Federal Appeals Court affirms Tribal Water Rights to Protect Fish
/The Court concluded that the Klamath Basin tribes – Yurok, Hoopa Valley, and the Klamath Tribes – had senior, federally reserved water rights that predate the water rights of Klamath Irrigation Project irrigators
File photo. Klamath River (BLM Oregon, Flickr)
Press release from the Klamath Tribes
No Compensation for Klamath Irrigators Due to Senior Tribal Water Rights
On November 14, 2019, the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims decision in Baley v. United States, denying compensation to Klamath Project irrigators for a claimed 2001 taking of their water rights by the United States government. The decision hinged on recognition of the senior tribal water rights of the Klamath Tribes and other downriver Klamath Basin tribes. This is a tremendous victory for the Klamath Tribes, which NARF represented as amicus curiae in the case, as well as for the other Klamath Basin tribes, the United States, and environmental groups.
In this long-running case, Klamath Project irrigators sought nearly $30 million in compensation from the United States government for the Bureau of Reclamation’s curtailment of Project water deliveries during a severe drought in 2001. The water restrictions were made to meet Endangered Species Act requirements and fulfill tribal trust responsibilities. Among other things, the irrigators claimed that tribal water rights were not relevant to Reclamation’s water management decisions. In late 2017, the US Court of Claims confirmed that the Klamath Tribes and downriver Klamath Basin tribes have senior water rights over other water interests in the Klamath Basin. Thus, the Project irrigators, as junior water rights users under the western water law system of “first in time, first in right,” were not entitled to receive any Project water in 2001. Learn more about the case on the NARF website.
In appealing the case, the irrigators disputed whether the tribal water rights included all of the water Reclamation withheld from delivery in 2001. The irrigators also argued that the Klamath Tribes do not have water rights in Upper Klamath Lake, which is outside of and forms part of the boundary of the Klamath Tribes’ former reservation. With this week’s ruling, the US Court of Appeals declared, once again, that the Klamath Tribes’ water rights are the most senior in the region, with a priority date of time immemorial, and that the senior tribal water rights entitle the tribes, at the least, to the amount of water withheld by Reclamation to meet Endangered Species Act requirements. The court also affirmed that the Klamath Tribes’ water rights include waters in Upper Klamath Lake that secure the Tribes’ treaty fishing rights.
Klamath Tribes Chairman Don Gentry stated, “We are pleased that the court affirmed the lower court decision and once again recognized the seniority of the Klamath Tribes’ water rights. Most importantly, this decision again recognizes the significance of our treaty rights, which include protecting and sustaining the endangered C’wam and Koptu and our other treaty resources in Klamath Lake.”
NARF Staff Attorney Sue Noe was not surprised by the court’s ruling, “The courts continue to rule in favor of the Klamath Tribes’ water rights because it is the only interpretation that makes sense. The Tribes have lived in the Klamath Basin for millennia. In an 1864 treaty they relinquished millions of acres of their homeland to the United States in exchange for guarantees, including protections for the tribal right to harvest fish in their streams and lakes. There is no expiration date on those treaty promises, and they cement the Tribes’ top water rights in the region.”
Press release from the Yurok Tribes
Federal Appeals Court affirms Yurok Water Rights to Protect Fish
KLAMATH Calif. - [Thursday], the United States Court of Appeals for the Federal Circuit issued its opinion in the long-standing case Baley v. Unites States. The Court concluded that the Klamath Basin tribes – Yurok, Hoopa Valley, and the Klamath Tribes – had senior, federally reserved water rights that predate the water rights of Klamath Irrigation Project irrigators and that the tribes’ water rights require at least enough instream water to ensure the continued existence of tribal trust species listed under the Endangered Species Act (ESA).
In its decision, the Court stated that Yurok and other tribes’ water rights “entitles them, at a minimum, to prevent junior appropriators from withdrawing water from the Klamath River in amounts that would cause the endangerment and extinction of the SONCC Coho salmon.” The Court also determined that Yurok has “an implied water right that includes the Klamath River and the flows therein as controlled by the Iron Gate Dam” to support fish habitat. This means two things: (1) that Yurok water rights require the Bureau of Reclamation to provide, at minimum, enough water to the Klamath River to support salmon habitat and ensure the persistence of Coho salmon and, (2) that Klamath Irrigation Project water withdrawals can only occur when there is enough water in the river to ensure the persistence of the fish.
“This decision is very important to define our rights in the basin vis-à-vis other interests,” stated Amy Cordalis, Yurok General Counsel. “By definitively affirming that our water rights ensure, at a minimum, the persistence of ESA listed species, rather than fighting irrigators or the federal agencies about the existence of our rights, we can move forward in determining what water the ailing fish populations need. This is a key step forward in reclaiming and restoring the Klamath River ecosystem.”
“This ruling affirms the duty of the United States to ensure that the fish in the river are taken care of first before other water uses. The river has far more at stake than just threatened and endangered species, and adequate water to support the entire river ecosystem is a necessary first step in restoring the Klamath River,” added Senior Water Policy Analyst, Michael Belchik.
The Baley case, initiated in fall 2001, Klamath Irrigation Project irrigators sued the United States after the Bureau of Reclamation temporarily stopped water deliveries to Project users that summer, in a drought year, to meet tribal trust obligations and Endangered Species Act instream flow requirements in the Klamath River. This case then followed a complicated procedural path before landing in the Court of Appeals for the Federal Circuit. The irrigators argued that Yurok did not have water rights to protect Coho or Chinook salmon, relying on several novel, and ultimately, losing legal arguments.
The Yurok Tribe is currently in other litigation over the amount of water necessary to ensure the salmon’s survival. In spring 2019, the Bureau of Reclamation issued a Klamath Irrigation Project operations plan and the National Marine Fisheries Service filed a biological opinion burdened with errors that authorizes insufficient instream flows that threaten the existence of salmon. Yurok and Pacific Coast Federation of Fisherman’s Associations are challenging the agencies’ 2019 decisions in federal court.
The Yurok Tribe thanks its partners in the Baley litigation, including the United States, the Klamath Tribes, the Hoopa Valley Tribe, and the Pacific Coast Federation of Fisherman’s Associations.
The full opinion can be accessed at: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1323.Opinion.11-14-2019.pdf
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