Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 1 of 30
`
`
`
`JEAN E. WILLIAMS and PRERAK SHAH,
`Deputy Assistant Attorneys General
`U.S. Department of Justice
`Environment & Natural Resources Division
`
`ROBERT P. WILLIAMS, Senior Trial Attorney
`Wildlife & Marine Resources Section
`Ben Franklin Station, P.O. Box 7611
`Washington, D.C. 20044-7611
`Telephone: 202-307-6623; Fax: 202-305-0275
`Email: robert.p.williams@usdoj.gov
`
`THOMAS K. SNODGRASS, Senior Attorney
`Natural Resources Section
`999 18th Street, South Terrace, Suite 370
`Denver, CO 80202
`Telephone: 303-844-7233; Fax: 303-844-1350
`Email: thomas.snodgrass@usdoj.gov
`
`Attorneys for Federal Defendants
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`YUROK TRIBE, PACIFIC COAST
`FEDERATION OF FISHERMEN’S
`ASSOCIATIONS, and INSTITUTE FOR
`FISHERIES RESOURCES,
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`U.S. BUREAU OF RECLAMATION and
`NATIONAL MARINE FISHERIES
`SERVICE,
`
`
`
`
`
`
`
`
`
`
`
`
`Defendants,
`
`
`
`
`
`
`
`
`and
`
`
`
`
`
`
`
`
`
`
`
`KLAMATH WATER USERS
`
`ASSOCIATION,
`
`
`
`
`
`
`
`
`
`Intervenor-Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 3:19-cv-04405-WHO
`
`
`
`
`
`
`
`FEDERAL DEFENDANTS’
`OPPOSITION TO PLAINTIFFS’
`MOTION TO LIFT THE STAY OF
`LITIGATION AND TO ENTER A
`TEMPORARY RESTRAINING
`ORDER (ECF 909)
`
`
`
`
`
`Hearing Date: May 22, 2020
`Hearing Time: 10:00 AM
`Judge William H. Orrick
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 1
`
`3:19-cv-04405-WHO
`
`

`

`
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 2 of 30
`
`TABLE OF CONTENTS
`
`Introduction .......................................................................................................................................... 1
`
`Statutory Background: the Endangered Species Act ....................................................................... 4
`
`Factual Background: Klamath Project, Endangered Suckers, Threatened Salmon .................... 5
`
`Standards for Emergency Preliminary Injunctive Relief ................................................................ 5
`
`Standard of Review on the Merits of Plaintiffs’ Claims ................................................................. 5
`
`Argument ............................................................................................................................................... 5
`
`A.
`
`B.
`
`The Negotiated Stay of Litigation Should Not Be Lifted Because the Bureau
`Continues to Operate the Project In Accordance With the Interim Plan ..................... 5
`
`If the Stay of Litigation is Lifted, Plaintiffs Have Failed to Carry their Burden
`of Demonstrating Entitlement to a Temporary Restraining Order .............................. 11
`
`1.
`
`Plaintiffs Have Failed to Establish a Likelihood of Success on the
`Merits ........................................................................................................................ 11
`
`(a)
`
`(b)
`
`Plaintiffs Have No Claim Based on the Interim Plan .......................... 11
`
`Plaintiffs’ Challenges to NMFS’ 2019 BiOp Lack Merit ..................... 12
`
`(i)
`
`NMFS’ Critical Habitat Finding Was Based on the Best
`Available Science and Cannot Be Assailed With Post-
`Decisional Information (ESA Count III)………………….12
`
`(ii)
`
`NMFS’ Critical Habitat Conclusion Was Rational ................. 13
`
`(iii) NMFS’ “No Jeopardy” Conclusion Was Rational (ESA
`Counts I & II ................................................................................ 15
`
`(c)
`
`The Bureau Is Not “In Violation” of the ESA ..................................... 18
`
`2.
`
`Plaintiffs Have Not Shown that their Requested Flows Are Necessary
`to Avoid Irreparable Harm to the SONCC Coho Salmon, and
`Granting those Flows Would Harm Endangered Suckers ............................... 19
`
`3.
