Endangered Species Law & Policy

On February 6, the U.S. District Court for the Northern District of California sided with the Bureau of Reclamation (Reclamation) and plaintiffs Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, and the Yurok Tribe, in holding that an order governing Reclamation’s operation of Upper Klamath Lake (UKL) from the Oregon Water Resources Department (OWRD) is preempted by the Endangered Species Act (ESA). The order, issued in the midst of a recent drought to meet the needs of irrigators, mandated Reclamation 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 Reclamation’s and other users’ rights to divert natural flow from Upper Klamath Lake. Reclamation has consulted with the U.S. Fish and Wildlife Service and National Marine Fisheries Service for decades over its operation of UKL to ensure it complies with the ESA. Reclamation is tasked with striking the right balance between maintaining a sufficient level of water in the UKL for the endangered shortnose sucker (Chasmistes brevirostris) and Lost River sucker (Deltistes luxatus) on the one hand, and ensuring sufficient downstream flows into the Klamath River to support the Southern Oregon/Northern California Coast coho salmon (Oncorhynchus kisutch) on the other.

Because compliance with the OWRD order would pose a threat to the listed species at issue, the district court concluded that it would be physically impossible for Reclamation to protect the species in accordance with the ESA. In holding that the ESA preempts the OWRD order, the court looked to both the language of the statute and the Supreme Court’s analysis of its purpose. The court noted 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” and emphasized the Supreme Court’s determination that Congress’s intent in enacting the statute was “to halt and reverse the trend toward species extinction, whatever the cost.”