Yurok Tribe v. U.S. Bureau of Reclamation

593 F.Supp.3d 916

YUROK TRIBE, et al., Plaintiffs,

v.U.S. BUREAU OF RECLAMATION, et al., Defendants.

Case No. 19-cv-04405-WHO

United States District Court, N.D. California.

Signed March 24, 2022

Anna K. Stimmel, EarthJustice, San Francisco, CA, Kristen Lee Boyles, Ashley N. Bennett, Patti A. Goldman, Earthjustice, Seattle, WA, Amy C. Cordalis, Arlington, VA, for Plaintiff Yurok Tribe.

Anna K. Stimmel, EarthJustice, San Francisco, CA, Kristen Lee Boyles, Ashley N. Bennett, Patti A. Goldman, Earthjustice, Seattle, WA, for Plaintiffs Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources.

Robert Pendleton Williams, Kaitlyn Poirier, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, Daron Tate Carreiro, Thomas K. Snodgrass, US Dept. of Justice, Env. and Nat. Res. Division, Denver, CO, for Defendants U.S. Bureau of Reclamation, National Marine Fisheries Service.

Jared Stanton Mueller, Brittany Kirsten Johnson, Richard Sterling Deitchman, Paul Scott Simmons, Somach Simmons and Dunn, Sacramento, CA, for Defendant Klamath Water Users Association.

Ellen Lee Wehr, Grassland Water District, Los Banos, CA, for Amicus California Waterfowl Association.

Jeremiah Daniel Weiner, Attorney at Law, Helena, MT, Lauren Mulhern, Pro Hac Vice, Rosette LLP, Grand Rapids, MI, Simon W. Gertler, Rosette, LLP, Sacramento, CA, for Amicus The Klamath Tribes.

Nathan R. Rietmann, Pro Hac Vice, Rietmann Rietmann LLP, Salem, OR, Christopher A. Lisieski, Wanger Jones Helsley PC, Fresno, CA, for Amicus Klamath Irrigation District.

ORDER DENYING MOTION TO DISMISS CROSSCLAIM, GRANTING MOTION TO DISMISS SUPPLEMENTAL COMPLAINT

Re: Dkt. Nos. 991, 992

William H. Orrick, United States District Judge

Before me are two motions to dismiss: one filed by the Oregon Water Resources Department ("OWRD") against a crossclaim brought by the United States, the other by OWRD Director Thomas Byler against a supplemental complaint brought by the Yurok Tribe, Pacific Coast Federation of Fishermen's Associations, and Institute for Fisheries Resources (collectively, "the plaintiffs"). There is significant overlap between the crossclaim, supplemental complaint, and corresponding motions to dismiss, which center on the lawfulness of an order issued by the OWRD preventing the U.S. Bureau of Reclamation ("Bureau") from releasing water classified as stored at the Upper Klamath Lake in Oregon.

The OWRD's motion to dismiss the federal government's crossclaim is DENIED. The United States has adequately alleged an injury in fact—namely, a conflict between the OWRD order and the Bureau's obligations under the Endangered Species Act ("ESA")—and otherwise established standing to sue. The matter is also ripe for adjudication.

Byler's motion to dismiss the plaintiffs’ supplemental complaint is GRANTED. Although the plaintiffs have standing to bring the complaint, Ex parte Young stands in the way, as they have not alleged a violation of federal law by Byler. But because the plaintiffs have alleged a right to relief arising out of the same series of occurrences as in the crossclaim, as well as common questions of law and fact, I will exercise my discretion and allow the permissive joinder of the plaintiffs to the government's crossclaim. Doing so will not cause prejudice and instead will allow the plaintiffs to be heard on these issues.

BACKGROUND

At the heart of this litigation lies the limited water supply of the Klamath River and the often-competing interests of the people and wildlife who depend on it. This case, filed in 2019, now includes numerous parties and claims. For brevity, I will focus on the factual and procedural background most relevant to the motions at hand.¹

The Klamath River originates in Oregon, flows into California, through the Yurok Reservation, and into the Pacific Ocean. Suppl. Compl. [Dkt. No. 967] ¶ 28. The Klamath Project, authorized by Congress in 1905, is a series of dams, diversions, canals, and pumping stations located in Southern Oregon and Northern California. Id. at ¶¶ 29-30. The Bureau is tasked with distributing water via the Klamath Project, which determines the level, timing, and rate of water flow in certain portions of the Klamath River. See Cross-cl. [Dkt. No. 963] ¶ 27. The Bureau also controls releases from Upper Klamath Lake ("UKL"), a naturally-occurring lake in Klamath County, Oregon, via the government-owned Link River Dam, which is part of the Klamath Project. See id. at ¶¶ 1-2. The level, timing, and flow of this water impacts various stakeholders, who rely on it for food, jobs, culture, and habitat.