`
`Plaintiffs’ Flow Rates Are Not in the Public Interest ........................................ 23
`
`C.
`
`If the Stay of Litigation is Lifted, Plaintiffs’ Request to “Reinstate” their Preliminary
`Injunction Motion Should Be Denied ............................................................................... 25
`
`VII. Conclusion ........................................................................................................................................... 25
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - i
`
`3:19-cv-04405-WHO
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 3 of 30
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`Bennett v. Spear,
`520 U.S. 154 (1997) .............................................................................................................................. 18, 19
`City of Tacoma v. FERC,
`460 F.3d 53 (D.C. Cir. 2006) ..................................................................................................................... 18
`Ctr. for Biol. Diversity v. FWS,
`807 F.3d 1031 (9th Cir. 2015) .................................................................................................................... 17
`Ctr. for Biol. Diversity v. U.S. Bureau of Recl.
`No. 6:15-CV-02358-JR, 2016 WL 9226390 (D. Or. Apr. 6, 2016) ............................................... 23, 25
`Hartford Cas. Ins. Co. v. Fireman's Fund Ins. Co.,
`No. 15-CV-02592-SI, 2015 WL 5168643 (N.D. Cal. Sept. 3, 2015) ...................................................... 9
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) ............................................................................................................. 14, 15, 16, 17, 18
`Nat’l Wildlife Fed’n v. National Marine Fisheries Service,
`524 F.3d 917 (9th Cir. 2008) ................................................................................................................ 17, 18
`Pac. Coast Fed’n. of Fishermen’s Ass’ns. v. U.S. Bureau of Recl.,
` 426 F.3d 1082 (9th Cir. 2005) ............................................................................................................. 14, 15
`Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy,
`898 F.2d 1410 (9th Cir. 1990) ..................................................................................................................... 18
`Rock Creek Alliance v. FWS,
`663 F.3d 439 (9th Cir. 2011) ...................................................................................................................... 17
`Salmon Spawning & Recovery Alliance v. Nat’l Marine Fisheries Serv.,
`342 F. App’x 336 (9th Cir. 2009) ................................................................................................................ 18
`San Luis & Delta-Mendota Water Auth. v. Locke,
`776 F.3d 971 (9th Cir. 2014) ............................................................................................................... 12, 14
`San Luis & Delta-Mendota Water Authority v. Jewell
`747 F.3d. 581 (9th Cir. 2014) ...................................................................................................................... 16
`Sw. Ctr. for Biol. Diversity,
`143 F.3d 515 (9th Cir. 1998) ....................................................................................................................... 19
`The Lands Council v. McNair,
`537 F.3d 981 (9th Cir. 2008) ....................................................................................................................... 17
`Winter v. Nat. Res. Def. Council,
`555 U.S. 7 (2008) ............................................................................................................... 5, 6, 7, 14, 20, 21
`Yurok Tribe v. U.S. Bureau of Recl.,
`
` 231 F. Supp. 3d 450 (N.D. Cal. 2017) .............................................................................................. 20, 22
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - ii
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 4 of 30
`
`
`
`Statutes
`16 U.S.C. § 1532(3) ................................................................................................................................... 13, 21
`16 U.S.C. § 1536(a)(2) ...................................................................................................................................... 12
`16 U.S.C. § 1540(g)(2)(A) ......................................................................................................................... 11, 19
`Cal. Civ.Code § 3399 ......................................................................................................................................... 9
`
`Regulations
`50 C.F.R. § 402.02 ........................................................................................................................ 13, 17, 18, 21
`50 C.F.R. § 402.16(a)(2) .................................................................................................................................. 12
`50 C.F.R. 402.16 ............................................................................................................................................... 22
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - iii
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 5 of 30
`
`
`
`I.
`
`Introduction
`As the Court is aware, this litigation is currently stayed pursuant to the unanimous
`stipulation of the parties, which was approved by this Court on March 27, 2020. ECF 907 & 908.
