[00:01:05] Speaker 06:
Okay, the next argued case is number 18-1323, Bailey against the United States.

[00:01:12] Speaker 06:
Mr. Marzola.

[00:01:14] Speaker 01:
Good morning, Your Honors.

[00:01:16] Speaker 01:
We have divided the argument two ways here.

[00:01:21] Speaker 01:
I will be addressing the reserve water rights and contract issues.

[00:01:25] Speaker 01:
Council for Amicus will be addressing the Western Water Law issues and Klamath Basin adjudication issues.

[00:01:34] Speaker 01:
The trial court reached the wrong conclusion here because she made a number of mistakes of fact.

[00:01:42] Speaker 01:
First and most importantly, and I think the government admits this, the trial court erroneously held that the three tribes had the right to catch fish in Klamath Lake.

[00:01:54] Speaker 01:
They do not.

[00:01:55] Speaker 01:
Those fish are protected by the Endangered Species Act, and it is a criminal offense to catch

[00:02:03] Speaker 01:
This error led the court to believe, and to hold, that there were water rights supporting these non-existent fishing rights in Klamath Lake, with the result that the court held that the water in Klamath Lake

[00:02:19] Speaker 01:
was to be used to support those fishing rights and not the rights of the plaintiffs to irrigate their lands as the water had been used.

[00:02:27] Speaker 04:
What if we were to read the lower court's opinion about Upper Klamath Lake as what she was really trying to say, and she said it in other places, especially in reference to cases like Adair, that

[00:02:44] Speaker 04:
What was important about Upper Klamath Lake was to retain a certain amount of water there in order for the different tribes to preserve their rights to fish, the particular fish on their reservations.

[00:03:02] Speaker 01:
Right.

[00:03:03] Speaker 04:
I mean, I understand your point, which is at one point the lower court may have said something about fishing in Upper Klamath Lake or something to that effect.

[00:03:13] Speaker 04:
But there's enough other places that make clear, at least to me, that what was really going on here was an interest in preserving the water in Upper Klamath Lake in order for those different tribes to be able to continue to fish what they had always fished in the waters that are on reservation.

[00:03:32] Speaker 01:
Yes.

[00:03:33] Speaker 01:
Well, two answers to that.

[00:03:35] Speaker 01:
First, hydrology.

[00:03:36] Speaker 01:
And note that the government produced no hydrologic testimony, only the plaintiff's stand.

[00:03:41] Speaker 01:
But if you look at the map on page seven of the blue brief, Your Honor, you'll see that Upper Klamath Lake is downstream from the Klamath Reservation.

[00:03:52] Speaker 01:
So the water obviously does not flow back upstream.

[00:03:56] Speaker 04:
But the fish do, right?

[00:03:57] Speaker 04:
The fish swim upstream?

[00:03:59] Speaker 01:
We don't know that.

[00:04:00] Speaker 01:
There is absolutely nothing in the record addressing

[00:04:05] Speaker 01:
whether the fish swim upstream.

[00:04:10] Speaker 01:
Nor, Your Honor, is there a fishery on the Klamath Reservation for these sucker fish, either the long-nosed or the

[00:04:22] Speaker 01:
short-nosed suckers, and there hasn't been a fishery since 1987.

[00:04:26] Speaker 04:
Maybe that's due to the Klamath Project's regulation of all the water in this area to the point where it's essentially killed off most of the sucker fish.

[00:04:39] Speaker 04:
Well, that's not in the record either, Your Honor, nor... Well, we know that the different sucker fish, the quantity of them has been severely depleted to the point where they're now an endangered species.

[00:04:54] Speaker 01:
Yes.

[00:04:54] Speaker 01:
Is that fair to say?

[00:04:56] Speaker 01:
And have been since 1987.

[00:04:57] Speaker 01:
So we get to the key issue, and this is true as to the downstream tribes as well, which do not fish for the coho for the same reason.

[00:05:08] Speaker 01:
that the coho is listed as a threatened species.

[00:05:12] Speaker 01:
Both are protected.

[00:05:13] Speaker 01:
It's a criminal offense under the Endangered Species Act to catch those fish.

[00:05:18] Speaker 01:
We get, I think then, Your Honor, to the key issue.

[00:05:21] Speaker 01:
And that is that the trial court's holding, if it is the one that I think the court has just articulated, is directly contrary to this court's recent holding in Crow Creek Sioux Tribe.

[00:05:37] Speaker 01:
In that case,

[00:05:39] Speaker 01:
this court held that it was erroneous for the tribe to argue that because they have the senior water right, they have the right to all the water in the river.

[00:05:51] Speaker 01:
Rather, they have only so much water as is necessary to fulfill the purposes of the reservation.

[00:05:59] Speaker 01:
in the purposes of the reservation in this case were, of course, to allow for fishing and hunting both on reservation for the Klamath and adjacent to the reservation for the Hupa and the Yurok.

[00:06:14] Speaker 01:
Those were the original purposes of the reservation.

[00:06:17] Speaker 01:
Regrettably, those fish runs aren't there anymore.

[00:06:21] Speaker 01:
And there is no case that I'm aware of that holds either that a reservation

[00:06:27] Speaker 01:
an Indian reservation has as its purpose the recovery or conservation of an endangered or threatened species, nor is there a holding that even though the fish populations are near extinction and have been decimated over the years for whatever reasons, that water is to be released as though the fish were there or to support those fish.

[00:06:57] Speaker 01:
So the key issue comes down to, under current circumstances, what is the nature and extent of the rights to fish?

[00:07:07] Speaker 01:
And the Adair case, Ninth Circuit, which defined the existence of the Klamath tribe's rights, I think gives us that answer.

[00:07:17] Speaker 01:
What that case says is that the

[00:07:21] Speaker 01:
Klamath tribes are entitled to hunting and fishing rights as currently exercised and not as they existed in 1864.

[00:07:32] Speaker 01:
So I think that the key legal error of the- Did the Adair Court say that

[00:07:44] Speaker 04:
what was signed in the treaty in 1864 are no longer the rights that the Klamath tribe are entitled to?

