Petition for Writ of Certiorari — Klamath Irrigation District, Petitioner v. United States Bureau of Reclamation, et al.

Supreme Court briefSep 5, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(June 5, 2023) . . . . . . . . . . . . . . . . App. 1

Appendix B Opinion & Order in the United States

District Court for the District of

Oregon, Medford Division

(April 25, 2022) . . . . . . . . . . . . . . App. 52

Appendix C Statutes, Rules, and

Regulations . . . . . . . . . . . . . . . . . App. 67

16 U.S.C. § 1536 . . . . . . . . . . . . . App. 67

28 U.S.C. § 1442 . . . . . . . . . . . . . App. 89

43 U.S.C. § 383 . . . . . . . . . . . . . . App. 92

43 U.S.C. § 421 . . . . . . . . . . . . . . App. 92

43 U.S.C. § 666 . . . . . . . . . . . . . . App. 93

Fed. R. Civ. P. 19 . . . . . . . . . . . . App. 95

ORS § 539.010. . . . . . . . . . . . . . . App. 97

ORS § 539.100. . . . . . . . . . . . . . . App. 99

ORS § 539.130. . . . . . . . . . . . . . App. 101

ORS § 539.150. . . . . . . . . . . . . . App. 102

ORS § 539.180. . . . . . . . . . . . . . App. 104

ORS § 539.210. . . . . . . . . . . . . . App. 105

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 22-70143

D.C. No. 1:21-cv-00504-AA

[Filed June 5, 2023]

____________________________________

In re: KLAMATH IRRIGATION

)

DISTRICT,

)

___________________________________ )

KLAMATH IRRIGATION DISTRICT, )

Petitioner,

)

UNITED STATES DISTRICT

)

COURT FOR THE DISTRICT

)

OF OREGON, MEDFORD,

)

Respondent,

)

U.S. BUREAU OF RECLAMATION; )

OREGON WATER RESOURCES

)

DEPARTMENT,

)

Real Parties in Interest.

)

___________________________________ )

App. 2

OPINION

Petition for a Writ of Mandamus

Argued and Submitted November 18, 2022

San Francisco, California

Filed June 5, 2023

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

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.

App. 3

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 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

App. 4

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 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

App. 5

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.

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,

App. 6

Oregon; Real Party in Interest Oregon Water Resources

Department.

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.

Background

A. The Klamath Basin and Klamath Project

The Klamath Basin encompasses approximately

12,000 square miles of “interconnected rivers, canals,

App. 7

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. 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

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

App. 8

conflicts with superseding federal law. 43 U.S.C. § 383;

KID II, 48 F. 4th 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

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.

App. 9

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 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

App. 10

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.

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

App. 11

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 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

App. 12

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.

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

App. 13

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 “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.,

App. 14

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). 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

App. 15

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 governed by Oregon law and were not

subject to the KBA.3 4 See Baley, 942 F.3d at 1323,

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.

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

App. 16

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

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.

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.

App. 17

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

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

App. 18

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.

precedence over KID’s 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.”).

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/EAVWqqxVTy4 (view minutes 14:18–16:16).

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.

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

App. 19

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

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 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.

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.

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.

App. 20

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 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

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.

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.

App. 21

the effect of the ESA by characterizing the relief it

seeks as an application of the ACFFOD.13

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

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 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.

App. 22

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 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,

App. 23

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 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.

___________________

App. 24

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)?

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

App. 25

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, 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

App. 26

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.

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 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

App. 27

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 Court, United States v. Oregon, 44 F.3d

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/Klamath

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

releasing it from Upper Klamath Lake for the benefit of the

California-based Tribes.

App. 28

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 pending a final adjudication by the state

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.”).

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.

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

“Amended and Corrected Findings of Fact and Final Order of

Determination.”

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

findings and conclusions [in the KBA order] are ultimately

App. 29

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

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 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

/ENRD_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.”).

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

App. 30

arguing 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

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. Klamath Irrigation Dist. v. U.S. Bureau of Reclamation,

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

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).”

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.

App. 31

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 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.

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).

App. 32

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 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

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 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.”).

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

App. 33

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 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

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).

App. 34

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 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]

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.”).

App. 35

possess exclusive jurisdiction over the claim.” Id. KID

then filed its mandamus petition.

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 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

App. 36

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 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.

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”).

App. 37

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 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

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.

App. 38

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-inrem 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

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 wrong” because an “in rem proceeding . . .

determines rights in particular property against the entire world”).

App. 39

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

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.

App. 40

apportionment decrees to which Colorado is a party.”);

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

(“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 statelaw 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.

According to the majority, the second reason the

Klamath County Circuit Court lacks prior exclusive

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.

App. 41

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 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

App. 42

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.

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

App. 43

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 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

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 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.

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.

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.

App. 44

presume that “such jurisdiction exists.” San Carlos

Apache Tribe, 463 U.S. at 561.

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 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)).

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.

App. 45

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

tacitly admits that KID’s motion is a McCarran

Amendment “administration.”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.

App. 46

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 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

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.

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.

App. 47

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 jurisdictionconferring 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

App. 48

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

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

App. 49

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 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,

App. 50

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

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

App. 51

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.

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.

App. 52

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEDFORD DIVISION

Civ. No. 1:21-cv-00504-AA

[Filed April 25, 2022]

____________________________________

KLAMATH IRRIGATION DISTRICT, )

Plaintiff,

)

U.S. BUREAU OF RECLAMATION, )

Defendant,

)

and

)

OREGON WATER RESOURCES

)

DEPARTMENT,

)

Intervenor Defendant.

)

___________________________________ )

OPINION & ORDER

AIKEN, District Judge.

This case comes before the Court on an Amended

Motion to Remand filed by Plaintiff Klamath Irrigation

District (“KID”). ECF No. 19. For the reasons set forth

below, KID’s motion is DENIED.

App. 53

LEGAL STANDARD

Federal courts are courts of limited jurisdiction and

only have subject-matter jurisdiction over matters

authorized by the United States Constitution and

Congress. Bender v. Willamsport Area Sch. Dist., 475

U.S. 534, 541 (1986); Couch v. Telescope, Inc., 611 F.3d

629, 632 (9th Cir. 2010). “Challenges to the existence of

removal jurisdiction should be resolved within [the]

same framework” as that applicable to motions to

dismiss for lack of subject-matter jurisdiction due to

“the parallel nature of the inquiry.” Leite v. Crane Co.,

749 F.3d 1117, 1121-22 (9th Cir. 2014).

A motion to remand is the proper procedural vehicle

for challenging removal. Babasa v. LensCrafters, Inc.,

498 F.3d 972, 974 (9th Cir. 2007). Removal is

authorized when the state court action is against “[t]he

United States or any agency thereof or any officer (or

any person acting under that officer) of the United

State or of any agency thereof sued in an official or

individual capacity for or relating to any act under

color of such office.” 28 U.S.C. § 1442(a)(1). Section

1442(a)(1) is interpreted “broadly in favor of removal.”

Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252

(9th Cir. 2006).

The party seeking removal bears the burden of

establishing by a preponderance of the evidence that all

removal requirements have been met. Serrano v. 180

Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007);

Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th

Cir. 2004). Thus, if a plaintiff challenges the

defendant’s removal of a case, the defendant bears the

burden of establishing the propriety of the removal.

App. 54

Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.

Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010).

BACKGROUND

The United States Bureau of Reclamation

(“Reclamation”) operates the Klamath Project (the

“Project”) to deliver water from Upper Klamath Lake

(“UKL”) and its tributaries to water users in southern

Oregon and northern California. As part of the Project,

Reclamation operates dams controlling the flow of

water from the UKL. Reclamation holds water rights

for the Project acquired in conformity with the

requirements of state law. Reclamation also holds

federal reserved water rights for the Klamath Tribes

for instream fisheries purposes in UKL and the

tributaries above UKL in Oregon.

