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. 

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         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.  Fourth, the actions are not, in any event, necessary in order to comply with the ESA obligations.  Indeed, defendants have acted unlawfully and inconsistent with the ESA.  Defendants’ action is based on arbitrary conclusions that defy common sense and real world evidence.

         Defendants here seek to unilaterally reallocate water to which plaintiffs are entitled in order to furnish more water for instream uses through the simple act of a “plan.”  They take no action to respect plaintiffs’ rights, in spite of clearly stated legal responsibilities.  Further, NEPA requires federal agencies to prepare an EIS before the implementation of “major Federal actions significantly affecting the quality of the human environment.”  42 U.S.C. § 4332(2)(C).  Defendants have fulfilled none of their obligations.  Instead, they have merely adopted an Operating Plan that would unquestionably devastate family farms and rural communities.

         An injunction is necessary to preserve the status quo and prevent these unconscionable impacts.

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II.

BACKGROUND

A.     Klamath Basin Geography[1]/

         The Klamath Project lies within the Klamath River basin.  Simmons Declaration, Exh. 1.  Various streams, springs, and other tributaries flow into Upper Klamath Lake.  Near the City of Klamath Falls, the lake’s outlet is Link River, which eventually becomes Lake Ewauna and the Klamath River.  After being joined by numerous tributaries in California, the Klamath River discharges to the Pacific Ocean, at a point about 220 miles from Klamath Falls.  Simmons Declaration, Exh. 1.

B.      Klamath Basin Irrigation and the Federally‑Constructed Project

         1.         Early Projects and the Federal Project

         Irrigated agriculture in the area that is now the Klamath Project began in the nineteenth century.  Various individuals, ditch companies, and other private enterprises initiated appropriations of water for irrigation under the customs and procedures followed at that time.  The federal project overlaid and hastened the private development that was in motion by the beginning of the twentieth century.  Simmons Declaration, Exh. 3 at 4.

         In 1902, Congress enacted the Reclamation Act.  32 Stat. 88 (“1902 Act”).  The 1902 Act encouraged the settlement of lands in the western states and the development of agricultural economies to feed the nation.  The 1902 Act provided for federal financing of irrigation works, with the construction costs to be repaid over time by project water users.  Lands were made available for homesteaders who accepted the responsibility to undertake improvements and pay the water charges.

         The states of Oregon and California enacted statutes to encourage the development of federal reclamation projects generally and the Klamath Irrigation Project specifically.  In 1905, Oregon enacted a statute making water available for use in federal reclamation projects.  1905 Or. Laws Ch. 228 (hereinafter “Chapter 228”).  Request for Judicial Notice, Exh. A.  Chapter 228 prevented subsequent claimants from interfering with any intended water use in a federally-constructed reclamation project.  This statute provided that whenever the United States files notice of the intent to utilize certain waters in a reclamation project, the water so described is not subject to further appropriation, and, for the purposes of the water rights system, is deemed to be appropriated.  Id.

         With respect to the Klamath Irrigation Project specifically, both the Oregon and California Legislatures enacted laws making state-owned land available for use in the Klamath Project.  The states ceded then-submerged land to the federal government for the specific purpose of having the land drained and reclaimed for irrigation use by homesteaders.  Chapter 5, Cal. Laws of 1905; 1905 Cal. Stat. at 4.  The Oregon Legislature also authorized the raising and lowering of Upper Klamath Lake in connection with the Project, and allowed the use of the bed of Upper Klamath Lake for storage of water for irrigation.  Chapter 5, Or. Laws of 1905, Sec. 1.  Request for Judicial Notice, Exhs. B, C.

         In May of 1905, the federal government specifically authorized the development of the Klamath Irrigation Project pursuant to the 1902 Act.  See also Act of February 9, 1905, 33 Stat. 714.  Although it had filed notices previously claiming water for a federal project, Reclamation also, in May, filed notices of appropriation of all the waters of the Klamath River and its tributaries for use in the Project under Chapter 228.  Simmons Declaration, Exh. 3 at 6.  Under Oregon law, water was thus deemed appropriated and unavailable for other uses.  See Chapter 228; In Re Waters of the Umatilla River, 88 Or. 376, 172 P. 97 (1918).

         In addition to the “blanket filing” for all Klamath water in 1905 under Chapter 228, Reclamation also acquired, by purchase from private parties, water rights with earlier priorities for the benefit of the Klamath Project.  See Simmons Declaration, Exh. 3 at 4.

         For the Court’s information, on the map which is Exhibit 2 to the Simmons Declaration (Klamath Project), some of the lakes depicted are formed or controlled by dams and thus serve as reservoirs for the Klamath Project.  Upper Klamath Lake, controlled by Link River Dam, stores a large volume of water for Klamath Project irrigation and releases water downstream to the Klamath River.  Clear Lake and Gerber Lake store water used primarily in the eastern part of the Klamath Project.  The other “lakes” (Lower Klamath Lake and Tule Lake) are not dammed.

         2.         Current Klamath Project Farming

         Thousands of people — family farmers and ranchers, their employees, and agriculture‑related businesses — make their living directly from farming and ranching in the Klamath Project.  In turn, their activities support the communities of Malin, Merrill, Bonanza, Tulelake, Newell, and Klamath Falls.

         The irrigated farm land of the Klamath Project includes about 230,000 acres.  Of this, the great majority is served from diversions from Upper Klamath Lake and points immediately below on the Klamath River.  Declaration of Donald D. Russell in Support of Plaintiffs’ Motion for Preliminary Injunction (“Russell Declaration”), ¶ 3; see Simmons Declaration, Exh. 2.  Another area is served via Lost River and the two smaller reservoirs on the Lost River System – Clear Lake and Gerber Reservoirs.  Id.  Farmland in the Klamath Project produces well over $100 million annually in direct revenue, and generates roughly $300 million in economic activity, supporting the farm families, farm workers, businesses and local communities.   Simmons Declaration, Exh. 2; Russell Declaration, ¶ 3.  In addition, there are two national wildlife refuges in the Klamath Project area:  Lower Klamath National Wildlife Refuge and Tulelake National Wildlife Refuge (hereinafter referred to as “refuges”).  Russell Declaration, ¶ 8.  The refuges have rights inferior to irrigation for water, but rely on the same delivery system for water as irrigation.  The refuges are heavily dependent on “return flows” from irrigated agriculture in the Klamath Project.  Id.

         Klamath Project irrigation and refuges are, of course, only some of the many uses of water in the much‑larger Klamath Basin.  Upstream of Upper Klamath Lake, there is an estimated 200,000 acres of irrigated land and other uses that divert water.  Declaration of David A. Solem in Support of Plaintiffs’ Motion for Preliminary Injunction (“Solem Declaration”), ¶ 6.  Downstream, on tributaries to the Klamath River in California, there are large areas of irrigated lands, particularly in the Shasta and Scott River Valleys, and an out‑of‑basin export to the Central Valley of California from the Trinity River of one million acre‑feet of water per year.  Id.  Nevertheless, in the long history of the Klamath Project to date, the water supply has ordinarily been sufficient to meet these uses, and there have been only a few years when water shortage occurred to either Klamath Project irrigation or refuges.  These shortages occurred late in the irrigation season when forecasted supplies did not fully materialize.  Id.

C.     Water Rights and Contracts in the Klamath Reclamation Project

         Lands within the Klamath Project have many different legal histories.  Depending on the circumstances, some landowners were issued certificates of Project water rights, or had their own individual contracts with the government providing for delivery of water through project facilities, in the early years of the Project.  See, e.g., Solem Declaration, Exhs. A, B.

