In Re: Klamath Irrigation District v. Usdc-Orm

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: KLAMATH IRRIGATION No. 22-70143

DISTRICT,

______________________________ D.C. No.

1:21-cv-00504-

KLAMATH IRRIGATION AA

DISTRICT,

Petitioner,

OPINION

v.

UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF

OREGON, MEDFORD,

Respondent,

U.S. BUREAU OF RECLAMATION;

OREGON WATER RESOURCES

DEPARTMENT,

Real Parties in Interest.

Petition for a Writ of Mandamus

Argued and Submitted November 18, 2022

San Francisco, California

Filed June 5, 2023

2 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

Before: Richard R. Clifton and Bridget S. Bade, Circuit

Judges, and M. Miller Baker,* Judge.

Opinion by Judge Clifton;

Dissent by Judge Baker

SUMMARY**

Mandamus / Water Rights

The panel denied a petition for writ of mandamus

brought by Klamath Irrigation District (“KID”) to compel

the district court to remand KID’s motion for a preliminary

injunction to the Klamath County Circuit Court in Oregon in

a case involving a dispute over the allocation of water within

the Klamath Basin.

In 1975, Oregon began the Klamath Basin Adjudication

(“KBA”), a general stream adjudication comprising both

administrative and judicial phases. During the

administrative phase, the Oregon Water Resources

Department determined claims to water rights in Upper

Klamath Lake and portions of the Klamath River within

Oregon. Nearly forty years later, the Oregon Water

Resources Department entered an Amended and Corrected

Findings of Fact and Final Order of Determination

(“ACFFOD”), which provisionally recognized the

*

The Honorable M. Miller Baker, Judge for the United States Court of

International Trade, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 3

determined claims, in the Klamath County Circuit Court for

confirmation. The Yurok and the Hoopa Valley Tribes of

California (the “Tribes”) did not participate in the KBA, but

the Federal Circuit in related litigation concluded that their

rights were protected even though they were not adjudicated.

In 2021, KID filed a motion for a preliminary injunction

in state court seeking to stop the Bureau of Reclamation from

releasing water from Upper Klamath Lake in accordance

with its Endangered Species Act (“ESA”) responsibilities

and the Tribes’ rights. Reclamation removed the case to

federal district court under the federal officer removal

statute, and KID moved to remand. The district court

declined to remand, reasoning that the McCarran

Amendment’s waiver of sovereign immunity did not apply

because KID’s motion for a preliminary injunction did not

seek to adjudicate or administer ACFFOD rights; rather, it

sought to re-litigate federal issues—namely, Reclamation’s

authority to release water in compliance with the ESA and

tribal rights.

The panel considered the five factors in Bauman v. U.S.

District Court, 557 F.3d 813, 817 (9th Cir. 2004), in

determining whether mandamus was warranted. The panel

began with the third factor—clear error as a matter of law—

because it was a necessary condition for granting the writ of

mandamus. KID alleged that the district court’s remand

denial was clearly erroneous under the doctrine of prior

exclusive jurisdiction, which provides that when a court is

exercising in rem, or quasi in rem, jurisdiction over a res, a

second court will not assume in rem, or quasi in rem,

jurisdiction over the same res. The panel held that the

doctrine of prior exclusive jurisdiction did not apply

here. The KBA did not adjudicate Reclamation’s ESA

obligations or the Tribes’ senior rights, so the Klamath

4 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

County Circuit Court did not have jurisdiction over the rights

challenged by KID’s motion. The panel held that KID’s

other assertion—that the Klamath County Circuit Court had

prior exclusive jurisdiction because its motion seeks to

enforce rights determined in the ACFFOD—was

undermined by Klamath Irrigation District v. U.S. Bureau of

Reclamation (KID II), 48 F.4th 934 (9th Cir. 2022). The

panel rejected KID’s attempt to circumvent KID II, the

Tribes’ rights, and the effect of the ESA by characterizing

the relief it sought as an application of the ACFFOD. The

panel expressed no views on the merits of KID’s underlying

motion for preliminary injunction, and concluded only that

the district court did not err in declining to remand the

motion for preliminary injunction to the state court.

The panel held that it need not consider the remaining

Bauman factors because the third factor was dispositive, but

that KID’s petition did not satisfy them in any event.

Dissenting, Judge Baker wrote that the mandamus

petition filed by KID presented an important question

involving jurisdictional first principles: Does a

comprehensive state court in rem water-rights proceeding

have prior exclusive jurisdiction over a quasi in rem motion

to enforce a decree governing rights to in-state water when

the Bureau of Reclamation asserts defenses based on the

reserved rights of out-of-state Indian tribes and the

preemptive effect of ESA? He would hold that because the

Klamath County Circuit Court had prior exclusive

jurisdiction over the order that KID’s motion sought to

enforce, the district court necessarily committed a clear error

of law in failing to remand. He would grant the mandamus

petition and send KID’s motion back to state court.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 5

COUNSEL

Nathan R. Rietmann (argued), Rietmann Law P.C., Salem,

Oregon; John P. Kinsey and Christopher A. Lisieski,

Wanger Jones Helsley P.C., Fresno, California; for

Petitioner.

John L. Smeltzer (argued), Thomas K. Snodgrass, Robert P.

Williams, and William B. Lazarus, Attorneys; Todd Kim,

Assistant Attorney General; Environment and Natural

Resources Division, United States Department of Justice;

Washington, D.C.; Michael Gheleta, Supervising Attorney;

Office of the Solicitor, United States Department of the

Interior; Washington, D.C.; for Real Party in Interest United

States Bureau of Reclamation.

Denise G. Fjordbeck and Nichole DeFever, Assistant

Attorneys General; Benjamin Gutman, Solicitor General;

Ellen F. Rosenblum, Attorney General of Oregon; Office of

the Oregon Attorney General; Salem, Oregon; Real Party in

Interest Oregon Water Resources Department.

6 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

OPINION

CLIFTON, Circuit Judge:

Disputes over the allocation of water within the Klamath

Basin in southern Oregon and northern California,

particularly during the recent period of severe and prolonged

drought, have prompted many lawsuits in this and other

courts. In this episode, Klamath Irrigation District (“KID”)

petitions for a writ of mandamus to compel the district court

to remand KID’s motion for preliminary injunction to the

Klamath County Circuit Court in Oregon. The motion had

originally been filed by KID in that Oregon court but was

removed to federal district court by the U.S. Bureau of

Reclamation (“Reclamation”), a federal agency within the

U.S. Department of Interior. Reclamation was identified by

KID as the respondent for KID’s motion.

A requirement for obtaining mandamus relief is a

determination by us that the district court’s order was clearly

erroneous as a matter of law. We conclude that the district

court’s order was not clearly erroneous. As a result, we deny

the petition and decline to issue the writ.

I. Background

A. The Klamath Basin and Klamath Project

The Klamath Basin encompasses approximately 12,000

square miles of “interconnected rivers, canals, lakes,

marshes, dams, diversions, wildlife refuges, and wilderness

areas” in southern Oregon and northern California. Klamath

Irrigation Dist. v. U.S. Bureau of Reclamation (KID II), 48

F.4th 934, 938 (9th Cir. 2022). Upper Klamath Lake is a

large freshwater lake in the Klamath Basin in Oregon that

drains into the Link River. Klamath Irrigation Dist. v. Or.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 7

Water Res. Dep’t (Or. Water Res. Dep’t), 518 P.3d 970, 973

(Or. Ct. App. 2022). From there, water flows into and

through Lake Ewauna to the Klamath River, which then

proceeds southwest into California and eventually joins the

Trinity River near the Pacific coast.

Since time immemorial, Indigenous Peoples, including

the Yurok and the Hoopa Valley Tribes of California (the

“Tribes”), have depended upon the waters of the Klamath

Basin and the traditional fisheries therein. Id.; see also KID

II, 48 F.4th at 939–40 (citing United States v. Adair, 723

F.2d 1394, 1414 (9th Cir. 1983); Parravano v. Babbitt, 70

F.3d 539, 541–43 (9th Cir. 1995)); Baley v. United States,

942 F.3d 1312, 1321–22 (Fed. Cir. 2019), cert. denied, 141

S. Ct. 133 (2020).

Pursuant to the Reclamation Act of 1902, 43 U.S.C.

§§ 371–390h, Reclamation operates the Klamath River

Basin Project (the “Klamath Project”), a series of complex

irrigation works in the region, in accordance with state1 and

federal law, except where state law conflicts with

superseding federal law. 43 U.S.C. § 383; KID II, 48 F. 4th

1

Both Oregon and California follow the doctrine of prior appropriation.

See Irwin v. Phillips, 5 Cal. 140, 146 (1855) (California); Teel Irrigation

Dist. v. Or. Water Res. Dep’t, 919 P.2d 1172, 1174 (Or. 1996) (Oregon).

The doctrine provides that water rights are “perfected and enforced in

order of seniority, starting with the first person to divert water from a

natural stream and apply it to a beneficial use (or to begin such a project,

if diligently completed).” Montana v. Wyoming, 563 U.S. 368, 375–76

(2011) (citing Hinderlider v. La Plata River & Cherry Creek Ditch Co.,

304 U.S. 92, 98 (1938); Arizona v. California, 298 U.S. 558, 565–66

(1936); Wyo. Const. art. 8, § 3). “Once such a water right is perfected,

it is senior to any later appropriators’ rights and may be fulfilled entirely

before those junior appropriators get any water at all.” Id. at 376.

8 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

at 940–41. In doing so, Reclamation balances various

interests, three of which are relevant to the instant motion.

First, under the Endangered Species Act (“ESA”), 16

U.S.C. §§ 1531–1544, Reclamation must maintain specific

water levels in Upper Klamath Lake and instream flows in

the Klamath River. KID II, 48 F.4th at 940–41; Klamath

Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,

1213 (9th Cir. 1999), cert. denied, 531 U.S. 812 (2000);

Yurok Tribe v. U.S. Bureau of Reclamation, No. 19-cv-

04405-WHO, 2023 WL 1785278, at *5–6 (N.D. Cal. Feb. 6,

2023); Baley, 942 F.3d at 1323–25 (explaining the

obligations).