These rights are subject to the jurisdiction of the

Klamath Basin Adjudication (“KBA”), a comprehensive

general stream adjudication in Oregon state court. The

comprehensive stream adjudication for the Klamath

Basin began in 1975. In February 2014, Oregon entered

an Amended and Corrected Findings of Fact and Final

Order of Determination (“ACFFOD”) in the Klamath

County Circuit Court and the determination of rights

entered the judicial phase of adjudication, which

remains ongoing. While the KBA is pending, the status

quo of water rights found in the ACFFOD is

enforceable.

Reclamation also operates in accordance with the

requirements of the Endangered Species Act (“ESA”),

16 U.S.C. §§ 1531-44. The ESA applies with respect to

(1) two species of endangered sucker fish with critical

App. 55

habitat in UKL; (2) threated Southern Oregon/North

California Coast (“SONCC”) coho salmon with critical

habitat in the Klamath River, downstream of the

Project; and (3) endangered killer whales in the Pacific

Ocean that prey on Chinook salmon which, although

not listed under the ESA, inhabit the Klamath River

downstream of the Project. Biological opinions issued

by the U.S. Fish and Wildlife Service and the National

Marine Fisheries Service have determined that certain

water levels are necessary in UKL to maintain critical

habitat for the endangered sucker fish and that certain

flow levels are necessary in the Klamath River to

maintain critical habitat for the salmon.

Reclamation also operates the Project in accordance

with the senior downstream federal tribal reserved

water rights of the Yurok and Hoopa Valley Tribes in

California. Unlike the reserved water rights of the

Klamath Tribes of Oregon, the reserved water rights of

the Yurok and Hoopa Valley Tribes of California have

not been adjudicated in the KBA. However, the Federal

Circuit has determined that the water rights of the

Yurok and Hoopa Valley Tribes for instream fisheries

purposes are senior to the Project’s water rights and,

although not yet determined in California, are “[a]t a

minimum” equal to the amount of water needed under

the ESA to avoid jeopardy to the salmon in the

Klamath River. Baley v. United States, 942 F.3d 1312,

1337 (Fed. Cir. 2019).

This arrangement is complicated by a severe and

prolonged drought in the Klamath Basin, which has

reduced the amount of water available in the Project

area. Reclamation has continued to release water from

App. 56

UKL into the Klamath River to preserve the salmon

and satisfy the water rights of the Yurok and Hoopa

Valley Tribes while limiting the amount of water

released for irrigation by the Project water users.

KID is a contractor for the Klamath Project and a

participant in the KBA. KID asserts that Reclamation

has the right to store water in UKL, but that the

agency has no authority to release water from UKL for

instream uses, such as meeting Reclamation’s

obligations under the ESA or satisfying the reserved

water rights of the Yurok and Hoopa Valley Tribes

unless Reclamation first seeks a stay of the ACFFOD

and posts a bond. KID filed a motion for a preliminary

injunction in the KBA seeking to enjoin Reclamation

from releasing any water stored in the UKL under the

Project’s storage water rights except to satisfy the

irrigation demands of the Project’s water users under

the Project’s state law-based water rights held for

beneficial use. Notice of Removal Ex. 1, at 4. ECF

No. 1-1.

Such an injunction would prevent Reclamation from

releasing water from UKL to meet its obligations under

the ESA or to satisfy the senior downstream rights held

by the Yurok and Hoopa Valley Tribes. Reclamation

takes the position that operations in accordance with

its federal obligations—to the downstream tribes and

under the ESA—are beyond the jurisdiction of the KBA

and so removed the motion for preliminary injunction

from the Klamath County Circuit Court to this Court.

App. 57

DISCUSSION

As noted, Reclamation removed KID’s preliminary

injunction motion from the KBA to this Court. Federal

law permits the removal of a civil action commenced in

state court “that is against or directed to” the “United

States or any agency thereof.” 28 U.S.C. § 1442(a)(1).

For purposes of removal, the agency need only “allege

a colorable defense under federal law.” Mesa v.

California, 489 U.S. 121, 129 (1989). “[T]he right of

removal under § 1442(a)(1) is made absolute whenever

a suit in a state court is for any act ‘under color’ of

federal office regardless of whether the suit could

originally have been brought in a federal court.”

Willingham v. Morgan, 395 U.S. 402, 406 (1969).

“Federal jurisdiction rests on a federal interest in the

matter.” Id. (internal quotation marks and citation

omitted).

In this case, KID seeks to remand consideration of

its motion for preliminary injunction to the KBA on the

basis that the KBA has prior exclusive jurisdiction over

the issues raised in the motion for preliminary

injunction. The doctrine of prior exclusive jurisdiction

provides that “when a court of competent jurisdiction

has obtained possession, custody, or control of

particular property, that possession may not be

disturbed by any other court.” State Eng’r of State of

Nevada v. South Fork Band of the Te-Moak Tribe of

Western Shoshone Indians of Nevada, 339 F.3d 804,

809 (9th Cir. 2003). The doctrine is “no mere abstention

rule,” but “a mandatory jurisdictional limitation.” Id. at

810. The doctrine of prior exclusive jurisdiction applies

in the context of water rights. Id. Here, KID contends

App. 58

that the doctrine applies to give the KBA exclusive

jurisdiction over the water in the Klamath Basin and

the Project.

In its Response, Reclamation contends that the

KBA entirely lacks jurisdiction over the issues raised

in KID’s motion for preliminary injunction, due to

sovereign immunity, and so the KBA does not possess

prior exclusive jurisdiction over the motion. “The basic

rule of federal sovereign immunity is that the United

States cannot be sued at all without the consent of

Congress.” Block v. North Dakota ex rel. Bd. of Univ. &

Sch. Lands, 461 U.S. 273, 287 (1983); United States v.

Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that

the United States may not be sued without its consent

and that the existence of consent is a prerequisite for

jurisdiction.”). “Sovereign immunity is jurisdictional in

nature” and “the terms of the United States’ consent to

be sued in any court define that court’s jurisdiction to

entertain the suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475

(1994) (internal quotation marks and citation omitted,

alterations normalized). “The Supreme Court has

frequently held that a waiver of sovereign immunity is

to be strictly construed, in terms of its scope, in favor of

the sovereign.” Dunn & Black P.S. v. United States,

492 F.3d 1084, 1088 (9th Cir. 2007) (internal quotation

marks and citation omitted, alterations normalized).

“As the contours of any such waiver define a court’s

authority to entertain a suit against the government,

each claim against the government must rest upon an

applicable waiver of immunity.” Navajo Nation v. Dep’t

of the Interior, 876 F.3d 1144, 1167-68 (9th Cir. 2017)

(internal citation omitted).

App. 59

In this case, KID contends that the United States

has waived sovereign immunity under the McCarran

Amendment, 43 U.S.C. § 666(a). The McCarran

Amendment provides:

Consent is given to join the United States as a

defendant in any suit (1) for the adjudication of

rights to the use of water of a river system or

other source, or (2) for the administration of

such rights, where it appears that the United

States is the owner of or is in the process of

acquiring water rights by appropriation under

State law, by purchase, by exchange, or

otherwise, and the United States is a necessary

party to such suit. The United States, when a

party to any such suit, shall (1) be deemed to

have waived any right to plead that the State

laws are inapplicable or that the United States

is not amendable thereto by reason of its

sovereignty, and (2) shall be subject to the

judgments, orders, and decrees of the court

having jurisdiction, and may obtain review

thereof, in the same manner and to the same

extent as a private individual under like

circumstances: Provided, That no judgment for

costs shall be entered against the United States

in any such suit.

43 U.S.C. § 666(a).

The Supreme Court has held that, for purposes of

the McCarran Amendment, a “river system” is to be

“read as one within the particular State’s jurisdiction,”

because “[n]o suit by any State could possibly

encompass all of the water rights in the entire Colorado

App. 60

river which runs through or touches many States.”

United States v. District Court in and for Eagle Cnty.,

Colo., 401 U.S. 520, 523 (1971); Baley, 942 F.3d at 1341

(“Moreover, states have the ability to adjudicate rights

in a water or river system within their jurisdiction, but

they cannot adjudicate water rights in another state.”).