         The Act of May 15, 1922, authorized Reclamation to contract with irrigation districts.  42 Stat. 541; 43 U.S.C. § 511.  Various districts have been formed and now most Project land is served through an irrigation district or other public agency such as Klamath Irrigation District (“KID”).  These districts have contracts with Reclamation providing for the delivery of water to lands within the districts through Project facilities.  See Simmons Declaration, Exh. 3 at 2-3 (summary of project contracts); Solem Declaration, Exh. C (Klamath Irrigation District contract); Declaration of Earl C. Danosky in Support of Plaintiffs’ Motion for Preliminary Injunction (“Danosky Declaration”), Exh. A (Tulelake Irrigation District contract).  The contracts also define the districts’ obligations for repayment of construction costs and reimbursement of operation charges for any facilities still operated by Reclamation.  In many cases, districts have assumed full responsibility for operation and maintenance of federally‑constructed project facilities.  See Solem Declaration, Exh. C at 6-8; Danosky Declaration, Exh. A at 12-15.

         Under Article 8 of the 1902 Act, Reclamation must “proceed in conformity” with state law regarding water rights.  42 U.S.C. § 383.  The 1902 Act thus “clearly provided that state water law would control in the appropriation and later distribution of the water.”  California v. United States, 438 U.S. 645, 664 (1978).  See 43 U.S.C. § 383.  In Oregon, as in many western states, water rights are appurtenant to the land irrigated.  Or. Rev. Stat. § 540.510.  The 1902 Act acknowledges this doctrine and provides that “[t]he right to the use of water under the provisions of this act shall be appurtenant to the land irrigated . . . .”  See 43 U.S.C. § 372.  Thus, while federally‑owned facilities carry water to private lands, the water rights are appurtenant to land and the water rights are the property of the landowners.  The Supreme Court has explicitly confirmed this point in at least three decisions, most recently, in Nevada v. United States, 463 U.S. 110, 122‑123 (1983).  The Klamath River Basin Compact, Ch. 142, Oregon State Laws 1957 (Or. Rev. Stat. § 542.620), Pub. L. No. 85‑222, 71 Stat. 497, confirms the irrigation rights in the Klamath Project, and establishes priorities of rights to water based on the type of use.  Request for Judicial Notice, Exh. D, Art. III.

D.     Other Relevant Legal Authorities

         In addition to the water rights and contracts discussed above, certain other federal statutes are relevant to this motion.

         1.         NEPA

         NEPA requires the preparation of an EIS before the implementation of actions significantly affecting the quality of the human environment.  42 U.S.C. § 4332(c).  “One of NEPA’s goals is to facilitate ‘widespread discussion and consideration of the environmental risks and remedies associated with [a] . . . project,’ thereby augmenting an informed decisionmaking process.”  LaFlamme v. FERC, 852 F.2d 389, 398 (9th Cir. 1988) (quoting Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1021 (9th Cir. 1980) (per curium)).  NEPA is a deliberate command that the consideration of environmental factors not be shunted aside in the bureaucratic shuffle.  Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).   The Ninth Circuit has interpreted the congressional mandate to apply NEPA “to the fullest extent possible,” 42 U.S.C. § 4332, as a direction to “make as liberal an interpretation as [it] can to accommodate the application of NEPA.”  Jones v. Gordon, 792 F.2d 821, 826 (9th Cir. 1986). The requirement for pre-decision environmental review applies both to new projects and changes to an ongoing project.   See Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979).  In addition to the discussion of impacts of an action, core elements of an EIS are the identification of alternatives and mitigation measures.  40 C.F.R. §§ 1502.14, 1502.16(h).

         If an agency is uncertain whether an EIS is required, before making any decision to go forward with a federal action the agency must prepare an environmental assessment (“EA”).  See 40 C.F.R. § 1508.9(b).  If the agency determines, based on the EA, that a proposed action has the potential to “significantly affect the quality of the human environment,” then the agency must prepare an EIS.  40 C.F.R. §§ 1501.3, 1501.4(b), 1502.4(c)(3).  But the agency must prepare at least an EA and “convincing” findings in the record before concluding that impacts will not be significant.  Otherwise, the failure to prepare an EIS is unlawful.  LaFlamme v. FERC, 842 F.2d at 1070, 1071; The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985), reh’g denied, 777 F.2d 1384 (9th Cir. 1985).  In this case, there is no EIS and no EA, and no NEPA compliance.

         2.         Endangered Species Act

         Section 7(a)(2) of the ESA creates both substantive and procedural obligations for federal agencies.  See Sierra Club v. Babbitt, 65 F.3d 1502, 1504‑1505 (9th Cir. 1995).  Substantively, agencies must ensure that their actions do not jeopardize the continued existence of listed species.  16 U.S.C. § 1536(a)(2).

         Procedurally, if a federal action may affect a listed species, the agency must enter into “consultation” with the appropriate resource agency, i.e., USFWS or NMFS (herein collectively referred to as “Service”).  The consultation process culminates with a biological opinion from the Service stating whether the Service believes the agency action is likely to jeopardize the continued existence of listed species or adversely affect critical habitat.  If the opinion concludes that an action is likely to jeopardize the species, the Service must identify “reasonable and prudent alternatives” (“RPA”) that could be adopted to avoid jeopardy.  50 C.F.R. § 402.14(g)-(h); see 16 U.S.C. § 1536(b)(3)(a).  The federal action agency then determines how to proceed with its proposed action in light of the biological opinion.  50 C.F.R. § 402.15(a).  The action agency is not, in other words, obligated to adopt the RPA.  Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193‑1195 (9th Cir. 1988), cert. denied, 493 U.S. 873 (1989).  The biological opinion issued by the Service also must contain a statement authorizing any incidental “take” of the species.  16 U.S.C. § 1536(b)(4).

E.      Historic Operations

         The heart of this motion is a change in the operating criteria or rules for the Klamath Project announced on April 6, well into the normal irrigation season.  Instead of operating to serve irrigation water needs, it is to be operated deliberately to cause water shortage, devastating plaintiffs, ignoring all other water use and activities in the Klamath Basin, and in violation of law.

         For 90 years, Klamath Project reservoirs and diversion facilities were operated to serve the authorized irrigation purpose of the Klamath Project.  Link River Dam is owned by Reclamation but physically operated by PacifiCorp, which owns downstream hydropower facilities on the Klamath River.  Simmons Declaration, Exh. 3 at 2.[2]?  There were no downstream Klamath River flow requirements or minimum Upper Klamath Lake reservoir elevations binding on Klamath Project irrigation users.  The focus of the operation of the dam was to optimize irrigation diversions.  Upper Klamath Lake reservoir elevations were the result of releases for power generation, judged against irrigation.   Solem Declaration, ¶ 7.  For example, there were dry periods in the 1980s and early 1990s.  During those periods, the Bureau of Reclamation regularly exercised authority under the contract to intervene to protect Project uses by ordering reduction in PacifiCorp’s flow releases to the Klamath River for power generation.  See Simmons Declaration, Exhs. 6 (1981), 7, 8 (1987), 9, 10, 11, 12, (1988), 13, 14 (1990), 15, 16, 17 (1991), 18, 19 (1992), 20 (1994); and Solem Declaration, ¶ 17.  Clear Lake and Gerber Reservoirs have also been operated historically to conserve water for, and provide water to, the irrigation districts on the east side of the Klamath Project.  Id.

F.      Demand for Change in Purposes of Operation

         In the past few years, political and regulatory demands have affected activities at the Klamath Project.  For example, in 1988, the short nose sucker and the Lost River sucker, two species that live in Upper Klamath Lake, were designated as endangered under the ESA.  See Declaration of Alex J. Horne, Ph.D., in Support of Plaintiffs’ Motion for Preliminary Injunction (“Horne Declaration”), Exh. A at 49.  Biological opinions issued by the U.S. Fish and Wildlife Service in 1992 and 1994 concerning operation of the Klamath Project identified RPAs to avoid jeopardy to suckers.  When the suckers were listed, there had been no mention whatsoever of reservoir elevations as a factor affecting sucker populations.  Nonetheless, these biological opinions included minimum reservoir elevations to protect the suckers.  See Simmons Declaration, Exh. 21 at 2.  These operating elevations were adopted by Reclamation.  The reservoir elevations pertaining to Upper Klamath Lake generally allowed the Project to operate for its intended purposes.  This Court found the reservoir elevations pertaining to Clear Lake and Gerber Reservoirs to be arbitrary and capricious, and they were invalidated in a succession of decisions.  Bennett v. Badgely, U.S.D.C., District of Oregon, No. 93-6076-HO; Request for Judicial Notice, Exh. E. 

