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`
`
`DANIEL CORDALIS (CSBA #321722)
`Cordalis Law, P.C.
`2910 Springer Drive
`McKinleyville, CA 95519
`Ph: (303) 717-4618
`dcordalislaw@gmail.com
`
`GENEVA E.B. THOMPSON (CSBA #315725)
`Yurok Tribe
`190 Klamath Blvd.
`P.O. BOX 1027
`Klamath, CA 95548
`Ph: (707) 482-1350 | Fax: (707) 482-1377
`gthompson@yuroktribe.nsn.us
`*Admittance to the Northern District of California Pending
`
`Attorneys for Plaintiffs Yurok Tribe and Mr. Myers
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`YUROK TRIBE, on its own behalf and on behalf
`of its members, and
`
`FRANKIE MYERS, Yurok Tribal Council Vice
`Chairperson, in his official and individual
`capacities,
`
`
`
`
`U.S. BUREAU OF RECLAMATION,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`Plaintiffs,
`
`Defendant.
`
` Case No. 3:20-cv-5891
`
`Related Cases: No. 3:19-cv-04405-WHO
`
`
`COMPLAINT FOR DECLARATORY
`RELIEF
`
`Administrative Procedure Act and
`Religious Freedom Restoration Act Case
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`
`
`
`
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`INTRODUCTION
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`
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`This case addresses a recent decision by the U.S. Bureau of Reclamation
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`(“Bureau”) as a part of its ongoing operation of the Klamath Irrigation Project that substantially
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`impacts the ability of the Yurok Tribe (“Tribe”) and its members to participate in the cultural,
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`spiritual, and religious ceremonies they have practiced since time immemorial. This action seeks
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`COMPLAINT - 1 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 2 of 16
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`to require the Bureau to adhere to its 2020 operations plan and immediately provide water
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`releases necessary to conduct the Tribe’s Boat Dance, the final part of the Tribe’s world renewal
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`ceremony and religious practice held every other year, scheduled for August 30, 2020.
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`The Bureau’s decision, made only eleven days before the Tribe’s ceremony, was
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`made without any consultation or coordination with the Yurok Tribe despite months of requests
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`by the Tribe. The Boat Dance, and the ability of Mr. Myers, the Tribe and its Tribal members to
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`freely exercise their religious practices and complete the world renewal ceremony, is dependent
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`on the water releases.
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`
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`This case presents two claims challenging the Bureau’s August 19, 2020 decision
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`to not provide 7,000 acre feet (“AF”) of water releases for the Boat Dance in accordance with the
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`Bureau’s 2020 annual operations plan (“AOP”). The first claim alleges that the Bureau’s
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`decision is arbitrary and capricious under the Administrative Procedures Act (“APA”) because
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`the Bureau’s 2020 AOP included 7,000 AF of water earmarked specifically for the Tribe’s Boat
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`Dance and the Bureau’s rationale for its last-minute decision to not provide the water is
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`contradicted by the evidence that was before the agency. That evidence shows that there
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`presently is sufficient available water—33,564 AF as of August 20—to provide the Boat Dance
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`water releases without running afoul of other federal water commitments, including Upper
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`Klamath Lake thresholds and agricultural deliveries. Because the decision contradicts the
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`evidence, the Bureau acted arbitrarily in its decision to not provide the water.
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`
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`The second claim alleges a violation of the Religious Freedom Restoration Act
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`(“RFRA”), 42 U.S.C. § 2000bb-1(a), because the Bureau’s decision is a governmental action that
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`substantially burdens the ability of Mr. Myers and Yurok Tribal members to exercise their
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`religious and spiritual practices. Without the supplemental water to support the Boat Dance as
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 3 of 16
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`provided for in the AOP, the world renewal ceremony cannot be completed because the river
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`location would have unsafe and impassible conditions for a canoe, precluding the ability to hold
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`the Boat Dance ceremony. The Bureau’s decision was not supported by a compelling interest nor
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`is it the least restrictive means of accomplishing the government’s goals and violates RFRA.
