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April 3, 2001


The opinion of the court was delivered by: Armstrong, District Judge.


This matter comes before the Court on the following motions: (1) plaintiffs' motion for summary judgment [Docket No. 65-1]; (2) defendants' cross-motion for summary judgment [Docket No. 88-1]; (3) the Intervenor's motion for summary judgment [Docket No. 80-1]; (4) Intervenor's request for judicial notice [Docket No. 105-1]; and (5) intervenor's evidentiary objections and request to strike declarations of Tim McKay, Felice Pace and Glen Spain, and exhibits A and C to the second declaration of Jan E. Hasselman [Docket No. 103-1].

Having read and considered all the papers filed in connection with these motions, having considered the arguments advanced by the parties and being fully informed, the Court hereby (1) GRANTS plaintiffs' motion for summary judgment [Docket No. 65-1]; (2) GRANTS in part and DENIES in part defendants' cross-motion for summary judgment [Docket No. 88-1]; (3) GRANTS in part and DENIES in part Intervenor's motion for summary judgment [Docket No. 80-1]; (4) DENIES Intervenor's Request for Judicial Notice [Docket No. 105-1]; and (5) DENIES Intervenor's Request to Strike Declarations and Exhibits [Docket No. 103-1].


A. Factual History

1. Klamath Project

This is a water rights case involving The Klamath Project. "The Klamath Project, located within the Upper Klamath and Lost River Basins in Oregon and California, was authorized by Congress in 1905 pursuant to the Reclamation Act of 1902 (32 Stat. 388). In 1905, in accordance with state water law and the Reclamation Act, the United States appropriated all available water rights in the Klamath River and Lost River and their tributaries in Oregon and began constructing a series of water diversion projects." Klamath Water Users Assoc. v. Patterson, 15 F. Supp.2d 990, 991-92 (D.Or. 1998), aff'd, 204 F.3d 1206 (9th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000); Administrative Record (also referred to herein as "AR") 1:13:30.*fn1

Water for the Klamath Project is stored primarily in Upper Klamath Lake on the Klamath River. (AR 1:13:23; Wirkus Dec. ¶ 3) Upper Klamath Lake is located wholly in Oregon. (AR 1:1:1-2) It is a naturally occurring lake born out of a natural rock formation. (Wirkus Dec. ¶ 3) In 1917, Link River Dam was constructed near the mouth of Upper Klamath Lake to allow the lake to be drawn below its natural level, as well as to increase storage in the lake to supply water for irrigation and other purposes. (Id.)

The Link River Dam regulates flows in the lower Klamath River. (AR 1:13:32, 43) It is owned by the federal defendant, the U.S. Bureau of Reclamation, but operated and maintained pursuant to contract by a power company named PacifiCorp. (AR 1:13, 32, 43: Wirkus Dec. ¶ 4) PacifiCorp also owns and operates the canals that carry the water from Upper Klamath Lake to the Link River, and it operates several hydroelectric and/or re-regulating dams on the Klamath River pursuant to a license issued by the Federal Energy Regulatory Commission ("FERC") (previously the Federal Power Commission). (AR 1:13:43; Wirkus Dec. ¶ 4) The furthest downstream of these dams is the Iron Gate Dam in California, which PacifiCorp also owns. (AR 1:10:125-127; Wirkus Dec. ¶ 4)

The Klamath Project serves and affects a number of interests. Two fish which are listed as "endangered" under the Endangered Species Act (also referred to herein as "ESA"), 16 U.S.C. § 1531, et seq., 53 Fed.Reg. 27130 (July 18, 1988), the shortnose sucker and the Lost River sucker, live in Upper Klamath Lake and nearby Project waters and nowhere else. Upper Klamath and Clear Lake National Wildlife Refuges also benefit from lake elevations. The Klamath Project supplies irrigation water to agricultural lands. It also supplies water to Tule Lake and Lower Klamath National Wildlife Refuges for permanent and seasonal marshlands and irrigated crop lands. Below Iron Gate Dam, the Lower Klamath River is used by various species of fish, including the Southern Oregon/Northern California Coast ("SO/NCCC") Evolutionary Significant Unit ("ESU") of coho salmon, which was listed as "threatened" under the ESA in 1997, see, 62 Fed.Reg. 24, 588 (May 6, 1997). After the water leaves the Klamath Project area, it remains important to the Klamath River habitat in both Oregon and California. (AR 1:13:23-25, 1:15:282-283; Wirkus Dec. ¶ 5)