         1.         Demands to Reprioritize and Reallocate

         In late 1994, demands were made by various parties that Reclamation reprioritize and reallocate water.  In particular, demands were made that Reclamation take steps to increase both Klamath River flows (as measured at Iron Gate in California) and Upper Klamath Lake reservoir elevations above and beyond the adopted ESA lake levels.  The demand was that new flow requirements and lake elevations be set with Klamath Project irrigation and refuges eligible for only the amount of water left over.  Simmons Declaration, Exh. 22 at 5.

         In 1995, Reclamation announced that it would develop a plan for the long-term operation of the Klamath Project.  Solem Declaration, ¶ 8.  The Klamath Project Operations Plan (“KPOP”) was to define water allocation scenarios in various year types.  Solem Declaration, ¶ 8.  Reclamation also stated that it would prepare an analysis of environmental impacts under NEPA prior to adopting a KPOP.  Id. at ¶ 9.  The KPOP was to be adopted before the 1996 irrigation season.  Id. at ¶ 8.  A draft long-term KPOP was prepared but not released.  Instead, a water “advisory” was released for 1996 (Simmons Declaration, Exh. 23), and Reclamation stated that it would prepare a long-term KPOP and EIS by 1998.  Solem Declaration, ¶ 9.  It then released a “Management Strategy” for an EIS for Project operations.  Simmons Declaration, Exh. 24.

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         2.         Development of New Rules in 1997

         Prior to the 1997 irrigation season, a major policy decision was made.  Reclamation would adopt new Klamath Project operating standards.  The standards would for the first time ever be responsive to the demands that the Klamath Project be eligible to receive only water left over after meeting new river and Upper Klamath lake standards.  Refuges and irrigation would have to hope for the best.  See Simmons Declaration, Exh.  28 at 2. 

                     a.         The 1997 Operating Plan

         On May 1, 1997, Reclamation issued a final plan titled Klamath Project 1997 Annual Operations Plan (“1997 Plan”).  The Operating Plan generally discussed “Guiding Principles and Objectives” and other matters, and then articulated the critical new guiding rule:

Expected operations were derived by developing lake level and stream flow conditions, . . . then determining supplies available for delivery to agriculture and the National Wildlife Refuges.

See Simmons Declaration, Exh. 29 at 4.  In other words, a fundamental change in the rules of operation was made.  The Klamath Project was eligible to receive only the water left over after new standards for holding and releasing water were satisfied.  The new instream standards were based on providing more water for the listed sucker species and for tribal trust resources both in Upper Klamath Lake and the Klamath River in California.  For the first time ever, the Project would intentionally be operated in a manner throughout the irrigation season that could cause shortage to Project uses. 

G.     NEPA Litigation Over 1997 Plan

         Plaintiffs sued Reclamation over the 1997 operating plan.  Klamath Water Users Association, et al. v. Patterson, No. 97-3033-HO (D. Or. 1998).  The second cause of action alleged violations of NEPA.  Plaintiffs contended, in the language of Reclamation’s own guidelines, that the Plan was a “change in the programmed operation of an existing project” which required an EIS, or at least an EA.  Simmons Declaration, Exh. 30, at 2.  Plaintiffs also articulated the types of adverse environmental effects requiring NEPA compliance, which are discussed further below.

         Ultimately, motions for summary judgment on the NEPA issue were heard on July 29, 1997.  By the date of the July 29 hearing, based on the conditions then‑existing, defendants argued strongly that the 1997 Operating Plan would have no adverse water supply effects.  Irrigation and refuges had experienced no shortage, and defendants contended that plaintiffs could not demonstrate that water shortages would, in fact, actually occur in 1997.  This argument was cast as a “standing” argument, i.e., there was no redressable injury. 

         At the hearing on the motions, defendants emphasized that this deviation from historical operations was a one‑year plan only, that had no bearing or application for subsequent years.  Defendants also emphasized that the Plan would have no adverse effects in 1997.  The following excerpts from the transcript of the July 29, 1997 hearing illustrate these points.

            MR. MACFARLANE:

            Your Honor asked about the question of shortages . . .  We think this is a critical threshold issue . . .  The Plaintiffs have made no claim that they have been shorted any water from the project, and none are predicted or expected.  [T]he plaintiffs have not been able to establish how they have been harmed by the implementation of this 1997 plan.

Klamath Water Users Association v. Patterson, No. 97-3033-HO (D. Or. 1998) Transcript of Proceedings, July 29, 1997 (Transcript) at 11-13; Request for Judicial Notice, Exh. F, at 7‑8.

            MR. MACFARLANE: . . .

            The 1997 annual operations plan is a water supply plan for one year only.  Plaintiffs’ repeated use of the term standards, binding requirements or operating criteria, focus on the instream flows and lake elevations that are planned for in the ‘97 plan suggest or at least carry the implication that those -- that those particular lake levels and inflows are going to be -- going to have some application beyond the 1997 water year.  And that’s simply not the case . . . .

Transcript at 18‑19; Request for Judicial Notice, Exh. F at 10-11; see also Transcript at 19; Request for Judicial Notice, Exh. F at 11.  Defendants also emphasized at that time their intention to complete a long-term operations plan, defining operations in wet and dry years, and an EIS, by 1999.  Transcript at 18; Request for Judicial Notice, Exh. F at 10.

         The Court granted defendants’ motion for summary judgment, and denied plaintiffs’ motion.  Plaintiffs respectfully submit that the Court excused NEPA compliance because of its conclusion that, in 1997, the Plan was not going to cause adverse impacts.  The Court emphasized that its ruling was based on the lack of showing injury in 1997.  The following statements of the Court help illustrate these points.  In framing the issues for argument, the Court stated:

            THE COURT:

            And so my first impressions, from just reading the papers, would indicate to me, I’m willing to be convinced otherwise, that the present management, this year’s management in many ways is sort of in the bank.  What I mean by that is that it appears that, actually, releases before July and August may be pretty important in determining what the availability of the water is going to be, and changes made now can affect the rest of this year.  But at least it looks like the resource has held up to supply these various competing needs this year, from the papers I’ve seen.

            On the other hand, if there is a policy change here, if the change has been from -- and there may have been, from this dam being placed there for -- to provide a way to meet the irrigators’ needs, the farmers’ needs and that, instead, the policy is now going to place other needs first, then while it may not affect the 1997 plan, that could be an issue that should be reviewed now or with regard to future plans.

Transcript at 2‑3; Request for Judicial Notice, Exh. F at 2‑3.  In ruling on the motions, the Court stated:

            THE COURT:

            There are aspects of these motions that present fairly close calls.  But I think the plaintiffs correctly argue that Reclamation has changed policies regarding water levels behind the Link River Dam by implementing the ‘97 plan . . .

            But at this stage of the proceedings in this case the plaintiffs have failed to put forward convincing arguments that the ‘97 one‑year plan . . . amounts to anything more than the continued operation of this pre‑NEPA facility.

Transcript at 82-83 (emphasis added); Request for Judicial Notice, Exh. F at 14-15.

            THE COURT:

            The Government’s motion for summary judgment is granted and plaintiffs’ is denied.  It appears that based on current forecasts, which so far are proving to be accurate, there is unlikely to be a water shortage this year, and plaintiffs have failed to show a likelihood that the ‘97 operating plan will have a significant impact on the human environment this year.

            In addition, the late date here in some ways renders NEPA review nearly moot.  However, next year is a different story.  My conclusion that NEPA does not apply this year is made in some ways because I have some hindsight concerning the ‘97 plan.  We made it to the 28th of July, and we are still on target.  And this conclusion should not be taken as any guarantee that I will not apply NEPA to future plans if the matter is brought before me.