The McCarran Amendment is “not intended . . . to

be used for any other purpose than to allow the United

States to be joined in a suit wherein it is necessary to

adjudicate all of the rights of various owners on a given

stream. This is so because unless all of the parties

owning or in the process or acquiring water rights on a

particular stream can be joined as parties defendant,

any subsequent decree would be of little value.” District

Court in and for Eagle Cnty., 401 U.S. at 525 (internal

quotation marks and citation omitted). The

“administration of such rights” in § 666(a)(2) refers to

the rights described in § 666(a)(1) “for they are the only

ones which in this context ‘such’ could mean; and as we

have seen they are all-inclusive, in terms at least.” Id.

at 524.

The “administration” of such rights means “to

execute it, to enforce its provisions, to resolve

conflicts as to its meaning, to construe and to

interpret its language. Once there has been such

an adjudication and a decree entered, then one

or more persons who hold adjudicated water

rights can, within the framework of § 666(a)(2),

commence among other such actions described

above, subjecting the United States, in a proper

case, to the judgments, orders, and decrees of

the court having jurisdiction.”

App. 61

San Luis Obispo Coastkeeper v. U.S. Dep’t of the

Interior, 394 F. Supp.3d 984, 994 (N.D. Cal. 2019)

(quoting United States v. Hennen, 300 F. Supp. 256,

263 (D. Nev. 1968).

In determining whether the McCarran

Amendment’s waiver of immunity applies, courts must

examine whether the case before them is the type of

adjudication described in the McCarran Amendment

—that is, either a suit for adjudication of rights to the

use of a water or for the administration of such rights.

United States v. Oregon, 44 F.3d 758, 765-66 (9th Cir.

1994); see also Fent v. Oklahoma Water Res. Bd., 235

F.3d 553, 555-57 (10th Cir. 2000) (holding that an

action for damages and to recover funds paid pursuant

to an allegedly illegal contract “cannot by any stretch

of the legal imagination be characterized as an effort to

obtain a comprehensive adjudication of all water rights

in a water system.”). As the district court observed in

San Luis Obispo Coastkeeper, “the purpose of the

McCarran Amendment is not to waive sovereign

immunity whenever litigation may incidentally relate

to water rights administered by the United States. It is

for determining substantive water rights by giving

courts the ability to enforce those determinations and

to permit joinder of the United States where necessary

to effectively adjudicate competing claims thereto.” San

Luis Obispo Coastkeeper, 394 F. Supp.3d at 995.

In San Luis Obispo Coastkeeper, the court found

that the McCarran Amendment did not apply where

the petitioners sought “to enforce state environmental

laws requiring sufficient flows of water for Steelhead,”

because the action was not one to adjudicate or

App. 62

administer a comprehensive state court stream

adjudication. San Luis Obispo Coastkeeper, 394

F. Supp.3d at 995. Here, KID’s motion for preliminary

injunction is clearly not a seeking the adjudication of

competing water rights under § 666(a)(1). Nor is it in

the nature of an action to administer such rights, but

is instead an enforcement action to block the release of

water to satisfy the rights of California tribes which

were not adjudicated in the KBA.

KID has attempted to litigate this issue in the past

without success. In Baley v. United States, the Federal

Circuit held that, in the specific case of the Hoopa

Valley and Yurok Tribes, that “federal courts have

consistently held that tribal water rights arising from

federal reservations are federal water rights not

governed by state law,” and that “the volume and scope

of particular reserved rights are federal questions.”

Baley, 942 F.3d at 1340 (internal quotation marks and

citation omitted, alterations normalized). As noted, the

Federal Circuit determined that the Tribes’ right to

water was at least coextensive with the requirements

of the ESA to maintain the salmon in the Klamath

River. Id. at 1337. And this right is not altered by the

fact that the Tribes did not participate in the KBA. See

Id., at 1341 (“Nor do we believe that the Yurok and

Hoopa Valley Tribes waived their rights because they

did not participate in the Klamath Adjudication . . .

their rights are federal reserved water rights not

governed by state law . . . Thus, the Yurok and Hoopa

Valley Tribes’ lack of participation in the state of

Oregon’s Klamath Adjudication did not preclude their

App. 63

entitlement to water that flows in the Klamath River

below the Iron Gate Dam in California.”).1

In Klamath Irrigation District v. United States

Bureau of Reclamation, 489 F. Supp.3d 1168 (D. Or.

2020), KID brought an action alleging “in essence, that

Reclamation lacks statutory or other authority to

comply with the ESA, or to protect tribal reserved

water rights held for tribal fishery needs, by reducing

the amount of water to be delivered to Project

irrigators pursuant to their state water rights and their

contracts with Reclamation.” Id. at 1177. In that case,

KID sought a declaration “that Defendants must

maintain, operate, and direct operations of the Project

and Project-related facilities in accordance with the

requirements of the Reclamation Act and that

Defendants authorization of collection and retention

and use of stored water for ESA-listed species, and use

of stored water for ESA-listed species in the Klamath

River, are not activities authorized by any applicable

law.” Id. at 1178 (internal quotation marks and citation

omitted, alterations normalized). The court observed

that “[c]ourts, including the Ninths Circuit, have held

that Tribes’ federal reserved treaty water and fishing

rights are at least co-extensive with the government’s

obligations to provide sufficient water under the ESA

In rejecting the argument that the Tribes’ water rights must be

submitted to the KBA, the Federal Circuit cast doubt on the power

of the KBA to adjudicate the water rights of the Hoopa Valley and

Yurok Tribes, noting that “their rights are federal reserved water

rights not governed by state law,” and “[m]oreover, states have the

ability to adjudicate rights in a water or river system within their

jurisdiction, but they cannot adjudicate water rights in another

state.” Baley v. United States, 942 F.3d 1312, 1341 (Fed. Cir. 2019).

App. 64

for species survival and environmental purposes.” Id.

at 1178-79 (citing Baley, 942 F.3d at 1337; Klamath

Water Users Ass’n v. Paterson, 204 F.3d 1206, 1214 (9th

Cir. 2000)). “In addition, courts have repeated[ly] held

and affirmed the priority that these federally reserved

water rights have over competing irrigation rights.” Id.

at 1179. As a result, the court concluded that KID’s

primary contention, “that Reclamation has no

discretion to fulfill ESA or other instream obligations

prior to fulfilling water delivery obligations to

Plaintiffs, as determined by the State of Oregon’s

Klamath Basin Adjudication and the ACFFOD,” would,

if successful, “ultimately either extinguish or conflict

with Reclamation’s obligations to provide water

instream” to satisfy ESA obligations, which were

coextensive with the senior water rights of the Yurok

and Hoopa Valley Tribes. Id. at 1178.

In Klamath Irrigation District, the core question

was whether the Tribes were necessary parties to such

an action and the court concluded that they were.

Klamath Irrigation District, 489 F. Supp.3d at 1177-81.

In addition, the court concluded that sovereign

immunity prevented the Tribes from being joined in the

action, necessitating dismissal. Id. at 1181-82. In

making this determination, the court considered the

application of the McCarran Amendment, concluding:

The Oregon Klamath Basin Adjudication was

certainly a McCarran Amendment case.

Plaintiffs argue that, by extension, the case at

bar could be considered an “enforcement action”

of the ACFFOD; indeed KID’s Second Amended

Complaint states that the defendants’ sovereign

App. 65

immunity is waived “pursuant to 43 U.S.C.

§ 666(a), as this is a suit for the administration

of rights to the use of the water of the Klamath

River system.” However, this is not a “state

general stream adjudication case.” Even if it

were, the McCarran Amendment waives the

sovereign immunity of the Indian rights at issue,

not the sovereign immunity of the Tribes

themselves. The distinction is unnecessary here,

however, as this is clearly not a McCarran

Amendment case.

Id. at 1181 (internal citation omitted).

Here, KID has attempted to evade the force of that

ruling by bringing essentially the same challenge in

Klamath County Circuit Court as part of the KBA, but

the fact that they have attempted to bring their claim

by filing in it within the general stream adjudication

does not automatically extend the waiver of sovereign

immunity to cover KID’s motion for preliminary

injunction. KID’s motion does not seek to adjudicate

rights within a stream system, nor does it seek to

administer rights already adjudicated. Rather, 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. As

the court observed in Klamath Irrigation District, this

is an enforcement action, not an action to adjudicate or

administer rights.