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`
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`This action asks the Court to issue an order precluding the Bureau from deviating
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`from the AOP and requiring the Bureau to immediately plan, coordinate, and to provide the
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`water necessary for the Boat Dance to occur on August 30, 2020.
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`JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT
`
`
`
`This action is brought under the APA, 5 U.S.C. § 706(2)(A), and RFRA, 42
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`U.S.C. § 2000bb-1. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1362.
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`
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`Venue is proper in this Court under 28 U.S.C. § 1391(e) because the Yurok Tribe
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`and Mr. Myers are located in the district and many of the events and consequences of the
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`defendant’s violations of law occurred or will occur in this district.
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`
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`This case is properly assigned to the San Francisco/Oakland Division under Civil
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`L.R. 3-2(c) because this case is related to Yurok Tribe v. Bureau of Reclamation, 231 F. Supp. 3d
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`450 (N.D. Cal. 2017) (“Yurok I”), and the currently stayed Yurok Tribe v. Bureau of
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`Reclamation, 3:19-cv-04405-WHO (N.D. Cal. filed July 31, 2019) (“Yurok II”). Both cases were
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`assigned to the San Francisco/Oakland Division and heard by Judge William H. Orrick, III. The
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`Yurok Tribe and the Bureau of Reclamation are both parties in this case and the two related
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`cases. The underlying contention of the Bureau’s management of the Klamath Irrigation Project
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`and its impacts to the Klamath River and the Yurok Tribe, particularly in 2020, are the same
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`between this case and the two related cases.
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 4 of 16
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`A.
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`
`
`PARTIES
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`Tribal Member Plaintiff
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`Frankie Myers is an enrolled member of the Yurok Tribe and currently serves as
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`the Vice Chairperson of the Yurok Tribal Council. Mr. Myers is a religious practitioner and
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`ceremonial leader who participates in the Tribe’s biennial world renewal ceremony and Boat
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`Dance.
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`B.
`
`Yurok Tribe
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`
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`The Yurok Tribe is a federally recognized Indian tribe whose reservation is
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`located on the lower Klamath River in northern California, spanning from the river’s mouth at
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`the Pacific Ocean upriver to the Yurok village of Weitchpec, near where the Boat Dance occurs.
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`With more than 6,400 tribal members, the Yurok Tribe is the largest Indian tribe in California.
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`By filing this action, the Tribe does not waive its sovereign immunity and does not consent to
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`suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers,
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`agents, or any other person or entity in this or any other court.
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`
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`Yurok people have always lived on their ancestral territory along the Pacific
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`Coast and inland on the Klamath River. The Spirit People, Woge’, made the land for them and
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`the Creator, Ko-won-no-ekc-on Ne-ka-nup-ceo, put them there. Yurok people believe they were
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`placed on the Klamath River to care for it and they have a cultural covenant to protect the river.
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`The Tribe’s creation story tells that the river was made to support the Yurok People and as long
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`as they do not take more resources than they need from the river, it would always provide for
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`their livelihood. Today, the Tribe’s Constitution imposes this duty on the Yurok government, to
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`protect and “to restore, enhance and manage the tribal fishery, tribal water rights, tribal forest,
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`and all other natural resources” of the Yurok Reservation. Yurok Const., Preamble.
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` With an understanding of the river’s central role in Yurok culture and life, “a strip
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 5 of 16
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`of territory one mile in width on each side of the (Klamath) river” was set aside for the Yurok
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`people by Executive Order in 1855 as the “Klamath River Reservation.” C.J. Kappler, 1 Indian
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`Affairs Laws and Treaties 816-17 (1904); see also Mattz v. Arnett, 412 U.S. 481, 483 (1973).
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`That reservation was “ideally selected for the Yuroks,” and “[n]o place can be found so well
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`adapted to these Indians, and to which they themselves are so well adapted.” Mattz, 412 U.S. at
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`486, n.6. The federal government created the reservation to ensure the Yurok people could
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`continue their fishing and river-centric way of life on their ancestral homeland—it was no
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`accident that the Klamath River was the geographical heart of the 1855 reservation and continues
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`to be so today. The present-day Yurok Reservation extends for one mile on each side of the
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`Klamath River in northern California from the mouth at the Pacific Ocean approximately 45
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`miles upriver to Weitchpec.