As a federal agency, the Bureau must comply with the ESA, meaning its operation of the Klamath Project cannot jeopardize the survival and recovery of listed species, adversely modify their critical habitat, or engage in actions that "take" them in excess. Suppl. Compl. at ¶ 2. This case focuses on the Klamath Project's impact on Southern Oregon/Northern California Coast Coho salmon ("coho") and the Klamath River Chinook salmon populations. See First Am. Compl. ("FAC") [Dkt No. 17] ¶ 1. Coho are listed as threatened under the ESA. 62 Fed. Reg. 24,588 (May 6, 1997). Though not listed under the ESA, Chinook salmon are prey for Southern Resident Killer Whales, which are listed as endangered. 70 Fed. Reg. 69,903 (Nov. 18, 2005) ; FAC at ¶ 1.

Additionally, the Bureau must operate the Klamath Project in a manner consistent with the federally reserved water rights of the Yurok and Hoopa Valley Tribes. See Cross-cl. at ¶¶ 82-86. At issue in this case is the Yurok Tribe's right to sufficient water to support its fishery, which include coho and Chinook salmon. See Suppl. Compl. at ¶¶ 120-21.

The Yurok Tribe filed suit in 2019, challenging the Bureau's 2019-2024 Klamath Project Operations Plan ("Plan") and a 2019 Biological Opinion ("BiOp") assessing the Plan's impacts on coho and Chinook salmon. Dkt. Nos. 1, 17. On March 27, 2020, the parties agreed to stay the litigation until September 30, 2022, provided that the Bureau operated the Klamath Project in accordance with an Interim Plan until the next Plan and BiOp were developed. Dkt. No. 907 at 4-5. I granted their request. Dkt. No. 908. Upon motions by the parties, I lifted the stay on September 30, 2021, for a limited purpose: to litigate a crossclaim (to be brought by the federal defendants) and a supplemental complaint (by the plaintiffs). See Dkt. No. 961.

The crossclaim and supplemental complaint were motivated by an April 6, 2021, order ("the Order") issued by the OWRD's Byler, which directed the Bureau to "immediately preclude or stop the distribution, use or release of stored water from the UKL, in excess of amounts that may be put to beneficial use under KA 1000 downstream of the Link River Dam."² See Mot. to Dismiss Suppl. Compl. ("Byler MTD") [Dkt. No. 991], DeFever Decl., Ex. A ("Order") at 10. The Order stated that the OWRD had "cause to believe that the Bureau will, at some near future date, release legally stored water through the Link River Dam to comply with the Bureau's federal tribal trust obligations and ESA obligations." See id. at 8. It also included this language:

Nothing in this order alters, relieves or releases any person, state, or federal agency from any and all rights, duties or obligations arising from other sources of law including without limitation other state laws or rules, federal laws and related federal agency regulations, federal or state court orders, or contracts.

Id. at 10.

On July 2, 2021, and again on July 28, 2021, the OWRD issued notices to the Bureau stating that legally stored water had passed through the Link River Dam in violation of the Order. See Cross-cl. at ¶ 9; see also Byler MTD, DeFever Decl., Exs. B, C.³ The July 2 notice warned that the Bureau had one day to correct the violation and if it had not done so by then, "the Bureau may be subject to further agency action or any other lawful remedy." See DeFever Decl., Ex. B. ("July 2, 2021 Violation") at 8.

The Bureau contends that it cannot comply with the ESA or its federal tribal trust obligations without releasing stored water in violation of the OWRD Order. See Cross-cl. at ¶¶ 6-7. After I lifted the stay, the United States filed its crossclaim, seeking declaratory relief, including that the Order and notices were invalid, contrary to the ESA, and preempted under the Supremacy Clause. See Cross-cl. at 40. It also sought a permanent injunction against enforcement of the OWRD Order that would "limit and/or prevent" the Bureau from operating the Klamath Project in compliance with federal law. See id. at 41. Alternatively, it sought declaratory relief that the Order was contrary to the federal reserved water rights to support the fisheries of the Yurok and Hoopa Valley Tribes, and preempted by the Supremacy Clause and the Indian Commerce Clause. See id.

The plaintiffs filed a supplemental complaint against Byler. They contend that he violated the Supremacy Clause by issuing the Order and notices of violation, and seeking similar declaratory and injunctive relief. Suppl. Compl. at 1, 41-43.

The OWRD and Byler filed their respective motions to dismiss on December 29, 2021. Dkt. Nos. 991, 992. I heard oral arguments on March 2, 2022.

LEGAL STANDARD

The Article III case or controversy requirement limits federal courts’ subject matter jurisdiction by demanding, among other things, that plaintiffs have standing to sue. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because standing pertains to subject matter jurisdiction, it is properly raised in a Rule 12(b)(1) motion to dismiss. See White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000).

To establish standing, a plaintiff must demonstrate that she "has suffered a concrete and particularized injury that is either actual or imminent" (an injury-in-fact), "that the injury is fairly traceable to the defendant" (causation), "and that it is likely that a...