A federal judge has denied a temporary restraining order sought by the Klamath Tribes that would restrict water releases from Upper Klamath Lake to benefit threatened sucker fish.
The tribes claim the U.S. Bureau of Reclamation is prioritizing flows in the Klamath River to benefit threatened coho salmon at the expense of Lost River and shortnose suckers, which suffer from lower lake levels.
U.S. District Judge Michael McShane has now refused to interfere in the agency’s plan to regulate water in the Klamath Basin, ruling that the tribes are unlikely to prove the federal government is violating the Endangered Species Act.
“Here, the Defendant Bureau, in coordination with expert agencies and all competing interests, is better equipped to serve the public interest than a judge with a law degree,” McShane said in the May 6 ruling.
While the agency’s actions may harm threatened suckers, it’s taking the “appropriate steps” under ESA to deal with this year’s severe drought, which will cause “devastation” to ecosystems and communities from Upper Klamath Lake to the Pacific Ocean, he said.
The lake has already fallen below the optimum level for sucker spawning and it’s unlikely to meet other conditions in a “biological opinion” that guides operations for the Klamath irrigation project, McShane said.
However, the Bureau expects to keep the elevation high enough for the fish to migrate through a shallow area and into a bay with higher-quality water during the summer, he said.
Though the “terms and conditions” of the biological opinion are unlikely to be met this year, the agency has coordinated with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to adapt to the drought, McShane said.
“To the extent that the Bureau was required to engage in informal consultation with USFWS, they have satisfied this burden by maintaining regular communication with the Service as they determined the causes for the low elevation of Upper Klamath Lake and developed temporary operating procedures to address the situation,” the judge said.
The government has taken “proactive steps” to keep the lake’s elevation as high as possible, such as suspending irrigation deliveries and diversions, McShane said. “The Bureau cannot control the current hydrologic conditions; they can only work within these natural limitations.”
To obtain a temporary restraining order, the Klamath Tribes would have to show they’re likely to prevail in the litigation but McShane said they hadn’t met this “threshold.”
The Klamath Irrigation District, which has intervened in the lawsuit, acknowledged that it would also prefer for the lake level’s to be kept higher to avoid infringing on its water rights.
However, the district has argued the agency can’t simply take away water that’s contracted to irrigators and must instead acquire their water rights.
The Klamath Water Users Association, which has also intervened, opposed an injunction that would prohibit the lake from falling below a certain level if that meant curtailing water available to irrigators.