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`The Yurok Reservation was established on the lower Klamath River so the Tribe
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`could maintain its fishing and river-centric way of life, reserving to the Tribe fishing and water
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`rights to support that lifestyle and conferring a legal duty on the federal government to protect
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`those rights. See Baley v. United States, 942 F.3d 1312, 1335 (Fed. Cir. 2019); Klamath Water
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`Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999) (in operating the
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`Klamath Project, the Bureau and United States “as a trustee for the Tribes, has a responsibility to
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`protect their rights and resources,” and “has a responsibility to divert the water and resources
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`needed to fulfill the Tribes' rights.”); Parravano v. Masten, 70 F.3d 539, 541 (9th Cir. 1995). The
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`Klamath River and its fishery are “not much less necessary to the existence of the [Yurok] than
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`the atmosphere they breathe[.]” Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981) (quoting
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`United States v. Winans, 198 U.S. 371, 381 (1905)). The Tribe has reserved water rights that
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`include water stored in Upper Klamath Lake and managed by the Bureau to provide instream
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`COMPLAINT - 5 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 6 of 16
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`flows in the Klamath mainstem. Baley, 942 F.3d at 1339 (Yurok has “an implied water right that
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`includes the Klamath River and the flows therein as controlled by the Iron Gate Dam,” and has
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`“reserved water rights [that] encompass Klamath Project water.”).
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`Since the beginning of time, Yurok people have lived on the Lower Klamath
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`River in northern California, fishing and basing tribal culture around the river. But since the
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`building of the federal Klamath Irrigation Project in the early 1900s, the Tribe’s ability to
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`exercise its fishing and water rights has been severely impacted. The Klamath fishery has been in
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`steady, and recently rapid, decline and a once abundant salmon fishery is now an unreliable
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`means of subsistence and economy, endangering a culture and people reliant on a healthy river.
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`See Yurok I; Yurok II.
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`The lower Klamath River is now managed not by natural hydrologic events, but
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`by the Bureau, who schedules and releases water below the Klamath Project and the four
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`mainstem Klamath River dams to, quite literally, keep water in stretches of the Klamath River.
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`Accordingly, the Bureau’s operation of the Project through water releases from Iron Gate Dam
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`(the most downriver dam the Bureau operates) is the most important factor with respect to water
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`management in the lower Klamath River and in protecting the Tribe’s water rights.
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`The Bureau’s operation of the Klamath Project has had significant negative
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`impacts to the Yurok Tribe. The Yurok Tribe has been and will continue to be irreparably
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`harmed by defendant’s disregard of their statutory duties and by the unlawful injuries imposed
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`by Klamath Project operations.
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`C.
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`Federal Defendant
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`
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`Defendant United States Bureau of Reclamation is an agency of the United States
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`Department of the Interior that constructs and operates federal water projects throughout the
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`United States. The Bureau has primary management authority over the Klamath Project.
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`COMPLAINT - 6 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 7 of 16
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`As a federal agency, the Bureau has a federal trust responsibility to manage and
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`protect Yurok trust resources and to work with the Tribe on a government-to-government basis
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`when, but not limited to, undertaking activities that have the potential to affect the rights of the
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`Yurok Tribe and its members.
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`I.
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`YUROK TRIBE AND THE BOAT DANCE
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`BACKGROUND
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`
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`The Boat Dance is a part of the traditional Yurok religious ceremony held to
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`restore and renew the balance of the world. The ceremony, including the Boat Dance, is held in
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`late summer in even-numbered years and the Boat Dance the second and final part of the world
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`renewal ceremony. This religious ceremony has been practiced on the river since time
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`immemorial.
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`In the Boat Dance ceremony, Yurok religious practitioners dance in large hand-
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`carved redwood canoes and travel on the Klamath River near Weitchpec, the most upstream
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`community on the Yurok Reservation. To safely conduct the ceremony and its practitioners, it is
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`necessary to have sufficient water in the river to provide predictable currents and a water depth
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`that allows for the canoes to pass over a riffle.