Waivers of sovereign immunity are strictly

construed in favor of the sovereign and the Court

App. 66

concludes the KID’s motion for preliminary injunction

does not come within the McCarran Amendment’s

waiver, such that the KBA would possess exclusive

jurisdiction over the claim. At the very least,

Reclamation has demonstrated that it possesses a

colorable federal defense, sufficient to permit removal

of the preliminary injunction motion to federal court.

Accordingly, the Court DENIES KID’s motion to

remand this case.

CONCLUSION

For the reasons set forth above, KID’s Amended

Motion to Remand to State Court, ECF No. 19, is

DENIED.

It is so ORDERED and DATED this 25th day of

April, 2022.

/s/ Ann Aiken

Ann Aiken

United States District Judge

App. 67

APPENDIX C

STATUTES, RULES, AND REGULATIONS

16 U.S.C. § 1536 - Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs

administered by him and utilize such programs in

furtherance of the purposes of this chapter. All

other Federal agencies shall, in consultation with

and with the assistance of the Secretary, utilize

their authorities in furtherance of the purposes of

this chapter by carrying out programs for the

conservation of endangered species and threatened

species listed pursuant to section 1533 of this title.

(2) Each Federal agency shall, in consultation with

and with the assistance of the Secretary, insure

that any action authorized, funded, or carried out

by such agency (hereinafter in this section referred

to as an “agency action”) is not likely to jeopardize

the continued existence of any endangered species

or threatened species or result in the destruction or

adverse modification of habitat of such species

which is determined by the Secretary, after

consultation as appropriate with affected States, to

be critical, unless such agency has been granted an

exemption for such action by the Committee

pursuant to subsection (h) of this section. In

fulfilling the requirements of this paragraph each

App. 68

agency shall use the best scientific and commercial

data available.

(3) Subject to such guidelines as the Secretary may

establish, a Federal agency shall consult with the

Secretary on any prospective agency action at the

request of, and in cooperation with, the prospective

permit or license applicant if the applicant has

reason to believe that an endangered species or a

threatened species may be present in the area

affected by his project and that implementation of

such action will likely affect such species.

(4) Each Federal agency shall confer with the

Secretary on any agency action which is likely to

jeopardize the continued existence of any species

proposed to be listed under section 1533 of this title

or result in the destruction or adverse modification

of critical habitat proposed to be designated for such

species. This paragraph does not require a

limitation on the commitment of resources as

described in subsection (d).

(b) Opinion of Secretary

(1)

(A) Consultation under subsection (a)(2) with

respect to any agency action shall be concluded

within the 90-day period beginning on the date

on which initiated or, subject to

subparagraph (B), within such other period of

time as is mutually agreeable to the Secretary

and the Federal agency.

App. 69

(B) In the case of an agency action involving a

permit or license applicant, the Secretary and

the Federal agency may not mutually agree to

conclude consultation within a period exceeding

90 days unless the Secretary, before the close of

the 90th day referred to in subparagraph (A)—

(i) if the consultation period proposed to be

agreed to will end before the 150th day after

the date on which consultation was initiated,

submits to the applicant a written statement

setting forth—

(I) the reasons why a longer period is

required,

(II) the information that is required to

complete the consultation, and

(III) the estimated date on which

consultation will be completed; or

(ii) if the consultation period proposed to be

agreed to will end 150 or more days after the

date on which consultation was initiated,

obtains the consent of the applicant to such

period.

The Secretary and the Federal agency may

mutually agree to extend a consultation

period established under the preceding

sentence if the Secretary, before the close of

such period, obtains the consent of the

applicant to the extension.

App. 70

(2) Consultation under subsection (a)(3) shall be

concluded within such period as is agreeable to the

Secretary, the Federal agency, and the applicant

concerned.

(3)

(A) Promptly after conclusion of consultation

under paragraph (2) or (3) of subsection (a), the

Secretary shall provide to the Federal agency

and the applicant, if any, a written statement

setting forth the Secretary’s opinion, and a

summary of the information on which the

opinion is based, detailing how the agency action

affects the species or its critical habitat. If

jeopardy or adverse modification is found, the

Secretary shall suggest those reasonable and

prudent alternatives which he believes would

not violate subsection (a)(2) and can be taken by

the Federal agency or applicant in implementing

the agency action.

(B) Consultation under subsection (a)(3), and an

opinion issued by the Secretary incident to such

consultation, regarding an agency action shall be

treated respectively as a consultation under

subsection (a)(2), and as an opinion issued after

consultation under such subsection, regarding

that action if the Secretary reviews the action

before it is commenced by the Federal agency

and finds, and notifies such agency, that no

significant changes have been made with respect

to the action and that no significant change has

occurred regarding the information used during

the initial consultation.

App. 71

(4) If after consultation under subsection (a)(2), the

Secretary concludes that—

(A) the agency action will not violate such

subsection, or offers reasonable and prudent

alternatives which the Secretary believes would

not violate such subsection;

(B) the taking of an endangered species or a

threatened species incidental to the agency

action will not violate such subsection; and

species of a marine mammal is involved, the

taking is authorized pursuant to

section 1371(a)(5) of this title;

the Secretary shall provide the Federal agency

and the applicant concerned, if any, with a

written statement that—

(i) specifies the impact of such incidental

taking on the species,

(ii) specifies those reasonable and prudent

measures that the Secretary considers

necessary or appropriate to minimize such

impact,

(iii) in the case of marine mammals, specifies

those measures that are necessary to comply

with section 1371(a)(5) of this title with

regard to such taking, and

(iv) sets forth the terms and conditions

(including, but not limited to, reporting

requirements) that must be complied with by

App. 72

the Federal agency or applicant (if any), or

both, to implement the measures specified

under clauses (ii) and (iii).

(1) To facilitate compliance with the requirements

of subsection (a)(2), each Federal agency shall, with

respect to any agency action of such agency for

which no contract for construction has been entered

into and for which no construction has begun on

November 10, 1978, request of the Secretary

information whether any species which is listed or

proposed to be listed may be present in the area of

such proposed action. If the Secretary advises,

based on the best scientific and commercial data

available, that such species may be present, such

agency shall conduct a biological assessment for the

purpose of identifying any endangered species or

threatened species which is likely to be affected by

such action. Such assessment shall be completed

within 180 days after the date on which initiated (or

within such other period as is mutually agreed to by

the Secretary and such agency, except that if a

permit or license applicant is involved, the 180-day

period may not be extended unless such agency

provides the applicant, before the close of such

period, with a written statement setting forth the

estimated length of the proposed extension and the

reasons therefor) and, before any contract for

construction is entered into and before construction

is begun with respect to such action. Such

assessment may be undertaken as part of a Federal

agency’s compliance with the requirements of

App. 73

section 102 of the National Environmental Policy

Act of 1969 (42 U.S.C. 4332).

(2) Any person who may wish to apply for an

exemption under subsection (g) of this section for

that action may conduct a biological assessment to

identify any endangered species or threatened

species which is likely to be affected by such action.

Any such biological assessment must, however, be

conducted in cooperation with the Secretary and

under the supervision of the appropriate Federal

agency.

(d) Limitation on commitment of resources

After initiation of consultation required under

subsection (a)(2), the Federal agency and the permit or

license applicant shall not make any irreversible or

irretrievable commitment of resources with respect to

the agency action which has the effect of foreclosing the

formulation or implementation of any reasonable and

prudent alternative measures which would not violate

subsection (a)(2) of this section.

(e) Endangered Species Committee

(1) There is established a committee to be known as

the Endangered Species Committee (hereinafter in

this section referred to as the “Committee”).

(2) The Committee shall review any application

submitted to it pursuant to this section and

determine in accordance with subsection (h) of this

section whether or not to grant an exemption from

the requirements of subsection (a)(2) of this section

for the action set forth in such application.

App. 74

(3) The Committee shall be composed of seven

members as follows:

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

Advisors.

(D) The Administrator of the Environmental

Protection Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic

and Atmospheric Administration.