Transcript at 84-85 (emphasis added); Request for Judicial Notice at 17-18; see also id. at 14. (discussing means to require future NEPA compliance); 18 (circumstances “should counsel the Government to consider NEPA procedures for the ’98 Plan now”).

H.     Series of Annual Plans Since 1997, Each Containing a One-Year Deviation from Historic Operations                                                                                                                                   

         1.         1998 Operations Plan

         In 1998, Reclamation adopted a one-year operations plan with the same philosophy as the 1997 plan, i.e., water was available for the Project only after new stream and lake standards, based on providing more water for listed species and trust assets, were attained.  However, Reclamation  prepared an Environmental Assessment under NEPA, which did analyze the potential impacts of shortage to irrigated agriculture should shortage occur.  Simmons Declaration, Exh. 31.  No shortage to agriculture or refuges was expected due to anticipated adequate water availability that year (and, in fact, there was no shortage).  Reclamation prepared a Finding of No Significant Impact (“FONSI”) for the 1998 Plan.  Simmons Declaration, Exh. 32.

         The 1998 EA implied that the high 1997 flows and reservoir levels represented a new “baseline” (or “no action” alternative) for NEPA analysis of impacts to Project water use.  Simmons Declaration, Exh. 31 at 4-5.  As a result, the plaintiffs in the 1997 litigation moved for a new trial (Request for Judicial Notice, Exh. G), which ultimately resulted in a stipulation and order for dismissal.  In the stipulation and order, the NEPA claim was dismissed as moot.  Also, defendants stated their intention to comply with NEPA for future operation plans.  They also stated that impacts of less than full irrigation deliveries would be analyzed.  Id. at 3.  In other words, there was acknowledgement by Reclamation that full agricultural deliveries were the appropriate baseline for NEPA impact analysis.  Similarly, in another action before this Court, Reclamation committed that new biological opinions, at least for Clear Lake and Gerber Reservoirs, would be prepared in connection with an EIS.  Request for Judicial Notice, Exh. I at 2-3.

         2.         1999 KPOP

         In 1999, Reclamation again prepared a one-year KPOP that was based on a change from historical operating criteria; i.e., the operation was not based on primarily serving irrigation needs.  Like the others, it contained Klamath Lake reservoir elevation standards for 1999, higher than previous criteria, based on providing more water for listed species and tribal trust assets.  Reclamation prepared a draft EA for the operations plan, and anticipated that there would be no water shortage for that wet year.  Simmons Declaration, Exh. 33.  By this time, the coho salmon, far downstream, in the Klamath River, had been listed as threatened.  In a biological opinion, NMFS opined that the much higher than historic flow levels proposed in the operation plan would not jeopardize the species.  Simmons Declaration, Exh. 34 at 3.

         3.         2000 Operations Plan

         In 2000, Reclamation prepared another similar one-year plan.  Simmons Declaration, Exh. 35.  While recognizing its NEPA obligation, (Simmons Declaration, Exh. 36), Reclamation failed to prepare an EA for the 2000 operations plan.  Plaintiffs herein formally objected to the failure, but did not file a lawsuit at that time because full irrigation deliveries were expected.  Simmons Declaration, Exh. 37.  Subsequently, water supplies turned out to be less than projected.  Reclamation elected to use water from Clear Lake to serve irrigation demand in other parts of the Klamath Project in 2000, so that it could also maintain the KPOP Klamath Lake levels and flows.  Reclamation prepared an emergency EA and FONSI for this change in historic operations.  Simmons Declaration, Exh. 38.

         Unlike the suckers, there has been no long‑term biological opinion related to the coho that are in the downstream, California portion of the Klamath watershed.  For 2000, Reclamation made a determination under section 7(d) of the ESA, 16 U.S.C. § 1536(d), that its operations would not foreclose the formulation or adoption of RPAs from a contemplated consultation.  Simmons Exh. 35 at 7.  This determination was largely drafted by NMFS.  Nonetheless, a court ruled that this was a procedural violation of the ESA because such a “7(d)” determination could only be made if section 7 consultation had actually commenced.  Request for Judicial Notice, Exh. K at 24.  While this finding came well after the 2000 irrigation season, the court enjoined further water deliveries until consultation with NMFS had concluded.  Id. at 32.  As described below, this condition has been satisfied.

         4.         2001 Operations Plan

         On April 6, 2001, defendants announced another one‑year change in the historic operation of the Project.  The change will cause catastrophic damage.  Entering 2001, the Upper Klamath Lake reservoir levels from the 1992 Biological Opinion, which had been adopted by Reclamation, remained.  Reclamation elected to reinitiate ESA consultation on suckers as well as completing consultation on the effects of the Project operation on the coho in the Klamath River in California.  It submitted biological assessments to NMFS and USFWS.  Simmons Declaration, Exhs. 39, 40.

         For reasons unknown, on January 19, 2001, both USFWS and NMFS jumped the gun on the consultation process.  On January 19, before receipt of the biological assessments, each sent communications to Reclamation indicating they would recommend extremely high instream standards.  Reclamation responded, questioning the basis for these recommendations, and indicating their adoption simply would not allow the Project to operate for its intended purpose.  Simmons Declaration, Exhs. 41, 42.  Subsequently, draft biological opinions were circulated to plaintiffs with a brief time for comments.  Reclamation also, at this time, directed water users to refrain from using water until consultation concluded. Well into the normal irrigation season (which begins in March in parts of the Project), water users waited.

         On April 6, 2001, USFWS and NMFS each issued new biological opinions.  Declaration of John A. Mendez in Support of Plaintiffs’ Motion for Preliminary Injunction (“Mendez Declaration”), Exhs. A, B.  To achieve the Klamath River flows at Iron Gate in California and the Upper Klamath Lake elevations specified as “reasonable and prudent alternatives” in these opinions would result in no water whatever for 150,000‑170,000 acres in 2001.  Solem Declaration, ¶ 3.  The same date, Reclamation issued a plan adopting these standards, literally triggering disaster.[3]  Mendez Declaration, Exh. C.

III.

STANDARD FOR PRELIMINARY INJUNCTION

         The Ninth Circuit traditionally considers four factors in determining whether to grant a preliminary injunction: “(1) the likelihood of plaintiff’s success on the merits; (2) the possibility of plaintiff’s suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief.”  United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987). 

To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor.  (Citations omitted.)  These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.

United States v. Odessa Union Warehouse Co-op, 833 F.2d at 174.  Thus, “[i]f the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly.”  Half Moon Bay Fisherman’s Marketing v. Carlucci, 857 F.2d 505, 507 (9th Cir. 1988). 

         Further, “[t]he presence of strong NEPA claims gives rise to more liberal standards for granting an injunction.”  American Motorcyclist Association v. Watt, 714 F.2d 962, 965 (9th Cir. 1983), citing Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 n. 2 (9th Cir. 1977).  This heightened standard arises because “irreparable damage may be implied from the failure of responsible authorities to evaluate thoroughly the environmental impact of a proposed federal action.”  American Motorcyclist Association v. Watt, 714 F.2d at 966, citing Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir. 1975).

         Applying this standard to the present case, plaintiffs submit that the Court, pending the final resolution of this case, must preserve a status quo that existed for nearly 100 years.  Plaintiffs request that the Court issue an order that will provide water deliveries to the Project pending ultimate disposition of this action.[4]  The effect of the order is to partially enjoin implementation of the 2001

Plan and implementation of the RPAs it adopts.  This will make water available for Project use.  At the same time, plaintiffs recognize this is a year of very low runoff.  As explained below, historical operations in drought years which included Project deliveries have not been known to have adverse effects to other resources.  Accordingly, plaintiffs’ motion limits the requested relief to provide that reservoir elevations and Iron Gate flows would not go below levels experienced in historical operation in the past.  While shortage could still result for the Project, it is expected to be reasonably manageable.

IV.

PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION

A.     Plaintiffs’ Irreparable Harm

         The types of economic, human, and environmental suffering threatened by the 2001 Plan are best described in accompanying declarations.  Declaration of Steven L. Kandra in Support of Plaintiffs’ Motion for Preliminary Injunction (“Kandra Declaration”); Declaration of David Cacka in Support of Plaintiffs’ Motion for Preliminary Injunction (“Cacka Declaration”); Danosky Declaration, ¶¶ 5-7; Solem Declaration, ¶ 13; and Exhs. E, F, G, H and I.