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` Without sufficient water to safely hold the Boat Dance, the word renewal
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`ceremony cannot be completed.
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`
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`Because Klamath River flows are tightly restricted by the Bureau and its Klamath
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`Project operations, river flows at the ceremony site in late August must be augmented with
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`additional water releases to ensure safe canoe passage. Knowing this, the Bureau has customarily
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`provided for the water necessary in its AOP, increasing the environmental water account
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`(“EWA,” the water released into the Klamath River), to account for the additional necessary flow
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`volume. Consistent with its historical practices, the Bureau made such an accommodation in its
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 8 of 16
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`2020 AOP, including in the total 407,000 AF volume, “7 [thousand acre-feet] for the Yurok
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`Tribal Boat Dance Ceremony in August.”
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`The inclusion of the EWA water for the religious ceremony in even-numbered
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`years was analyzed in the National Environmental Policy Act (“NEPA”) review of the Bureau’s
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`2019-2024 proposed action. In the Finding of No Significant Impact (“FONSI”) for the proposed
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`action, the FONSI relied on the inclusion of Boat Dance flows as support for its conclusion that
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`there will be no significant impact on tribal sacred sites or practices:
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`The Proposed Action is not likely to limit access to, and ceremonial use of, Indian Sacred
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`Sites on Federal lands by Indian religious practitioners or significantly adversely affect
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`the physical integrity of such sacred sites (EO13007 and 512 OM 3). Flow increases to
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`accommodate the Yurok Tribe’s Boat Dance Ceremony are incorporated into the
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`Proposed Action Alternative. Therefore, the Proposed Action would not inhibit access
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`to, or ceremonial use of, an Indian Sacred Site nor would the Proposed Action Alternative
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`adversely affect the physical integrity of such sacred sites.
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`The Bureau’s Manual, NAI P10, “Indian Policy of the Bureau of Reclamation,”
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`includes the process for which the Bureau will uphold its tribal trust responsibility and provides
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`strong support for the Bureau’s longstanding practice of providing the Boat Dance flows. The
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`policy directs that the Bureau “will carry out its programs and projects in compliance with the
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`letter and the spirit of laws and policies relating to Indians,” and that “Reclamation supports the
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`Department's trust responsibility policy and will discharge, without limitation, the Secretary's
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`Indian trust responsibility with a high degree of skill, care, and loyalty.” With regard to tribal
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`culture, the Manual states “Reclamation will manage Federal lands under its jurisdiction to
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`accommodate access to and ceremonial use of Indian sacred sites by Indian religious
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 9 of 16
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`practitioners, and avoid adversely affecting the physical integrity of such sacred sites.” And
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`finally, the Bureau “recognizes that certain cultural resources can have special importance to
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`Indian tribes and will seek to work with tribes to avoid adversely affecting cultural resources
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`identified by tribes as important, and to determine appropriate mitigation measures when such
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`effects cannot be avoided.”
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`The Manual makes clear that it is the Bureau’s obligation, as the tribes’ federal
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`trustee, to support when possible tribal cultural resources and will work with tribes when the
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`Bureau’s actions threaten the ability of the tribe to exercise its religious practices. Yet, none of
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`these actions occurred leading up to the Bureau’s last-minute decision to not provide Boat Dance
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`flows and the Bureau’s decision ignores the government’s bedrock trust duties to Indian tribes.
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`II.
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`KLAMATH PROJECT OPERATIONS AND THE 2020 WATER YEAR
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`The Yurok Tribe has been party to ongoing challenges in this Court to the
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`Bureau’s operation of the Klamath Project, including Yurok I, and the currently stayed Yurok II.
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`In March 2020, the parties in Yurok II engaged in settlement negotiations that led the Bureau to
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`adopt an interim operations plan to govern Klamath Project operations through September 2022.
