KLAMATH FALLS, Ore. — A federal judge has determined the U.S. Bureau of Reclamation erred when it delivered water for Klamath Project irrigators in 2022 at the expense of critically endangered sucker fish in Upper Klamath Lake.

The Klamath Tribes sued the agency for violating the Endangered Species Act by allocating 62,000 acre-feet of water from the lake for agriculture, despite knowing there would not be enough water in the system to meet minimum protections for shortnose and Lost River suckers due to drought.

Magistrate Judge Mark Clarke issued his ruling on Sept. 11 in favor of the tribes.

“Courts have repeatedly determined that irrigators’ rights are subservient to Reclamation’s obligations under the ESA and the tribes’ fishing and water rights,” Clarke wrote in his findings and recommendation.

Shortnose and Lost River suckers — also known as Koptu and C’waam, respectively — are culturally revered by the tribes and were used historically for food and ceremonial purposes. Both species were listed as endangered in 1988.

According to the tribes, only about 30,000 C’waam and 4,000 Koptu are left surviving in the Klamath Basin. Adult fish are nearing the end of their lifespan, and virtually no juveniles have managed to live long enough to spawn since 2001.

Under a biological opinion with the U.S. Fish and Wildlife Service, Reclamation must maintain certain water elevations in Upper Klamath Lake allowing the suckers to access shoreline habitat during the spring and fall.

A second biological opinion with the National Marine Fisheries Service also requires Reclamation provide enough water down the Klamath River for threatened coho salmon.

Three consecutive years of drought posed a challenge for the agency, trying to comply with the ESA while still diverting water to farms and ranches in the Klamath Project. The project comprises 230,000 acres of irrigated farmland in Southern Oregon and Northern California.

Reclamation shut down the project entirely in 2021, leaving agriculture dry or forced to pump limited groundwater. In 2022, Reclamation provided a limited water allocation of 62,000 acre-feet, about 14% of full demand.

The bureau rationalized that, even if it shut down the project for a second consecutive year, it still could not meet the minimum water elevations required by the ESA in Upper Klamath Lake and instead relied on “adaptive management” to minimize impacts for farms and fish.

That, according to Clarke, was a mistake.

“Reclamation’s ESA obligations required it to take all steps necessary to avoid jeopardizing the suckers, even if that meant allocating no water to project irrigators for a second consecutive year,” the judge wrote.

The court also found Reclamation violated the National Environmental Policy Act by not considering the cumulative impacts of decreased water elevations for suckers in Upper Klamath Lake during three straight drought years.

Clayton Dumont, chairman of the Klamath Tribes, said he hopes the decision will spur action by the federal government to “restore the form and function of our complex ecosystem.”

“There is no sustainable way forward that does not involve healing the water, land and forests that all of our communities depend on,” Dumont said.

Second case

Clarke also ruled in a separate but similar case filed by the Klamath Tribes related to Reclamation’s water management in 2021.

That year saw zero water delivered to irrigators, though water from Upper Klamath Lake was still sent down the Klamath River for salmon. The tribes argued that Reclamation illegally prioritized the needs of salmon in the Klamath River over suckers.

Clarke rejected that claim in his findings and recommendation.

“The coho salmon in the Klamath River and the C’waam and Koptu in Upper Klamath Lake are all listed species under the ESA, meaning that Reclamation has equal obligations to each one of these species,” he wrote.

The Klamath Water Users Association, which represents farmers in the Klamath Project, intervened in both cases on behalf of Reclamation.

Brittany Johnson, an attorney representing the KWUA, said the bureau took the same adaptive management approach in both years, yet Clarke only found they broke the law in 2022 when they delivered water to the project.

“The reasoning seems to be that the project must receive zero water in drought years to comply with the ESA,” Johnson said. “This is not what the biological opinion required.”

Johnson said the law allows agencies to “confer on operations to maximize a limited water supply,” which is what happened in 2022. She indicated the KWUA will appeal Clarke’s findings and recommendations in the 2022 case.

Dumont, with the Klamath Tribes, said C’waam and Koptu remain on the verge of extinction.

“The Tribes will continue to do everything in our power to ensure that such a cataclysm does not occur,” he said.

Klamath Tribes sue federal government over water releases to farmers