(G) The President, after consideration of any

recommendations received pursuant to

subsection (g)(2)(B) shall appoint one individual

from each affected State, as determined by the

Secretary, to be a member of the Committee for

the consideration of the application for

exemption for an agency action with respect to

which such recommendations are made, not

later than 30 days after an application is

submitted pursuant to this section.

(4)

(A) Members of the Committee shall receive no

additional pay on account of their service on the

Committee.

(B) While away from their homes or regular

places of business in the performance of services

for the Committee, members of the Committee

App. 75

shall be allowed travel expenses, including per

diem in lieu of subsistence, in the same manner

as persons employed intermittently in the

Government service are allowed expenses under

section 5703 of title 5.

(5)

(A) Five members of the Committee or their

representatives shall constitute a quorum for the

transaction of any function of the Committee,

except that, in no case shall any representative

be considered in determining the existence of a

quorum for the transaction of any function of the

Committee if that function involves a vote by the

Committee on any matter before the Committee.

(B) The Secretary of the Interior shall be the

Chairman of the Committee.

Chairman or five of its members.

(D) All meetings and records of the Committee

shall be open to the public.

(6) Upon request of the Committee, the head of any

Federal agency is authorized to detail, on a

nonreimbursable basis, any of the personnel of such

agency to the Committee to assist it in carrying out

its duties under this section.

(7)

(A) The Committee may for the purpose of

carrying out its duties under this section hold

such hearings, sit and act at such times and

App. 76

places, take such testimony, and receive such

evidence, as the Committee deems advisable.

(B) When so authorized by the Committee, any

member or agent of the Committee may take

any action which the Committee is authorized to

take by this paragraph.

the Committee may secure directly from any

Federal agency information necessary to enable

it to carry out its duties under this section. Upon

request of the Chairman of the Committee, the

head of such Federal agency shall furnish such

information to the Committee.

(D) The Committee may use the United States

mails in the same manner and upon the same

conditions as a Federal agency.

(E) The Administrator of General Services shall

provide to the Committee on a reimbursable

basis such administrative support services as

the Committee may request.

(8) In carrying out its duties under this section, the

Committee may promulgate and amend such rules,

regulations, and procedures, and issue and amend

such orders as it deems necessary.

(9) For the purpose of obtaining information

necessary for the consideration of an application for

an exemption under this section the Committee

may issue subpenas for the attendance and

testimony of witnesses and the production of

relevant papers, books, and documents.

App. 77

(10) In no case shall any representative, including

a representative of a member designated pursuant

to paragraph (3)(G) of this subsection, be eligible to

cast a vote on behalf of any member.

(f) Promulgation of regulations; form and contents of

exemption application

Not later than 90 days after November 10, 1978, the

Secretary shall promulgate regulations which set

forth the form and manner in which applications for

exemption shall be submitted to the Secretary and

the information to be contained in such

applications. Such regulations shall require that

information submitted in an application by the head

of any Federal agency with respect to any agency

action include, but not be limited to—

(1) a description of the consultation process carried

out pursuant to subsection (a)(2) of this section

between the head of the Federal agency and the

Secretary; and

(2) a statement describing why such action cannot

be altered or modified to conform with the

requirements of subsection (a)(2) of this section.

(g) Application for exemption; report to Committee

(1) A Federal agency, the Governor of the State in

which an agency action will occur, if any, or a

permit or license applicant may apply to the

Secretary for an exemption for an agency action of

such agency if, after consultation under

subsection (a)(2), the Secretary’s opinion under

subsection (b) indicates that the agency action

App. 78

would violate subsection (a)(2). An application for

an exemption shall be considered initially by the

Secretary in the manner provided for in this

subsection, and shall be considered by the

Committee for a final determination under

subsection (h) after a report is made pursuant to

paragraph (5). The applicant for an exemption shall

be referred to as the “exemption applicant” in this

section.

(2)

(A) An exemption applicant shall submit a

written application to the Secretary, in a form

prescribed under subsection (f), not later than

90 days after the completion of the consultation

process; except that, in the case of any agency

action involving a permit or license applicant,

such application shall be submitted not later

than 90 days after the date on which the Federal

agency concerned takes final agency action with

respect to the issuance of the permit or license.

For purposes of the preceding sentence, the term

“final agency action” means (i) a disposition by

an agency with respect to the issuance of a

permit or license that is subject to

administrative review, whether or not such

disposition is subject to judicial review; or (ii) if

administrative review is sought with respect to

such disposition, the decision resulting after

such review. Such application shall set forth the

reasons why the exemption applicant considers

that the agency action meets the requirements

for an exemption under this subsection.

App. 79

(B) Upon receipt of an application for exemption

for an agency action under paragraph (1), the

Secretary shall promptly (i) notify the Governor

of each affected State, if any, as determined by

the Secretary, and request the Governors so

notified to recommend individuals to be

appointed to the Endangered Species Committee

for consideration of such application; and

(ii) publish notice of receipt of the application in

the Federal Register, including a summary of

the information contained in the application and

a description of the agency action with respect to

which the application for exemption has been

filed.

(3) The Secretary shall within 20 days after the

receipt of an application for exemption, or within

such other period of time as is mutually agreeable

to the exemption applicant and the Secretary—

(A) determine that the Federal agency concerned

and the exemption applicant have—

(i)

carried

out

the

consultation

responsibilities described in subsection (a) in

good faith and made a reasonable and

responsible effort to develop and fairly

consider modifications or reasonable and

prudent alternatives to the proposed agency

action which would not violate subsection

(a)(2);

(ii) conducted any biological assessment

required by subsection (c); and

App. 80

(iii) to the extent determinable within the

time provided herein, refrained from making

any irreversible or irretrievable commitment

of resources prohibited by subsection (d); or

(B) deny the application for exemption because

the Federal agency concerned or the exemption

applicant have not met the requirements set

forth in subparagraph (A)(i), (ii), and (iii).

The denial of an application under

subparagraph (B) shall be considered final

agency action for purposes of chapter 7 of title 5.

(4) If the Secretary determines that the Federal

agency concerned and the exemption applicant have

met the requirements set forth in

paragraph (3)(A)(i), (ii), and (iii) he shall, in

consultation with the Members of the Committee,

hold a hearing on the application for exemption in

accordance with sections 554, 555, and 556 (other

than subsection (b)(1) and (2) thereof) of title 5 and

prepare the report to be submitted pursuant to

paragraph (5).

(5) Within 140 days after making the

determinations under paragraph (3) or within such

other period of time as is mutually agreeable to the

exemption applicant and the Secretary, the

Secretary shall submit to the Committee a report

discussing—

(A) the availability of reasonable and prudent

alternatives to the agency action, and the nature

and extent of the benefits of the agency action

and of alternative courses of action consistent

App. 81

with conserving the species or the critical

habitat;

(B) a summary of the evidence concerning

whether or not the agency action is in the public

interest and is of national or regional

significance;

enhancement measures which should be

considered by the Committee; and

(D) whether the Federal agency concerned and

the exemption applicant refrained from making

any irreversible or irretrievable commitment of

resources prohibited by subsection (d).

(6) To the extent practicable within the time

required for action under subsection (g) of this

section, and except to the extent inconsistent with

the requirements of this section, the consideration

of any application for an exemption under this

section and the conduct of any hearing under this

subsection shall be in accordance with sections 554,

555, and 556 (other than subsection (b)(3) of

section 556) of title 5.

(7) Upon request of the Secretary, the head of any

Federal agency is authorized to detail, on a

nonreimbursable basis, any of the personnel of such

agency to the Secretary to assist him in carrying out

his duties under this section.

(8) All meetings and records resulting from

activities pursuant to this subsection shall be open

to the public.

