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Judge denies preliminary injunction in Klamath Tribes suit

District Judge William Orrick has denied a preliminary injunction sought by the Klamath Tribes to hold more water in Upper Klamath Lake for endangered shortnose and Lost River suckers.
George Plaven

Capital Press

Published on July 26, 2018 1:18PM

Klamath Falls, Ore., on the far side of Upper Klamath Lake. A federal judge has denied a request for a preliminary injunction to keep more water in the lake to protect two species of sucker fish.

Associated Press File

Klamath Falls, Ore., on the far side of Upper Klamath Lake. A federal judge has denied a request for a preliminary injunction to keep more water in the lake to protect two species of sucker fish.

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Klamath Project irrigators are breathing a sigh of relief after a federal judge in San Francisco denied a preliminary injunction to hold more water in Upper Klamath Lake for endangered sucker fish.

The injunction was requested by the Klamath Tribes as part of a lawsuit against the Bureau of Reclamation, U.S. Fish and Wildlife Service and National Marine Fisheries Service to protect declining populations of Lost River and shortnose suckers in the lake.

Judge William Orrick also granted a motion to transfer the case to the U.S. District Court in Oregon. Though he presided over a separate lawsuit filed by the Hoopa Valley and Yurok tribes of northern California seeking to protect salmon in the lower Klamath River, Orrick noted that Upper Klamath Lake, the endangered suckers and the Klamath Tribes are all in Oregon.

“Whether venue is proper in the Northern District of California is not obvious, but the District of Oregon is clearly more appropriate to hear this case,” Orrick wrote in the order, filed Wednesday.

As for the preliminary injunction, Orrick described it as an “extraordinary remedy” given the situation, while adding the scientific evidence is “very much in dispute.”

“I cannot conclude that the Klamath Tribes are likely to prevail on the merits nor that the sucker fish are suffering irreparable injury as a result of the lake elevation levels,” Orrick wrote.

Both the Lost River and shortnose suckers were listed as endangered in 1988. The fish are a culturally significant food for the tribes, though harvest diminished from more than 10,000 suckers in 1968 to just 687 in 1985.

According to the tribes’ lawsuit, the cause stems from increased agricultural activity since the inception of the Klamath Project, which provides surface water irrigation for 230,000 acres in southern Oregon and northern California.

Today, the tribes harvest just two suckers every year for ceremonial purposes.

Don Gentry, chairman of the Klamath Tribes, said they were disappointed in Orrick’s decision, but they will be ready to present their arguments before a new judge and do what is necessary to protect the fish.

“We’re really concerned about the fish this year and into the future,” Gentry said. “Hopefully we won’t have a significant die-off this season, but we’ll see.”

The Klamath Water Users Association, which advocates for farmers and ranchers in the basin, have also intervened in the tribes’ lawsuit, along with the Sunnyside Irrigation District and California farmer Ben DuVal.

Scott White, KWUA executive director, said the injunction — which would have kept more water in Upper Klamath Lake, and less water in the Klamath Project’s irrigation canals — would have been catastrophic to the region’s agriculture.

“Millions of dollars are already invested in the dirt, and all that could have been lost,” White said. “I’m just so thrilled for my guys knowing they’re going to be able to finish this season out.”

Irrigators were already off to a late start this season in the Klamath Project, after a ruling last year by Orrick in the Hoopa Valley and Yurok tribal lawsuit that required more water to be sent down the Klamath River to flush away a deadly parasite infecting coho salmon.

White said he knows fish are important to the tribes, just as irrigation is important to the agricultural community, but he believes the problem needs to be addressed locally, not in the courts.

“We may not see eye-to-eye on how to solve these issues relative to the fish, but until we sit down to talk about that, we’re not going to get anywhere,” he said.

Gentry said the tribes are working toward revising a five-year-old federal plan for sustaining healthy sucker populations — known as the biological opinion — but the fish are in an increasingly dire position.

“We want to protect all of the fish for as long as we can until we can make some significant progress,” Gentry said.



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