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`In early April 2020, the Bureau set the EWA allocation in the AOP at 407,000
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`AF, which included 7,000 AF for the Boat Dance, as required by the 2019-2024 Klamath
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`Operations Plan and the Klamath Project’s Proposed Action analyzed in the 2019 Biological
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`Opinion and 2019 Environmental Assessment and FONSI. The AOP is the Bureau’s Klamath
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`Project management plan which stakeholders rely on to understand the Bureau’s annual water
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`obligations and operating plan.
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`24.
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`On May 11, following a dry April and citing concerns due to extremely
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`conservative water forecasts, the Bureau began cutting off augmented river flows agreed upon in
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`the interim operations plan. The Bureau also told the Tribe that it intended to violate the AOP
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 10 of 16
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`and the 2019 Plan’s requirement that 7,000 AF of water be provided for the Yurok Tribe’s
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`ceremonial Boat Dance. The Tribe and commercial fishing plaintiffs’ responded by filing a
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`motion asking the court to lift the stay in Yurok II and to issue a temporary restraining order
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`requiring the Bureau to adhere to the interim operations plan water allocation and also provide
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`the water for the Boat Dance. Yurok II, ECF 909.
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`25.
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`On May 29, Judge William H. Orrick, III denied the Tribe’s request, citing the
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`Bureau’s need to reevaluate water conditions and change operations during a dry year to protect
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`Upper Klamath Lake levels in May to support the endangered sucker fish. Because the interim
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`operations plan had specific May lake level provisions for the fish, Judge Orrick concluded the
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`Bureau’s management was appropriate given the competing needs and difficult water conditions.
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`In response to the Tribe’s argument that the Bureau was using extremely conservative water
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`forecasts, Judge Orrick’s order noted: “Should water conditions improve, the Bureau will remain
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`under an obligation set forth in the Interim Plan to manage the water appropriately, including
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`negotiations through FASTA with interested entities.” Order at 8, ECF 924.
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`26.
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`On June 4, as the Tribe predicted, the Bureau informed the Tribe and other parties
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`that water conditions were much improved and not as dire as the agency’s forecasts projected in
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`early May. Incredibly, the agency told the Tribe there was almost 73,000 AF of additional water
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`available and it would coordinate with the Klamath Basin stakeholders the allocation of the
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`additional water. The Tribe requested: (1) 16,000 AF to fulfill the volume in the interim
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`operations plan to support the fishery, and (2) a commitment to provide the 7,000 AF of water
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`for Boat Dance flows, which the Bureau had stopped accounting for. The Bureau did not honor
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`the Tribe’s request and ultimately provided only 8,000 AF of water for river flows and refused to
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`commit to provide the Boat Dance flows. The Bureau also reinstated the Klamath Irrigation
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`COMPLAINT - 10 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 11 of 16
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`Project’s full 2020 allocation of 140,000 AF, which was increased to 147,000 AF during summer
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`as described in the AOP.
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`27.
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`In June, July, and August, fearing a last-minute decision that would hamstring the
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`ability to complete the world renewal ceremony, the Tribe continued to seek assurances that the
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`Bureau would provide the Boat Dance flows. The Bureau responded each time that it could not
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`commit the flows until closer to the event when water forecasts and Upper Klamath Lake levels
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`were more certain.
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`28.
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`As the summer progressed, water conditions improved, providing that clarity. The
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`July 30 Flow Accounting and Scheduling Technical Advisory (“FASTA”) group—comprised of
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`federal and tribal scientists tasked with Klamath River flow-related technical support—reported
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`that there was 15,712 AF of water available beyond the Upper Klamath Lake threshold. Then,
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`the August 13 FASTA update showed nearly 24,000 AF above the threshold. Now, the August
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`20 FASTA update shows 33,564 AF is available, well above the threshold, even with the 7,000
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`AF allocated to the Boat Dance. The increased volume is due to inflows into Upper Klamath
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`Lake exceeding the Bureau’s ultra-conservative forecasts, the same forecasting problem the
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`Tribe asserted in May and which lead to the curtailment of Klamath River flows during a fish
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`disease outbreak.
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`29.