App. 82

(h) Grant of exemption

(1) The Committee shall make a final determination

whether or not to grant an exemption within

30 days after receiving the report of the Secretary

pursuant to subsection (g)(5). The Committee shall

grant an exemption from the requirements of

subsection (a)(2) for an agency action if, by a vote of

not less than five of its members voting in person—

(A) it determines on the record, based on the

report of the Secretary, the record of the hearing

held under subsection (g)(4) and on such other

testimony or evidence as it may receive, that—

(i) there are no reasonable and prudent

alternatives to the agency action;

(ii) the benefits of such action clearly

outweigh the benefits of alternative courses

of action consistent with conserving the

species or its critical habitat, and such action

is in the public interest;

(iii) the action is of regional or national

significance; and

(iv) neither the Federal agency concerned nor

the exemption applicant made any

irreversible or irretrievable commitment of

resources prohibited by subsection (d); and

(B) it establishes such reasonable mitigation and

enhancement measures, including, but not

limited to, live propagation, transplantation, and

habitat acquisition and improvement, as are

App. 83

necessary and appropriate to minimize the

adverse effects of the agency action upon the

endangered species, threatened species, or

critical habitat concerned.

Any final determination by the Committee

under this subsection shall be considered final

agency action for purposes of chapter 7 of title 5.

(2)

(A) Except as provided in subparagraph (B), an

exemption for an agency action granted under

paragraph (1) shall constitute a permanent

exemption with respect to all endangered or

threatened species for the purposes of

completing such agency action—

(i) regardless whether the species was

identified in the biological assessment; and

(ii) only if a biological assessment has been

conducted under subsection (c) with respect

to such agency action.

(B) An exemption shall be permanent under

subparagraph (A) unless—

(i) the Secretary finds, based on the best

scientific and commercial data available, that

such exemption would result in the

extinction of a species that was not the

subject of consultation under

subsection (a)(2) or was not identified in any

biological assessment conducted under

subsection (c), and

App. 84

(ii) the Committee determines within 60 days

after the date of the Secretary’s finding that

the exemption should not be permanent.

If the Secretary makes a finding described in

clause (i), the Committee shall meet with

respect to the matter within 30 days after the

date of the finding.

(i) Review by Secretary of State; violation of

international treaty or other international obligation of

United States

Notwithstanding any other provision of this chapter,

the Committee shall be prohibited from considering for

exemption any application made to it, if the Secretary

of State, after a review of the proposed agency action

and its potential implications, and after hearing,

certifies, in writing, to the Committee within 60 days

of any application made under this section that the

granting of any such exemption and the carrying out of

such action would be in violation of an international

treaty obligation or other international obligation of the

United States. The Secretary of State shall, at the time

of such certification, publish a copy thereof in the

Federal Register.

(j) Exemption for national security reasons

Notwithstanding any other provision of this chapter,

the Committee shall grant an exemption for any agency

action if the Secretary of Defense finds that such

exemption is necessary for reasons of national security.

App. 85

(k) Exemption decision not considered major Federal

action; environmental impact statement

An exemption decision by the Committee under this

section shall not be a major Federal action for purposes

of the National Environmental Policy Act of 1969 [42

U.S.C. 4321 et seq.]: Provided, That an environmental

impact statement which discusses the impacts upon

endangered species or threatened species or their

critical habitats shall have been previously prepared

with respect to any agency action exempted by such

order.

(l) Committee order granting exemption; cost of

mitigation and enhancement measures; report by

applicant to Council on Environmental Quality

(1) If the Committee determines under

subsection (h) that an exemption should be granted

with respect to any agency action, the Committee

shall issue an order granting the exemption and

specifying the mitigation and enhancement

measures established pursuant to subsection (h)

which shall be carried out and paid for by the

exemption applicant in implementing the agency

action. All necessary mitigation and enhancement

measures shall be authorized prior to the

implementing of the agency action and funded

concurrently with all other project features.

(2) The applicant receiving such exemption shall

include the costs of such mitigation and

enhancement measures within the overall costs of

continuing the proposed action. Notwithstanding

the preceding sentence the costs of such measures

App. 86

shall not be treated as project costs for the purpose

of computing benefit-cost or other ratios for the

proposed action. Any applicant may request the

Secretary to carry out such mitigation and

enhancement measures. The costs incurred by the

Secretary in carrying out any such measures shall

be paid by the applicant receiving the exemption.

No later than one year after the granting of an

exemption, the exemption applicant shall submit to

the Council on Environmental Quality a report

describing its compliance with the mitigation and

enhancement measures prescribed by this section.

Such a report shall be submitted annually until all

such mitigation and enhancement measures have

been completed. Notice of the public availability of

such reports shall be published in the Federal

(m) Notice requirement for citizen suits not applicable

The 60-day notice requirement of section 1540(g) of this

title shall not apply with respect to review of any final

determination of the Committee under subsection (h)

of this section granting an exemption from the

requirements of subsection (a)(2) of this section.

(n) Judicial review

Any person, as defined by section 1532(13) of this title,

may obtain judicial review, under chapter 7 of title 5,

of any decision of the Endangered Species Committee

under subsection (h) in the United States Court of

Appeals for (1) any circuit wherein the agency action

concerned will be, or is being, carried out, or (2) in any

case in which the agency action will be, or is being,

App. 87

carried out outside of any circuit, the District of

Columbia, by filing in such court within 90 days after

the date of issuance of the decision, a written petition

for review. A copy of such petition shall be transmitted

by the clerk of the court to the Committee and the

Committee shall file in the court the record in the

proceeding, as provided in section 2112 of title 28.

Attorneys designated by the Endangered Species

Committee may appear for, and represent the

Committee in any action for review under this

subsection.

(o) Exemption as providing exception on taking of

endangered species

Notwithstanding sections 1533(d) and 1538(a)(1)(B)

and (C) of this title, sections 1371 and 1372 of this

title, or any regulation promulgated to implement

any such section—

(1) any action for which an exemption is granted

under subsection (h) shall not be considered to be a

taking of any endangered species or threatened

species with respect to any activity which is

necessary to carry out such action; and

(2) any taking that is in compliance with the terms

and conditions specified in a written statement

provided under subsection (b)(4)(iv) shall not be

considered to be a prohibited taking of the species

concerned.

App. 88

(p) Exemptions in Presidentially declared disaster

areas

In any area which has been declared by the President

to be a major disaster area under the Disaster Relief

and Emergency Assistance Act [42 U.S.C. 5121 et seq.],

the President is authorized to make the determinations

required by subsections (g) and (h) of this section for

any project for the repair or replacement of a public

facility substantially as it existed prior to the disaster

under section 405 or 406 of the Disaster Relief and

Emergency Assistance Act [42 U.S.C. 5171 or 5172],

and which the President determines (1) is necessary to

prevent the recurrence of such a natural disaster and

to reduce the potential loss of human life, and (2) to

involve an emergency situation which does not allow

the ordinary procedures of this section to be followed.

Notwithstanding any other provision of this section,

the Committee shall accept the determinations of the

President under this subsection.

App. 89

28 U.S.C. § 1442 - Federal officers or agencies

sued or prosecuted

(a) A civil action or criminal prosecution that is

commenced in a State court and that is against or

directed to any of the following may be removed by

them to the district court of the United States for the

district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of

the United States or of any agency thereof, in an

official or individual capacity, for or relating to any

act under color of such office or on account of any

right, title or authority claimed under any Act of

Congress for the apprehension or punishment of

criminals or the collection of the revenue.

(2) A property holder whose title is derived from any

such officer, where such action or prosecution

affects the validity of any law of the United States.

(3) Any officer of the courts of the United States, for

or relating to any act under color of office or in the

performance of his duties;

(4) Any officer of either House of Congress, for or

relating to any act in the discharge of his official

duty under an order of such House.

(b) A personal action commenced in any State court by

an alien against any citizen of a State who is, or at the

time the alleged action accrued was, a civil officer of

the United States and is a nonresident of such State,

wherein jurisdiction is obtained by the State court by

App. 90

personal service of process, may be removed by the

defendant to the district court of the United States for

the district and division in which the defendant was

served with process.

removal under subsection (a), a law enforcement

officer, who is the defendant in a criminal prosecution,

shall be deemed to have been acting under the color of

his office if the officer—

(1) protected an individual in the presence of the

officer from a crime of violence;

(2) provided immediate assistance to an individual

who suffered, or who was threatened with, bodily

harm; or

(3) prevented the escape of any individual who the

officer reasonably believed to have committed, or

was about to commit, in the presence of the officer,

a crime of violence that resulted in, or was likely to

result in, death or serious bodily injury.