Second, the Tribes’ senior, non-consumptive rights

compel Reclamation to maintain specific instream flows in

the Klamath-Trinity River in California. Patterson, 204

F.3d at 1213–14; KID II, 48 F.4th at 941. The river and its

fisheries are integral to the Tribes’ existence. E.g., KID II,

48 F.4th at 940 (citing Parravano, 70 F.3d at 542); Yurok

Tribe, 2023 WL 1785278, at *6. Indeed, “one of the central

purposes” behind the establishment of the Tribes’

reservations was protecting the traditional fisheries. KID II,

48 F.4th at 940 (citing Parravano, 70 F.3d at 542, 546); see

also S. Rep. No. 100-564, at 14–15 (1988). “At the bare

minimum,” the Tribes hold rights to an amount of water that

is at least equal, but not limited to, the amount necessary to

fulfill Reclamation’s ESA responsibilities. Baley, 942 F.3d

at 1336–37; Yurok Tribe, 2023 WL 1785278, at *6; Or.

Water Res. Dep’t, 518 P.3d at 973–974.

Finally, Reclamation also contracts with KID, a quasi-

municipal Oregon irrigation district, to supply water

“subject to [its] availability” to KID’s irrigators. KID II, 48

F.4th at 940 (citation omitted); Or. Water Res. Dep’t, 518

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 9

P.3d at 972. Delayed access to or decreased amounts of

water cause “long-reaching damages” to the irrigators’

businesses.

KID and other irrigation districts in the region are

members of the Klamath Water Users Association

(“KWUA”), a non-profit organization that represents

irrigation districts within the Klamath Project. See Klamath

Irrigation Dist. v. United States, 75 Fed. Cl. 677, 687 (2007),

vacated on other grounds, 635 F.3d 505 (Fed. Cir. 2011);

see also Member Districts, Klamath Water Users Ass’n,

https://kwua.org/member-districts/ (last visited March 17,

2023).

B. The Klamath Basin Adjudication

In 1909, Oregon enacted the Water Rights Act, Or. Rev.

Stat. ch. 537, which provided that all waters of the state

belong to the public and rights existing before the Act’s

effective date must be determined. In 1975, Oregon began

the Klamath Basin Adjudication (“KBA”), a general stream

adjudication comprising both administrative and judicial

phases. Baley, 942 F.3d at 1321. During the lengthy

administrative phase, the Oregon Water Resources

Department (“OWRD”) determined claims to water rights in

Upper Klamath Lake and portions of the Klamath River

within Oregon. Or. Water Res. Dep’t, 518 P.3d at 973.

Nearly forty years later, the agency entered an Amended and

Corrected Findings of Fact and Final Order of Determination

(“ACFFOD”), which provisionally recognized the

determined claims, in the Klamath County Circuit Court for

confirmation. Id. While the judicial phase of the KBA is

pending, the ACFFOD rights are enforceable. See Or. Rev.

Stat. §§ 539.130, 539.170.

10 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

The Tribes did not participate in the KBA, but the

Federal Circuit concluded in related litigation that their

rights are protected even though they were not adjudicated

because “there is no need for a state adjudication to occur

before federal reserved rights are recognized[.]” Baley, 942

F.3d at 1340–41 (citing Agua Caliente Band of Cahuilla

Indians v. Coachella Valley Water Dist., 849 F.3d 1262,

1272 (9th Cir. 2017)). Under the ACFFOD, Reclamation

has the right to store water in Upper Klamath Lake, and KID

has the right to use a specific amount of water for irrigation.

However, KID’s rights are subservient to the Tribes’ rights

and Reclamation’s ESA responsibilities. Patterson, 204

F.3d at 1213 (the Tribes’ senior rights “carry a priority date

of time immemorial”); Baley, 942 F.3d at 1340 (quoting

Agua Caliente Band, 849 F.3d at 1272) (“[S]tate water rights

are preempted by federal reserved rights.”). Because

“Reclamation cannot distribute water that it does not

have[,]” water may not be available to KID, “for example,

due to drought, a need to forego diversions to satisfy prior

existing rights, or compliance with other federal laws such

as the Endangered Species Act.” KID II, 48 F.4th at 940

(citation omitted).

C. The Present Dispute

A severe, prolonged drought has reduced the amount of

water available in southern Oregon and northern California,

saddling Reclamation with the “‘nearly impossible’ task of

balancing multiple competing interests in the Klamath

Basin.” Id. at 938–40 (quoting Klamath Irrigation Dist. v.

U.S. Bureau of Reclamation (KID I), 489 F. Supp. 3d 1168,

1173 (D. Or. 2020)). In several federal lawsuits, KID and

similarly situated parties have repeatedly and unsuccessfully

challenged Reclamation’s authority to release water to

satisfy tribal rights and comply with the ESA. See, e.g., KID

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 11

I, 489 F. Supp. 3d 1168, aff’d, KID II, 48 F.4th 934;

Patterson, 204 F.3d 1206; Baley, 942 F.3d 1312; Yurok

Tribe, 2023 WL 1785278; Kandra v. United States, 145 F.

Supp. 2d 1192 (D. Or. 2001).

In 2021, KID filed a motion for a preliminary injunction

in the Klamath County Circuit Court seeking to stop

Reclamation from releasing water from Upper Klamath

Lake in accordance with its ESA responsibilities and the

Tribes’ rights. Due to the drought, such releases could delay

access to, or limit the amount of, water available to satisfy

KID’s ACFFOD-determined allotment. Reclamation

subsequently removed the action to federal district court

under the federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), on the grounds that KID’s motion implicated

issues of federal law and Reclamation planned to assert

federal defenses. KID moved for remand on the basis that

the Klamath County Circuit Court had prior exclusive

jurisdiction over the rights determined in the ACFFOD. The

district court declined to remand, reasoning that the

McCarran Amendment’s waiver of sovereign immunity did

not apply because KID’s motion for preliminary injunction

did not seek to adjudicate or administer ACCFOD rights;

rather, it sought to re-litigate federal issues—namely,

Reclamation’s authority to release water in compliance with

the ESA and tribal rights. Klamath Irrigation Dist. v. U.S.

Bureau of Reclamation, No. 1:21-cv-00504-AA, 2022 WL

1210946, at *4–5 (D. Or. Apr. 25, 2022). KID then filed a

petition for writ of mandamus in this court, seeking to

compel the district court to remand its motion for

preliminary injunction to the Klamath County Circuit Court.

12 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

II. Discussion

We have authority to issue a writ of mandamus under 28

U.S.C. § 1651. Mandamus is an “extraordinary” remedy

limited to “extraordinary causes.” Cheney v. U.S. Dist. Ct.,

542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S.

258, 259–60 (1947)).

Our court has long considered the following factors,

commonly called Bauman factors, in determining whether

mandamus is warranted: (1) whether the petitioner has “no

other adequate means, such as a direct appeal,” to attain the

desired relief, (2) whether “[t]he petitioner will be damaged

or prejudiced in a way not correctable on appeal,”

(3) whether the “district court’s order is clearly erroneous as

a matter of law,” (4) whether the order makes an “oft-

repeated error, or manifests a persistent disregard of the

federal rules,” and (5) whether the order raises “new and

important problems” or legal issues of first impression.

Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir.

1977). We do not mechanically apply the Bauman factors.

Cole v. U.S. Dist. Ct., 366 F.3d 813, 817 (9th Cir. 2004). As

such, “[a] showing of only one factor does not mean the writ

must be denied, nor does a showing of all factors mean that

the writ must be granted.” In re Mersho, 6 F.4th 891, 898

(9th Cir. 2021). ‘‘Mandamus review is at bottom

discretionary—even where the Bauman factors are satisfied,

the court may deny the petition.” San Jose Mercury News,

Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1099 (9th Cir. 1999).

A. Clear Error

We begin with the third factor—clear error as a matter of

law—because it is “a necessary condition for granting a writ

of mandamus.” In re Van Dusen, 654 F.3d 838, 841 (9th

Cir. 2011). Clear error is a deferential standard, requiring a

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 13

“firm conviction” that the district court “misinterpreted the

law” or “committed a clear abuse of discretion.” In re Perez,

749 F.3d 849, 855 (9th Cir. 2014).

Here, KID contends that the district court’s denial of its

motion to remand was clearly erroneous under the doctrine

of prior exclusive jurisdiction, which “holds that when one

court is exercising in rem [or quasi in rem] jurisdiction over

a res, a second court will not assume in rem [or quasi in rem]

jurisdiction over the same res.” Chapman v. Deutsche Bank

Nat’l Trust Co., 651 F.3d 1039, 1043 (9th Cir. 2011)

(citation and internal quotations omitted); State Engineer v.

South Fork Band of the Te-Moak Tribe, 339 F.3d 804, 811,

814 (9th Cir. 2003) (establishing that quasi in rem

jurisdiction is sufficient for the doctrine of prior exclusive

jurisdiction to bar concurrent state and federal proceedings).

According to KID, the Klamath County Circuit Court had in

rem jurisdiction over the ACFFOD (the res), and KID’s

motion for preliminary injunction could not be adjudicated

“without determining the extent and effect of the rights” in

that order.

The doctrine of prior exclusive jurisdiction does not

apply here, however. The KBA did not adjudicate

Reclamation’s ESA obligations or the Tribes’ senior rights,

Baley, 942 F.3d at 1323, 1340–41, so the Klamath County

Circuit Court did not have jurisdiction over the rights

challenged by KID’s motion. Cf. United States v. Orr Water

Ditch Co., 600 F.3d 1152, 1160–61 (9th Cir. 2010) (noting

that the doctrine of prior exclusive jurisdiction did not bar a

state court from exercising jurisdiction over an appeal of a

state engineer’s grant of water rights in a river, even though

a federal district court had previously adjudicated rights in

the same river, because the engineer’s ruling was based on

state law and did not affect the federally adjudicated rights).

14 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

OWRD has affirmatively taken the position in this matter

that the ACFFOD does not adjudicate the challenges

presented by KID’s motion and the Klamath County Circuit

Court’s jurisdiction does not extend to those issues. It so

stated in the answering brief that it filed in this case.2 As

noted above, supra page 9, it was OWRD that determined

claims and prepared the ACFFOD that remains in effect

while the judicial phase proceeds in Klamath County Circuit

Court.