`The stipulation was the end result of intensive negotiations in which all parties to the litigation
`actively participated over the course of many weeks, and during which the parties discussed in detail
`the U.S. Bureau of Reclamation’s (“Bureau”) proposed plan for interim operation of the Klamath
`Project (the “Interim Plan”) while it completes reinitiated consultation pursuant to the Endangered
`Species Act (“ESA”) on a longer-term plan that protects endangered suckers in Upper Klamath
`Lake (“UKL”) and threatened Southern Oregon/Northern California Coast coho salmon (“SONCC
`coho”) in the Klamath River, listed species with countervailing water needs, among other listed
`species. Methods of maintaining elevations of UKL to protect suckers and Klamath River flows to
`protect SONCC coho in light of various potential hydrology scenarios were discussed. In the end,
`all parties agreed that the litigation should remain stayed in full until September 30, 2022, so long as
`the Bureau did not deviate from implementation of the Interim Plan, the details of which were fully,
`and well, known to all parties. ECF 907 at 5, ¶ 3.1
`A key benchmark of the Interim Plan was holding an elevation of 4,142.00 feet in UKL in
`April and May for suckers, and the Plan intended that there would be no augmentation of Klamath
`River flows if implementation of such flows would thwart this elevation. The Interim Plan provides
`that the Bureau would coordinate with the Services, Yurok Tribe, and other affected Klamath River
`Tribes on how to manage water to best meet the needs of listed species if augmentation was
`triggered by the April 1 forecast but delivery of those flows would cause UKL to fall below 4,142.00
`feet in elevation. The Plan provides that the Bureau would adaptively manage the situation in
`coordination with the relevant stakeholders to best protect suckers and coho salmon while it
`continues to operate the Project. As it turned out, due to a late storm event, the Natural Resources
`Conservation Service’s (“NRCS”) April 1, 2020 forecast for inflows to UKL – the standard metric
`used for operational decisions – eked in near the bottom end of the range of inflows that would
`trigger a 40 thousand acre feet (“TAF”) augmentation of river flows under the Interim Plan.
`
`1 Citations to ECF filings are to the ECF pagination, not the internal pagination on the filings.
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 1
`
`3:19-cv-04405-WHO
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 6 of 30
`
`
`
`Regrettably, the forecast proved to be grossly inaccurate, predicting there would be approximately an
`additional 109 TAF of water that did not materialize. Had the April 1, 2020 forecast been accurate,
`the Interim Plan would not have called for any augmentation of Klamath River flows, as flows are
`expected to be lower in drought years like this one. Water year 2020 is shaping up to be among the
`most severe droughts ever experienced in the Klamath Basin in the entire period of record. Due to
`the severe drought conditions, UKL fell below the Interim Plan’s 4,142.00 foot benchmark elevation
`on April 19, 2020, after having achieved that elevation earlier in the month. Deliveries to irrigation
`were minimal at the time. The Bureau’s subsequent implementation of a surface flushing flow for
`the protection of the SONCC coho in late April and early May – which released a total of 43,125 AF
`from UKL – resulted in a drop in UKL elevations of approximately 0.50 feet.
`As soon as the Bureau discovered that the April 1 forecast was grossly inaccurate, it initiated
`discussions with the stakeholders regarding its plan for adaptively managing the situation, precisely
`as called for in the Interim Plan. Meanwhile, the Bureau continued to provide augmented releases
`into the Klamath River consistent with the Interim Plan. As of May 14, 2020, some 7 TAF of
`releases to the river had been made. The Bureau discussed several adaptive management approaches
`with Plaintiffs to get through this exceptionally dire water year, all of which were rejected. Rather
`than continue to work through the issues collaboratively towards a compromise agreement,
`Plaintiffs abruptly left the negotiating table and ran to Court in the hopes of using the wildly
`inaccurate forecast to force their preferred operation for this water year. Despite the fact that the
`Bureau has: (1) set aside an environmental water account (“EWA”) under the 2018 Operations Plan
`(“2018 Plan”) of 400 TAF for SONCC coho protection (plus 7 TAF for the Yurok’s ceremonial
`Boat Dance); (2) implemented, in good faith, a surface flushing flow from the EWA consuming
`approximately 43 TAF for the protection of SONCC coho, even though it caused a 0.5 foot drop in
`UKL elevations; (3) continues to release EWA flows from UKL at a rate of 1,175 cubic feet per
`second (“cfs”) pursuant to the 2018 Plan; and (4) provided an additional 7 TAF of augmentation
`flows this May, Plaintiffs have come to this Court on a reported emergency basis to request no more
`than an additional 16 TAF for additional ESA river augmentation flows, in this water year only.