[00:07:54] Speaker 01:
I don't think the court didn't say that, what the court said.

[00:08:00] Speaker 04:
I mean, I guess you're suggesting that whatever the federal government agreed to in 1864, they're not necessarily bound by, because according to your understanding of the Adair court,

[00:08:14] Speaker 04:
The.

[00:08:16] Speaker 04:
what the new rights are for the tribes or whatever that existed when the Adair Court wrote its opinion rather than what existed in 1864.

[00:08:25] Speaker 04:
I'm not so sure that makes sense.

[00:08:27] Speaker 01:
No, quite the contrary, Your Honor.

[00:08:30] Speaker 01:
I think what the Adair Court said is that if, for whatever reason, regrettably, the species is no longer contributing to the livelihood of the tribe.

[00:08:42] Speaker 01:
It's not there.

[00:08:43] Speaker 01:
It can't, because there aren't sucker fish

[00:08:46] Speaker 01:
to support the tribe as food, as a livelihood, then you would simply be wasting water to apply that water to a tribal right that no longer exists.

[00:09:00] Speaker 04:
Where did Adair say that?

[00:09:02] Speaker 04:
I don't quite remember it saying it.

[00:09:05] Speaker 01:
I'm sorry.

[00:09:05] Speaker 01:
I do have a citation in the brief, Your Honor.

[00:09:08] Speaker 01:
The direct quote was that it addressed

[00:09:16] Speaker 01:
The appellant's argument was surely that the trial court had erred in saying that the tribe had exactly the same rights as in 1864, even though the area had developed and obviously changed dramatically.

[00:09:33] Speaker 01:
Speaking to hunting and fishing rights, what the Adair court said is, no, we interpret the trial court's holding to mean

[00:09:41] Speaker 01:
that the tribe has the rights as presently exercised.

[00:09:46] Speaker 01:
The water right, the release of water or the storage of water, has to support some right that is currently being exercised.

[00:09:55] Speaker 01:
In 2001, would it have made any sense to say, if this were the case, that water needs to be

[00:10:07] Speaker 01:
released somehow in order to support a fishery that hasn't existed for 50 years.

[00:10:15] Speaker 01:
That would simply be releasing water for no purpose.

[00:10:19] Speaker 01:
And of course, the other difficulty here, specifically with the Klamath tribes, is that the lake is downstream.

[00:10:27] Speaker 01:
And by the way, the Adair Court, Your Honor, relied on the Supreme Court's decision in

[00:10:33] Speaker 01:
Washington versus passenger vessel, which dealt with that same issue and said that the government doesn't have a trust duty to restore fisheries to their pre-treaty levels or time of treaty levels.

[00:10:55] Speaker 04:
At some point in the trial court decision, the trial court made fact findings that

[00:11:02] Speaker 04:
These two types of sucker fish, as well as this coho salmon, are protected tribal trust resources for the Klamath tribe and Yorick and Hoopa Valley tribes, respectively, and relied on testimony from various fish biologists and memoranda from the government.

[00:11:32] Speaker 04:
is why are those findings clearly erroneous in your view?

[00:11:38] Speaker 04:
I don't recall you challenging those fact findings.

[00:11:41] Speaker 01:
Well, first of all, as to the COHO, I think the court's mistake was she confused that with Chinook.

[00:11:49] Speaker 01:
She cited cases dealing with the Chinook and how that was a resource on which the downstream tribes relied.

[00:11:59] Speaker 04:
She also pointed to the testimony

[00:12:02] Speaker 04:
Someone named Don Reck, I think.

[00:12:04] Speaker 01:
Yes.

[00:12:05] Speaker 01:
The two biologists, Fish and Wildlife Service and the National Marine Fisheries Service, who talked about, who referenced tribal trust.

[00:12:16] Speaker 01:
And you'll note, Your Honor, that the Court continually refers to, historically, these fish species have been of great significance to the tribes.

[00:12:25] Speaker 01:
And perhaps in the future, Your Honor, if they are recovered, and if those fisheries are again available,

[00:12:31] Speaker 01:
then water to support those fisheries would also become available.

[00:12:36] Speaker 01:
But remember that the water right, the implied water right, is created at the time of the reservation.

[00:12:45] Speaker 01:
It is an interpretation of Congress's intent in creating this reservation of land to provide sufficient water to fulfill the purposes for which that reservation was created.

[00:13:01] Speaker 01:
And I don't think in 1864 for the Klamath and 1891 for the Hupa in Yurok that Congress anticipated that water would be released to support, to conserve species that were threatened or endangered.

[00:13:21] Speaker 01:
And that's a purpose of these Indian reservations.

[00:13:25] Speaker 01:
So it simply is the case that there is lacking a nexus between the Endangered Species Act, which is admittedly, I think, undisputedly the reason for which the government acted here, and the implied

[00:13:45] Speaker 01:
purposes for creating the Indian reservations.

[00:13:49] Speaker 01:
The court stitched those two together and said they were the same, but there is no authority for doing that.

[00:13:56] Speaker 01:
If I could touch briefly, then, on the contract issue, I think it's pretty straightforward.

[00:14:02] Speaker 01:
The trial court held that this other cause's language simply eviscerated the existing... Were you talking about the Warren Act?

[00:14:12] Speaker 01:
Correct, Your Honor.

[00:14:15] Speaker 01:
And the other cause language in the non-liability clause.

[00:14:21] Speaker 01:
She is clearly incorrect about that.

[00:14:23] Speaker 01:
First of all, because this court, in the Stockton East case, interpreted that language and said it would be illusory if it says the government never has to deliver any water and they're never going to be liable for any cause.

[00:14:37] Speaker 01:
Second, that provision does not, as the trial court seemed to say, alter or modify the water right as it exists.

[00:14:52] Speaker 01:
And that was the task that this court gave the trial court.

[00:14:56] Speaker 01:
when it remained in this case.

[00:14:58] Speaker 01:
Also, it's not clearly a waiver of a constitutional right, the right to just compensation.