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`On August 4, given the improved water forecast and need to plan and prepare for
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`the Boat Dance, Yurok Chairman Joseph James sent the Bureau a letter requesting assurance that
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`the Bureau would provide the Boat Dance flows. The Bureau responded on August 7 indicating
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`that a final determination had not yet been reached and that the Bureau would inform the Tribe
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`of the decision as soon as possible. The Tribe followed up with the Bureau on August 12 seeking
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`an answer, to no avail.
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 12 of 16
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`30.
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`Finally, on August 19, the Bureau notified the Tribe by phone and a three-
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`sentence email that it was not going to provide the Boat Dance flows because it was concerned
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`with carryover storage, water for the 2021 water year, and meeting other requirements.
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`CLAIMS FOR RELIEF
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`1 - APA CLAIM FOR RELIEF
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`THE BUREAU’S DECISION TO DEVIATE FROM THE AOP AND NOT PROVIDE 7,000
`AF FOR THE BOAT DANCE IS ARBITRARY AND CAPRICIOUS BECAUSE THERE IS
`AVAILABLE WATER TO MEET ALL 2020 BUREAU OBLIGATIONS.
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`
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`The Administrative Procedures Act (“APA”), 5 U.S.C. § 706, “sets forth the
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`procedures by which federal agencies are accountable to the public and their actions subject to
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`review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Further, the APA
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`establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of
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`agency action.’” Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C.
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`§ 702).
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`The APA authorizes courts to “review, hold unlawful, and set aside final agency
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`action, findings, and conclusions that are arbitrary and capricious, an abuse of discretion, or
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`otherwise not in accordance with law.” 5 U.S.C. §706(2)(A); see Native Ecosystems Council v.
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`Dombeck, 304 F.3d 886, 891 (9th Cir. 2002).
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`An agency action is arbitrary and capricious “if the agency relied on factors which
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`Congress has not intended it to consider, entirely failed to consider an important aspect of the
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`problem, offered an explanation for its decision that runs counter to the evidence before the
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`agency, or is so implausible that it could not be ascribed to a difference in view or the product of
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`agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
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`(1983).
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`The Bureau’s decision to deviate from the AOP at the final hour and not provide
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`COMPLAINT - 12 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 13 of 16
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`the 7,000 AF of water for the Boat Dance ceremony earmarked in the Bureau’s AOP is a final
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`agency action subject to judicial review under the APA.
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`Through the Bureau’s AOP, the biological assessment which the National Marine
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`Fisheries Service based its 2019 biological opinion on Klamath Project Operations, and the
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`environment assessment, the Bureau adopted a plan for managing Klamath River flows. In each
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`of those plans, the Bureau committed to provide 7,000 AF for the Boat Dance.
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`The Bureau’s cryptic rationale about the need to meet “other requirements” is
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`arbitrary and capricious because it failed to provide any evidence or data to support that rationale
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`and why it precludes providing the Boat Dance water. The data produced by the FASTA group,
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`which includes federal scientists, shows that there is currently almost 34,000 AF of water
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`available above the threshold necessary to protect endangered sucker fish in Upper Klamath
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`Lake. Even with providing the 7,000 AF, the lake has a buffer of over 26,000 AF to protect the
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`needs of the suckers and provide carryover storage for the 2021 water year.
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`This decision is arbitrary and capricious because it ran counter to the evidence
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`before the agency showing there is sufficient available water in the Upper Klamath Lake to
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`provide the Boat Dance ceremony water without harming the endangered suckers in the Upper
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`Klamath Lake or impacting agricultural deliveries. There are no other obligations the Bureau is
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`faced with in the 2020 water year that require it to cut the Boat Dance flows nor did the Bureau
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`identify any such obligations.
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`The Bureau’s commitment to provide water for the Boat Dance recognizes the
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`agency’s trust responsibility to the Tribe to protect its resources and accommodate the Tribe’s
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`religious and cultural rights, a practice the Bureau’s Manual requires.
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`The Bureau reversed its longstanding practice of providing the Boat Dance flows
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`COMPLAINT - 13 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 14 of 16
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`without any tribal consultation or action to explain how its decision is consistent with the AOP or
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`the agency’s trust duties to the Tribe.