         Hundreds of farm and ranch families without income will not be able to support themselves.  They will lack the ability to pay bills and service debt.  Collateral (land, equipment) will be forfeited.  Bankruptcy will be common.  The same types of impacts will occur for farm employees, and for the owners and employees of the agriculture related businesses.  Long‑term supply arrangements will be lost because of nonperformance.  The rural communities will lose their foundation.  Ethnic communities will be injured or lost.  The demand for social services will increase.  People will simply move out.  Kandra Declaration, ¶ 4; Cacka Declaration, ¶¶ 8, 11; Solem Declaration, Exh. 4 at 4-5; Danosky Declaration, ¶ 6.

         The irrigation districts themselves anticipate termination of employees and inability to maintain essential facilities.  Solem Declaration, ¶ 13, and Exh. F at 2-4; Danosky Declaration, ¶ 5.  City parks, schoolyards, and cemeteries will go dry.  Solem Declaration, and Exh. E at 6.

         Farm fields will become fields of weeds and dust.  Tremendous wind‑borne soil erosion will occur, impairing land productivity and causing air pollution.  Increased chemical use will be needed to control weeds and pests in the future.  Fields left fallow in 2001 may have decreased production in the future.  Solem Declaration, Exh. I; Cacka Declaration, ¶ 7.

         Irrigated farmland provides food and habitat for the abundant waterfowl, deer, antelope, and other species.  This value will be lost.  Also, of course, two of the nation’s premier national wildlife refuges will be without water for wetlands and waterfowl habitat.  Kandra Declaration, ¶ 7; Danosky Declaration, ¶ 7; Solem Declaration, Exh. I.

         Plaintiffs particularly invite the Court’s attention to the declarations of Mr. Kandra and Mr. Cacka, and suggest the circumstances they describe be multiplied perhaps by thousands.

         The irreparable harm is overwhelming.

B.      Plaintiffs Are Highly Likely to Prevail on the Merits

         1.         The Action Offends the Water and Contract Rights of Water Users and Is in Derogation of Defendants’ Duties (First Claim for Relief)                                   

         Water rights of Klamath Project water users are facilitated through contracts with Reclamation.  The contracts generally provide that the contractor is entitled to receive or take water through Project facilities for irrigation of lands.  See, e.g., Solem Declaration, Exh. C at 12.  Defendants’ actions are plainly in violation of those rights.  They have ordered plaintiffs not to use water, while other water use and activities affecting fish populations continue throughout the entire Klamath Basin.

         Certainly, most contracts recognize the potential for water shortage, and limit the government’s contract damages for shortage.  Id. at 20, ¶ 26.  However, the contracts further provide that the United States “will use all reasonable means to guard against such shortage.”  Id.  This commitment is consistent with the obligations following from the contract and reclamation law.  The Supreme Court has recognized that the United States has substantial obligations toward Reclamation Project water users.  Nevada v. United States, 463 U.S. 110 at 128.  These obligations have been described further, and consistent with the contracts and reclamation law, by the Solicitor of the Department of the Interior.  Request for Judicial Notice, Exh. J.

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         The Solicitor analogized these obligations to historical arrangement between water companies (distributors) and their contractors (consumers):

Internally, between the distributor and consumer, the consumer had property rights that the court would protect from arbitrary action by the distributor.

Id. at 4.  The Solicitor goes on to articulate the implications of the United States’ role:

We also find support in Nevada for the proposition that the United States is obligated to do what is necessary to preserve, maintain, protect, or have confirmed project water rights.

Id. at 8; see also id. at 9 (discussing federal right to protect project water interests); id at 10 (discussing contractual obligations to protect project water supply).

         In the Klamath Basin, there is substantial water use outside the Project, including water use under rights junior to the Klamath Project.  Indeed, there are water rights permits that explicitly make other uses subordinate to the Klamath Project.  See, e.g., Solem Declaration, ¶ 6; Simmons Declaration, Exh. 43.

         In the past, defendants have explicitly represented that in the event of possible shortage, they would take action to protect the project supply.  See infra at 26.  Yet, they have not fulfilled their duties or kept this commitment.  Their disregard of their obligations cannot be sanctioned.  Public policy will be served by defendants honoring these obligations.  Now, they purport to devastate plaintiffs through the paper exercise of a “plan.”  If defendants truly believe that vast augmentation of instream water levels should occur, they should be willing to enforce that belief.

         2.         Changes to Historic Operations Constitute a Major Federal Action Triggering NEPA (Second Claim for Relief)                                                                                         

         NEPA requires federal agencies to prepare an EIS before the implementation of “major Federal actions significantly affecting the quality of the human environment.”  42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1500.1(a), 1502.5.  The EIS must discuss and fully analyze the impacts of the proposed action, alternatives to avoid impacts, and mitigation measures.  42 U.S.C. § 4332(2)(C)(i)‑(v).

         If an ongoing project undergoes changes which themselves amount to “major Federal actions,” the operating agency must prepare an EIS.  Andrus v. Sierra Club, 442 U.S. 347, 363 n. 21 (1979) (“Major Federal actions” include the “expansion or revision of ongoing programs.”)  NEPA Regulations issued by the Council of Environmental Quality contemplate the applicability of the EIS to the ongoing programs and actions of the government.  See, e.g., 40 C.F.R. §§ 1502.1, 1508.18(a).  The Bureau of Reclamation’s own NEPA Manual, which provides Reclamation’s interpretation of NEPA, is in accord:  The Manual specifically identifies, as an action normally requiring an EIS:

Proposed modifications to existing projects or proposed changes in the programmed operation of an existing Project that may cause a significant new impact.

Simmons Declaration, Exh. I, emphasis added.  The 2001 Operating Plan plainly represents “changes in the programmed operation of an existing Project.”  It is difficult to imagine a more literal application of the defendants’ own NEPA Manual.

         The 2001 Plan is a revision to the ongoing management of the Klamath Project.  In addition to revising the water allocation scheme, the authorized purposes of the Project have been subordinated to guaranteeing Klamath Lake reservoir elevations and flows at a specific location in the Klamath River.  The 2001 Plan, the latest one-year deviation from historic operations, is subject to NEPA.  This Court has recognized that this practice represents a complete shift in Project operations from its primary and authorized purpose.  Regardless of the purpose of the change, the reallocation is a dramatic change from historic operation of the Klamath Project, and NEPA applies.

         Any claim that NEPA does not apply would be contrary to defendants’ position with respect to the Interim Long Term Operations Plan that is under development for the Klamath Project and the entire history described above.  In 1996, Reclamation committed to NEPA compliance.  Before this Court it committed to NEPA compliance for both annual and long‑term plans.

         Defendants took no action to comply with NEPA before deciding to adopt the 2001 Plan.  As such, the changes from historic operations are unlawful and unenforceable.  See Port of Astoria v. Hodel, 595 F.2d 467, 479-480 (9th Cir. 1979).  Four years have elapsed since this Court admonished defendants to comply with NEPA for its changes from historic operations.  The completion of an EIS has slipped and slipped again, and now defendants propose to devastate farm
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families, Klamath Project communities, and the environment without any meaningful or public consideration of impacts or alternatives. 

                     a.            Defendants’ Failure to Prepare an EIS Before Their Decisions That Significantly Affect the Human Environment Requires that Changes to Historic Operations Be Set Aside                                                           

         NEPA requires that an EIS be prepared before the implementation of “major Federal actions significantly affecting the quality of the human environment.”  42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1500.1(a), 1501.1, 1502.5; LaFlamme, 852 F.2d at 396. This requirement ensures that agencies are fully aware of the impact of their decisions on the human and natural environment and that they give proper consideration to the environmental consequences of their actions.  Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985 (9th Cir. 1985). To fulfill these mandates, the EIS must be prepared

as close as possible to the time the agency is developing . . . a proposal . . . .  The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.