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 2
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 7 of 30
`
`
`
`Given that: (1) no augmented releases at all would have been required by an accurate April 1
`forecast; (2) 7 TAF in augmented releases at Iron Gate Dam had been consumed as of May 14; (3)
`discussions with Plaintiffs regarding how to adaptively manage the situation were not progressing
`and litigation was threatened; and (4) augmented flows would continue to consume an additional 5.5
`TAF per week as discussions continued, the Bureau elected to ramp down the augmented flows
`while it continues to determine how to best adaptively manage the situation going forward. This will
`likely involve substantial reductions in the neighborhood of 60 TAF from the initial allocation for
`irrigation deliveries, which was already exceptionally low at 140 TAF. At bottom, there is far less
`water than anticipated for all stakeholders, and the Bureau is in the position of trying to account for
`and manage these competing interests consistent with the requirements of the ESA.
`For present purposes, the threshold question before this Court is whether the Bureau has
`deviated from the Interim Plan in such a way that would justify lifting the stay of the litigation that
`the parties agreed to only weeks ago. Although this remains a continually evolving situation, to date,
`the Bureau has not, as the Bureau’s adaptive management in response to emergency drought
`conditions is allowed by the Plan, and therefore the stay of litigation should remain in place.
`Because the litigation should remain stayed pursuant to the prior agreement of the parties, the Court
`need not reach Plaintiffs’ requests to “reinstate” their motion for preliminary injunction (“PI”) and
`enter a temporary restraining order (“TRO”) altering ongoing releases from UKL. ECF 909. The
`Bureau stands ready to continue to coordinate with the Yurok Tribe and other affected stakeholders
`towards a reasonable compromise approach to adaptively manage the Project through this
`challenging water year. The public interest favors orderly collaboration among Klamath Basin
`stakeholders, not repeated motions for TROs and PIs.
`Nonetheless, if the Court were to lift the stay of litigation, it should deny Plaintiffs’ request
`to enter a TRO. Granting Plaintiffs’ TRO motion would harm endangered suckers by causing a
`further drop in UKL elevations. The Court should not grant a TRO in an attempt to protect one
`listed species at the expense of two others. In fact, Plaintiffs have not carried their heavy burden on
`any one of the requisite factors that are necessary to obtain this extraordinary relief. Plaintiffs are
`not likely to prevail on the merits of their challenges to the National Marine Fisheries Service’s
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 3
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 8 of 30
`
`
`
`(“NMFS”) biological opinion (“BiOp”), which concluded that the Bureau’s 2018 Plan is not likely to
`jeopardize the continued existence of the SONCC coho or destroy or adversely modify its critical
`habitat. Plaintiffs also do not show that NMFS’ BiOp is so severely deficient that, even if the
`Bureau operates the Project precisely in the manner that NMFS concluded would not jeopardize or
`destroy or adversely modify critical habitat, it is nonetheless likely to cause immediate and
`irreparable harm to the SONCC coho unless the flow rates that Plaintiffs request are reinstated. If
`the Court reaches Plaintiffs’ motion for TRO, it should deny it.
