. This is inexcusable, unnecessary and unlawful. Plaintiffs seek injunctive relief to preserve the rights they have earned, and their very existence. Second, in 1997, Reclamation made a fundamental change in the operation of the Klamath Irrigation Project. Prior to that time, Project reservoirs and other facilities were operated to ensure irrigation deliveries; the authorized purpose of the Project. In 1997, priorities were reversed, such that the Project was operated to increase flows in the Klamath River and to maintain high lake levels in the Upper Klamath Lake reservoir, with only the water left over being available for irrigation and wildlife refuges that the Project had previously served for nearly a century. In other words, the Project was operated in a manner to promote the potential for water shortages. The change in operations led to a lawsuit in this Court under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The plaintiffs in the 1997 litigation, which included a plaintiff here, contended that the change in operating criteria required an environmental impact statement (“EIS”) under NEPA. The matter did not come before the Court until July of 1997, by which time the Court concluded that there would not be any injury (i.e., there turned out to be enough water to meet irrigation and wildlife refuge needs during the irrigation season in 1997). The Court admonished Reclamation, however, to comply with NEPA with respect to any such future plans regarding Project operations. Reclamation, at that time, represented that it would conduct NEPA review in the future and, in particular, that it would complete an EIS for long-term (multi-year) operations of the Klamath Project by 1999. The NEPA claim was ultimately dismissed as moot. In the stipulation for dismissal, Reclamation represented that it would comply with NEPA for its future operations plans. The stipulation also recognizes that for purposes of the NEPA analysis, the “baseline” for determining impacts would be full agricultural water deliveries. It is now 2001, four years since Reclamation’s commitment to comply with NEPA and two years later than Reclamation represented to this Court that it would complete an EIS for long-term operation of the Project. In the early stages of 2000 operations plan, Reclamation thought its 2000 plan might result in water shortage to the Project (a circumstance ultimately avoided). In this regard, Reclamation’s NEPA specialist stated as follows: [M]y biggest concern would be the courts who told us a few years ago (in so many words) to do NEPA on how we operate the Project and here we are 3 years later still without it. But i [sic] guess the remedy would be to slap our hand and somehow make us do it either after the fact or next year. Declaration of Paul S. Simmons in Support of Motion for Preliminary Injunction (“Simmons Declaration”), Exh. 36. // // The “next year” has arrived, in fact, 2001 is the fourth “next year” since 1997. The time has come not only to enforce Reclamation’s commitment to comply with NEPA, but to enforce all defendants’ obligations. Reclamation has now told Klamath Project farmers that the Project will be operated to furnish zero water deliveries to 170,000 acres in 2001, which will go to dust and weeds. Farmers will not receive any water. The economic, social, cultural and other impacts will be profound. Changes from historical operations must be enjoined, at least until a full EIS is completed. It appears that defendants may now seek to bypass both their legal duties to plaintiffs and NEPA, based on provisions of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The action is based on an absurd conclusion that such shortages are a “reasonable and prudent” alternative that fulfills the purposes of the Project, and upon arbitrary disregard of real world evidence. Destruction of the plaintiffs and their communities, and bypassing legal obligations are also improper for several additional reasons. First, nothing in the ESA compels or justifies such action. Second, Reclamation has alternatives. Third, the ESA does not compel affirmative actions such as releases of water previously diverted to storage. |