40 C.F.R. § 1502.5.

         The decision to adopt the 2001 Plan is a major federal action because its terms “guide or prescribe alternative uses of federal resources [in this case, water], upon which future agency actions will be based.”  40 C.F.R. § 1508.18(b)(2); see also Environmental Defense Fund, Inc. v. Andrus, 596 F.2d at 852 (EIS required prior to execution of water supply contracts).   Moreover, the 2001 Plan has the potential to dramatically affect the environment.

         The Ninth Circuit has emphasized that proper timing of environmental review is “one of NEPA’s central themes.”   Save the Yaak, 840 F.2d 714, 718 (9th Cir. 1988).  The purpose of such early review, of course, is to prevent the proposal from gaining such momentum that the government loses the ability to avoid or minimize significant environmental effects, and so that delayed environmental review becomes a post-hoc rationalization for the project.  40 C.F.R. § 1502.5; Save the Yaak , 840 F.2d at 718.  The Ninth Circuit has noted that delay in preparing an EIS may make all parties less flexible:  “After major investment of both time and money, it is
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likely that more environmental harm will be tolerated.”  Environmental Defense Fund, Inc. v. Andrus, 596 F.2d at 853. 

         Defendants’ failure to comply with NEPA and the adoption of the 2001 Plan constitute an abuse of discretion and an action contrary to law under the APA.  5 U.S.C. § 706(2).  Accordingly, the 2001 Plan should be set aside pending NEPA review.  See Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 56 F.3d 1060, 1066 (9th Cir. 1995); Good Samaritan Hospital Corvallis v. Matthews, 609 F.2d 949, 951 (9th Cir. 1979).

                     b.            The ESA Does Not “Exempt” Defendants from Their Other Legal Obligations                                                                                                

         The change in historic operations in the recent one-year operations plans has been driven by the desire to provide more water for listed species in the Project reservoirs and at one point on the Klamath River in California, as well as to provide more water for unquantified tribal trust obligations. The 2001 Plan, like past plans, is based on one or both of these.  Defendants may contend that the ESA somehow creates a NEPA exemption.  This is incorrect, for numerous reasons.  Reclamation was required to prepare an EIS or, at minimum, an environmental assessment and findings, prior to approving the Operating Plan or the contract modification to implement it.

                                    (i)            There Is No “Irreconcilable” Conflict Between NEPA and the ESA

         NEPA directs that, “to the fullest extent possible . . . public laws of the United States shall be interpreted and administered in accordance with [NEPA].”  42 U.S.C. § 4332.  Courts give NEPA the broadest possible interpretation.  Jones v. Gordon, 792 F.2d 821 at 826.  Only if there is an “irreconcilable” and “fundamental” conflict between some other statute and NEPA will the requirements of NEPA not apply.  Id.  An irreconcilable conflict is created if a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with NEPA.  See Flint Ridge Development Co. v. Scenic Rivers Ass’n, 426 U.S. 776, 791 (1976) (holding that NEPA does not apply because the Secretary of Housing had an obligation to allow real estate records to go into effect 30 days after filing).  If, however, the statute “does not require [implementation] within any particular period,” NEPA will be applicable.  Jones v. Gordon, 792 F.2d at 826.   

(ii)            The 2001 Plan Is Not Exempt from NEPA Due to the ESA

         Defendants have been planning for years on the development of new biological opinions for the Klamath Project.  Solem Declaration, ¶ 10.  Certainly their delay is not an excuse to avoid NEPA.

         NEPA regulations mandate that “[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”  40 C.F.R. § 1502.4(a).  Moreover, an EIS is to encompass “connected actions,” including actions that “[a]re interdependent parts of a larger action and depend on the larger action for their justification.”  40 C.F.R. § 1508.25(a)(1)(iii).  “Actions” include adoption of documents which “guide” or prescribe alternative uses of federal resources.  40 C.F.R. § 1508.18(b)(2).

         In the present action, the late‑occurring Biological Opinions that resulted from formal consultations with NMFS and USFWS would serve no purpose but for the intention to implement new standards in 2001.  Thus, under the NEPA regulations, the Biological Opinions and the 2001 Plan are connected actions that compel a single analysis under NEPA.  See also Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 56 F.3d 1060 at 1068.

         There is on point authority.  In Westlands v. United States, 850 F.Supp. 1388 (E.D. Cal. 1994), the court held that the development and adoption of RPAs in a biological opinion which changed the operation of an existing water project, resulting in impacts to the human environment, were subject to NEPA.  Id. at 1420.  The Court found that a biological opinion was part of an interconnected set of agency decisions resulting in reallocation of water which caused adverse impacts.  See 40 C.F.R. § 1508.18(b)(3); 1508(b)(2), and concluded “[t]his is a NEPA major federal action.”  Westlands at 1422.  The court found no unavoidable conflict between NEPA and the consultation process.  Id. at 1423.  Here, there have been listed species and plans for new consultations for years, and for five years the commitment to prepare an EIS has gone unfulfilled.  As in Westlands, the NEPA obligation must be enforced.

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                              (iii)         Defendants Have Alternatives

         There are additional reasons that Defendants may not avoid their legal duties.  As explained below, the 2001 Plan requirements are not necessary to meet Reclamation’s substantive obligation under section 7(a)(2).  However, as discussed above, if defendants wish to increase stream flows or reservoir elevations, they have viable alternatives.  For example, they may seek to enforce the Klamath Project’s water rights against junior water right holders.  There is considerable diversion of water outside the Klamath Project, upstream of Upper Klamath Lake and elsewhere in the Klamath Basin, including under water rights junior in priority to the water rights for the Project.  Supra, at 6.  Under the water rights system, of course, such rights were obtained with the understanding of the senior rights of others.  In their 1999 Klamath Project Operations Plan Draft EA, defendants identified alternative actions in the event of possible water shortage:

Reclamation has claimed a date of 1905 for water rights in the Klamath Basin.  Should supplies become inadequate to meet Project diversions, the Department would seek to curtail basin diversions to non‑project land with water rights with a priority date later than 1905.  The Department of Interior is developing a strategy for legal action.[5]

Simmons Declaration, Exh. 33 at 4 (emphasis added).  Accordingly, if there is a compelling need to ensure greater instream water quantity (which plaintiffs dispute), defendants need only enforce the ordinary water rights system.

         Defendants could also comply with the law with respect to other federal diversions in the Klamath Basin.  There are numerous diversions and uses of water by federal agencies outside the Klamath Project that diminish the amount of water in Upper Klamath Lake and the Klamath River.  Solem Declaration, ¶ 6.  To plaintiffs’ knowledge, most or all of these diversions have never been the subject of section 7 consultation.  This is inequitable and inexcusable.

         Additionally, aside from arguments about whether more water means more fish, Reclamation itself, in its summary of Klamath Project operations issues, has stated that alternatives exist that could achieve the goals of increased fish populations.  United States Bureau of Reclamation, Mid-Pacific Region, Summary of Klamath Project Operation Issues, January 1999, http://www.mp.usbr.gov/kbao/eis/index_summary.html.  Also, plaintiffs have identified for defendants a number of practical, on the ground projects to benefit fish populations.  This includes both short‑term and long‑term measures.  Horne Declaration, Exh. A at 31-44.  As an example, there are concerns regarding water quality in Upper Klamath Lake, particularly dissolved oxygen levels in the summer months.  Poor water quality has been associated with fish kills.  Plaintiffs explain below why, consistent with all empirical evidence, lowering the reservoir elevation does not cause fish kills; however, methods to improve oxygen levels (adding oxygen or air), employed in lakes throughout the world, are readily available.  Horne Declaration, Exh. H at 2.  Plaintiffs have also identified other near-term alternatives.  See, e.g., id. at 32-33.