[00:15:07] Speaker 01:
So it is ineffective to do the work that the trial court has given it, and that is to bar all claims under the Fifth Amendment on behalf of the plaintiffs here, who, and this I think is the coup d'etat,

[00:15:26] Speaker 01:
the plaintiffs didn't sign that contract.

[00:15:29] Speaker 01:
It's not their contract.

[00:15:31] Speaker 01:
Can someone else waive their constitutional rights by signing it?

[00:15:35] Speaker 02:
Let me ask you, is this separate, is this issue, Stan, regardless of what we do with respect to the tribal rights issue that you spent most of your argument talking about, is this issue separate from that?

[00:15:48] Speaker 01:
It is, Your Honor, because while the

[00:15:51] Speaker 01:
Reserved Water Right issue affects all plaintiffs.

[00:15:55] Speaker 01:
The Warren Act issue only affects some plaintiffs.

[00:15:59] Speaker 01:
The trial court held that people within the Tule Lake Irrigation District and Klamath Irrigation District are not barred by the language in their

[00:16:17] Speaker 01:
district's contracts.

[00:16:18] Speaker 02:
So you're saying that even if the court were to agree with the Court of Federal Claims on the tribal rights issue that you discussed earlier, this issue would still remain?

[00:16:28] Speaker 01:
Well, I guess it's the other way around.

[00:16:29] Speaker 01:
If you agreed with the court that no plaintiff has a right because of the Indian reserve water rights, then this issue becomes moot.

[00:16:38] Speaker 01:
But if you reverse and remand, I think you would have to say that you would have to address the question of whether

[00:16:46] Speaker 01:
the subset of plaintiffs whom the court found were barred by contract or, in fact, barred by the contract.

[00:16:54] Speaker 04:
Just a question about the state adjudication.

[00:16:58] Speaker 04:
What's the current status of that?

[00:17:01] Speaker 01:
Your Honor, may I defer then to Mr. DeMars?

[00:17:06] Speaker 04:
If the other one knows better than you, that's fine.

[00:17:09] Speaker 04:
He does, Your Honor.

[00:17:10] Speaker 04:
Thank you.

[00:17:10] Speaker 02:
Can I ask one further question?

[00:17:11] Speaker 02:
Oh, certainly.

[00:17:12] Speaker 02:
Does what you just said about the Warren Act contract claims, does that apply with respect to the Van Brimmer ditch issue and also the

[00:17:23] Speaker 02:
the lessees who had interest on the wildlife refuge?

[00:17:28] Speaker 01:
Yeah, those two are a different subset.

[00:17:31] Speaker 01:
Van Brimmer, Your Honor, are in the same situation as everyone else.

[00:17:36] Speaker 01:
The trial court just got that wrong.

[00:17:39] Speaker 01:
They have a beneficial interest, just like everyone else.

[00:17:42] Speaker 01:
And I think she misinterpreted that.

[00:17:46] Speaker 01:
The lessees on the reserved lands,

[00:17:53] Speaker 01:
Fish and Wild are the, I'm trying to remember their exact designation, but they lease from the government rather than owning the land.

[00:18:03] Speaker 01:
Once again, that's a contract interpretation issue.

[00:18:06] Speaker 01:
So the court found, yes, they fit into this subset.

[00:18:12] Speaker 01:
The court would have to address those two issues as well.

[00:18:14] Speaker 02:
If we reversed.

[00:18:16] Speaker 02:
If you reverse.

[00:18:17] Speaker 02:
But if we affirm, we wouldn't.

[00:18:19] Speaker 02:
That's correct, Your Honor.

[00:18:22] Speaker 06:
Okay, well let's hear from Mr. DeMars, and we'll save you rebuttal time.

[00:18:26] Speaker 01:
Thank you, Your Honor.

[00:18:35] Speaker 05:
May it please the Court?

[00:18:37] Speaker 05:
My name is Charles DeMars, as you know from the briefs, and I've been selected by the group of amicus curiae lawyers to come to this Court and try to present the

[00:18:49] Speaker 05:
the really essential components of the arguments in the amicus briefs.

[00:18:54] Speaker 05:
In the amicus briefs there are approximately, there's one by the Association of California Water Agencies, that's made up of 430 individual agencies and irrigation districts, all of whom raise the same objection as were raised in the other amicus briefs, including the amicus brief of the state of Oregon.

[00:19:15] Speaker 05:
And the argument they raise goes to the essential,

[00:19:19] Speaker 05:
consequences of affirming the trial court as it relates to Western Water Law.

[00:19:27] Speaker 05:
The trial court, explaining it this way, so the way in which the prior appropriation doctrine was evolved, it involved in the same way that form follows function in architecture, because of the changes in quantities of water that were going every year down the stream into reservoirs and on down to the users,

[00:19:46] Speaker 05:
They had to establish a system of how to allocate that water.

[00:19:50] Speaker 05:
They concluded the best way to do it, to protect investment, was to give it to the first user in time.

[00:19:56] Speaker 05:
The first users in time, in the case of virtually all of the major streams where reservations exist, are the Indian reservations themselves, either through treaty, executive order, or act of Congress.

[00:20:11] Speaker 05:
Given that, they take the first priority position.

[00:20:16] Speaker 05:
priority alone without in the process to identify how those waters should be allocated is not enough.

[00:20:23] Speaker 05:
The mere existence of a priority date doesn't give you the authority to bring an action against anyone else because everyone is right, each right is interdependent.

[00:20:35] Speaker 02:
Mr. DeMorris, what you're saying is, even assuming, you're saying

[00:20:38] Speaker 02:
Given the priority date here with respect to the Klamath tribes and the Hoopa Valley and the Yurok tribes, that even that priority still can yield to other circumstances.

[00:20:50] Speaker 05:
Yields to a process that was specifically set up in each state and that is an adjudication process to determine the quantities of water that the senior priority user can use as opposed to other users of water in the system.

[00:21:06] Speaker 02:
Now is this, and I would just note, I can only speak for myself, but I found the various amicus briefs on both sides of the case, both those urging affirmance and those urging reversal to be helpful.