The Secretary of the Interior, through the Bureau of Reclamation, must manage and operate the Klamath Project pursuant to various legal responsibilities. Pursuant to the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 371, et seq., as amended and supplemented, for example, the Bureau of Reclamation has entered into contracts with various water districts and individual water users to supply water, subject to availability, for irrigation purposes. (AR 3:33:336-338, 342) Two national wildlife refuges, the Lower Klamath and Tule Lake National Wildlife Refuges, also are dependent on the operations of Klamath Project and have federal reserved water rights to the amount of water, unreserved at the time of creation of the refuges, necessary to fulfill the primary purpose of the refuges.*fn2 (AR 3:33:338-339) "In addition, the Secretary of the Interior has recognized that a number of Oregon tribes, including the Klamath, Yurok and Hoopa valley tribes (the "Tribes"), hold fishing and water treaty rights in the [Klamath] basin." Klamath Water Users Protective Assoc. v. Patterson, 204 F.3d 1206, 1209 (9th Cir. 1999), cert. denied, ___ U.S. ___, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000). (AR 3:33:339-342)*fn3 The Bureau of Reclamation has an obligation to protect Tribal trust resources, including the Klamath River coho salmon. (AR 9:293:4781-4782) It also has an obligation under the ESA not to engage in any action that is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of the critical habitat of such a species. (AR 3:33:9) See, 16 U.S.C. § 1536 (a)(1).

The Bureau of Reclamation must manage water resources carefully in order to meet its competing purposes and obligations. This need to strike a proper balance is particularly challenging because the Upper Klamath Lake is relatively shallow and, therefore, the Klamath Project's storage capacity is limited. Water levels in the Lake vary from year to year, depending to a significant extent upon the previous winter's snowfall and temperature, and on precipitation conditions during the spring and summer. (Wirkus Dec. ¶ 6)

In order to prepare Project operation plans, the Bureau of Reclamation relies on the Natural Resources Conservation Service ("NRCS") Streamflow Forecast for key areas in the Upper Klamath Basin. The NRCS forecast period runs from April 1 to the end of the current water year, September 30. NRCS issues its forecasts on a monthly basis, between January and June. The reliability of these forecasts increase with each month, as the forecast period becomes shorter. (Wirkus Dec. ¶ 22; AR 7153:3983) Weather changes during the year, however, (for example, due to unusually hot and dry conditions, or unusually rainy conditions) may significantly affect Upper Klamath Lake inflows as well. (AR 8:227:4384; AR 7:183:4180)

Pending completion of a long-term plan, in 1995, the Bureau of Reclamation began developing annual plans for operation of the Klamath Project. The purpose of these plans was to provide information concerning the criteria to be used in operating the Project during the year and to assist water users and resource managers in planning for the water year. (Wirkus Dec. ¶ 11; AR 2:30:1167; AR 3:41:1463; AR 4:52:1637; AR 4:56:1843; AR 4:61:2184) On April 26, 2000, the Bureau of Reclamation issued its operations plan for 2000. See, 9:292:4776. Since 1996, the Bureau of Reclamations also has been working to develop a multi-year operations plan. (AR 4:63:2350) To date, however, no such long-term plan has been completed.

2. The Southern Oregon/Northern California Coastal Coho Salmon

Plaintiffs' claims in this suit revolve around the needs of the SO/NCC coho salmon. As noted above, the National Marine Fisheries Service ("NMFS") has listed this species as "threatened" under the ESA. See, 62 Fed.Reg. 24, 588 (May 6, 1997). The Klamath River downstream of Iron Gate Dam has been designated as a "critical habitat" for the SO/NCC salmon, (AR 4:63:2382) See, 64 Fed.Reg. 24,049, 24,062 (May 5, 1999). The level of the instream flow in this region forms an important part of the species' habitat needs. See, AR 5:64:2380-2381; AR 9:273:4655-58. A decreased flow reduces the streamside edge habitat (which preferably should be inundated with multi-stream vegetation to avoid predation by birds and other fish and to provide relief from the velocity of free flowing water), which in turn allegedly results in increased mortality among the young of the species. (Pierce Dec. ¶¶ 30-34)

Since 1962, instream flows in this region have been substantially determined by the minimum flow regime specified at Iron Gate Dam under PacifiCorp's license from the Federal Energy Regulatory Commission ("FERC"). Although PacifiCorp is obligated to meet FERC minimum flows, they have operated the facility according to the Bureau of Reclamation Annual Operating Plans since 1996. (AR 5:64:2380)

3. Dr. Hardy's Phase I Report

In 1998, the Department of the Interior commissioned Dr. Thomas Hardy of Utah State University to provide a comprehensive review of the historical and existing status of the anadromous fish, including the coho salmon, within the lower Klamath River (i.e., below Iron Gate Dam). (AR 5:64:2377; Hardy Dec. ¶ 4) Dr. Hardy was asked to make recommendations in two steps. The first step ("Phase I") was intended to supply initial recommendations for use in developing annual operations plans, while the second step of the study ("Phase II") was underway. (Jacobs Dec. ¶ 2, Ex. 3, p.2)

Dr. Hardy released his final Phase I report on August 5, 1999. He relied in preparing it upon the collaborative efforts of a technical review team composed of representatives from the U.S. Fish and Wildlife Service, Bureau of Reclamation, Bureau of Indian Affairs, U.S. Geological Survey, the NMFS, the Yurok, Hoopa and Karuk Tribes, and California's Department of Fish and Game. (AR 5:64:2377; Hardy Dec. ¶ 4) Because necessary site-specific information for the Klamath River was not available at the time, Dr. Hardy conducted an extensive literature review of the historical and current status, as well as life history traits, of the Klamath River fishery.

