Press release from the Yurok Tribe:
Federal Appeals Court Affirms Yurok Water Rights to Protect Fish
Decision affirms that Yurok and Klamath Basin tribal water rights preclude irrigation diversions that threaten the survival of fish listed under the Endangered Species Act.
Yesterday, the United States Court of Appeals for the Federal Circuit issued its opinion in the long-standing case Baley v. Unites States. The Court concluded that the Klamath Basin tribes – Yurok, Hoopa Valley, and the Klamath Tribes – had senior, federally reserved water rights that predate the water rights of Klamath Irrigation Project irrigators and that the tribes’ water rights require at least enough instream water to ensure the continued existence of tribal trust species listed under the Endangered Species Act (ESA).
In its decision, the Court stated that Yurok and other tribes’ water rights “entitles them, at a minimum, to prevent junior appropriators from withdrawing water from the Klamath River in amounts that would cause the endangerment and extinction of the SONCC Coho salmon.”
The Court also determined that Yurok has “an implied water right that includes the Klamath River and the flows therein as controlled by the Iron Gate Dam” to support fish habitat. This means two things: (1) that Yurok water rights require the Bureau of Reclamation to provide, at minimum, enough water to the Klamath River to support salmon habitat and ensure the persistence of Coho salmon and, (2) that Klamath Irrigation Project water withdrawals can only occur when there is enough water in the river to ensure the persistence of the fish.
“This decision is very important to define our rights in the basin vis-à-vis other interests,” stated Amy Cordalis, Yurok General Counsel. “By definitively affirming that our water rights ensure, at a minimum, the persistence of ESA listed species, rather than fighting irrigators or the federal agencies about the existence of our rights, we can move forward in determining what water the ailing fish populations need. This is a key step forward in reclaiming and restoring the Klamath River ecosystem.”
“This ruling affirms the duty of the United States to ensure that the fish in the river are taken care of first before other water uses. The river has far more at stake than just threatened and endangered species, and adequate water to support the entire river ecosystem is a necessary first step in restoring the Klamath River,” added Senior Water Policy Analyst, Michael Belchik.
The Baley case, initiated in fall 2001, Klamath Irrigation Project irrigators sued the United States after the Bureau of Reclamation temporarily stopped water deliveries to Project users that summer, in a drought year, to meet tribal trust obligations and Endangered Species Act instream flow requirements in the Klamath River. This case then followed a complicated procedural path before landing in the Court of Appeals for the Federal Circuit. The irrigators argued that Yurok did not have water rights to protect Coho or Chinook salmon, relying on several novel, and ultimately, losing legal arguments.
The Yurok Tribe is currently in other litigation over the amount of water necessary to ensure the salmon’s survival. In spring 2019, the Bureau of Reclamation issued a Klamath Irrigation Project operations plan and the National Marine Fisheries Service filed a biological opinion burdened with errors that authorizes insufficient instream flows that threaten the existence of salmon. Yurok and Pacific Coast Federation of Fisherman’s Associations are challenging the agencies’ 2019 decisions in federal court.
The Yurok Tribe thanks its partners in the Baley litigation, including the United States, the Klamath Tribes, the Hoopa Valley Tribe, and the Pacific Coast Federation of Fisherman’s Associations.
The full opinion can be accessed at: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1323.Opinion.11-14-2019.pdf