[00:21:24] Speaker 02:
But with that little note aside, I guess at page 19 through 20,

[00:21:30] Speaker 02:
of your brief, you propose, I think, a solution that would have worked here.

[00:21:36] Speaker 02:
And I guess what you're saying is this is what the Bureau of Reclamation should have done in 2001?

[00:21:43] Speaker 05:
Yes, that's exactly what I'm saying.

[00:21:45] Speaker 02:
Now the question I have, I read about it, I read it and it seems like it would have yield, it might yield some very worthwhile results, but the question I have is how practical would that have been given the situation that the Bureau of Reclamation faced in 01.

[00:22:04] Speaker 02:
It had the upcoming season, April, May, June.

[00:22:09] Speaker 02:
It had this, the candra opinion.

[00:22:13] Speaker 02:
So could the Bureau have really gone through the process that you lay out here, even assuming it would be a very fruitful process in terms of yielding a helpful result?

[00:22:26] Speaker 05:
I mean, could the Bureau have really done what you're proposing here?

[00:22:29] Speaker 05:
Sure.

[00:22:30] Speaker 05:
That's a great question.

[00:22:31] Speaker 05:
And I think that is, under these circumstances, I think the Bureau was trying to do.

[00:22:35] Speaker 05:
First of all, in the year 2001, during that time period,

[00:22:40] Speaker 05:
There was tremendous conflict, not just in Klamath, but all over the country, where you had tension between two principles, the prior appropriation doctrine of water law and irrigation use, and the needs of species.

[00:22:52] Speaker 05:
That was a very difficult situation.

[00:22:54] Speaker 05:
But my point there is, if the Bureau chose, because they felt they didn't have any choice, but to take the water away from the farmers, understand the water was behind the dam, they had a choice.

[00:23:06] Speaker 05:
Would they let it go down the river?

[00:23:09] Speaker 05:
to the farmers and let them divert it or would they give it to the species?

[00:23:12] Speaker 05:
They chose to do that.

[00:23:13] Speaker 05:
The Bureau chose to do that.

[00:23:15] Speaker 05:
The Bureau is not a court.

[00:23:18] Speaker 05:
If the Bureau wanted to do what they suggested they needed to do, they could have gone and gotten at least some sort of participatory process whereby everybody would get an opportunity to weigh in on the issue and maybe get a temporary restraining order, but they could have done that.

[00:23:34] Speaker 05:
The Bureau, however, as you point out, was in a bind.

[00:23:36] Speaker 05:
They said, we have to do something here.

[00:23:39] Speaker 05:
So they took the water physically.

[00:23:41] Speaker 05:
away from farmers in the fields died over 200,000 acres worth of people and many many people lost their livelihoods.

[00:23:50] Speaker 02:
This is sort of a mechanics I'm sure you know the answer.

[00:23:54] Speaker 02:
The way the process works is you have the water

[00:23:57] Speaker 02:
behind the dam in the upper Klamath Lake and it's released.

[00:24:01] Speaker 02:
And then what normally would happen is gates would be opened along the river so that farmers, irrigators could receive their apportioned water.

[00:24:13] Speaker 02:
What happened here is pursuant to the order of the Bureau of Reclamation following the Fish and Wildlife and National Marine Fisheries opinions,

[00:24:22] Speaker 02:
The gates were kept closed for a period of time.

[00:24:24] Speaker 02:
Is that physically what happened?

[00:24:26] Speaker 05:
Yes, that's physically what happened.

[00:24:27] Speaker 05:
And they were only opened after the crops were all incapable of being grown.

[00:24:32] Speaker 02:
They were opened in July at some point?

[00:24:34] Speaker 05:
Yeah, that's right.

[00:24:35] Speaker 05:
And Mr. Bailey, who's here, can tell you that as a potato farmer, that was too late for him.

[00:24:41] Speaker 05:
But I guess what my argument is the following.

[00:24:46] Speaker 05:
From the perspective of Western Water Law, irrigation districts, and other users,

[00:24:51] Speaker 05:
It is very important to not abjure the adjudication process and simply take it into your own hands to just exercise the function of the court if you're the Bureau of Reclamation and just not let the water be released to the people who have water rights to it.

[00:25:12] Speaker 05:
The Hupa and the Yurok have a very significant and important water right to receive water in stream.

[00:25:20] Speaker 05:
They are 112 miles away, and I think the record shows that the amount that actually gets there is a very small amount, 4%.

[00:25:27] Speaker 05:
But whatever it is, they have that right.

[00:25:30] Speaker 05:
They could have chosen to join in the adjudication.

[00:25:35] Speaker 05:
They could have done that.

[00:25:36] Speaker 05:
They chose not to.

[00:25:37] Speaker 05:
The Bureau of Indian Affairs chose not to have them join.

[00:25:42] Speaker 05:
under the Oregon system, you're given notice, everyone has a time period to join.

[00:25:47] Speaker 02:
He said the Bureau of Indian Affairs, do they have control over the two tribes in California as to whether or not they could join?

[00:25:57] Speaker 05:
They could have tried to join on their behalf, but the tribes did not let them.

[00:26:03] Speaker 05:
Typically, it goes the other way.

[00:26:05] Speaker 05:
The tribes insist that the Bureau of Indian Affairs in the United States join, and the Bureau of Indian Affairs does not join.

[00:26:12] Speaker 05:
And then there's a conflict in suit for breach of the trust duty.

[00:26:16] Speaker 05:
But here, they did not join once the time period for joiner in Oregon expired, their opportunity to participate in the

[00:26:26] Speaker 05:
anything involving the allocation of water in that system in Oregon was extinguished.

[00:26:32] Speaker 05:
That's what the Oregon amicus brief says.

[00:26:34] Speaker 05:
It says very clearly what the rules are in Oregon, where it is, and ironic.

[00:26:39] Speaker 05:
So they were extinguished as a function of their failure to join in the process.

[00:26:45] Speaker 02:
More importantly, yes.

[00:26:46] Speaker 02:
Can I ask you just one thing?

