Klamath Tribes v. United States Bureau of Reclamation

Filing 120

Opinion and Order: Magistrate Judge Clarke's Findings and Recommendation (ECF No. 109 ) is adopted in full. Plaintiff's motion for summary judgment (ECF No. 80 ) is DENIED. Defendant Reclamation's motion for summary judgment (ECF No. 87 ) and Defendant-Intervenor KWUA's motion for summary judgment (ECF No. 84 ) are GRANTED. Signed on 2/7/2024 by Judge Michael J McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THE KLAMATH TRIBES, a federally
recognized Indian Tribe,
Plaintiff,

Case No. 1:21-cv-00556-CL
v.

OPINION & ORDER

UNITED STATES BUREAU OF
RECLAMATION,
Defendant
KLAMATH WATER USERS
ASSOCATION
and KLAMATH IRRIGATION DISTRICT,
Defendant-Intervenors.
_____________________________
MCSHANE, Judge:
Magistrate Judge Mark D. Clarke filed a Findings and Recommendation (“F&R”) on
September 11, 2023, recommending the Court grant Defendants’ motion for summary judgment
(ECF No. 109). The matter is now before this Court on Defendants’ objections. See 28 U.S.C. §
636(b)(1)(B), Fed. R. Civ. P. 72(b). I review de novo. United States v. Bernhardt, 840 F.2d 1441,
1445 (9th Cir. 1998). I find no error and conclude the report is correct.

1 – OPINION & ORDER

DISCUSSION
Defendant Bureau of Reclamation (“Reclamation”) and Defendant-Intervenor Klamath
Water Users Association (“KWUA”) raise three jurisdictional objections to Judge Clarke’s F&R.
First, Reclamation and KWUA argue that the case is moot because the claims of the Klamath
Tribes (“the Tribes”) lack redressability, leaving the Court unable to grant any meaningful relief.
Def.’s Obj. 11, ECF No. 117; Def.-Int.’s Obj. 7, ECF No. 118. Second, Reclamation and KWUA
argue that the complaint is moot because it does not satisfy the “capable of repetition, yet
evading review” exception. Def.’s Obj. 5–6; Def.-Int.’s Obj. 5. Finally, Reclamation separately
objects that the Tribes did not comply with the ESA’s mandatory 60-day notice requirement.
Def.’s Obj. 13. No objections were made to Judge Clarke’s recommendation to dismiss
Plaintiff’s claims under Section 7 and Section 9 of the Endangered Species Act (“ESA”). The
Court addresses each objection in turn.
I.

Standing
Defendants first object that the Tribes lack standing to sue because their claims for

declaratory relief lack redressability and any judgment “therefore would be an improper advisory
opinion.” Def.’s Obj. 11; Def.-Int.’s Obj. 7.
To satisfy Article III’s standing requirements, a plaintiff must show that: (1) they have
suffered an “injury in fact;” (2) the injury is “fairly traceable” to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S.
167, 180–81 (2000). “A case or controversy exists justifying declaratory relief only when ‘the
challenged government activity … is not contingent, has not evaporated or disappeared, and by