4. The Klamath Project 1999 Operations Plan

Federal statute and regulations require that the Bureau of Reclamations prepare a biological assessment if it learns from the Secretary of the Interior that a threatened or endangered species may be present in the area where it proposes to take action. 16 U.S.C. § 1536 (c)(1); 50 C.F.R. § 402.14 (a), 402.01(b). The purpose of the biological assessment is to determine whether the species "is likely to be affected" by the proposed action. 16 U.S.C. § 1536 (c)(1); 50 C.F.R. § 402.12. With respect to the SO/NCC coho salmon, the Secretary has delegated her authority to the NMFS. 50 C.F.R. § 402.01 (b). If the Bureau determines that a protected species may be affected by its proposed action, it must send the NMFS a written request for formal consultation, and the NMFS must prepare a biological opinion stating whether, in its opinion, the proposed action is likely to jeopardize the protected species. 16 U.S.C. § 1536 (a)(2) & (b); 50 C.F.R. § 402.14 (a), (c), (h)(3). See, additional discussion concerning this regulatory framework, infra at Section II, A, 2, b.

The Bureau of Reclamations requested formal consultation with the NMFS concerning its Klamath Project 1999 Operations Plan.*fn4 (AR 7:156:4040) As a result of this consultation, on July 12, 1999, NMFS issued a biological opinion. The biological opinion concluded that the 1999 Annual Operations Plan would adversely affect coho salmon populations in the Klamath River, but that it was not likely to jeopardize the continued existence of this species or its critical habitat. (AR 4:63:2347) The NMFS concluded, however, that more information was necessary in order to fully understand the relationship between Iron Gate Dam releases and available coho salmon habitat and water quality in the Klamath River, particularly during the summer months, and it noted that the Bureau had committed to obtain additional information and analyses to assist in developing future operations plans. The NMFS' biological opinion deemed the completion of a long-term plan to guide project operations to be "very important". (Id.)

The Bureau's 1999 Operations Plan covered the period from April 1999 to March 2000, and the NMFS' biological opinion, therefore, covered the anticipated effects of this plan during this period only. (AR 4:63:2345, 2363; AR 7:156:4040) The NMFS expressly noted that, while it concluded the 1999 Operations Plan was not likely to "appreciably diminish the value of [the coho salmon's] designated critical habitat for both the survival and recovery of the species", the same could not be said of operations after March, 2000, and it emphasized the importance of the Bureau of Reclamation's "timely development and implementation of a multi-year operations plan that consider[ed] various water types (e.g., wet, dry) and maintenance of adequate aquatic habitat through multi-year time scales." (AR 4:63:2363)

5. The Klamath Project 2000 Operations Plan

The Bureau of Reclamation had hoped to have the benefit of Dr. Hardy's Phase II report in preparing its operations plan for the Klamath Project's 2000 water year. The Phase II report was expected to quantify, for the first time, flow and habitat relationships, and the appropriate river flow needed to maintain and protect the ecological function of the Klamath River below Iron Gate Dam. (Dugan Dec. ¶ 5; Hardy Dec. ¶¶ 4-7; AR 7:133:3779) Completion of the report was delayed, however, and, consequently, the Bureau was compelled to prepare its annual plan without this report. (AR 7: 133:3779)

a. The YOY Concept & Proposal

In early-March, 2000, the Bureau received indications that the 2000 water year would be dryer than 1999 and, thus, that water availability would be less and irrigation demand would be higher than 1999. (Pierce Dec. ¶ 16; AR 9:293:4781) In lieu of the minimum flows recommended in the Phase I report, the Bureau subsequently outlined a draft instream flow proposal based upon the "young of the year" ("YOY") concept. (AR 7:133:3778-3781) The YOY proposal included the following flow recommendations: April 1-May 15, 2000: 2500 cfs; May 16-30, 2000: 1800 cfs; June 1-15, 2000: 1300 cfs; June 16-August, 2000: 1000 cfs; September, 2000-February, 2001: 1300 cfs; and March, 2001: 2500 cfs. (AR 7:133:3773-3782) These flow recommendations were markedly lower than those proposed in the Phase I report. (Hasselman Dec. Ex. 7, p. 5)