[00:26:47] Speaker 02:
I'm sorry to cut into your time.

[00:26:48] Speaker 02:
Go ahead.

[00:26:49] Speaker 02:
Please ask me any question.

[00:26:50] Speaker 02:
That's why I'm here.

[00:26:50] Speaker 02:
There's an interesting question.

[00:26:53] Speaker 02:
Is it your position that if there had been a jointer and the proper determination had been made that the Hoopa Valley and the Yurok tribe could have received water, in other words, from the lake?

[00:27:08] Speaker 02:
In other words, is it your view that they're not barred because of the distance from the lake?

[00:27:14] Speaker 05:
The distance from the lake is factual.

[00:27:17] Speaker 05:
I'm not making that argument.

[00:27:18] Speaker 02:
I'm arguing that... Just the lake, the distance from the lake doesn't impact whether or not they're entitled to some kind of

[00:27:28] Speaker 05:
Diversion from the lake that would assist them no, that's true, but in between the lake and the hoop of reservation And the urocks there are multiple other users and all of those people would be continuing to take water before it got to them and They have they would have to exercise some remedy or get the court to do something to attack those issues or file their own adjudication suit and

[00:27:52] Speaker 04:
California but so I have a couple questions yes go ahead one is what should we make of opinions like compared and a dare which seemed to resolve competing water rights claims between tribes and farmers without

[00:28:16] Speaker 04:
any need to go to state court in those situations.

[00:28:21] Speaker 04:
There was a recognition that federal courts also have jurisdiction when it comes to determining

[00:28:30] Speaker 04:
U.S.

[00:28:31] Speaker 04:
water rights, federal water rights.

[00:28:35] Speaker 04:
And so those didn't seem to be examples where federal courts held that they needed to wait for some state adjudicatory process to be completed before they took up any action.

[00:28:50] Speaker 05:
Adair is a good example.

[00:28:53] Speaker 05:
Adair is simply a case where the United States went in and they tried to determine the scope of the entitlement to water, whether or not it's restricted to the Williamson River or whether or not there's a possibility of anadromous fish going up is a different question.

[00:29:09] Speaker 05:
But in that case, that's completely unlike the situation here.

[00:29:13] Speaker 05:
The trial court relied on the Capric case.

[00:29:17] Speaker 05:
They said, look, in Cappert, we allowed that there was a, you didn't have a water rights adjudication there, and that's because it wasn't a stream system.

[00:29:25] Speaker 05:
In Cappert, the case she relied on was groundwater.

[00:29:28] Speaker 05:
there was no there's no stream system involved in capper it was desire to protect desert pup fish which was being affected by junior groundwater pumpers very recently who began from high volumes water so I think with you there is an example but it predates much of the case law involving the mccarran amendment which I wanted to get to so come in the mccarran case here's what happened senator mccarran

[00:29:57] Speaker 05:
said, look, we've got to get all of this stuff.

[00:29:59] Speaker 05:
We need to be able to get the United States in the state court so there's a lot of trust.

[00:30:04] Speaker 05:
And the United States people said, look, we'll let you do that, but it has to be a comprehensive adjudication involving everyone, providing them due process.

[00:30:14] Speaker 05:
And it has to be on a stream, full stream system.

[00:30:18] Speaker 05:
The McCarran Amendment was the basis for the attempted joiner of the Klamath tribe.

[00:30:25] Speaker 05:
in the state of Oregon.

[00:30:28] Speaker 05:
There were resistance on behalf of the Klamath tribe saying, no, it's not a full stream system.

[00:30:33] Speaker 05:
You can't do it.

[00:30:34] Speaker 05:
In the United States versus Oregon, the Ninth Circuit said, you have to, this case is appropriate under McCarran and you shall join it.

[00:30:44] Speaker 05:
You shall be involved in it and shall be joined in it.

[00:30:47] Speaker 05:
And therefore, you know, I think it became clear that they need to move forward under the McCarran Amendment

[00:30:54] Speaker 05:
under U.S.

[00:30:55] Speaker 05:
versus Oregon in the Ninth Circuit.

[00:30:57] Speaker 05:
I'm sorry.

[00:30:59] Speaker 02:
I want to jump in if I could with a question.

[00:31:02] Speaker 02:
It's not immediately direct.

[00:31:04] Speaker 02:
I meant to ask Mr. Marzullo that and he can probably answer.

[00:31:09] Speaker 02:
What exactly does the word

[00:31:12] Speaker 02:
pertinent mean in the context of this case?

[00:31:16] Speaker 02:
Because it's a word that seems to float throughout the briefs.

[00:31:19] Speaker 02:
It seems to be in the cases.

[00:31:22] Speaker 02:
Does it mean just right next to?

[00:31:24] Speaker 02:
Or does it mean

[00:31:26] Speaker 02:
It's something that flows with what you own, even if it's not right next to it.

[00:31:32] Speaker 02:
What exactly does a pertinent mean in the setting of this area of the law?

[00:31:36] Speaker 05:
Great question.

[00:31:37] Speaker 05:
It means that the Reclamation Act of 1902, under which this project was constructed, says in Section 8 that the water rights

[00:31:49] Speaker 05:
released from the reservoir and used by irrigators shall be pertinent to land, and beneficial use shall be the basis, the measure, and the limit of the right to use the water."

[00:31:59] Speaker 05:
That's all it means.

[00:32:00] Speaker 05:
It means that when you put water on land, it affixes to that land like a

[00:32:05] Speaker 05:
profit a ponder or something it is a it is part of the pertinent mean in that it meant that it had to the water had to be right next to the land it means applied on to the land even if it's not right next to it no and you can that's why they have the canal system it doesn't have to be next to the reserve completely unlike riparian water can be a pertinent

[00:32:24] Speaker 02:
to a piece of land because of whatever rights attach, even if it's not right physically next to the land.

[00:32:33] Speaker 05:
No, it has to be on the land.

[00:32:34] Speaker 05:
Water can, you have a series of irrigation districts, dishes, ditches, they put water on a piece of land.