Reliance by the dissent on State Engineer, 339 F.3d 804,

is misplaced. Dissent at 32–34. There, we determined that

a removed action was quasi in rem because the parties’ rights

in the res (a river) served as the basis of jurisdiction, even

though the action was brought against the defendants

personally. State Engineer, 339 F.3d at 811. Because the

action was quasi in rem, the doctrine of prior exclusive

jurisdiction applied to bar concurrent state and federal

actions, and remand to the state court was thus necessary.

Id. at 811, 814. The state court in State Engineer had

jurisdiction over the tribe’s rights because the rights were

governed by state law and subject to the state’s general

stream adjudication. Id. at 807–08.

Here, however, the Klamath County Circuit Court did

not have jurisdiction over the Tribes’ rights implicated by

KID’s motion because the Tribes’ rights at issue were not

2

OWRD’s different stance before the Federal Circuit in Baley, 942 F.3d

1312, is irrelevant. The Federal Circuit rejected the agency’s arguments.

Baley, 942 F.3d at 1340–41. Before our court, the agency has

reconsidered that losing position.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 15

governed by Oregon law and were not subject to the KBA.3

4 See Baley, 942 F.3d at 1323, 1340–41. The McCarran

Amendment, 43 U.S.C. § 666, “waives the United States’

sovereign immunity for the limited purpose of allowing the

Government to be joined as a defendant in a state

adjudication [or administration] of water rights.” United

States v. Adair, 723 F.2d 1394, 1400 n.2 (9th Cir. 1983). It

does not “authorize private suits to decide priorities between

the United States and particular claimants[.]” Metro. Water

3

The fact that, as the dissent notes, Dissent at 36–37, state courts can

have jurisdiction to adjudicate federal reserved water rights is irrelevant

here because neither the KBA nor the Klamath County Circuit Court

exercised jurisdiction over the Tribes’ rights. Baley, 942 F.3d at 1321,

1341 (observing that the Yurok and Hoopa Valley Tribes “did not

participate in the Klamath Adjudication” in Oregon state court). A fair

reading of United States v. Oregon, 44 F.3d at 770—and all other

relevant federal litigation regarding the KBA to date—belies the

dissent’s assertion that we held “the McCarran Amendment ‘required’

Reclamation to submit federal water-rights claims to the jurisdiction of

the Klamath County Circuit Court [on behalf of the Yurok and Hoopa

Valley Tribes, both of which are located outside of Oregon’s borders.]”

Dissent at 25–26. Rather, we held simply that the KBA is “the sort of

adjudication Congress meant to require the United States to participate

in when it passed the McCarran Amendment.” Oregon, 44 F.3d at 770.

That case did not involve out-of-state parties.

4

The dissent’s observation, Dissent at 28–29, 29 n.9, that Reclamation

acknowledged in an internal assessment that the ACFFOD barred water

releases “to augment or otherwise produce instream flows in the Klamath

River,” which would preclude compliance with the ESA and the Tribes’

rights, is irrelevant. As the Northern District of California recently

explained in response to OWRD’s attempt to stop Reclamation’s water

releases for non-ACFFOD rights and obligations, Reclamation must

comply with the ESA. Yurok Tribe, 2023 WL 1785278, at *14–19. The

court also held that OWRD’s order, which directed Reclamation to stop

releasing water for non-ACFFOD-determined rights, was preempted by

the ESA and therefore violated the Supremacy Clause. Id.

16 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

Dist. v. United States, 830 F.2d 139, 144 (9th Cir. 1987),

aff’d sub nom. California v. United States, 490 U.S. 920

(1988). Nor does it expand a state court’s subject matter

jurisdiction or empower a state to adjudicate rights beyond

its jurisdiction, which, at bottom, is what KID’s motion for

a preliminary injunction seeks to do. See United States v.

Dist. Ct. for Eagle Cnty., 401 U.S. 520, 523 (1971); Baley,

942 F.3d at 1341 (explaining that the Tribes’ “rights are

federal reserved water rights not governed by state law” and

that “states have the ability to adjudicate rights in a water or

river within their jurisdiction, but they cannot adjudicate

water rights in another state”).

The dissent’s focus on in rem jurisdiction because the

water is stored in Upper Klamath Lake is not entirely

misplaced, Dissent at 32–38, but it seems myopic for two

reasons.5

5

The dissent cites OWRD and U.S. Department of Justice documents

indicating that OWRD noticed and adjudicated federal reserved rights

for federal properties in northern California as part of the KBA. E.g.,

Dissent at 25 n.1, 26 n.5, 35. However, neither party entered these

documents into the record, nor discussed them in the briefs. As a general

rule, “we rely on the parties to frame the issues for decision[.]” United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). This “rule

reflects our limited role as neutral arbiters of legal contentions presented

to us, and it avoids the potential for prejudice to parties who might

otherwise find themselves losing a case on the basis of an argument to

which they had no chance to respond.” United States v. Yates, 16 F.4th

256, 270–71 (9th Cir. 2021).

Nevertheless, even if these documents were in the record, the fact

remains that the KBA did not adjudicate the Tribes’ rights—nor did it

need to. Baley, 942 F.3d at 1323, 1340–41 (“[T]here is no need for a

state adjudication to occur before federal reserved rights are

recognized[.]”). The Tribes’ rights take precedence over KID’s

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 17

First, under the dissent’s logic, Dissent at 34–35, a state

could control all surface water within its borders by

damming outflows, thereby attaining in rem jurisdiction

over the pooled resource, which is essentially the position

KID takes here.6 Such a result is antithetical to the Supreme

Court’s interpretation of the term “river system” within the

McCarran Amendment to mean one “within the particular

State’s jurisdiction[,]” which confines a state’s adjudication

to its own borders.7 8 See Eagle Cnty., 401 U.S. at 523.

ACFFOD rights under both the doctrine of prior appropriation,

Patterson, 204 F.3d at 1213 (providing that the Tribes’ senior rights

“carry a priority date of time immemorial”), and as federal reserved

rights, Baley, 942 F.3d at 1340 (quoting Agua Caliente Band, 849 F.3d

at 1272) (“[S]tate water rights are preempted by federal reserved

rights.”).

6

KID advanced this position at oral argument. See United States Court

of Appeals for the Ninth Circuit, 22-70143 Klamath Irrigation District

v. USDC-ORM, YouTube (Nov. 18, 2022), https://youtu.be/EAVWqqx

VTy4 (view minutes 14:18–16:16).

7

Caselaw does not support the dissent’s interpretation of the McCarran

Amendment as geographically indifferent “to the location or nature of

federal interests with asserted ‘water rights’ to an in-state ‘river system

or other source.’” Dissent at 45 n.23. We have never held that a state’s

adjudication could operate extraterritorially without the participation of

impacted parties hundreds of miles away entirely within another state.

8

The dissent’s conclusion that Reclamation should have asserted the

Tribes’ reserved rights in an out-of-state proceeding because it holds

their rights in trust, Dissent at 25–26, 26 n.3, ignores this limit on the

McCarran Amendment’s waiver of sovereign immunity. As the

Supreme Court explained in relation to the Colorado River in Eagle

County, 401 U.S. at 523, “[n]o suit by any State could possibly

encompass all of the water rights in the entire Colorado River which runs

through or touches many States.” The dissent ignores the Supreme

Court’s admonition and instead advocates for such an all-encompassing

18 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

Second, the dissent overlooks the forum shopping at the

heart of KID’s petition. KID and other similarly situated

parties have not succeeded in previous federal lawsuits. See,

e.g., KID I, 489 F. Supp. 3d 1168, aff’d, KID II, 48 F.4th

934, 947; Patterson, 204 F.3d 1206, 1213–14;9 Baley, 942

F.3d 1312;10 Yurok Tribe, 2023 WL 1785278, at *6; Kandra,

145 F. Supp. 2d 1192.

By filing its underlying motion in state court, KID sought

to litigate in a new forum, one it presumably hoped would

be less concerned with the commands of the ESA and the

rights of parties not before the court.11 With this perspective,

it might fairly be said that KID seeks to deny other affected

interpretation of the KBA here. But a “river system” within the

McCarran Amendment “must be read as embracing one within the

particular State’s jurisdiction.” Id. at 523.

9

Based on tax records, Kandra, 145 F. Supp. at 1201, and other

litigation documents, we infer that the Patterson plaintiff—the Klamath

Water Users Protective Association (“KWUPA”)—is the same entity as

KWUA, which is the business name of the Klamath Basin Water Users

Protective Association (“KBWUPA”). KID is a member of

KBWUPA/KWUA. See supra page 9.

Regardless of whether KWUPA is the same entity as

KBWUPA/KWUA, the fact remains that, in Patterson, the plaintiff

invoked its state contract rights to challenge Reclamation’s authority to

manage the Klamath Project in accordance with the ESA and tribal trust

obligations. This legal theory sounds familiar to us.

10

KID was a party in Baley until, following the trial and post-trial

briefing, KID and the other irrigation districts voluntarily dismissed their

claims before the court ruled against the remaining individual plaintiffs.

Baley, 942 F.3d at 1318.

11

To be clear, we do not insinuate that the Klamath County Circuit Court

would necessarily rule in KID’s favor. Rather, we mean only that KID

seems to be seeking a new umpire because it has repeatedly struck out in

multiple federal courts.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 19

entities a meaningful forum and remedy. The dissent does

not alleviate these concerns, offering only the possibility of

eventual review by the Supreme Court, after years of

misdirection of the water that is the subject of these claims.

Dissent at 39–40.

KID’s other assertion—that the Klamath County Circuit

Court had prior exclusive jurisdiction because its motion

seeks to enforce rights determined in the ACFFOD—is

undermined by Klamath Irrigation District v. U.S. Bureau of

Reclamation (KID II), 48 F.4th 934 (9th Cir. 2022).12 There,

we rejected KID’s characterization of its suit as an

administration of ACFFOD-determined rights and

concluded that it was instead an Administrative Procedure

Act challenge to Reclamation’s authority to release water in

compliance with the ESA and federal reserved water rights.