The Bureau presented the YOY concept, and the related flow proposals, at a series of technical review team meetings held during mid-March, 2000. The purpose of these presentations allegedly was to gather additional information regarding the interplay between water temperatures and habitat conditions, and the ramifications of this interplay for fish survival. The Bureau allegedly hoped to generate discussions concerning the underlying assumptions and limits of the analysis in the Phase I report concerning water quality. (Dugan Dec. ¶¶ 24-25) In the Phase I report, for example, Dr. Hardy acknowledged that the hydrological-based analyses contained therein implicitly assumed other factors such as water temperature were not limiting, an assumption that he specifically noted was "not true for the main stem of the Klamath River below Iron Gate Dam where deleterious water temperatures and low dissolved oxygen [had] been associated with fish kills during the late summer low flow period". (AR 5:64:2423) The Bureau of Reclamation allegedly sought to explore, therefore, whether higher flows actually could increase the survival rate of young salmonids during the summer when water quality was limiting. (Dugan Dec. ¶¶ 25-26)

The YOY concept, and the related flow proposals, were met with concern and criticism by the members of the technical review team. (Pierce Dec. ¶ 17) In a letter following these meetings, the Yurok Tribe, for one, argued that Dr. Hardy's Phase I report was the best available science, that it had been based upon extensive input from all technical team members, including Bureau of Reclamation staff, and was created specifically to address the situation then confronting the Bureau, namely, the need to present instream flow recommendations without completed site-specific studies. The Yurok Tribe argued that the Bureau should implement the minimum flow recommendations contained in the Phase I report, and not those based on the YOY concept presented at the recent technical review team meetings. (Pierce Dec. Ex. D)

California's Department of Fish and Game concurred in this recommendation, noting that "a major goal" of the Phase I report had been "to eliminate uncertainty regarding aquatic resource flow needs and, thus, avoid last minute negotiations each year over water allocation decisions". (Hasselman Dec. Ex. 7, p. 3) Like the Yurok Tribe, the Department of Fish and Game deemed the flow recommendations contained in the Phase I report to be "the best presently available science for determining the flow needs of Klamath River anadromous salmonids including coho salmon", and it urged the Bureau of Reclamation to adopt them. (Id.) The Department argued that the YOY coho concept, in contrast, would "not provide sufficient flows to adequately sustain and protect juvenile coho and other anadromous fish species in the Klamath River." (Id., p. 6)

b. The April 4, 2000 Proposal

Following this negative response to the YOY concept, and the related flow proposals, on April 4, 2000, the Bureau of Reclamation released a "Klamath Project: Draft 2000 Annual Operations Plan, Decision Memorandum". This memorandum proposed the following new set of instream flow recommendations for the Klamath River: April 1-15, 2000: 1550 cfs; April 16-30, 2000: 1400 cfs; May 1-15, 2000: 1200 cfs; May 16-September 30, 2000: 1000 cfs; October 1, 2000-March 31, 2001: 1300 cfs. (AF 7:167:4087-4091) These flow recommendations met only 41.5 percent of the Phase I report recommendations and 61.6 percent of the YOY coho concept proposed flows. The flows proposed for the month of September, 2000 also were significantly below the FERC minimum of 1300 cfs. The April 4, 2000 proposal for flow levels would have resulted in almost no reduction in water deliveries to agriculture (0 to 3 percent), however, compared with the 16 to 28 percent reduction for agricultural deliveries inherent in the earlier YOY concept flow proposal. (Hasselman Dec. Ex. 8, pages 1-3)

Members of the technical review team were provided no more than a day to respond to the April 4, 2000 set of flow recommendations. Nevertheless, they managed to assemble and submit written responses. In these responses, the team members objected strenuously to the proposed flow levels, arguing that (if implemented) they would have a significant negative impact on anadromous fish species. They again urged the Bureau to apply the recommended flows presented in the Phase I report because it contained "the best available science". (Pierce Dec. ¶¶ 18-19, Ex. E; AR 7:165:4080-4081; Hasselman Dec. Ex. 8; AR 8:200:4257-4260; AR 7:170:4110-4115)

c. The April 12, 2000 Proposal

That same week, the Bureau of Reclamation turned to Dr. Hardy for assistance, asking that he reassess recommended flows below Iron Gate Dam for the period from April to September, 2000 using site specific data and analyses available as a result of the work then underway on his Phase II report. (Hardy Dec. ¶¶ 8-9; Pierce Dec. ¶ 20; AR 8:199:4253; AR 9:265:4593) On April 12, 2000, Dr. Hardy responded by releasing the following set of preliminary draft recommendations, with the caveat that he would review the technical approach, results, and preliminary draft recommendations with the Technical Team before finalization: April 1-15, 2000: 2200 cfs; April 16-May 15, 2000: 1800 cfs; May 16-June 15, 2000: ...

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