[00:32:40] Speaker 05:
It becomes a pertinent to the land.

[00:32:42] Speaker 05:
And the only amount you can use in an irrigation project is the amount that you can beneficially use.

[00:32:48] Speaker 05:
And it's measured by that amount, and you can't waste it.

[00:32:51] Speaker 05:
That's what that means.

[00:32:52] Speaker 05:
That's completely different from the important interests in streamflow rights, which are available to

[00:33:01] Speaker 05:
The downstream tribes such as Hookah, the Yurok and Hoopa tribes, it also is different from the Klamath, which as you point out, can mean fishing in the full reach where there might be fish available.

[00:33:15] Speaker 05:
But in those cases, those are natural flow rights.

[00:33:20] Speaker 05:
They are not the same.

[00:33:21] Speaker 05:
Those rights, and this is pointed out in the Association of California Water Agencies, they are not the same as a storage right.

[00:33:29] Speaker 05:
Dams were built in order to store water when there's more than enough water for the downstream tribes or for the other tribes to use water.

[00:33:39] Speaker 05:
Once the water is stored during excess times, that water that is stored becomes the property of the irrigators who stored it.

[00:33:48] Speaker 05:
And in this case, the Bureau of Reclamation stored it for the benefit of the farmers.

[00:33:53] Speaker 05:
So the question then becomes, and this is raised in the, I urge you to take a look.

[00:33:57] Speaker 02:
You're saying the, R&B, the farmers have a beneficial use right to the water in the upper Klamath Lake?

[00:34:04] Speaker 05:
Yes.

[00:34:05] Speaker 04:
But at the same time, the Reclamation Bureau, they also had a duty to the Indian tribes.

[00:34:13] Speaker 04:
That's true.

[00:34:13] Speaker 04:
So then the question- So it wasn't just exclusively for the farmers?

[00:34:17] Speaker 04:
No, that's true.

[00:34:18] Speaker 04:
In fact, if anything, it was the tribes that have the senior rights.

[00:34:22] Speaker 05:
That's true, and that makes my point exactly, and I think that's a great question because it does what makes the distinction I want to make.

[00:34:28] Speaker 05:
So assuming it was stored at a time when it wasn't running down, when there was plenty of water available for the downstream tribes, assuming it was stored during that time period,

[00:34:41] Speaker 05:
And it became the water of the Bureau of Reclamation, which the primary purpose is irrigation, but superimposed on that is the Endangered Species Act and the obligation to protect species.

[00:34:54] Speaker 05:
And it is also true that there's a trust duty for the tribes.

[00:34:57] Speaker 05:
The Bureau's got several hats.

[00:34:59] Speaker 05:
But the question then becomes, and this is the concern of basically the 430 agencies that expressed their confused in this case,

[00:35:08] Speaker 05:
They said, well, if it's the case that water stored for irrigation when there was plenty of water, when water was actually made available, if that's the case, is it possible then for the Bureau of Reclamation to take the same water that normally would be stored for those who stored it themselves for their own use?

[00:35:31] Speaker 05:
Because remember, it's not needed downstream by the tribes.

[00:35:35] Speaker 05:
Is it possible for them to release that water

[00:35:39] Speaker 05:
to make the situation better than it was when there was the natural flow.

[00:35:44] Speaker 05:
Under natural flow, that's what the right is.

[00:35:47] Speaker 05:
It's not a diversionary right.

[00:35:49] Speaker 05:
It's the natural state of things when you

[00:35:51] Speaker 05:
establish the reservation.

[00:35:53] Speaker 06:
You're saying they could have released it in order to serve all of the purposes, the fish and the irrigation.

[00:36:03] Speaker 05:
That's what I'm saying.

[00:36:05] Speaker 05:
That's right.

[00:36:06] Speaker 05:
I'm saying they could have reached a compromise.

[00:36:08] Speaker 06:
I don't recall that as an issue before the Court of Federal Claims.

[00:36:12] Speaker 06:
Yes, I'm saying... They looked only at the treaty and the priority of serving the treaties as far as they treated it.

[00:36:25] Speaker 06:
Let's hear from the other side.

[00:36:26] Speaker 04:
Can I just ask one last question?

[00:36:28] Speaker 04:
Yeah, of course.

[00:36:28] Speaker 04:
So what's the status of the Klamath Basin?

[00:36:31] Speaker 04:
Yes, here's what happened there.

[00:36:33] Speaker 05:
Can you just be as succinct as possible?

[00:36:35] Speaker 05:
Yes, I can.

[00:36:35] Speaker 05:
Here's what happened.

[00:36:36] Speaker 05:
They subsequently, once they got involved in the adjudication they now have in 2013, they now have a water right.

[00:36:44] Speaker 05:
They have a water right in the lake.

[00:36:46] Speaker 05:
Who's they?

[00:36:47] Speaker 05:
The tribe.

[00:36:49] Speaker 05:
The Klamath tribe has a water right in the lake.

[00:36:52] Speaker 05:
But in 2001, nothing had happened.

[00:36:56] Speaker 05:
There was no adjudication.

[00:36:58] Speaker 05:
No one had a right to stop somebody, or upstream or downstream.

[00:37:01] Speaker 04:
So what's the water right?

[00:37:04] Speaker 05:
They quantified it?

[00:37:05] Speaker 05:
Yes, they quantified it, as they were supposed to do, using the McCarran Amendment in the adjudication process.

[00:37:15] Speaker 06:
Thank you, Mr. Dumas.

[00:37:21] Speaker 06:
Thank you.

[00:37:22] Speaker 06:
Mr. Smeltzer.

[00:37:23] Speaker 00:
May it please the court.

[00:37:25] Speaker 00:
Good morning, Your Honors.

[00:37:25] Speaker 00:
John Smeltzer for the United States.

[00:37:27] Speaker 00:
Your Honors, there were no takings in this case for two independent reasons.

[00:37:32] Speaker 00:
First, because the water that was at issue in 2001 was not legally available to the Climate Project farmers because it was beneficially used to satisfy senior tribal rights.