Id. at 947. Here, we similarly reject KID’s attempt to

circumvent our prior decision, the Tribes’ rights, and the

effect of the ESA by characterizing the relief it seeks as an

application of the ACFFOD.13

12

We do not cite KID II for a preclusive effect, as the dissent alleges.

Dissent at 40 n.19, 42 n.21. As we explain, that case illustrates KID’s

framing of its legal theory as a McCarran Amendment “administration,”

when it actually sought to outmaneuver the force of the ESA and the

Tribes’ rights through an enforcement of the ACFFOD. Here, KID

attempts another end-run around the same federal rights under the guise

of the McCarran Amendment.

13

We are not persuaded by the dissent’s proposal to apply removal

precedent to determine whether KID’s petition is an “administration”

under the McCarran Amendment. Dissent at 43 (citing Bell v. Hood, 327

U.S. 678 (1946) (nonexistence of a cause of action is not a proper basis

for a jurisdictional dismissal); Jefferson County v. Acker, 527 U.S. 423

(1999) (colorable federal defense is sufficient to invoke federal question

20 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

We do not reach the merits of KID’s motion for

preliminary injunction, as the dissent charges. Dissent at

39–40, 43. “We recognize that, at times, ‘jurisdiction is so

intertwined with the merits that its resolution depends on the

resolution of the merits.’” Orff v. United States, 358 F.3d

1137, 1150 (9th Cir. 2004) (quoting Careau Grp. v. United

Farm Workers, 940 F.2d 1291, 1293 (9th Cir. 1991)). “But

that is not the case here.” Id. Our determination that the

Klamath County Circuit Court did not have prior exclusive

jurisdiction over the rights KID seeks to re-litigate does not

depend on the merits of KID’s motion for preliminary

injunction “as the resolution of one does not depend on the

resolution of the other.” Id.

Further, we have never held that any issue implicating

federal reserved water rights always goes to the merits of

such issue and precludes a jurisdictional analysis. The

dissent relies on inapposite cases to support this proposition.

Dissent at 23, 39–40 (citing United States v. Oregon, 44 F.3d

758, 770 (9th Cir. 1984); Eagle Cnty., 401 U.S. at 526; Colo.

River Water Conservation Dist. v. United States, 424 U.S.

800, 813 (1976)). These cases merely note that properly

preserved issues implicating the amount and scope of federal

reserved rights in state adjudications are reviewable by the

Supreme Court after final judgment from the state court. See

Eagle Cnty., 401 U.S. at 525–26; Colo. River, 424 U.S. at

813; Oregon, 44 F.3d at 768–70.

Again, we express no views on the merits of KID’s

underlying motion for preliminary injunction. We only

conclude that the Klamath County Circuit Court did not have

jurisdiction under the federal officer removal statute)). Both cases are

inapposite as neither deal with the McCarran Amendment, stream

adjudications, or any analogous issues to those before our Court.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 21

prior exclusive jurisdiction over the rights KID seeks to re-

litigate. As such, the district court did not err in declining to

remand the motion for preliminary injunction to the state

court.

B. Remaining Bauman Factors

We need not consider the remaining Bauman factors

because “the absence of the third factor, clear error, is

dispositive.” Burlington N. & Santa Fe Railway v. Dist. Ct.,

408 F.3d 1142, 1146 (9th Cir. 2005). KID’s petition does

not satisfy them, in any event. The district court’s order did

not “manifest[] a persistent disregard of the federal rules,”

nor did it raise legal issues of first impression. Bauman, 557

F.2d at 655.

KID has “other adequate means” to attain its desired

relief, id. at 654, as its underlying motion for preliminary

injunction has simply been removed to the district court.

Nothing prevents KID from seeking substantive relief before

the district court, because, contrary to the dissent’s

characterization, Dissent at 39–40, 43, we neither adjudicate

the merits of KID’s motion, nor direct the district court on

the merits. KID may also seek interim injunctive relief from

the district court.

Finally, KID will not be “damaged or prejudiced in a

way not correctable on appeal” by litigating the underlying

motion before the district court. Bauman, 557 F.2d at 654.

KID’s lack of success in previous federal lawsuits and

related litigation does not make the Klamath County Circuit

Court the proper forum by default. While the dissent

expresses concern that any eventual appellate relief would

be inadequate because KID’s members may suffer a loss of

water rights in the interim, Dissent at 46, the dissent’s

approach would threaten to impose exactly the same

22 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

deprivation on the Tribes, whose rights take precedence

under both federal and state law over those asserted by KID.

See Patterson, 204 F.3d at 1209, 1214; Baley, 942 F.3d at

1340; Kandra, 145 F. Supp. 2d at 1197, 1204; Parravano,

70 F.3d at 541–42, 545; see also Agua Caliente Band, 849

F.3d at 1272.

Accordingly, we do not conclude that this is an

“exceptional” situation “amounting to a judicial usurpation

of power or a clear abuse of discretion” that would justify

the “extraordinary remedy” of mandamus. See In re Holl,

925 F.3d 1076, 1082 (9th Cir. 2019).

KID’s petition for a writ of mandamus is DENIED.

BAKER, Judge, dissenting:

“[B]earing in mind the ubiquitous nature of Indian water

rights in the [W]est,” Colo. River Water Conservation Dist.

v. United States, 424 U.S. 800, 811 (1976), and that “in

stream adjudications . . . each water rights claim by its very

nature raises issues inter se as to all such parties for the

determination of one claim necessarily affects the amount

available for the other claims,” Nevada v. United States, 463

U.S. 110, 140 (1983) (cleaned up), the mandamus petition

filed by the Klamath Irrigation District (KID) presents an

important question involving jurisdictional first principles:

Does a comprehensive state court in rem water-rights

proceeding have prior exclusive jurisdiction over a quasi in

rem motion to enforce a decree governing rights to in-state

water when the United States Bureau of Reclamation asserts

defenses based on the reserved rights of out-of-state Indian

tribes and the preemptive effect of the Endangered Species

Act (ESA)?

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 23

In holding that the Klamath County (Oregon) Circuit

Court lacks such prior exclusive jurisdiction, the majority

gives four reasons. I respectfully disagree as to each.

First, the majority contends that because the Yurok and

Hoopa Valley Tribes (the Tribes) are California-based, the

Oregon state court lacks authority to adjudicate their rights

to in-state water in the first instance. Opinion at 16–17. But

as explained below, Oregon unquestionably has the power to

adjudicate the rights of the Tribes and other out-of-state

claimants to water within its borders through in rem

proceedings, even as its exercise of such authority must

respect federal reserved rights and interstate water rights.

The irony of today’s decision is that we may not pass

judgment on the Klamath County Circuit Court’s

jurisdiction as a matter of state law.

Second, the majority observes that the decree governing

the res (rights to stored water in Upper Klamath Lake in

Oregon) did not adjudicate Reclamation’s federal law

defenses. Id. at 13–14. But what matters here is that KID’s

quasi in rem motion asserts rights under that decree, over

which the state court has prior exclusive jurisdiction. The

Bureau’s defenses are irrelevant.

Third, the majority concludes that Reclamation’s

defenses defeat KID’s motion. Id. at 14–15, 15 n.4, 16 n.5,

22. It’s settled law, however, that questions concerning tribal

reserved rights and other federal defenses in comprehensive

water-rights proceedings “go to the merits,” United States v.

Oregon, 44 F.3d 758, 770 (9th Cir. 1994), and that state

courts are presumptively competent to adjudicate those

“federal questions which, if preserved, can be reviewed” in

the Supreme Court “after final judgment by the [state]

court.” United States v. Dist. Ct. in and for County of Eagle,

24 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

401 U.S. 520, 526 (1971). Even if the Bureau’s defenses are

well-founded as the majority contends, that has no bearing

on the state court’s jurisdiction, which we must presume

exists as a matter of state law.

Finally, the majority holds that the federal sovereign

immunity waiver of the McCarran Amendment, 43 U.S.C.

§ 666(a), does not apply here because permitting KID to

obtain relief under the decree would interfere with “the

Tribes’ rights” and the preemptive “effect of the ESA.”

Opinion at 19. Once again, the majority conflates the merits

with jurisdiction. We should instead hold that KID’s

assertion of a colorable claim to enforce the decree

governing the res suffices to trigger the Amendment’s

waiver under the test applied by the Supreme Court in

analogous jurisdictional contexts. Cf. Bell v. Hood, 327 U.S.

678, 682–83 (1946).

Because the Klamath County Circuit Court has prior

exclusive jurisdiction over the order that KID’s motion seeks

to enforce, the district court necessarily committed a clear

error of law in failing to remand. We should grant the

mandamus petition and send KID’s motion back to state

court where it belongs.

I

In 1975, the Oregon Water Resources Department

(OWRD) commenced a general stream adjudication (the

Klamath Basin Adjudication, or KBA). See United States v.

Oregon, 44 F.3d at 762. In so doing, OWRD sought to

ascertain “the relative rights of the various claimants to the

waters” of the Klamath Basin. ORS § 539.021(1). Under

Oregon law, a general stream adjudication determines all

water rights vested or initiated before February 24, 1909,

including—of critical importance here—reserved federal

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 25

rights. See ORS § 539.010(7) (authorizing OWRD to

“adjudicate federal reserved rights for the water necessary to

fulfill the primary purpose of the reservation”).

“[P]roceedings adjudicating” water rights in Oregon are

“in rem,” Masterson v. Pac. Live Stock Co., 24 P.2d 1046,

1048 (Or. 1933), meaning that the KBA is “directly against

the property”—in this instance, water rights in Upper

Klamath Lake—“and [involves] an adjudication against all

mankind equally binding upon everyone,” Linn County v.

Rozelle, 162 P.2d 150, 156 (Or. 1945). And because the

KBA is against the world, “person[s] . . . claim[ing] legal

title to a water right [were required to] file a claim in the

adjudication or lose the right.” Klamath Irrigation Dist. v.

United States, 227 P.3d 1145, 1166 (Or. 2010); see also ORS

§ 539.210 (same); Pac. Live Stock Co. v. Lewis, 241 U.S.