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`The Bureau’s decision to wait to provide the Tribe its decision while the Tribe
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`repeatedly requested assurances about the ceremonial water releases was arbitrary and capricious
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`and a violation of the APA, particularly in light of water conditions that for over a month
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`unequivocally showed there would be sufficient water for the ceremony.
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`2 - RFRA CLAIM FOR RELIEF
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`THE BUREAU’S DECISION SUBSTANTIALLY BURDENS MR MYERS, THE TRIBE’S,
`AND YUROK TRIBAL MEMBERS’ FREE EXERCISE OF RELIGION BECAUSE THE
`RELIGIOUS PRACTICE CANNOT OCCUR DUE TO THE DECISION.
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`The RFRA provides that governmental activity may not substantially burden a
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`person’s exercise of religion unless the government demonstrates that its action (1) is in
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`furtherance of a compelling governmental interest; and (2) is the least restrictive means of
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`furthering that compelling interest. 42 U.S.C. § 2000bb-1(b).
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`The Bureau’s decision places a direct and substantial burden on Mr. Myers and
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`the Yurok Tribe and its members’ ability to exercise their religion because the Boat Dance
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`cannot occur without the supplemental water flows. If the Boat Dance cannot take place, the
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`Tribe’s world renewal ceremony cannot be completed, leaving unfinished a critical religious
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`practice that occurs only every two years. The 7,000 AF of water in the AOP is necessary for the
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`Boat Dance to occur and the Bureau’s decision to not provide that water not only substantially
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`burden’s Mr. Myers and the Tribe from exercising its religious practices, it precludes a religious
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`practice altogether.
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`The Bureau has not demonstrated it has a compelling interest to base its decision
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`to withhold the Boat Dance water, only that it must accommodate “other requirements.” Nor has
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`COMPLAINT - 14 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 15 of 16
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`the Bureau demonstrated that not providing the water is the least restrictive means to further that
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`vague, unsupported interest. The data shows that there is available water well beyond that
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`necessary to meet the Boat Dance flows and meet other water obligations this water year.
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`WHEREFORE, Plaintiffs respectfully request that this Court:
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`PRAYER FOR RELIEF
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`A.
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`Declare that the August 19 decision to deviate from the AOP and not provide the
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`7,000 AF for the Boat Dance is arbitrary, capricious, and in violation of the APA, 5 U.S.C.
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`§ 706(2)(A),
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`B.
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`Declare that the Bureau’s decision not to provide water for the Boat Dance
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`ceremony violates RFRA, 42 U.S.C. § 2000bb-1,
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`C.
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`Require the Bureau to comply with the AOP and immediately coordinate the
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`release of water to allow the Boat Dance ceremony to occur on August 30 at the planned time,
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`D.
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`Award plaintiff their reasonable fees, expenses, costs, and disbursements,
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`including attorneys’ fees associated with this litigation under the Equal Access to Justice Act 28
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`U.S.C. § 2412; and
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`E.
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`Grant plaintiff such further and additional relief as the Court may deem just and
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`proper.
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`DATED this 21st day of August 2020.
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`Respectfully submitted,
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`/s/ Daniel Cordalis
`Daniel Cordalis (CSBA # 321722)
`Cordalis Law, P.C.
`2910 Springer Drive
`McKinleyville, CA 95519
`Ph: (303) 717-4618
`dcordalislaw@gmail.com
`
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`COMPLAINT - 15 -
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`Case 3:20-cv-05891-JSC Document 1 Filed 08/21/20 Page 16 of 16
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`
`Geneva E.B. Thompson (CSBA # 315725)
`Yurok Tribe
`190 Klamath Blvd.
`P.O. BOX 1027
`Klamath, CA 95548
`Ph: (707) 482-1350 | Fax: (707) 482-1377
`gthompson@yuroktribe.nsn.us
`*Admittance to the Northern District of California
`Pending
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`Attorneys for Plaintiffs Yurok Tribe and Mr. Myers
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