[00:37:42] Speaker 00:
And second, because the contracts in this case

[00:37:45] Speaker 00:
define the beneficial interests of the Columbus project farmers, and the contracts clearly say that the farmers will not sue the United States, or the United States will not be liable for any damages due to shortages that are beyond the control of the Bureau of Reclamation.

[00:38:02] Speaker 00:
Let me start with the water rights questions.

[00:38:07] Speaker 00:
And I want to start to provide the court just a little bit of perspective on the issue of storage.

[00:38:12] Speaker 00:
When the Klamath Project was built, they didn't create a new storage reservoir.

[00:38:17] Speaker 00:
The Upper Klamath Lake was already there.

[00:38:20] Speaker 00:
The project actually made the surface area of the lake smaller, and it didn't significantly raise the elevation of the lake.

[00:38:28] Speaker 00:
What the project did was to cut a big hole in the reef that held back the waters of Upper Klamath Lake, and then to put a dam in front of that hole that they cut in the reef, and they put in

[00:38:39] Speaker 00:
It effectively substituted the artificial drainage from the dam and the release systems from the dam.

[00:38:45] Speaker 00:
for what was the natural release system.

[00:38:48] Speaker 00:
And what it allowed the project to do was then drain the lake down to below natural levels.

[00:38:55] Speaker 00:
But none of that existed.

[00:38:56] Speaker 00:
That's the only way it added storage to the lake.

[00:38:59] Speaker 06:
At the time of the treaty, none of that existed.

[00:39:02] Speaker 06:
So why isn't there some substance to the argument that there should be some accommodation?

[00:39:09] Speaker 06:
It shouldn't be all or nothing.

[00:39:12] Speaker 00:
What we're saying is, and what I'm trying to impress upon the Court, Your Honor, is exactly in 1864 and at the time the downstream reservations were created further in the 19th century, the project did not exist.

[00:39:27] Speaker 00:
So the project has to provide for those senior rights.

[00:39:30] Speaker 00:
And there were already senior rights existing within Upper Klamath Lake.

[00:39:36] Speaker 00:
for the fisheries that were reserved to the Klamath tribes.

[00:39:41] Speaker 00:
And so when the United States came in with the project and re-engineered it, whatever rights he got for the project were secondary to the senior tribal rights.

[00:39:51] Speaker 00:
And so the United States came in and made a way to divert more water out of the lake that imperiled

[00:39:59] Speaker 00:
the senior rights of the Klamath tribes, the dam did not significantly add to the storage, and it certainly didn't add to carryover storage from one year to the next.

[00:40:10] Speaker 00:
Your Honor, in an ordinary year, 1.3 million acre feet comes down from the basin above Upper Klamath Lake.

[00:40:17] Speaker 00:
Upper Klamath Lake has a storage capacity.

[00:40:20] Speaker 00:
If you count the part, the extra three feet, we can now lower it.

[00:40:23] Speaker 00:
It's about 500,000 acre feet.

[00:40:26] Speaker 00:
So there's way more water in an ordinary year coming down the river, coming into the dam, and then being released into the main channel of the river, and then also to the irrigation projects.

[00:40:36] Speaker 00:
So in the ordinary circumstance, the way the project operates is to regulate the flows and to provide the flows to lands that had been drained that were formerly wetlands.

[00:40:46] Speaker 00:
They're not adding additional water to this system by creating a reservoir that didn't previously exist.

[00:40:53] Speaker 00:
So there's not a big pot of water like some of the projects, particularly the project that Mr. Dumars is involved with, with the middle Rio Grande Conservation District.

[00:41:04] Speaker 00:
Those reservoirs there are actual new reservoirs where they created a pot of water.

[00:41:08] Speaker 00:
That's not this case.

[00:41:10] Speaker 00:
In this case, it has to be decided

[00:41:11] Speaker 00:
on its facts, on the facts of this case, when in 2001 in the operations plan, when it set minimum lake levels, those were within natural levels of the lake.

[00:41:24] Speaker 04:
Is there any dispute in this case, in this appeal, that the water that was in Upper Klamath Lake in 2001, it needed to be retained right there in order to

[00:41:40] Speaker 04:
preserve the two types of sucker fish.

[00:41:43] Speaker 00:
No dispute, Your Honor.

[00:41:46] Speaker 00:
There was some dispute in the lower court as to whether the biological opinions were correct.

[00:41:51] Speaker 00:
But that dispute has not been carried forward on appeal.

[00:41:54] Speaker 00:
So there is no dispute on appeal.

[00:41:56] Speaker 00:
And the district court found in favor of the biops.

[00:41:59] Speaker 04:
So to preserve those fish.

[00:42:02] Speaker 04:
no water could be released to the farmers, to the irrigation districts.

[00:42:09] Speaker 00:
Well, and the way the rights worked is there were not only for Upper Klamath Lake, there were minimum lake levels for Upper Klamath Lake, there were also minimum stream flows to deal with the salmon fishery and the salmon habitat downstream in the Klamath River.

[00:42:24] Speaker 04:
Then there was a separate finding that the water level at the

[00:42:32] Speaker 04:
Iron Gate Dam had to be at a specific level.

[00:42:36] Speaker 00:
Right, that's what I'm talking about, the downstream.

[00:42:38] Speaker 04:
There's two sets of rights.

[00:42:40] Speaker 04:
Two sets of rights.

[00:42:41] Speaker 04:
So no water could be released to the farmers.

[00:42:47] Speaker 00:
First I want to say is both rights are part of the natural flow of the river.

[00:42:50] Speaker 00:
It's natural lake level and the natural flow that's going to come down and would have always come down when the lake was a natural lake over the reef and down the Klamath River.

[00:42:59] Speaker 00:
Now it's an artificial drain, and so reclamation controls the amount of the release.

[00:43:04] Speaker 00:
But that doesn't mean that when they control the amount of the release to replicate natural flows that they're, and they do it to provide for the fishing right, that they're somehow not exercising a senior right.