440, 447–48 (1916) (same). Accordingly, OWRD provided

notice of the KBA to federal users in both Oregon and

California.1

Even though we held that the McCarran Amendment

“required” Reclamation to submit federal water-rights

claims to the jurisdiction of the Klamath County Circuit

1

In 1996, OWRD gave notice “to the United States Attorney General

claiming a federal reserved right or a right to the use of the waters of the

Klamath River and its tributaries, diverted in Oregon and used within

Klamath, Jackson, and Lake Counties, Oregon[,] and Modoc and

Siskiyou Counties, California,” that it would receive proofs of claim

between October 1, 1996, and January 31, 1997, from “all parties

claiming rights to the use of waters of the Klamath River or any of its

tributaries.” KBA order at Appendix H-2 (emphasis added), available at

https://www.oregon.gov/owrd/programs/WaterRights/Adjudications/Kl

amathAdj/KBA_APP_133626.PDF. Reclamation “uses” water by

releasing it from Upper Klamath Lake for the benefit of the California-

based Tribes.

26 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

Court, United States v. Oregon, 44 F.3d at 770, the Bureau2

failed to file any such claim on behalf of the Tribes, to whom

the government owes trust obligations. See Arizona v. San

Carlos Apache Tribe of Ariz., 463 U.S. 545, 549 (1983);3 cf.

Nevada v. United States, 463 U.S. at 143–44 (explaining that

an Indian tribe’s water rights were lost because the

government failed to assert them in “a comprehensive

adjudication of water rights intended to settle once and for

all the question of how much of the Truckee River each of

the litigants was entitled to,” as “water adjudications are

more in the nature of in rem proceedings”).

In 2014, OWRD filed a decree (the KBA order)4 that

provisionally governs water rights in Upper Klamath Lake,

including the rights of federal properties in California,5

2

Under the Reclamation Act, absent superseding federal law, the Bureau

must “comply with state law in the ‘control, appropriation, use, or

distribution of water.’ ” California v. United States, 438 U.S. 645, 674–

75 (1978) (quoting 43 U.S.C. § 383); see also id. at 675 (“The legislative

history of the Reclamation Act of 1902 makes it abundantly clear that

Congress intended to defer to the substance, as well as the form, of state

water law.”).

3

Thus, the majority’s contention that the “Tribes’ rights at issue . . . were

not subject to the KBA,” Opinion at 14–15, is incorrect. Reclamation is

subject to the KBA and holds the Tribes’ rights in trust.

4

The parties call the KBA order the “ACFFOD,” shorthand for

“Amended and Corrected Findings of Fact and Final Order of

Determination.”

5

The Justice Department explains that “[i]f the administrative findings

and conclusions [in the KBA order] are ultimately sustained by the state

circuit court, they will approve numerous significant federal reserved

rights and state appropriative rights for a national park, national forests,

wilderness areas, wild and scenic rivers, wildlife refuges, Indian

reservations, and the Klamath Reclamation Project encompassing

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 27

pending a final adjudication by the state court. See ORS

§ 539.170; see also Lewis, 241 U.S. at 455 (“[I]t is within

the power of the state to require that, pending the final

adjudication, the water shall be distributed according to

[OWRD]’s order, unless a suitable bond be given to stay its

operation.”). Under Oregon law, the “Klamath County

Circuit Court has exclusive subject matter jurisdiction to

review the KBA order.” TPC, LLC v. Or. Water Res. Dep’t,

482 P.3d 121, 129 (Or. App. 2020).

On March 29, 2021, KID moved for a preliminary

injunction in the Klamath County Circuit Court,6 arguing

200,000 acres in southern Oregon and northern California.” U.S. Dep’t

of Justice, Environment & Natural Resources Division, ENRD

Accomplishments Report Fiscal Year 2013, at 74 (emphasis added),

https://www.justice.gov/sites/default/files/enrd/legacy/2015/04/13/ENR

D_Accomplishments_Report_2013_2.pdf. One of the national wildlife

refuges that DOJ referred to is the Tule Lake National Wildlife Refuge,

located entirely in Northern California. See Kandra v. United States, 145

F. Supp. 2d 1192, 1196 (D. Or. 2001) (“Two national wildlife refuges,

the Lower Klamath and Tule Lake National Wildlife Refuges, depend on

the [Klamath Reclamation] Project for water and receive large quantities

of return irrigation flows and other Project waters.”).

6

Earlier, KID sued Reclamation in Oregon district court seeking relief

under the Administrative Procedure Act (APA). See Klamath Irrigation

Dist. v. Bureau of Reclamation, No. 1:19-cv-451-CL, Dkt. No. 70 (D.

Or.) (KID’s second amended complaint for declaratory and injunctive

relief). After the Klamath and Hoopa Tribes then intervened to seek

dismissal, the district court dismissed the suit in 2020 for lack of

jurisdiction. The court reasoned that the Tribes were required parties,

Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 489 F. Supp. 3d

1168, 1176–81 (D. Or. 2020) (KID I), and that sovereign immunity—

which they did not waive—prevented their joinder, id. at 1181–82. While

its appeal to our Court was pending, KID filed its motion in the Klamath

County Circuit Court. We later affirmed the district court’s dismissal.

28 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

that Reclamation’s ongoing water releases violate the KBA

order, which provides that the United States only owns the

right to store water. Pet. 667 (citing KBA order, Pet. 109);

see also KBA order, Pet. 121 (providing that “[t]he United

States also holds a separate right for storage of water in

Upper Klamath Lake for the benefit of the irrigation rights

recognized in this Partial Order of Determination”)

(emphasis added).8

KID’s motion also contends that Reclamation’s right to

store water does not give the Bureau any right to use that

water, quoting Cookinham v. Lewis, 114 P. 88, 91 (Or.

1911), for the proposition that a primary storage right “does

not include the right to divert and use [. . .] stored water,

which must be the subject of the secondary permit.” Pet. 66;

see also KBA order, Pet. 122 (“[T]he right to store water is

distinct from the right to use stored water . . . .”). The motion

asserts that the KBA order instead grants “KID and other

water right holders” the “secondary right to beneficially use”

the water stored by the Bureau. Pet. 66 (citing KBA order,

Pet. 121–22).

The motion further argues that KID’s “secondary water

rights to stored water in [Upper Klamath Lake] reservoir

cannot be ‘called’ or curtailed by any water rights—even

Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934

(9th Cir. 2022) (KID II).

7

This citation, and others in the same form, refers to the ECF page

number in the upper right corner of KID’s mandamus petition and

attached exhibits, e.g., “(66 of 1311).”

8

I recount KID’s allegations in some detail because, as discussed below,

these allegations are highly relevant to whether it has asserted a

colorable claim that Reclamation water distributions violate the KBA

order.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 29

senior water rights—[downstream] in the Klamath River.”

Pet. 67 (emphasis in original and citing various Oregon

statutes and authorities). Indeed, the motion explains that

Reclamation admits that the KBA order bars the Bureau

from “releas[ing] water previously stored in priority and

otherwise required for beneficial use by Klamath Project

beneficiaries from Upper Klamath Lake for the specific

purposes of producing instream flows in the Klamath River

either in Oregon or California.” Pet. 64 (quoting Bureau of

Reclamation, Reassessment of U.S. Bureau of Reclamation

Klamath Project Operations to Facilitate Compliance with

Section 7(a)(2) of the Endangered Species Act, Jan. 2021,

Pet. 174).9 Nevertheless, the motion claims that the agency

is distributing “vast quantities of stored water” out of the

lake “to provide enhanced instream flows in the Klamath

River in California.” Id. at 67.

Anticipating defenses likely to be raised by Reclamation,

KID’s motion asserts that the Bureau’s trust obligations to

the Tribes “afford no water rights to use stored water in

[Upper Klamath Lake], as neither Tribe (nor Reclamation

on their behalf) has ever claimed a water right in [Upper

Klamath Lake] in the Klamath Adjudication.” Pet. 60

(emphasis added).10 Similarly, the motion argues that the

9

That same statement from Reclamation explains that the KBA order

“preclude[s] releases of water previously stored in priority in Upper

Klamath Lake for satisfying the Yurok and Hoopa Tribes’ federally

reserved water right.” Pet. 175 (emphasis added).

10

If Reclamation forfeited the Tribes’ rights by not filing a claim on their

behalf in the KBA, they would not lack a remedy for the government’s

breach of its trust obligations. See 28 U.S.C. § 1505 (Indian Tucker Act

providing for jurisdiction in the Court of Federal Claims for claims by

tribes against the United States); cf. Nevada v. United States, 463 U.S. at

30 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

ESA does not override the agency’s Reclamation Act

obligation to comply with state law in distributing water

from Upper Klamath Lake. Pet. 77–80.11

Finally, KID’s motion includes declarations from several

of its farmer and rancher members, irrigators who depend on

the water of Upper Klamath Lake. One explains that

“[f]arming involves significant up-front costs with long

delays before the crops actually result in revenue.” Pet. 294.

All the declarants assert that they face the risk of bankruptcy

144 n.16 (“In this case, the Tribe, through the Government as their

representative, was given adequate notice and a full and fair opportunity

to be heard. If, in carrying out their role as representative, the

Government violated its obligations to the Tribe, then the Tribe’s remedy

is against the Government, not against third parties.”); see also id. at 145

(Brennan, J., concurring) (“I join the Court’s opinion on the

understanding that it reaffirms that the Pyramid Lake Paiute Tribe has a

remedy against the United States for the breach of duty that the United

States has admitted.”).

11

The majority contends that “KID’s rights are subservient to the Tribes’

rights and Reclamation’s ESA responsibilities.” Opinion at 10 (citing

Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,

1213 (9th Cir. 1999)). But the administrative adjudication phase of the

KBA was then ongoing, prompting us to qualify our holding: The KBA

“will . . . decide[]” “questions of relative amounts and priorities, at least

within the State of Oregon . . . . Our decision in this case . . . relate[s]

only to questions involving the Bureau’s operation and management of

the [Klamath Basin] Project, and not to the relative rights of others not

before the court to the use of the waters of the Basin.” Patterson, 204

F.3d at 1214 n.3 (emphasis added). KID was not a party to Patterson,

and to what extent its rights under the KBA order are “subservient” to

the Tribes’ rights and Reclamation’s ESA responsibilities when the

Bureau failed to assert a claim on the Tribes’ behalf is precisely the

question raised by KID’s motion. In any event, even if KID were bound

by Patterson, it could not have asserted any claim in that action to

enforce the KBA order, which OWRD only first issued in 2013 (some

14 years after our ruling in Patterson).