`The Court also should deny Plaintiffs’ request to “reinstate” their PI motion because
`Plaintiffs seek to raise issues outside the scope of their prior motion and the motion is likely to be
`mooted by the Court’s resolution of the TRO motion in any event. Though Plaintiffs ask the Court
`to “reinstate” their prior PI motion, as modified, their latest filing actually describes a new motion
`for a PI that would seek to compel an additional 23 TAF for ESA flows (in reality, 16 TAF after
`subtracting the 7 TAF that already have been provided), plus an additional 7 TAF for the Yurok
`Tribe’s ceremonial Boat Dance in August 2020. But there is no mention of the Boat Dance in either
`Plaintiffs’ complaint or either of their previous PI motions. Plaintiffs’ previous motions were based
`solely on a subset of their ESA claims. The Boat Dance flows are for ceremonial, not biological
`purposes. Thus, Plaintiffs are requesting to “reinstate” a new PI motion that has not, in fact, been
`put before this Court and could not properly be put before this Court without the filing of an
`amended complaint or determination and quantification of federal reserved water rights. Plaintiffs’
`request to “reinstate” their PI motion should be denied as to the Boat Dance flows with leave to
`amend their complaint and file a new PI motion. As a practical matter, if Plaintiffs’ TRO motion is
`denied, then any motion for PI on their ESA claims should be denied as well, as the motions are
`essentially identical. If the TRO is granted, it would likely moot a PI motion on Plaintiffs’ ESA
`claims, as the order would likely cause the 16 TAF that is in dispute to be expended in
`approximately 20 days, leaving the Boat Dance flows as the only potential dispute.
`
`II.
`
`Statutory Background: the Endangered Species Act
`The statutory background discussion in Federal Defendants’ opposition to Plaintiffs’ original
`PI motion (ECF 46 at 10-12) is incorporated by reference.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 4
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 9 of 30
`
`
`
`III.
`
`Factual Background: Klamath Project, Endangered Suckers, Threatened Salmon
`The factual background section in Federal Defendants’ opposition to Plaintiffs’ original PI
`motion (ECF 46 at 12-15) is incorporated by reference.
`
`IV.
`
`Standards for Emergency Preliminary Injunctive Relief
`
`The Court is undoubtedly familiar with the standards for emergency injunctive relief. A
`recitation of those standards has been provided in Federal Defendants’ opposition to Plaintiffs’
`original PI motion (ECF 46 at 15-16) and is incorporated by reference. Federal Defendants stress that
`a TRO may not be issued “based only on a possibility of irreparable harm.” Winter v. Nat. Res. Def.
`Council, 555 U.S. 7, 22, 24 (2008). Rather, it is the plaintiff’s burden to show that such relief is likely
`unless the requested relief is granted.
`
`V.
`
`Standard of Review on the Merits of Plaintiffs’ Claims
`A recitation of the pertinent standard of review for Plaintiffs’ likelihood of succeeding on
`the merits of their claims has been provided in Federal Defendants’ opposition to Plaintiffs’ original
`PI motion (ECF 46 at 16-18) and is incorporated by reference. Of note, in accordance with the
`appropriate standard of review and the ESA’s “best available science” standard, Federal Defendants
`have moved to exclude Plaintiffs’ extra-record materials. ECF 50.
`
`VI.
`
`Argument
`
`A.
