Counties, farm groups back Klamath appeal
KLAMATH FALLS, Ore. (KTVZ) — Three counties and 10 major western water and agricultural organizations have filed friend-of-the-court briefs supporting a request by the Klamath Water Users Association for a larger panel of judges to review a recent federal court ruling involving water deliveries in the Klamath Project.
The filings were submitted Thursday in the U.S. Court of Appeals for the Ninth Circuit, backing a petition filed Aug. 3 by the Klamath Water Users Association, or KWUA. The organization is seeking an en banc rehearing, a process in which a larger group of appellate judges reviews a decision previously issued by a three-judge panel.
At the center of the dispute is how the Endangered Species Act applies to water deliveries from the federally operated Klamath Project, which provides irrigation water to farms in Southern Oregon and Northern California.
KWUA is challenging a June 17 decision issued by a divided three-judge panel. The association argues the ruling should be reconsidered because it conflicts with more recent Supreme Court and Ninth Circuit precedent regarding when federal agencies must consult under the Endangered Species Act.
According to KWUA, many irrigation contracts within the Klamath Project have been in place for more than a century. The group contends that once the Bureau of Reclamation entered into those contracts, its obligations became nondiscretionary unless specific contract language reserved the authority to alter water deliveries.
That distinction is significant because federal courts have generally held that Endangered Species Act consultation requirements apply only when a federal agency retains discretion to act on behalf of protected species.
KWUA's petition also argues the panel majority relied on an older court decision rather than applying more recent legal precedent. The filing points to a dissenting opinion from Judge Ryan Nelson, who said the court should have conducted a contract-by-contract analysis to determine whether the Bureau of Reclamation retained sufficient discretion to trigger consultation requirements under the ESA.
The case has attracted support from local governments with ties to the Klamath Basin.
In a brief prepared by the law firm Nossaman LLP, Klamath County in Oregon and Siskiyou and Modoc counties in California argued the panel's decision could significantly affect residents and local economies. The counties urged the court to conduct what they described as the proper legal analysis under Supreme Court and Ninth Circuit precedent while considering the local impacts of the decision.
"Our counties know too well the harsh impacts of the ESA on rural economies and communities," Siskiyou County Supervisor Michael Kobseff said in a statement. "That's one reason we act together to ensure that the ESA is at least applied fairly and consistently."
KWUA President Scott Seus, a farmer in the Tulelake area, praised the counties for their involvement.
"The farm and ranch community in Klamath, Siskiyou and Modoc counties notices that, and we're grateful for it," Seus said.
Support also came from a coalition of western water and agricultural organizations represented by the law firm Stoel Rives. The groups argued the case carries broad implications because millions of people throughout the West depend on Bureau of Reclamation water projects.
The coalition includes the Oregon Water Resources Congress, Association of California Water Agencies, Oregon Farm Bureau Federation, California Farm Bureau Federation, Family Farm Alliance, National Water Resources Association, Agribusiness and Water Council of Arizona, Idaho Water Users Association and Washington State Water Resources Association.
April Snell, executive director of the Oregon Water Resources Congress, said water users across the West are closely watching the outcome.
"Water users throughout the West understand that what happens in Klamath can affect us all," Snell said, adding that the organizations' support underscores the importance of reliable water supplies for irrigated agriculture.
KWUA Executive Director Elizabeth Nielsen said the filings demonstrate strong partnerships among organizations that advocate for irrigated agriculture across the region.
The Ninth Circuit will now determine whether to grant the request for rehearing. If accepted, the case would be reconsidered by a larger panel of judges, potentially providing additional guidance on how federal agencies should balance long-standing contractual obligations with Endangered Species Act consultation requirements.
The legal fight comes as the Bureau of Reclamation and federal fisheries agencies conduct a separate consultation process on future Klamath Project operations.
KWUA said it plans to continue advocating for what it describes as a strong legal and scientific foundation for reliable water deliveries while meeting federal environmental requirements.
The outcome could have consequences far beyond the Klamath Basin, shaping how the Endangered Species Act is applied to federal water projects and other federal actions across the western United States.