                                 (iv)            The ESA Does Not Require Augmentation of Instream Flow Levels                                                                                                      

         The actions proposed would go far beyond any ESA requirement, even requiring Reclamation to manufacture water that would not otherwise exist in the stream.  Through winter and spring months, water is legally diverted to storage in Project reservoirs for irrigation use.  To accomplish the instream flow elements of the 2001 plan, Reclamation would have to affirmatively release water and increase flow vastly beyond what would otherwise be present.  Solem Declaration, ¶ 11.  For example, the amount of water flowing into Upper Klamath Lake this July might be 400 cubic feet per second (“cfs”).  Defendants would have it that Reclamation must guarantee a 1,000 cfs flow below the lake, Mendez Declaration, Exh. C at 5, twice the amount of water that would otherwise be present.

         There is no possible reading of section 7(a)(2) of the ESA which would require such a result.  Section 7(a)(2) is a limitation on federal agency “action.”  16 U.S.C. § 1536(a)(2) (federal agencies must ensure that their actions do not jeopardize existence of listed species).  It is not a source of obligation to take affirmative action such as releasing earlier‑stored water.  As described previously, the Oregon Legislature in 1905 authorized the use of the Upper Klamath Lake area as a storage reservoir for irrigation.  See also 43 U.S.C. § 383 (requiring compliance with state water rights law in operation of reclamation projects).[6]  Water diverted to storage is a legally distinct supply from the natural flow of a river.  Or. Rev. Stat. § 537.400; Cookinham v. Lewis, 58 Or. 484, 114 P. 88, 90‑91 (1911).  Perhaps the actions of other persons and agencies deplete the natural flow of the Klamath River or its tributaries in the summer.  But the ESA creates no obligation for Reclamation to artificially augment flow.  Thus, the river flows in the plan as measured at Iron Gate legally cannot be required, and are simply punitive of plaintiffs. /

         3.         The Determinations Underlying the 2001 Plan Are Unlawful and Arbitrary (Third and Fourth Claims for Relief)                                                                                     

         For reasons stated previously, the 2001 Plan is unlawful.  In addition, the Biological Opinions, and determinations and alternatives therein, are unlawful and arbitrary.  5 U.S.C. § 706(2) (authority to set aside agency actions that are arbitrary, capricious, or not in accordance with law).  Plaintiffs are likely to prevail on this additional ground.

                     a.         Alternatives Are Not Reasonable and Prudent within the Legal Definition

         The action that is the subject of the consultation is the continued operation of the Klamath Project to provide water for irrigation and refuges.  Simmons Declaration, Exh. 39 at 2.  In their Biological Opinions released on April 6, 2001, NMFS and USFWS identify RPAs consisting of reservoir elevations and flow volumes at Iron Gate in California.  Mendez Declaration, Exh. A at 253, Exh. B at 36‑37.  Nowhere is there any discussion of why or how the RPAs are determined to be “reasonable and prudent” alternatives.  The only further discussion of the RPAs is that if there is, after shutting off all water to the Project, still not enough water to meet the RPAs, some adjustment between the two new standards will occur.  Mendez Declaration, Exh. A at 255, Exh. B at 37.

         This is absurd.  A reasonable and prudent alternative is an alternative that “can be implemented in a manner consistent with the intended purpose of the action.”  50 C.F.R. § 402.02, emphasis added.  The alternatives identified here would completely defeat the purposes of the action.[7]  Similarly, a “reasonable and prudent” alternative must be “economically . . . feasible.”  Id.  Here, the alternatives would have devastating economic impacts.[8]/  For this alone, the RPAs must be set aside.

                     b.         Biological Opinions Inconsistent with ESA Requirements

         The Biological Opinions are fundamentally flawed, structurally.  As described earlier, beginning in 1997, a mindset arose that the Klamath Project alone among all water users, would “provide water” for listed species and trust assets.  This notion has been carried through the annual plans, and is represented by standards for reservoir elevations and flow at Iron Gate.

         But this is not what the ESA says.  For determinations regarding “jeopardy,” USFWS and NMFS are to evaluate whether an action is likely to jeopardize the continued existence of the species.  To determine the effects of an action, the agency must determine the “environmental baseline,” and evaluate the effects of the action when added to the environmental baseline.  50 C.F.R. § 402.02 (effects of the action).  The Services’ Opinions do contain discussion under headings entitled “environmental baseline.”  But to determine “effects,” some thing or some condition must be compared to something else or some other condition.  Nowhere, for example, does NMFS identify what the Iron Gate flows are under the environmental baseline.  See Mendez Declaration, Exh. B at 14-22.  Similarly, nowhere does USFWS identify the reservoir elevations that are the environmental baseline.  Absent that assessment, one cannot determine the effects of the action, or how exactly it affects reservoir elevations and flows in some manner.  The agencies have simply articulated a standard that the Klamath Project must guarantee.  See also supra at 27-28.

         There has been, in other words, no credible determination of effects, because no baseline for impact analysis has been defined.  Accordingly, the determination is arbitrary.

                     c.         The RPAs Are Not Necessary to Prevent Jeopardy

         Plaintiffs also challenge determinations regarding jeopardy and RPAs on technical grounds.  While the ultimate adjudication of these issues may be on the basis of a record, the discussion below, which is also relevant to balance of hardships, adequately demonstrates a substantial probability that plaintiffs will prevail on the merits.

                              (i)         Suckers

         With respect to suckers in Upper Klamath Lake, the relationship between reservoir elevations and sucker populations is speculative at best.  The reservoir has a maximum surface elevation of 4143.3 feet above sea level, a level usually reached in spring when snow melts.  Its lowest level ever is just below 4137 feet in September of 1994.  Simmons Declaration, Exh. 45 at 5.  However, because of the extremely large surface elevation of the reservoir, one foot of elevation equates to a very large amount of water.

         A significant constraint for the reservoir operations is the end‑of‑September elevation, because it limits the ability to deliver water to the Project in the summer.  The 1992 USFWS biological opinion RPAs adopted by Reclamation established an end‑of‑September elevation of 4139 feet in most years, and 4137 feet (or possibly lower) in drier years.  Simmons Declaration, Exh. 21 at 2.  Defendants’ action here would establish a level of 4140 feet,[9]/ Mendez Declaration, Exh. A at 253, and thus deprive irrigation water users of over 200,000 acre‑feet of water that would otherwise be available, close to half of the Project’s needs.

         This damaging level is unsupportable.  When suckers were listed as endangered in 1988, there was no mention of variable reservoir elevation as being significant to their populations.  Horne Declaration, Exh. A at 52-54.  With respect to numbers of fish, in 1988, it was believed that there were only a few thousand.  By the mid-1990s, even after serious droughts through the late 1980s, and 1991, 1992, and 1994, the estimated numbers were in the hundreds of thousands.  Id. at 10; Marine Declaration, ¶ 11.  The distribution and reproductive success of the fish is also much greater than believed in 1988.  Horne Declaration, Exh. A at 11-12; Vogel Declaration, ¶¶ 5, 7.  Indeed, by far the most successful “year class” of suckers was in 1991, a year in which the end‑of‑September reservoir level was 4138.24, well below average.  Vogel Declaration, ¶ 7; Horne Declaration, Exh. A at 24; Simmons Declaration, Exh. 44 at 5.

         The USFWS Biological Opinion for suckers and bald eagles itself consumes two inches of depth, and includes a tremendous amount of material that is simply reprinted from other sources.  Pertaining to suckers, it relates the results of considerable data collection from many different areas.  Ultimately, as it pertains to relevant determinations regarding reservoir elevations, it essentially relies on three rationales.  Each and every one flies in the face of real world evidence and rests on untested hypotheses.  First, there are prescribed elevations from mid‑July (e.g., 4141.5 on July 15) to provide water depth in emergent vegetation.  Mendez Declaration, Exh. A at 253.  But, as stated above, the single strongest year class of suckers by far is the 1991 class, when elevations were well below these levels.  There is no correlation between those elevations and year class strength.  Vogel Declaration, ¶ 7; Horne Declaration, Exh. A at 25.  In addition, the same emergent vegetation provides habitat for introduced species predatory of suckers.  Id. at 20.[10]

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         Second, a major consideration for suckers is water quality in Upper Klamath Lake.  Of considerable concern, fish die‑offs have occurred that are associated with water quality.  The September 30 RPA elevation, far above historical average over the last 20 years, is to limit these fish kills.  Mendez Declaration, Exh. A at 253.  Again, however, the real world rears its head.  (Strangely, while promoting high elevations to avoid fish kills, the Biological Opinion states that “fish kills are not related to lake levels.”  Id. at 179.)