`
`The Negotiated Stay of Litigation Should Not Be Lifted Because the Bureau
`Continues to Operate the Project In Accordance With the Interim Plan
`Plaintiffs assert that the stay may be lifted because the Bureau has “reduced the 40,000 acre-
`feet required to be set aside for augmented flows under the Interim Plan, and is cutting off
`augmented spring flows.”2 ECF 909-1 at 13-14. Even if true, these facts do not constitute grounds
`
`
`2 Elsewhere, Plaintiffs assert that “the Bureau told the Tribe that it intends to violate the 2019 Plan’s
`requirement that 7,000 acre-feet of water be reserved for the Yurok Tribe’s ceremonial Boat Dance
`this summer.” ECF 909-1 at 13. Initially, the Bureau objects to Plaintiffs’ disclosure of what it
`believed were confidential communications sent as part of continuing compromise negotiations
`regarding the stipulated stay of this litigation; under Fed. Rule Evid. 408, this evidence is
`inadmissible and cannot be considered to support Plaintiffs’ contentions. Beyond this, as is implicit
`in Plaintiffs’ contention that the Bureau has told Yurok it “intends” to eliminate the Boat Dance
`allocation, no formal decision has been made to remove the Boat Dance flows from the 2019 Plan,
`which are not scheduled to occur until August. The Bureau has merely discussed the potential
`reduction or elimination of these flows with Plaintiffs. There is no basis upon which Plaintiffs may
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 5
`
`3:19-cv-04405-WHO
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 10 of 30
`
`
`
`for lifting the stay, as the actions being taken by the Bureau are precisely the type of adaptive
`management actions that are contemplated by the Interim Plan under the circumstances presented,
`and that Plaintiffs were aware of when they stipulated to stay this litigation. The Bureau does not
`dispute that, in response to extreme drought conditions in the Klamath Basin, it plans to reduce a
`portion of the additional 40 TAF that was triggered for augmentation flows under the Interim Plan,
`based on the inaccurate April 1 forecast. The Bureau does not believe it can continue these releases
`presently, and questions whether there is any amount of additional water that will be able to be
`provided for augmentation flows, as hydrologic conditions evolve in this dire drought year.
`However, rather than constituting a deviation from the Interim Plan, the Plan specifically
`provides for adaptive management, where, as here, delivery of the full 40 TAF would draw
`elevations in UKL further below the 4,142.00 feet required for April and May under the Interim
`Plan.3
`
`As stated in the Interim Plan:
`In the event PacifiCorp is unable to provide the water, and/or if modeling shows
`that implementation of the 40,000 AF of EWA augmentation releases is likely to
`result in UKL elevations below 4,142.0 feet in April or May, despite good faith
`efforts to rearrange the 40,000 AF of EWA releases within reasonable bounds,
`Reclamation will coordinate with the Services and PacifiCorp to best meet the needs
`of ESA-listed species as well as coordinate and obtain input from Yurok and other
`affected Klamath River Basin Tribes through government-to-government
`consultation on how to manage water.
`
`
`seek relief in connection with these flows unless and until there is a formal decision to set them
`aside. For present purposes, the Boat Dance flows are ceremonial, and not ESA-based, and
`Plaintiffs have not included these flows in their TRO motion. ECF 99 at 4-5, ¶ 3.
`
` 3
`
` The obligation to allocate an additional 40 TAF of water for augmentation flows under the Interim
`Plan is triggered “in water years with an Upper Klamath Lake (UKL) Supply at or above 550,000 AF
`and at or below 950,000 AF,” as projected by an April 1 hydrologic forecast from the NRCS. ECF
`907-1 at 3. Precipitation in late March put the Projected UKL supply just above the 550 TAF
`minimum threshold. Bottcher Decl. ¶ 7. However, over the ensuing month, hydrologic projections
`dramatically worsened, and “the updated May 1 NRCS UKL inflow forecast . . . reflected a dramatic
`decline of approximately 110,000 AF in projected and realized inflows to UKL, relative to the April
`1 UKL inflow forecast.” Id. ¶ 8. The obligation to allocate an additional 40 TAF would not have
`been triggered if the threshold determination had been based upon those subsequent forecasted
`conditions. See id. In fact, the 577 TAF projected as of April 1 has now fallen to 535 TAF. See id.
`¶¶ 7-8
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 6
`
`3:19-cv-04405-WHO
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 11 of 30
`
`
`
`ECF 907-1 at 4; see also id. at 5 (“Although KBPM simulations can help frame potential implications,
`in real-time operations, Reclamation would work with PacifiCorp to borrow water or modify
`augmentation releases in coordination with the FASTA process to ensure that UKL elevations
`would not fall below 4,142.0 feet during April and May during that water year”).