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 31

or liquidating assets because of Reclamation-induced water

shortages. Pet. 86–100; Pet. 293–310. For example, one

states that “[w]ithout the water KID and I own rights to, I

cannot grow crops, and therefore cannot generate revenue to

pay debt and maintain the business.” Pet. 93. The effects

from “water shortages in a particular year can impact not

only year-to-year crops, but crops that require a longer-term

investment and commitment.” Pet. 294.

Citing the federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), the Bureau removed KID’s motion to the

district court. Reclamation’s removal notice admits that

KID’s motion seeks to bar the Bureau’s releases of water

from Upper Klamath Lake to the extent such releases

“conflict with state-based water rights determined in the

[KBA order].” Pet. 353 (emphasis added). The notice

expressly identifies two federal “defenses” to KID’s claims,

“senior federal reserved Tribal fishing and water rights” and

“sovereign immunity.” Pet. 354.

KID then moved to remand, arguing that the prior

exclusive jurisdiction doctrine applies here. Under that

doctrine, even if removal were otherwise proper,12 the

district court nevertheless lacked jurisdiction if KID’s

motion is in rem or quasi in rem, because the state court

proceeding is in rem. See Goncalves ex rel. Goncalves v.

Rady Child.’s Hosp. San Diego, 865 F.3d 1237, 1253 (9th

Cir. 2017) (“If both courts exercise either in rem or quasi in

rem jurisdiction, then the courts may be simultaneously

12

See State Eng’r of State of Nev. v. S. Fork Band of Te-Moak Tribe of

W. Shoshone Indians of Nev., 339 F.3d 804, 809 (9th Cir. 2003)

(“Section 1442 . . . merely allows the federal government to remove a

case to federal district court; it does not determine whether the court has

jurisdiction to hear it.”).

32 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

exercising jurisdiction over the same property, in which case

the prior exclusive jurisdiction doctrine applies and the

district court is precluded from exercising jurisdiction over

the res.”).

The district court denied the remand motion, reasoning

that “KID seeks to reach beyond the limited waiver of the

McCarran Amendment to litigate federal issues, most

notably Reclamation’s release of water to satisfy the

instream water rights of the Yurok and Hoopa Valley Tribes

and the co-extensive demands of the ESA.” Pet. 1263.

Because “KID’s motion for preliminary injunction does not

come within the McCarran Amendment’s waiver . . . the

KBA [does not] possess exclusive jurisdiction over the

claim.” Id. KID then filed its mandamus petition.

II

It’s undisputed that the Klamath County Circuit Court

has in rem jurisdiction over rights to the stored water (the

res) of Upper Klamath Lake in Oregon. It’s similarly

undisputed that the KBA order provisionally governs

Reclamation’s distributions from that res pending a final

adjudication by the state court. As described above, and as

the Bureau admitted in its notice of removal, see Pet. 353,

KID’s motion manifestly seeks to enforce that order.

This case is therefore much like State Engineer, where

we held that to determine whether a removed action

encroached upon prior exclusive jurisdiction of a state court,

a district court must “look behind the form of the action to

the gravamen of a complaint and the nature of the right sued

on.” 339 F.3d at 810 (cleaned up). As in State Engineer,

“[t]here can be no serious dispute that [KID’s motion] was

brought to enforce a decree”—the KBA order—“over a

res”—i.e., the rights to the stored waters of Upper Klamath

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 33

Lake. Id. at 811. “Given the zero-sum nature of the resource,

any party’s unlawful diversion of water from the [lake]

necessarily affects other users.” Id. Thus, the district court

cannot adjudicate KID’s and Reclamation’s “personal

claims to [the] property without disturbing the first court’s

jurisdiction over the res.” Id. While KID’s motion “is

brought only against the [Bureau] personally,” because “the

parties’ interests in the property”—the KBA order—“serve

as the basis [for] jurisdiction,” the motion “is quasi in rem,

and the doctrine of prior exclusive jurisdiction fully applies.”

Id. (cleaned up); see also Hanson v. Denckla, 357 U.S. 235,

246 n.12 (1958) (defining quasi in rem actions as including

those in which “the plaintiff [seeks] to secure a pre-existing

claim in the subject property and to extinguish or establish

the nonexistence of similar interests of particular

persons”);13 Penn Gen. Cas. Co. v. Pennsylvania ex rel.

Schnader, 294 U.S. 189, 195 (1935) (if “two suits are in rem

or quasi in rem, . . . the court first assuming jurisdiction over

13

In a quasi in rem action, “the basis of jurisdiction is the defendant’s

interest in property, real or personal, which is within the court’s power,

as distinguished from in rem jurisdiction in which the court exercises

power over the property itself, not simply the defendant’s interest

therein.” Black’s Law Dictionary 794 (6th ed. 1990). Applied here, the

basis of jurisdiction over KID’s quasi in rem motion is the KBA order,

which adjudicated the parties’ interests and over which the Klamath

County Circuit Court has continuing exclusive jurisdiction. See TPC,

482 P.3d at 129; cf. United States v. Alpine Land & Reservoir Co., 174

F.3d 1007, 1013, 1014 (9th Cir. 1999) (a federal district court had prior

exclusive jurisdiction “over the water rights in question when it

adjudicated the Alpine and Orr Ditch Decrees and . . . continued to retain

such jurisdiction,” and “to construe these Decrees so that the district

court does not retain exclusive jurisdiction would render the retention of

jurisdiction a nullity”).

34 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

the property may maintain and exercise that jurisdiction to

the exclusion of the other”).

The majority, however, offers in essence four reasons

why the prior exclusive jurisdiction doctrine does not apply

here. I consider each in turn.

A

Although not expressed as such, the majority implies that

the Klamath County Circuit Court lacks jurisdiction ab initio

insofar as Reclamation defends its water distributions based

on the reserved rights of the California-based Tribes.

Opinion at 16 (averring that a state may not “adjudicate

rights beyond its jurisdiction, which, at bottom, is what

KID’s motion for a preliminary injunction seeks to do”)

(citing Eagle County, 401 U.S. at 523, and Baley v. United

States, 942 F.3d 1312, 1341 (Fed. Cir. 2019)). Eagle County

observed that the term “river system” in the McCarran

Amendment “must be read as embracing one within the

particular State’s jurisdiction,” for “[n]o suit by any State

could possibly encompass all of the water rights” in an entire

interstate river system such as the Colorado River. 401 U.S.

at 523 (emphasis added).14

The Klamath County Circuit Court’s exercise of

jurisdiction over the Tribes’ claims is consistent with Eagle

County, however, because the water in question is inside

Oregon. As to “ ‘property within its limits,’ ” a state

“possess[es] the power to provide for the adjudication of

titles to [property] not only as against residents, but as

14

Citing this observation, in Baley the Federal Circuit simply asserted—

with no analysis to speak of—that the Klamath County Circuit Court

lacked the power to adjudicate the rights of the California-based Tribes

to water stored in Oregon. See 942 F.3d at 1341.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 35

against nonresidents, who might be brought into court by

publication.” Am. Land Co. v. Zeiss, 219 U.S. 47, 61 (1911)

(emphasis added) (quoting Arndt v. Griggs, 134 U.S. 316,

320 (1890)). Such an in rem “procedure established by the

state . . . is binding upon the federal courts.” Arndt, 134 U.S.

at 321. Oregon has established such a procedure for water

rights, and it specifically confers jurisdiction to “adjudicate

federal reserved rights.” ORS § 539.010(7).

That Oregon cannot subject the Tribes to in personam

jurisdiction is irrelevant because the KBA is in rem. See 4A

C. Wright & A. Miller, Federal Practice & Procedure

§ 1070 (4th ed. 2022 update) (“The fact that the court cannot

obtain jurisdiction over the person of all defendants or

claimants to the property is considered irrelevant to whether

in rem or quasi-in-rem jurisdiction is constitutionally

permissible.”); see also Tenn. Student Assistance Corp. v.

Hood, 541 U.S. 440, 453 (2004) (same); Arndt, 134 U.S. at

320–21 (same). And because the KBA is in rem, as described

above, OWRD—after giving notice—exercised its authority

under state law to adjudicate the reserved rights of federal

properties in both Oregon and California in the KBA order.15

15

Invoking the party-presentation rule, see United States v. Sineneng-

Smith, 140 S. Ct. 1575, 1579 (2020), the majority contends that because

KID did not cite OWRD’s notice to federal users in California or the

Justice Department’s public acknowledgment that the KBA order

governs water rights of federal properties in California, we should ignore

those documents, Opinion at 16 n.5, even though they bear directly on

KID’s contention that the order adjudicated water rights, including

federal reserved rights, “as against the whole world,” Pet. 25 (quoting

Goncalves, 865 F.3d at 1254); see also Pet. Reply at 21 n.2 (arguing

“Reclamation’s suggestion that California tribes who did not participate

in the [KBA] may still claim water rights in [Upper Klamath Lake] is

36 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

That a state court’s exercise of in rem jurisdiction in the

context of water rights requires it to respect federal reserved

rights and other limits on its authority such as interstate

compacts does not mean that it lacks power in the first

instance to determine those constraints. The Supreme Court

has repeatedly emphasized that states have “plenary control”

over water within their borders, California v. United States,

438 U.S. at 657–58 (quoting Cal. Or. Power Co. v. Beaver

Portland Cement Co., 295 U.S. 142, 163–64 (1935)), even

as this “total authority” is subject to “the reserved rights or

navigation servitude of the United States,” id. at 662; cf.

Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990

P.2d 46, 54 n.12 (Colo. 1999) (“The availability of water

arising in Colorado for beneficial use in Colorado is limited

by the delivery requirements of the interstate compacts and

equitable apportionment decrees to which Colorado is a

party.”); Mississippi v. Tennessee, 142 S. Ct. 31, 41 (2021)

wrong” because an “in rem proceeding . . . determines rights in particular

property against the entire world”).

