Yurok Tribe v. U.S. Bureau of Reclamation, 2023 WL 1785278 (N.D. Cal. Feb. 6, 2023)

Facts

This case concerns the rules and regulations surrounding the Klamath river water supply.1 The cause of action centers on an order issued by the Oregon Water Resources Department (OWRD) (hereinafter, the order).2 The Upper Klamath Lake (UKL) is home to two endangered fish, the shortnose sucker and the Lost River sucker, and allows water to flow downstream to a species of salmon that is the main food source for another endangered species, the Southern Resident killer whale.3 Since endangered species inhabit the UKL, the Endangered Species Act (the ESA) is triggered.

The Bureau of Reclamation (the Bureau) oversees the operations surrounding the Klamath Project (the project).4 Part of the Bureau’s job is “managing the water levels in UKL and distributing water from it.”5 As mentioned, there are endangered species living within the water source, hence, “the Bureau must ensure that any action that it takes is not likely to jeopardize the continued existence of. . .[the] listed species or destroy or adversely modify its habitat.”6 Therefore, in regard to the UKL, the “Bureau must. . .strike a balance between ensuring that sufficient water remains in the UKL for the sucker fish, while providing sufficient downstream flows in the Klamath River for the salmon (and by proxy, the [regional] killer whale [population]).”7 The genesis of the instant case was an OWRD order:

On April 23, 2020, OWRD issued an interim order prohibiting the Bureau from releasing stored water from UKL ‘except in accordance with the relative and respective state law rights calling upon the stored water unless and until’ it provided OWRD certain information about the timing and release of that water.8

As a result of the order, some parties to this case were concerned about whether the lack of water flow would violate the ESA by stopping the downstream water flow—which, in turn, affects the listed-killer whale’s food source.

Here, the plaintiffs are the Yurok Tribe, the Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources (collectively, plaintiffs). The defendants are the Bureau and the Klamath Water Users Association (KWUA) (collectively, defendants).9

Procedural History

Before the 2020 OWRD order, this case dealt with plaintiffs’ lawsuit against the Bureau and NMFS over a 2019 biological opinion written as part of a required consultation process.10 In March of 2020, the Bureau developed an interim plan that the parties agreed to; as a result, the parties “stipulated to stay the litigation until September 30, 2022, so long as the Bureau operated the project in accordance with the Interim Plan.”11 However, upon the issuance of the OWRD order, the parties requested the stay be lifted to allow the parties to challenge the order.12 The stay was lifted and the federal defendants—including the United States and the Klamath Tribes—commenced a crossclaim, and the plaintiffs filed a supplemental complaint.13

The United States and plaintiffs both moved for summary judgment; KWUA and OWRD then counterclaimed seeking summary judgment.14

Issue

Whether the order issued by the OWRD is preempted by the ESA.15

Rationale16

The court began its analysis with the reminder that the “Supremacy Clause grants Congress ‘the power to preempt state law.’”17 To allow a state law to preempt federal law there must be a clear indication that it was the intent of the statute or Congress to allow preemption.18 Therefore, the court’s analysis was split into two sections: (1) what Congress’s purpose was when enacting the ESA in regard to preemption; and (2) “whether the Bureau’s compliance with the ESA and OWRD order is physically impossible or whether the order stands as an obstacle to accomplish the Congress’s goals.”19

The KWUA asserted the argument that the Bureau’s job and duty is not subject to the ESA and, instead, the Bureau is only authorized to operate the project for reclamation purposes without “discretion to take action on behalf of endangered species.”20 The court, as outlined below, was unpersuaded by this argument and stated it lacked any sound support or backing.

First, the court examined the plain meaning of the ESA and what Congress’s intent had been when implementing the ESA. Examining past case law, the court included a quote from a Supreme Court case which stated, “[t]he plain intent of Congress in enacting. . .[the ESA] was to halt and reverse the trend towards species extinction, whatever the cost.”21 The court went on to add that the “text and structure of the ESA make clear that Congress’s purpose in enacting the ESA was to prioritize the preservation and recovery of endangered and threatened species.”22 Based on the caselaw and statutory interpretation, the court decided that it was Congress’s intent to preempt state law with the ESA.23

The Klamath Irrigation District (KID), an amicus curiae, presented an argument against federal preemption, reasoning that since there was not an “express preemptive provision in the ESA” the court should not imply preemption.24 Furthermore, the KWUA argued that summary judgment should not be granted in favor of the United States since the government had not demonstrated it was “‘physically impossible’ for the Bureau to comply with both the ESA and the OWRD order.”25 The court, again, was unpersuaded by these arguments.

Since the court determined that “the Bureau must comply with the ESA in operating the Klamath Project—including when it releases stored water from UKL,”26 it now had to determine whether the Bureau could comply with the ESA if it followed the order. In its analysis the court stated this portion was “easy to answer.”27 If the Bureau were to follow the order it would pose “an obstacle to the accomplishment and execution of Congress’s purpose and objective in enacting the ESA.”28 Stated simply, the court determined if the Bureau followed the order it would adversely impact the Southern Resident killer whale by impacting the whale’s food supply (the salmon).29 The court went on to determine if the Bureau followed the order it would violate the ESA; and if the Bureau released water in accordance with the ESA, it would violate the order.30 As the court has determined the Congress’s intention was for the ESA to be Supreme law, the ESA must preempt the order.31

Conclusion

The court granted summary judgment in favor of the United States and plaintiffs. The OWRD was enjoined from enforcement of the order.32

Taylor Bacon
Albany Law School, Class of 2023

Endnotes

1 Yurok Tribe v. U.S. Bureau of Reclamation, 2023 WL 1785278, at *1 (N.D. Cal. Feb. 6, 2023).

8 Id. at *6 (quoting Stip. Docs. At 708).