`Each of these conditions for potential reduction of the additional 40 TAF of augmentation
`water under this provision are met. First, there can be no dispute that “implementation of the
`40,000 AF of EWA augmentation releases is likely to result in UKL elevations below 4,142.00 feet in
`April or May.” In fact, even before delivering any portion of the 40 TAF, UKL elevations had
`already dropped below 4,142.00 feet as of April 19, due to the precipitous decline in the observed
`hydrology that occurred shortly after the 40 TAF augmentation was triggered based on the April 1
`forecast. See Bottcher Decl. ¶ 9. UKL elevations were further reduced in late April with
`implementation of a surface flushing flow, which reduced elevations by approximately 0.5 ft. Id.
`Elevations are not expected to rise back above this elevation for the remainder of the month. See id.
`In these circumstances, the Bureau cannot “rearrange the 40,000 AF of EWA releases within
`reasonable bounds” in an attempt to restore the 4,142.00 foot elevation, as delivery of any of this
`additional augmentation water in May will only cause a further drop.
`Second, the Bureau has coordinated with PacifiCorp to borrow water that otherwise would
`have been used in connection with hydropower operations at four dams operated by PacifiCorp on
`the Klamath River below the Project in an attempt to maintain elevations in UKL. This
`coordination has resulted in the borrowing of approximately 15 TAF of water from PacifiCorp—far
`in excess of the up to 5 TAF that the Bureau and PacifiCorp previously had contemplated might be
`borrowed at the time the Interim Plan was finalized. Bottcher Decl. ¶ 13. And yet, while the timing
`of paying back this borrowed water is uncertain, even with the retention of this additional water in
`UKL into the fall, it is not expected that elevations will rise back above 4,142.00 feet in May. See id.
`¶ 9.
`
`Third, the Bureau has coordinated with the consulting agencies “to best meet the needs of
`ESA-listed species” and has “coordinate[d] and obtain[ed] input from Yurok and other affected
`Klamath River Basin Tribes through government-to-government consultation on how to manage
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FDs’ Opp. to Mot. Lift Stay and Enter Temp. Restraining Order - 7
`
`3:19-cv-04405-WHO
`
`

`

`Case 3:19-cv-04405-WHO Document 919 Filed 05/18/20 Page 12 of 30
`
`
`
`water.” In fact, the Bureau has had repeated and frequent meetings with representatives of Yurok,
`the consulting agencies, and the other listed parties, both in joint and separate negotiating sessions,
`throughout May in an attempt to formulate an emergency drought plan and determine if
`concurrence on such a plan was possible. Bottcher Decl. ¶ 21. Reclamation specifically sought to
`determine through this coordination how “to best meet the needs of ESA-listed species”—
`endangered suckers in UKL and threatened SONCC coho downstream in the Klamath River—with
`the limited inflow into UKL that is 109 TAF below the April 1 forecast. Id. ¶ 8. The measures the
`Bureau has taken or anticipates taking to mitigate this shortfall and adaptively manage the Project to
`protect SONCC coho in response to this dramatically-reduced inflow include: (1) the above-
`discussed borrowing from PacifiCorp of approximately 15 TAF of water in an attempt to avoid
`further drops in UKL elevations; (2) significant further curtailment of Project deliveries for
`irrigation; and (3) reduction of the 40 TAF in additional augmentation water triggered under the
`Interim Plan based on the inaccurate April 1 forecast.
`At present, the ultimate reduction in the volume of augmentation water for river flows to be
`released from the Project remains uncertain, with future hydrology determining how much, if any,
`additional water can be provided. The eventual volume of reductions to the 40 TAF of additional
`augmentation water and Project supply are being assessed by the Bureau through continuing
`coordination and adaptive management in response to changing and the extremely challenging
`hydrologic conditions. Any augmented river flows are in addition to the minimum flows already
`being provided from the 407 TAF EWA established under the 2018 Plan, onto which the Interim
`Plan is overlaid. River flows under the 2018 Plan have ranged between 1,175 cfs and 6,030 cfs in
`April and May, which are supported and made possible by releasing water from UKL. The surface
`flushing flow releases and ramp down period far exceeded the UKL net inflows during this time and
`over the course of the year, the Bureau anticipates Klamath River relea