         Large fish kills have occurred when the reservoir was near average or mostly above average elevations, and not at the low elevations experienced in droughts such as 1992 and 1994.  Vogel Declaration, ¶ 8; Horne Declaration, Exh. A at 15.  The absence of fish kills at lower depth is not merely a coincidence.  Highly credible scientific opinion based on study of Upper Klamath Lake and similar lakes throughout the world indicates that artificially adding depth to this specific reservoir can promote water quality problems and fish kills.  Horne Declaration, Exh. A at 14-17, Exh. B at 6, Exh. C at 3, Exh. E at 2, Exh. H at 3-4.

         Third, the RPAs are based on maintaining a generous depth of water in areas where water quality is relatively good (refuge areas). Mendez Declaration, Exh. A at 253.  Such a depth “preference” is conjectural.  Horne Declaration, Exh. A at 23; Vogel Declaration, ¶¶ 2, 5.

                              (ii)        Coho

         The nearest a coho salmon can theoretically come to the Klamath Project is over sixty miles away, below the Iron Gate hydroelectric facility on the mainstem Klamath River.  Their actual use of that reach of the river is limited at best, not documented, and cannot be discerned from the NMFS Biological Opinion.  By the Biological Opinion’s admission, the species primarily occupies tributaries (there being approximately 100 tributaries in the lower Basin) and areas far down river.  See also Vogel Declaration, ¶ 12.  In short, the existence of significant numbers of coho in the mainstem river within even a hundred miles of the Klamath Project, is not even established.  Id. at ¶ 21.  In fact, according to NMFS, “limited information exists regarding coho salmon abundance in the Klamath River Basin.”  Mendez Declaration, Exh. B at 10.

         Coho numbers have unquestionably declined.  But a number of factors, including overfishing and land use practices in the lower watershed over a century, have had severe impacts.  Vogel Declaration, ¶¶ 9, 10, and Exh. A at 22-43.  There simply is no evidence of the consequence of variable flow regimes below Iron Gate.  In recent drought years, the flows below Iron Gate in late spring and summer have been in the range of 500 cfs.  Simmons Declaration, Exh. 40 at 3.  There is no evidence whatsoever in the lower Klamath watershed that such flows were detrimental for coho.  Vogel Declaration, ¶ 10.  Yet, the plan would establish flows as much as 400 percent higher, Mendez Declaration, Exh. C at 5, to the great detriment of Klamath Project irrigation and refuges.  This particular requirement seems tied to “preliminary draft” habitat suitability curves.  Mendez Declaration, Exh. B at 21; Marine Declaration, ¶ 8.  But there is no evidence of any kind that the draft preliminary modeled habitat, the derivation of which is uncertain, is at all a limiting factor for this species in the stretch of river in issue.  Vogel Declaration, ¶¶ 17, 21; Marine Declaration, ¶ 8.

         In fact, there is no empirical evidence that Iron Gate flows occurring in past droughts have adversely affected coho in the mainstem Klamath.  Vogel Declaration, ¶¶ 9, 20.  In fact, releases of large blocks of warm water from Upper Klamath Lake can be harmful.  Marine Declaration, ¶¶ 7, 9.

         In the end, to discern the basis of the NMFS RPAs is difficult at best.  Indeed, NMFS makes blunt admissions:

Several factors present difficulties in identifying [RPAs] . . .:

(1) the limited availability of specific information on the effects of [Iron Gate] releases on water temperature and quality during the April through September period in critically dry years such as is forecast for 2001; (2) the lack of quantitative tools to estimate the probability of coho salmon persistence and recovery in the Klamath River under various Project operational scenarios . . . .

Mendez Declaration, Exh. B at 34.  Plaintiffs believe that a lack of information, and disregard of actual evidence, is not a sound basis for an “RPA” that is destructive of their livelihoods, communities, and environment.

C.     Lack of Injury to Defendants

         Defendants will experience no harm if the preliminary injunction is issued.  As explained immediately above and in the materials cited, the reservoir elevations and Iron Gate flows are not necessary to avoid jeopardy to listed species.  Further, as described previously, defendants have alternative effective means to increase water availability or implement measures to benefit fish.  Supra at 26-27.

         To be certain, it is a very dry year in the Klamath Basin.  But presently it is within the range of droughts experienced in the recent past.  Solem Declaration, ¶ 12.  If the Klamath Project water uses do not have water, the impacts are known and severe.  If Klamath Project water uses do have water, Upper Klamath Lake will not go dry (this is physically impossible) and the Klamath River will not go dry.  The “continued existence” of no species is at risk.  Indeed, there is no evidence that past drought‑year operations adequately meeting the needs of the Klamath Project had any adverse effect on the listed species.

         In summary, the potential impacts to plaintiffs caused by the 2001 Plan and the threat of no water are known, severe and occurring right now.  An injunction should issue to prevent irreparable harm. 

D.     The Public Interest Lies in Favor of a Preliminary Injunction

         Preservation of a longstanding status quo pending final disposition of this case is in the public interest.  Hundreds of family farmers, rural businesses, agricultural and wildlife assets, and rural communities are at extraordinary risk due to defendants’ actions.  Plaintiffs confront decisions, at once both rushed and untimely, that threaten to destroy them.  For nearly a century, the Klamath Project has been operated successfully through wet years and dry.  The public interest favors preservation, not destruction, of these communities and their environment.  Klamath Project growers have devoted themselves to the cooperative co‑existence of agriculture and the ecosystem, including countless hours advancing the overall public interest.  Kandra Declaration, ¶ 4; Russell Declaration, ¶¶ 7-8.  They are entitled to similar treatment and equity.

V.

NO BOND SHOULD BE REQUIRED

         The Court has discretion to determine the amount, if any, of the appropriate security to be given under Fed. R. Civ. P. 65(c).  Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999); State of California v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985).

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         The plaintiffs have brought the action to protect rights and interests they have long enjoyed.  They are:  family farmers; public agencies with obligations to their water users, faced with escalating costs, and a non‑profit corporation.  As described previously, there will be no injury to defendants if the injunction issues.  Even if there were possible injury, it is unquantifiable, and it is not economic.

         An applicant for preliminary injunction need not post any security where requiring security would effectively deny access to judicial review (State of California v. Tahoe Regional Planning Agency, 766 F.2d at 1325); Natural Resources Defense Council v. Morton, 337 F.Supp. 167, 168 (D. D.C. 1971); where the high probability of success on the merits favors dispensing with the security requirement (id.); and where it appears unlikely that the defendant will incur any significant cost or damages as a result of the preliminary injunction (Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719, 738 (C.D. Cal. 1996)).  These criteria are met.  Further, numerous courts have recognized the appropriateness of relief from giving security where the grant of an injunction carries no risk of monetary loss to the party enjoined.  Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987); International Controls Corp. v. Vesco , 490 F.2d 1334, 1356 (2d Cir. 1974); Urbain v. Knapp Brothers Manufacturing Co., 217 F.2d 810, 816 (6th Cir. 1954); Hurwitt v. City of Oakland, 247 F.Supp. 995, 1005-1006 (N.D. Cal. 1965).

VI.

CONCLUSION

         For the foregoing reasons, plaintiffs’ motion should be granted.

Dated:  April 10, 2001.                              Respectfully submitted,

                                                               Hutchinson, Cox, Coons & DuPriest

                                                               WILLIAM M. GANONG, ESQ.

                                                               SOMACH, SIMMONS & DUNN

                                                                  A Professional Corporation

                                                                  By                                                                 

                                                                           Paul S. Simmons

                                                               Attorneys for Plaintiffs