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal

prosecution” include any proceeding (whether or not

ancillary to another proceeding) to the extent that

in such proceeding a judicial order, including a

subpoena for testimony or documents, is sought or

issued. If removal is sought for a proceeding

described in the previous sentence, and there is no

other basis for removal, only that proceeding may

be removed to the district court.

App. 91

(2) The term “crime of violence” has the meaning

given that term in section 16 of title 18.

(3) The term “law enforcement officer” means any

employee described in subparagraph (A), (B), or (C)

of section 8401(17) of title 5 and any special agent

in the Diplomatic Security Service of the

Department of State.

(4) The term “serious bodily injury” has the

meaning given that term in section 1365 of title 18.

(5) The term “State” includes the District of

Columbia, United States territories and insular

possessions, and Indian country (as defined in

section 1151 of title 18).

(6) The term “State court” includes the Superior

Court of the District of Columbia, a court of a

United States territory or insular possession, and a

tribal court.

App. 92

43 U.S.C. § 383 - Vested rights and State laws

unaffected

Nothing in this Act shall be construed as affecting or

intended to affect or to in any way interfere with the

laws of any State or Territory relating to the control,

appropriation, use, or distribution of water used in

irrigation, or any vested right acquired thereunder, and

the Secretary of the Interior, in carrying out the

provisions of this Act, shall proceed in conformity with

such laws, and nothing herein shall in any way affect

any right of any State or of the Federal Government or

of any landowner, appropriator, or user of water in, to,

or from any interstate stream or the waters thereof.

43 U.S.C. § 421 - Acquisition of lands for irrigation

project; eminent domain

Where, in carrying out the provisions of this Act, it

becomes necessary to acquire any rights or property,

the Secretary of the Interior is authorized to acquire

the same for the United States by purchase or by

condemnation under judicial process, and to pay from

the reclamation fund the sums which may be needed

for that purpose, and it shall be the duty of the

Attorney General of the United States upon every

application of the Secretary of the Interior, under this

Act, to cause proceedings to be commenced for

condemnation within thirty days from the receipt of the

application at the Department of Justice.

App. 93

43 U.S.C. § 666 - Suits for adjudication of water

rights

(a) Joinder of United States as defendant; costs

Consent is given to join the United States as a

defendant in any suit (1) for the adjudication of rights

to the use of water of a river system or other source, or

(2) for the administration of such rights, where it

appears that the United States is the owner of or is in

the process of acquiring water rights by appropriation

under State law, by purchase, by exchange, or

otherwise, and the United States is a necessary party

to such suit. The United States, when a party to any

such suit, shall (1) be deemed to have waived any right

to plead that the State laws are inapplicable or that the

United States is not amenable thereto by reason of its

sovereignty, and (2) shall be subject to the judgments,

orders, and decrees of the court having jurisdiction, and

may obtain review thereof, in the same manner and to

the same extent as a private individual under like

circumstances: Provided, That no judgment for costs

shall be entered against the United States in any such

suit.

(b) Service of summons

Summons or other process in any such suit shall be

served upon the Attorney General or his designated

representative.

by State

Nothing in this section shall be construed as

authorizing the joinder of the United States in any suit

App. 94

or controversy in the Supreme Court of the United

States involving the right of States to the use of the

water of any interstate stream.

App. 95

Federal Rule of Civil Procedure 19 - Required

Joinder of Parties

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to

service of process and whose joinder will not deprive

the court of subject-matter jurisdiction must be

joined as a party if:

(A) in that person’s absence, the court cannot

accord complete relief among existing parties; or

(B) that person claims an interest relating to the

subject of the action and is so situated that

disposing of the action in the person’s absence

may:

(i) as a practical matter impair or impede the

person’s ability to protect the interest; or

(ii) leave an existing party subject to a

substantial risk of incurring double,

multiple, or otherwise inconsistent

obligations because of the interest.

(2) Joinder by Court Order. If a person has not been

joined as required, the court must order that the

person be made a party. A person who refuses to

join as a plaintiff may be made either a defendant

or, in a proper case, an involuntary plaintiff.

(3) Venue. If a joined party objects to venue and the

joinder would make venue improper, the court must

dismiss that party.

App. 96

(b) When Joinder Is Not Feasible. If a person who is

required to be joined if feasible cannot be joined, the

court must determine whether, in equity and good

conscience, the action should proceed among the

existing parties or should be dismissed. The factors for

the court to consider include:

(1) the extent to which a judgment rendered in the

person’s absence might prejudice that person or the

existing parties;

(2) the extent to which any prejudice could be

lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(3) whether a judgment rendered in the person’s

absence would be adequate; and

(4) whether the plaintiff would have an adequate

remedy if the action were dismissed for nonjoinder.

asserting a claim for relief, a party must state:

(1) the name, if known, of any person who is

required to be joined if feasible but is not joined;

and

(2) the reasons for not joining that person.

(d) Exception for Class Actions. This rule is subject to

Rule 23.

App. 97

ORS § 539.010 Protection of water rights vested

or initiated prior to February 24, 1909.

(1) Actual application of water to beneficial use prior to

February 24, 1909, by or under authority of any

riparian proprietor or the predecessors in interest of

the riparian proprietor, shall be deemed to create in the

riparian proprietor a vested right to the extent of the

actual application to beneficial use, provided such use

has not been abandoned for a continuous period of two

years.

(2) Where any riparian proprietor, or any person under

authority of any riparian proprietor or the predecessor

in interest of the riparian proprietor, was, on February

24, 1909, engaged in good faith in the construction of

works for the application of water to a beneficial use,

the right to take and use such water shall be deemed

vested in the riparian proprietor, provided that the

works were completed and the water devoted to a

beneficial use within a reasonable time after February

24, 1909. The Water Resources Director, in the manner

provided in subsection (5) of this section, may

determine the time within which the water shall be

devoted to a beneficial use. The right to water shall be

limited to the quantity actually applied to a beneficial

use within the time so fixed by the director.

(3) Nothing contained in the Water Rights Act, as

defined in ORS 537.010, shall affect relative priorities

to the use of water among parties to any decree of the

courts rendered in causes determined or pending prior

to February 24, 1909.

App. 98

(4) The right of any person to take and use water may

not be impaired or affected by any provisions of the

Water Rights Act, as defined in ORS 537.010, where

appropriations were initiated prior to February 24,

1909, and such appropriators, their heirs, successors or

assigns did, in good faith and in compliance with the

laws then existing, commence the construction of works

for the application of the water so appropriated to a

beneficial use, and thereafter prosecuted such work

diligently and continuously to completion. However, all

such rights shall be adjudicated in the manner

provided in this chapter.

(5) The director shall, for good cause shown upon the

application of any appropriator or user of water under

an appropriation of water made prior to February 24,

1909, or in the cases mentioned in subsections (2) and

(4) of this section, where actual construction work was

commenced prior to that time or within the time

provided in law then existing, prescribe the time within

which the full amount of the water appropriated shall

be applied to a beneficial use. In determining said time

the director shall grant a reasonable time after the

construction of the works or canal or ditch used for the

diversion of the water, and in doing so, the director

shall take into consideration the cost of the

appropriation and application of the water to a

beneficial purpose, the good faith of the appropriator,

the market for water or power to be supplied, the

present demands therefor and the income or use that

may be required to provide fair and reasonable returns

upon the investment. For good cause shown the

director may extend the time.

App. 99

(6) Where appropriations of water attempted before

February 24, 1909, were undertaken in good faith, and

the work of construction or improvement thereunder

was in good faith commenced and diligently prosecuted,

such appropriations may not be set aside or voided in

proceedings under this chapter because of any

irregularity or insufficiency of the notice by law, or in

the manner of posting, recording or publication thereof.

(7) In any proceeding to adjudicate water rights under

this chapter, the Water Resources Department may

adjudicate federal reserved rights for the water

necessary to fulfill the primary purpose of the

reservation or any federal water right not acquired

under ORS chapter 537 or ORS 540.510 to 540.530.