Post-Sineneng-Smith, however, we have recognized that “when an

issue or claim is properly before the court, the court is not limited to the

particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of

governing law.” Does v. Wasden, 982 F.3d 784, 793 (9th Cir. 2020)

(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).

KID’s mandamus petition squarely raises the issue of whether the KBA

order is effective against the world, and just as we may consider cases

not cited by the parties bearing on that issue, we may also sua sponte take

judicial notice of relevant public records. See Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“[A] court may

take judicial notice of matters of public record . . . .”) (cleaned up); Where

Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 858 n.2 (9th

Cir. 2022) (sua sponte taking judicial notice). Thus, the majority sua

sponte takes judicial notice of a public document in an attempt to link

KID to the Klamath Water Users Association. Opinion at 9, 18 n.9.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 37

(“When a water resource is shared between several States,

each one has an interest which should be respected by the

other.”) (cleaned up).16

Not only does the Klamath County Circuit Court have

the power to adjudicate inter se the water rights of all

claimants to the waters of Upper Klamath Lake, but we also

lack the prerogative to opine on the state-law limits of that

court’s exercise of such authority. See San Carlos Apache

Tribe, 463 U.S. at 561 (stating that whether state courts have

jurisdiction over Indian water-rights issues “is a question . . .

over which the state courts have binding authority” and that

where, as here, a state court has taken jurisdiction, federal

courts “must assume, until informed otherwise, that—at

least insofar as state law is concerned—such jurisdiction

exists”). As far as we are concerned, the only relevant

question is “whether there is a federal bar to the assertion of

state jurisdiction” by the Klamath County Circuit Court. Id.

The only such bar raised here by Reclamation is sovereign

immunity, discussed below.

B

According to the majority, the second reason the

Klamath County Circuit Court lacks prior exclusive

jurisdiction over KID’s motion is because “[t]he KBA

[order] did not adjudicate Reclamation’s ESA obligations or

the Tribes’ senior rights . . . .” Opinion at 13 (citing United

States v. Orr Water Ditch Co., 600 F.3d 1152, 1160–61 (9th

16

The Klamath River Basin Compact governs the equitable

apportionment of water between Oregon and California users in the

Klamath Basin. See ORS § 542.620. That compact, while otherwise

binding in the KBA, see id. Art. XII.A., expressly excludes reserved

federal rights, including tribal rights, from its scope. See id. Arts. X, XI.

38 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

Cir. 2010)). Along the same lines, the majority attempts to

distinguish State Engineer, contending that while the state

court there “had jurisdiction over the tribe’s rights because

the rights were governed by state law and subject to the

state’s general stream adjudication,” here the Klamath

County Circuit Court “did not have jurisdiction over the

Tribes’ rights implicated by KID’s motion because the

Tribes’ rights at issue were not governed by Oregon law and

were not subject to the KBA.” Id. at 14–15.

Whether the KBA order adjudicated the Bureau’s federal

defenses, however, is irrelevant because the prior exclusive

jurisdiction doctrine turns on “the nature of the right sued

on.” State Eng’r, 339 F.3d at 810 (emphasis added); cf.

Hanson, 357 U.S. at 246 n.12 (noting that in a quasi in rem

action “the plaintiff [seeks] to secure a pre-existing claim in

the subject property and to extinguish or establish the

nonexistence of similar interests of particular persons”)

(emphasis added). The KBA order is the source of KID’s

asserted water rights, and under state law the Klamath

County Circuit Court has prior exclusive jurisdiction to

enforce and interpret it. TPC, 482 P.3d at 129.

The majority’s reliance on Orr Water Ditch is therefore

misplaced. In that case, we held that the district court with

prior exclusive jurisdiction over a Nevada water-rights

decree lacked jurisdiction over an Indian tribe’s attempt to

enforce water rights based on “state law” rather than “the

Tribe’s rights under the [federal] decree.” 600 F.3d at 1160.

Here, by contrast, KID’s motion asserts rights under the

KBA order, over which the state court does have

jurisdiction, and prior exclusive jurisdiction to boot.

Moreover, whereas we had authority in Orr Water Ditch to

opine on the district court’s jurisdiction, we have no such

authority as to the Klamath County Circuit Court.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 39

C

The majority’s third reason for holding that the state

court lacks jurisdiction over KID’s motion is that

Reclamation did not “need” to assert any claim on behalf of

the Tribes in the KBA to avoid forfeiture because their rights

are “not governed by Oregon law” and “take precedence

over KID’s.” Opinion at 14–15, 16 n.5, 22. Similarly, the

majority contends that the Bureau’s ESA obligations

preempt the KBA order that KID seeks to enforce. Id. at 15

n.4.

In so holding, the majority errs by putting “the merits

cart before the jurisdictional horse.” Bean v. Matteucci, 986

F.3d 1128, 1137 (9th Cir. 2021) (Rawlinson, J., dissenting).

In United States v. Oregon, we held that “concerns” over

“federal reserve[d] water rights” “go to the merits.” 44 F.3d

at 770 (emphasis added). We explained that “in

administering water rights the State is compelled to respect

federal law regarding federal reserved rights and to the

extent it does not, its judgments are reviewable by the

Supreme Court.” Id. (citing Eagle County, 401 U.S. at 525–

26); see also Eagle County, 401 U.S. at 526 (“All . . .

questions” in state water rights adjudications “going to the

merits,” “including the volume and scope of particular

reserved rights, are federal questions which, if preserved,

can be reviewed here after final judgment by the [state]

court.”); Colo. River, 424 U.S. at 813 (same).17 Thus, the

17

The majority hints that Oregon courts might tolerate “years of

misdirection of the water” before the Supreme Court could step in.

Opinion at 19. But under Our Federalism, cf. Younger v. Harris, 401 U.S.

37, 44 (1971), “[s]tate courts are adequate forums for the vindication of

federal rights,” Burt v. Titlow, 571 U.S. 12, 19 (2013), for they, “as much

40 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

majority’s determination that Reclamation’s federal

defenses are meritorious18 is irrelevant to whether the state

court has jurisdiction to decide KID’s motion to enforce the

decree, including those defenses.19 As a matter of state law,

we must presume that “such jurisdiction exists.” San Carlos

Apache Tribe, 463 U.S. at 561.

D

Finally, the majority contends that the Klamath County

Circuit Court lacks prior exclusive jurisdiction as a matter of

federal law because the McCarran Amendment does not

apply to KID’s motion. Opinion at 14–15, 19. That statute

as federal courts, have a solemn obligation to follow federal law,” San

Carlos Apache Tribe, 463 U.S. at 571. In any event, “[a]ny state court

decision alleged to abridge Indian water rights protected by federal law

can expect to receive, if brought for review before this Court, a

particularized and exacting scrutiny commensurate with the powerful

federal interest in safeguarding those rights from state encroachment.”

Id.

18

In the face of the majority’s blanket endorsement of Reclamation’s

defenses, the only thing left for the district court to do on remand is to

enter summary judgment for the Bureau—if it doesn’t first dismiss for

lack of jurisdiction if the Tribes intervene, as in KID I.

19

The majority’s charge that KID is guilty of forum shopping is similarly

irrelevant to the actual issue before us, as there is no “forum shopping

exception” to the prior exclusive jurisdiction doctrine. Insofar as the

majority applies preclusion by another name, see Opinion at 11, 20, and

21 (characterizing KID’s motion as an attempt to “re-litigate”

Reclamation’s federal defenses), it fails to explain—putting aside the

failure of the government to even raise that defense, cf. Sineneng-Smith,

140 S. Ct. at 1579—how the requirements of preclusion are satisfied

here. Finally, even if preclusion might otherwise operate as a merits bar

to KID’s motion to enforce the KBA order, that would still not deprive

the Klamath County Circuit Court of its prior exclusive jurisdiction to

adjudicate the merits, including any preclusion defense asserted by the

Bureau.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 41

waives federal sovereign immunity as to “any suit (1) for the

adjudication” or “(2) for the administration” “of rights to the

use of water of a river system or other source . . . .” 43 U.S.C.

§ 666(a).

To begin with, it is undisputed that the KBA order is an

“adjudication” of water rights as to Upper Klamath Lake

under the McCarran Amendment, as the order provisionally

determined “all of the rights of various owners on a given

stream,” Dugan v. Rank, 372 U.S. 609, 618 (1963) (quoting

S. Rep. No. 755, 82d Cong., 1st Sess. 9 (1951)), including

the relative rights of KID and the United States. We have

held that where, as here, “there has been such an adjudication

and a decree entered, then one or more persons who hold

adjudicated water rights can” sue to “administer” such rights

under the statute. S. Delta Water Agency v. United States,

767 F.2d 531, 541 (9th Cir. 1985) (quoting United States v.

Hennen, 300 F. Supp. 256, 263 (D. Nev. 1968)).

So the question is whether KID’s motion is a McCarran

Amendment “administration.” We have held that “[t]o

administer a decree is to execute it, to enforce its provisions,

to resolve conflicts as to its meaning, to construe and to

interpret its language.” Id. (quoting Hennen, 300 F. Supp. at

263). As detailed above, KID’s motion manifestly seeks to

enforce the KBA order, resolve conflicts as to its meaning,

and construe and interpret its provisions. Indeed,

Reclamation’s notice of removal expressly acknowledges

that KID’s motion alleges that the Bureau’s ongoing water

releases “conflict with state-based water rights determined

in the [KBA order],” Pet. 353 (emphasis added), and thereby

42 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

tacitly admits that KID’s motion is a McCarran Amendment

“administration.”20

For its part, the majority “reject[s]” what it portrays as

KID’s “characteriz[ation] [of] the relief it seeks as an

application of the [KBA order]” because that

characterization “circumvent[s] our prior decision [in KID

II], the Tribes’ rights, and the effect of the ESA.” Opinion at

19.21 In substance, my colleagues appear to conclude that

20

Because KID’s motion seeks to enforce the KBA order, the majority’s

assertion that KID’s motion is a mere “private suit[] to decide priorities

between the United States and particular claimants” (and thus outside the

McCarran Amendment), Opinion at 15 (quoting Metro. Water Dist. of S.