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its continuing and brooding presence, cause what may well be a substantial adverse effect on the
interest of the petitioning parties.’” Headwaters, Inc. v. Bureau of Land Mgmt., Medford Distr.,
893 F.2d 1012, 105 (9th Cir. 1989). The Ninth Circuit has repeatedly held that “where both
injunctive and declaratory relief are sought but the request for an injunction is rendered moot
during litigation, if a declaratory judgment would nevertheless provide effective relief the action
is not moot.” Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006). A plaintiff therefore
maintains standing to sue as long as the court is “not merely propounding on hypothetical
questions of law” but is “resolving a dispute which has present and future consequences.”
Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988) (challenge to
regulations governing 1986 salmon fishing season was not mooted by the close of the season
because the damage could be mitigated “by allowing more fish to spawn in 1989”).
The Tribes’ harm is redressable, and they possess standing to sue in the present case. As
the F&R asserts and the record supports, “drought conditions across the Klamath Basin are likely
remain a ‘brooding presence’ over the Klamath Basin for the foreseeable future.” F&R 22–23
(quoting Nat. Res. Def. Council v. McCarthy, 231 F. Supp. 3d 491, 498 (N.D. Cal. 2017)). A
letter from Reclamation dated December 15, 2023, provides further support for this assertion. In
that letter, Reclamation stated a now familiar refrain: “[t]he Klamath Basin is experiencing
abnormally dry conditions” with the “potential to impact Reclamation’s ability to ensure full
compliance with Endangered Species Act (ESA) requirements.” Pl.’s Resp. Ex. 1, at 1, ECF No.
119. Although it is true that the Tribes have abandoned specific injunctive relief, in order to
ensure that similar violations do not occur in the future they still entitled to seek a declaratory
judgment that Reclamation violated the ESA.

3 – OPINION & ORDER

II.

Mootness
Defendants next object that the case is moot because Judge Clarke improperly found an

exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.”
ECF No. 109. This exception only applies in circumstances where “(1) the challenged action is
in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action again.”
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016). Plaintiff’s claims satisfy
both prongs of the mootness exception.
First, the duration requirement is clearly met. As Judge Clarke’s F&R correctly observed,
Supreme Court precedent on this point is definitive: “a period of two years is too short to
complete judicial review[.]” F&R 22 (quoting Kingdomware, 579 U.S. at 170); see also Alaska
Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 939 (9th Cir.
1987). Here, Reclamation’s challenged 2021 Temporary Operating Procedures (“TOP”) were
only in effect between April 15 and September 30, 2021—a period of approximately six months.
The Tribes’ claim for declaratory relief also satisfies the “same action” requirement. A
controversy is capable of repetition where there is “a reasonable expectation that [the parties]
will again litigate the issue” or a “demonstrated probability” that the action will recur.
Biodiversity Legal Found. v. Badgely, 309 F.3d 1166, 1174 (9th Cir. 2002); Murphy v. Hunt, 455
U.S. 478, 482, (1982). Defendants argue that the repetition requirement is not met because the
Reclamation is now operating under a new TOP (“2023 TOP”) and a new Biological Opinion
requiring the agency to reinitiate ESA consultation if boundary conditions in the Upper Klamath
Lake cannot be met. Defendants frame the issue too narrowly. The question is not whether

4 – OPINION & ORDER

Reclamation might adopt a plan identical to the 2021 TOP. Rather, the question is whether
Reclamation’s operation of the Klamath Project and the agency’s continued water resource
allocation decisions are likely to affect three species of fish listed pursuant to the ESA: the
endangered Lost River sucker (C’waam); the endangered shortnose sucker (Koptu); and the
threatened coho salmon.
The fact that Reclamation has adopted similar TOPs in each of the past three years—in
2021, 2022, and 2023—together with the fact that drought conditions are likely to remain a
“brooding presence” over the Klamath Basin for the foreseeable future suggests that recurrence
of the controversy is more than “mere physical or theoretical possibility.” Murphy v. Hunt, 455
U.S. 478, 482 (1982). Indeed, Judge Clarke’s finding that “[c]limate change … is likely to make
high stress events more common” makes it even more likely that the issues presented in this case
will recur. F&R 22–23. Finally, “the existence of a ‘public interest in having the legality of …
[Reclamation’s] practices settled … [also] militates against a mootness conclusion.’” United
States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).
III.