(8) All rights granted or declared by the Water Rights

Act, as defined in ORS 537.010, shall be adjudicated

and determined in the manner and by the tribunals

provided therein. The Water Rights Act may not be

held to bestow upon any person any riparian rights

where no such rights existed prior to February 24,

1909. [Amended by 1989 c.691 §6; 1993 c.157 §1; 2021

c.97 §65]

ORS § 539.100 Contest of claims submitted to

director; notice by contestant; service on

contestee.

Any person owning any irrigation works, or claiming

any interest in the stream involved in the

determination shall be a party to, and bound by, the

adjudication. Any party who desires to contest any of

the rights of the persons who have submitted their

App. 100

evidence to the Water Resources Director as provided

in ORS 539.021 to 539.090 shall, within 15 days after

the expiration of the period fixed in the notice for

public inspection, or within such extension of the

period, not exceeding 20 days, as the director may

allow, notify the director in writing, stating with

reasonable certainty the grounds of the proposed

contest, which statement shall be verified by the

affidavit of the contestant, the agent or attorney of the

contestant. A party not claiming an undetermined

vested right under this chapter or not contesting the

claim of another need not participate further in the

proceeding, nor be served with further notices or

documents regarding the adjudication. Upon the filing

of a statement of contest, service thereof shall be made

by the contestant upon the contestee by mailing a copy

by registered mail or by certified mail, return receipt

requested, addressed to the contestee or to the

authorized agent or attorney of the contestee at the

post-office address of the contestee as stated in the

statement and proof of claim of the contestee. Proof of

service shall be made and filed with the Water

Resources Department by the contestant as soon as

possible after serving the copy of statement of contest.

[Amended by 1989 c.691 §10; 1991 c.102 §5; 1991 c.249

§47]

App. 101

ORS § 539.130 - Findings of fact and

determination of director; certification of

proceedings; filing in court; fixing time for

hearing by court; notice; force of director’s

determination

(1) As soon as practicable after the compilation of the

data the Water Resources Director shall make and

cause to be entered of record in the Water Resources

Department findings of fact and an order of

determination determining and establishing the

several rights to the waters of the stream. The original

evidence gathered by the director, and certified copies

of the observations and measurements and maps of

record, in connection with the determination, as

provided for by ORS 539.120 (Examination by director

of stream and diversions in contest), together with a

copy of the order of determination and findings of fact

of the director as they appear of record in the Water

Resources Department, shall be certified to by the

director and filed with the clerk of the circuit court

wherein the determination is to be heard. A certified

copy of the order of determination and findings shall be

filed with the county clerk of every other county in

which the stream or any portion of a tributary is

situated.

(2) Upon the filing of the evidence and order with the

court the director shall procure an order from the court,

or any judge thereof, fixing the time at which the

determination shall be heard in the court, which

hearing shall be at least 40 days subsequent to the date

of the order. The clerk of the court shall, upon the

making of the order, forthwith forward a certified copy

App. 102

to the department by registered mail or by certified

mail with return receipt.

(3) The department shall immediately upon receipt

thereof notify by registered mail or by certified mail

with return receipt each claimant or owner who has

appeared in the proceeding of the time and place for

hearing. Service of the notice shall be deemed complete

upon depositing it in the post office as registered or

certified mail, addressed to the claimant or owner at

the post-office address of the claimant or owner, as set

forth in the proof of the claimant or owner theretofore

filed in the proceeding. Proof of service shall be made

and filed with the circuit court by the department as

soon as possible after mailing the notices.

(4) The determination of the department shall be in full

force and effect from the date of its entry in the records

of the department, unless and until its operation shall

be stayed by a stay bond as provided by ORS 539.180

(Bond or irrevocable letter of credit to stay operation of

director’s determination). [Amended by 1991 c.102 §7;

1991 c.249 §49]

ORS § 539.150 - Court proceedings to review

determination of director

(1) From and after the filing of the evidence and order

of determination in the circuit court, the proceedings

shall be like those in an action not triable by right to a

jury, except that any proceedings, including the entry

of a judgment, may be had in vacation with the same

force and effect as in term time. At any time prior to

the hearing provided for in ORS 539.130 (Findings of

App. 103

fact and determination of director), any party or parties

jointly interested may file exceptions in writing to the

findings and order of determination, or any part

thereof, which exceptions shall state with reasonable

certainty the grounds and shall specify the particular

paragraphs or parts of the findings and order excepted

to.

(2) A copy of the exceptions, verified by the exceptor or

certified to by the attorney for the exceptor, shall be

served upon each claimant who was an adverse party

to any contest wherein the exceptor was a party in the

proceedings, prior to the hearing. Service shall be made

by the exceptor or the attorney for the exceptor upon

each such adverse party in person, or upon the attorney

if the adverse party has appeared by attorney, or upon

the agent of the adverse party. If the adverse party is

a nonresident of the county or state, the service may be

made by mailing a copy to that party by registered mail

or by certified mail with return receipt, addressed to

the place of residence of that party, as set forth in the

proof filed in the proceedings.

(3) If no exceptions are filed the court shall, on the day

set for the hearing, enter a judgment affirming the

determination of the Water Resources Director. If

exceptions are filed, upon the day set for the hearing

the court shall fix a time, not less than 30 days

thereafter, unless for good cause shown the time be

extended by the court, when a hearing will be had upon

the exceptions. All parties may be heard upon the

consideration of the exceptions, and the director may

appear on behalf of the state, either in person or by the

Attorney General. The court may, if necessary, remand

App. 104

the case for further testimony, to be taken by the

director or by a referee appointed by the court for that

purpose. Upon completion of the testimony and its

report to the director, the director may be required to

make a further determination.

(4) After final hearing the court shall enter a judgment

affirming or modifying the order of the director as the

court considers proper, and may assess such costs as it

may consider just except that a judgment for costs may

not be rendered against the United States. An appeal

may be taken to the Court of Appeals from the

judgment in the same manner and with the same effect

as in other cases in equity, except that notice of appeal

must be served and filed within 60 days from the entry

of the judgment. [Amended by 1979 c.284 §165; 1989

c.691 §12; 1991 c.249 §50]

ORS § 539.180 Bond or irrevocable letter of credit

to stay operation of director’s determination;

notice to watermaster.

At any time after the determination of the Water

Resources Director has been entered of record, the

operation thereof may be stayed in whole or in part by

any party by filing a bond or an irrevocable letter of

credit issued by an insured institution as defined in

ORS 706.008 in the circuit court wherein the

determination is pending, in such amount as the judge

may prescribe, conditioned that the party will pay all

damages that may accrue by reason of the

determination not being enforced. Upon the filing and

approval of the bond or letter of credit, the clerk of the

circuit court shall transmit to the Water Resources

App. 105

Department a certified copy of the bond or letter of

credit, which shall be recorded in the department

records, and the department shall give notice thereof to

the watermaster of the proper district. [Amended by

1991 c.102 §10; 1991 c.331 §79; 1997 c.631 §486]

ORS § 539.210 - Duty of claimants to appear and

submit proof; nonappearance as forfeiture;

intervention in proceedings

Whenever proceedings are instituted for determination

of rights to the use of any water, it shall be the duty of

all claimants interested therein to appear and submit

proof of their respective claims, at the time and in the

manner required by law. Any claimant who fails to

appear in the proceedings and submit proof of the

claims of the claimant shall be barred and estopped

from subsequently asserting any rights theretofore

acquired upon the stream or other body of water

embraced in the proceedings, and shall be held to have

forfeited all rights to the use of the water theretofore

claimed by the claimant. Any person interested in the

water of any stream upon whom no service of notice

has been had of the pendency of proceedings for

determination of the rights to the use of water of the

stream, and who has had no actual knowledge or notice

of the pendency of the proceedings may, at any time

prior to the expiration of one year after entry of the

determination of the Water Resources Director, file a

petition to intervene in the proceedings. The petition

shall contain, among other things, all matters required

by this chapter of claimants who have been duly served

with notice of the proceedings, and also a statement

that the intervenor had no actual knowledge or notice

App. 106

of the pendency of the proceedings. Upon the

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