Cal. v. United States, 830 F.2d 139, 144 (9th Cir. 1983)), misses the

mark. In Metropolitan Water District, a water district brought an APA

action challenging the Interior Department’s enlargement of the

boundaries of an Indian reservation that resulted in the tribe’s assertion

of increased water rights in a then-ongoing water rights adjudication

between Arizona and California under the Supreme Court’s original

jurisdiction. 830 F.2d at 140–42. We held that the McCarran Amendment

was inapplicable because the water district’s APA action was not a

“general adjudication” to determine “the rights of all claimants on a

stream.” Id. at 144 (citing Dugan, 372 U.S. at 617–18). The KBA,

however, is indisputably such a general adjudication, and KID’s motion

seeks to enforce its rights under the order provisionally governing that

adjudication.

21

In KID II, we held that KID’s separate APA suit in the district court

challenging Reclamation’s water releases was not a McCarran

Amendment “administration” and thus was outside the scope of the

sovereign immunity waiver. 48 F.4th at 947. We expressly recognized,

however, that the KBA “was a McCarran Amendment case.” Id. at 946

(emphasis in original). KID II therefore does not control whether KID’s

motion—which seeks no relief under the APA and was originally filed

in the KBA—is an “administration” for purposes of the Amendment.

Tellingly, Reclamation does not argue that KID II is issue preclusive

here.

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 43

KID’s motion is not a McCarran Amendment

“administration” because Reclamation’s federal defenses are

meritorious.22

In so reasoning, the majority requires KID to “win [its]

case before [it] can” litigate its motion in state court.

Willingham v. Morgan, 395 U.S. 402, 407 (1969). But in

analogous contexts, the Supreme Court applies a simple test

that we should employ here: If the party invoking

jurisdiction asserts (as applicable) a colorable claim or

defense on the merits, that suffices for jurisdiction to attach,

even if the merits claim or defense ultimately fails. See, e.g.,

Bell, 327 U.S. at 682–83 (holding that an asserted federal

claim triggers federal question jurisdiction unless the claim

“clearly appears to be immaterial and made solely for the

purpose of obtaining jurisdiction or where such a claim is

wholly insubstantial and frivolous”); Jefferson County, Ala.

v. Acker, 527 U.S. 423, 431 (1999) (“To qualify for removal”

under the federal officer removal statute, a removing officer

need only “raise a colorable federal defense,” as the official

need not “win his case before he can have it removed.”)

(quoting Willingham, 395 U.S. at 407).

Thus, a valid defense does not oust a district court of

federal question jurisdiction if a complaint asserts a

colorable federal claim. See, e.g., S. New England Tel. Co.

v. Glob. NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010)

(“[W]hether a plaintiff has pled a jurisdiction-conferring

22

Insofar as the majority also implies that the McCarran Amendment

does not apply merely because Reclamation’s federal defenses are “not

governed by Oregon law,” Opinion at 14–15, that interpretation renders

the Amendment useless as such defenses by definition are never

“governed by state law,” id. at 14. The entire point of the statute is to

allow state courts “to determine federal reserved rights . . . .” Colo. River,

424 U.S. at 809.

44 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

claim is a wholly separate issue from whether the complaint

adequately states a legally cognizable claim for relief on the

merits.”); 13D Wright & Miller, Federal Practice &

Procedure: Jurisdiction § 3564 (3d ed. Apr. 2022 update)

(“Jurisdiction is not lost because the court ultimately

concludes that the federal claim is without merit.”).

Rather than asking whether KID’s motion can prevail

against the government’s ESA and reserved water rights

defenses as the majority does, we should ask—consistent

with the Supreme Court’s approach in other jurisdictional

contexts—whether KID’s motion asserts a colorable

McCarran Amendment administration claim. Just as

Reclamation’s assertion of “colorable” federal defenses in

its notice of removal permitted the Bureau to invoke the

federal officer removal statute here, Acker, 527 U.S. at 431,

I would correspondingly hold that KID’s assertion of a

colorable motion to enforce the KBA order is an

“administration” that implicates the Amendment’s waiver of

sovereign immunity—whether or not that motion states a

legally cognizable claim for relief on the merits.

Because “jurisdictional rules should be clear,” Lapides

v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621

(2002), we should adopt the easily administered, bright-line

test of Bell v. Hood for McCarran Amendment purposes.

Doing so would allow the Amendment to perform its

function of clearing the way for state courts to adjudicate the

merits of “collision[s]” between “private [water] rights and

[the] reserved rights of the United States” “in unified

proceedings” that avoid “piecemeal adjudication of water

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 45

rights in a river system.” Colo. River, 424 U.S. at 813

(quoting Eagle County, 401 U.S. at 526).23

III

For the reasons explained above, the Klamath County

Circuit Court has prior exclusive jurisdiction to decide

KID’s motion. The district court therefore committed a clear

error of law in failing to remand that motion. See Chapman

v. Deutsche Bank Nat’l Tr. Co., 651 F.3d 1039, 1044 n.1 (9th

Cir. 2011) (stating that “if the [prior exclusive jurisdiction]

doctrine applies, it is legal error for a district court not to

remand, dismiss, or stay federal proceedings on account of

the state court’s prior exercise of jurisdiction”).

KID’s right to mandamus relief based on this error “is

clear and indisputable,” Cheney v. U.S. Dist. Ct. for Dist. of

Columbia, 542 U.S. 367, 381 (2004) (cleaned up), satisfying

a prerequisite for mandamus relief set forth by both the

Supreme Court and this Court. See id.; see also Bauman v.

U.S. Dist. Ct. for N. Dist. of Cal., 557 F.2d 650, 654–55 (9th

Cir. 1977) (outlining “five specific guidelines” governing

mandamus relief, the third of which is that the “district

23

Reclamation also argues (essentially in the alternative) that the

McCarran Amendment’s waiver does not extend to the Bureau’s

defenses to KID’s motion based on the reserved rights held in trust for

the out-of-state Tribes. Reclamation Response at 27–37. Reclamation

characterizes KID’s claims implicating those defenses as “interstate

disputes.” Id. at 27.

The McCarran Amendment, however, is facially indifferent to the

location or nature of federal interests with asserted “water rights” to an

in-state “river system or other source” subject to a comprehensive state

court adjudication. See 43 U.S.C. § 666(a). For that reason, the KBA

order adjudicated water rights in Upper Klamath Lake as to federal

properties in Oregon and California. See above notes 1, 15 and

accompanying text, and 16.

46 KLAMATH IRRIGATION DISTRICT V. USDC-ORM

court’s order is clearly erroneous as a matter of law”); In re

Walsh, 15 F.4th 1005, 1008 (9th Cir. 2021) (characterizing

the third Bauman factor, clear error as a matter of law, as “a

necessary condition for granting a writ of mandamus”)

(quoting In re Van Dusen, 654 F.3d 838, 841 (9th Cir.

2011)).

From that error, it also necessarily follows that KID has

“no other adequate means,” such as a direct appeal, to obtain

the relief it seeks. Cheney, 542 U.S. at 380; Bauman, 557

F.2d at 654 (identifying this factor as the first mandamus

consideration). Because the Klamath County Circuit Court

has prior exclusive jurisdiction, no other forum can provide

relief. Although an appeal in the ordinary course could

eventually provide relief, it would be inadequate, because in

the meantime KID’s irrigator members would suffer loss of

their water rights. See Pet. 86–100; Pet. 293–310. And apart

from the injuries identified by KID’s declarants described

above, loss of opportunities to use water rights by its nature

is akin to environmental injuries that we have characterized

as irreparable. All. for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1135 (9th Cir. 2011) (loss of opportunities to “view,

experience, and utilize” undisturbed areas of a national

forest was irreparable injury). KID’s petition thereby

satisfies Bauman’s second mandamus consideration: that

“[t]he petitioner will be damaged or prejudiced in a way not

correctable on appeal.” 557 F.2d at 654.

KID has therefore shown its entitlement to mandamus

relief under the first three factors of the Bauman balancing

test. See In re Williams-Sonoma, Inc., 947 F.3d 535, 538–40

(9th Cir. 2020) (granting writ of mandamus when first three

Bauman factors were satisfied but fourth and fifth factors

were not and explaining that “[t]he balance of the factors

weighs in favor of granting the writ of mandamus”); United

KLAMATH IRRIGATION DISTRICT V. USDC-ORM 47

States v. Tillman, 756 F.3d 1144, 1153 (9th Cir. 2014)

(same); Hernandez v. Tanninen, 604 F.3d 1095, 1101–02

(9th Cir. 2010) (same, and noting that district court order was

“particularly injurious” to petitioner’s interests); cf. Miller v.

Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc)

(finding third factor dispositive where first two factors

supported mandamus and last two did not).24

As “[n]ot every factor is needed for granting a writ of

mandamus,” Walsh, 15 F.4th at 1008, and “rarely if ever will

a case arise where all the guidelines point in the same

direction or even where each guideline is relevant or

applicable,” Hernandez, 604 F.3d at 1099, I would grant

KID’s petition based on its showing that the district court

clearly erred as a matter of law and that KID has no other

adequate remedy in view of the irreparable injury its irrigator

members will suffer from the delay occasioned by an appeal

in the ordinary course.

As the district court usurped the prior exclusive

jurisdiction of the Klamath County Circuit Court to resolve

all questions regarding the scope of the KBA order that KID

seeks to enforce, including whether Reclamation forfeited

the reserved rights of the Tribes by not asserting a claim on

their behalf and whether the ESA preempts that order, this is

a textbook case warranting mandamus relief. Cf. Cheney,

542 U.S. at 380 (mandamus is reserved for “exceptional

circumstances amounting to a judicial usurpation of power”)

(cleaned up). I therefore respectfully dissent from the denial

of the writ.

24

The last two Bauman factors are “(4) [t]he district court’s order is an

oft-repeated error, or manifests a persistent disregard of the federal

rules”; and “(5) [t]he district court’s order raises new and important

problems, or issues of law of first impression.” 557 F.2d at 655.