Compliance with the ESA 60-day Notice Requirement
Reclamation finally objects that this Court lacks subject matter jurisdiction to hear the

case because Plaintiff failed to comply with the 60-day notice requirement before suing under the
ESA. Def.’s Obj. 13. This Court previously addressed the question of whether the Tribes
complied with the ESA’s 60-day notice requirement and found the requirement satisfied.
Klamath Tribes v. United States Bureau of Reclamation, 537 F. Supp. 3d 1183, 1188 (D. Or.
2021); ECF No. 53 at 3. Defendants have offered no new argument that warrants disturbing this
prior decision or the subsequent recommendation of Judge Clarke.

5 – OPINION & ORDER

The ESA provides in part that “[n]o action may be commenced … prior to sixty days
after written notice has been given to the Secretary, and to any alleged violator of any such
provision or regulation.” 16 U.S.C. § 1540(g)(2)(A)(i). The purpose of the 60-day notice
provision is to put the agencies on notice of a perceived violation of the statute and an intent to
sue. When given notice, the agencies have an opportunity to review their actions and take
corrective measures if warranted.” Sw. Ctr. for Biological Diversity v. U.S. Bureau of
Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). Notice is a jurisdictional requirement and
“failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit
under the ESA.” Id.
A citizen “is not required to list every specific aspect or detail of every alleged violation.
Nor is the citizen required to describe every ramification of a violation.” Cmty. Ass'n for
Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002). Instead, the
notice “need only provide enough information that the defendant can identify and correct the
problem.” Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 651 (9th Cir. 2015).
The analysis therefore turns on the “overall sufficiency” and purpose of the notice. Id.; Marbled
Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (examining “the letter as a whole” for
notice sufficiency).
The Tribes provided the required statutory notice through the letter dated February 12,
2021. The Tribes’ letter alleged that Reclamation failed to comply with Terms and Conditions 1c
(“T&C 1c”) of the 2020 Biological Opinion and Incidental Take Statement, thereby putting the
agency on notice of a past violation. As this Court previously noted at the preliminary injunction
stage, “[w]hile the Tribes’ notice letter was forward-facing and primarily focused on the

6 – OPINION & ORDER

potential threats to the C’waam and Koptu this year, the letter also noted Plaintiff's belief that
‘Reclamation failed to comply with T&C 1c in 2020.’” Klamath Tribes, 537 F. Supp. 3d at 1188.
The first paragraph of the notice letter also explicitly mentioned a perceived Section 7 violation
and went on to explain the Tribes’ belief that Bureau actions “would adversely modify the
species' critical habitat.” Gentry Decl., Ex. A at 1, ECF No. 5.
Even if the notice letter was anticipatory—and it was not—there is no controlling Ninth
Circuit precedent as to whether anticipatory notices are permitted under the ESA. See Colo.
Envtl. Coal. v. Office of Legacy Mgmt., 819 F. Supp. 2d 1193, 1219–20 (D. Colo. 2011)
(collecting cases); compare Cascadia Wildlands v. Scott Timber Co. 328 F. Supp. 3d 1119, 1131
(D. Or. 2018) (“neither the statute nor the case law supports a bright-line rule against
anticipatory notice of future violations”), with Lone Rock Timber Co. v. United States Dep’t of
Interior, 842 F. Supp. 433, 440 (D. Or. 1994) (dismissing plaintiff’s ESA claims for failure to
comply with the statute’s 60-day notice requirement because it was anticipatory).
The Tribes’ notice provided sufficient information for Reclamation to ascertain the nature
of the alleged violation and gave the agency sufficient time to address the issue and take
corrective action.
IV.

Conclusion
Magistrate Judge Clarke’s Findings and Recommendation (ECF No. 109) is adopted in

full. Plaintiff’s motion for summary judgment (ECF No. 80) is DENIED. Defendant
Reclamation’s motion for summary judgment (ECF No. 87) and Defendant-Intervenor KWUA’s
motion for summary judgment (ECF No. 84) are GRANTED.

7 – OPINION & ORDER

IT IS SO ORDERED.
DATED this 7th day of February, 2024.

___s/Michael J. McShane__________
Michael McShane
United States District Judge

8 – OPINION & ORDER