[00:43:15] Speaker 00:
And the reason the water wasn't delivered is because there wasn't enough water coming down from above the upper Klamath Lake in that basin

[00:43:25] Speaker 00:
to keep the lake levels at the minimum levels and to provide the downstream flows and provide additional water.

[00:43:32] Speaker 00:
They didn't get to the minimum lake levels.

[00:43:33] Speaker 00:
They didn't meet the downstream flows.

[00:43:36] Speaker 00:
Only in July, when they were able to meet the minimum lake levels and meet the downstream flows, was there extra water.

[00:43:42] Speaker 00:
This was a severe drought season.

[00:43:45] Speaker 00:
I mentioned that 1.3 million acre-feet is the ordinary average flow created above the basin.

[00:43:52] Speaker 00:
In this year, there was only 108,000 acre-feet forecast.

[00:43:57] Speaker 00:
And so all we're saying is that 108,000 forecasts coming into the system has to be used first to maintain the natural lake levels to support the senior tribal right of the Klamath tribes, or not secondarily, but also to support the downstream right.

[00:44:15] Speaker 00:
or the inflow in stream right for purposes of the salmon fishery of the Yurok and Huba tribes.

[00:44:21] Speaker 02:
You heard Mr. Marzullo's argument when he was at the podium and as I understand he was basically I think saying that

[00:44:31] Speaker 02:
Because of the situation with respect to these various species of fish, there were no fish to protect, so to speak.

[00:44:39] Speaker 02:
Do you recall him?

[00:44:39] Speaker 02:
Yes.

[00:44:40] Speaker 02:
What is your response to his argument that he was making when he was up at the podium?

[00:44:47] Speaker 00:
It's hard to understand exactly what he's arguing.

[00:44:51] Speaker 00:
He may be arguing that the right has been somehow abandoned or forfeited because those fisheries are no longer there, but senior travel rights

[00:45:01] Speaker 00:
and Federal Reserve rights are not subject to the rules of abandonment in forfeiture.

[00:45:08] Speaker 00:
Mr. Mozzullo cites it.

[00:45:08] Speaker 02:
I assume you're saying you couldn't fish for these fish anymore, hence there's no right to the protection?

[00:45:16] Speaker 00:
Is that what he was saying?

[00:45:18] Speaker 00:
Thank you for bringing me to the next point.

[00:45:19] Speaker 00:
I think that's what he was saying.

[00:45:21] Speaker 00:
It doesn't make any sense to me.

[00:45:22] Speaker 00:
I mean, obviously, if you have a right to maintain a fishery for subsistence purposes and something happens to the fish, disease, whatever,

[00:45:31] Speaker 00:
You have a right, if the fish are still there, you're still using that right in order to have that species recover.

[00:45:38] Speaker 00:
The Endangered Species Act, in this case, and the senior tribal rights are completely in overlap.

[00:45:44] Speaker 00:
The purpose of the Endangered Species Act is, of course, to allow a species to recover so it can then be fished again, right?

[00:45:50] Speaker 00:
I mean, that's the whole point.

[00:45:51] Speaker 00:
And so if water is being beneficially used

[00:45:53] Speaker 00:
in order to avoid the extinction of the species that's important for the subsistence species, certainly that use of that water is within the senior right to maintain the fishery in perpetuity so it can meet the subsistence needs of the tribe.

[00:46:08] Speaker 02:
This sort of gets me, I guess, to what I was discussing a little bit with Mr. Dumars, but also it relates to the argument that it's in the blue brief at page 28

[00:46:18] Speaker 02:
The argument is that the Court of Federal Claims misapplied the Supreme Court's holding in Winters v. United States, which recognizes an implied water right only where that water is appurtenant to withdrawn land.

[00:46:31] Speaker 02:
It says that the Court ignored the Winters, what it calls the Winters appurtenancy requirement.

[00:46:37] Speaker 00:
What is your response to that?

[00:46:39] Speaker 00:
Well, the appurtenancy requirement that Mr. Dumars has started talking about sounded like an appurtenancy requirement in Western water law.

[00:46:47] Speaker 00:
divert water to be a pertinent to land for agriculture and irrigated agriculture.

[00:46:53] Speaker 00:
The pertinency requirement for purposes of winters deals with the foundational understanding of winters, which is the United States, when it reserves land, reserves sufficient water for the purposes of the reservation.

[00:47:08] Speaker 00:
And if there's water there to be reserved because it's boundary water, because it's groundwater, because it's stream that flows through, because it's a lake that's on,

[00:47:16] Speaker 00:
If the circumstances are such based on the treaty and the historical evidence that the United States needed that water that's easily accessed on the reservation, if that water is needed, then it is impliedly reserved.

[00:47:32] Speaker 00:
So the appurtency is relating to sort of the purpose.

[00:47:35] Speaker 00:
And is that water accessible for purposes of the reason of the reservation?

[00:47:41] Speaker 02:
That gives the United States the right to reach up 200 miles or whatever in the case of the

[00:47:49] Speaker 02:
in the Yurok tribe to assure this water flow that was reserved at the time the tribes were on the reservation.

[00:47:57] Speaker 00:
Is that correct?

[00:47:59] Speaker 00:
Yes, well, but the stream, the river, the Klamath River is clearly a pertinent to the reservation.

[00:48:04] Speaker 00:
It flows right through the reservation.

[00:48:06] Speaker 00:
It flows right through the Yurok reservation for approximately 50 miles.

[00:48:10] Speaker 00:
And so there's a long stretch of the river that the reservations are on, and of course the reservations are there because

[00:48:16] Speaker 00:
the tribes for fishing tribes.

[00:48:18] Speaker 00:
That was their history, that was their culture, you know, that's how they sustained themselves.

[00:48:22] Speaker 00:
So that flow is to be maintained.

[00:48:24] Speaker 00:
So if you look at what's the purpose of the reservation to put land here so the tribes can fish, you have to retain a flow in the river, and not just the flow through the river, right?

[00:48:34] Speaker 00:
It's not water delivered to the river, it's the flow to maintain the habitat of the fish within the climate system, which is why the

[00:48:42] Speaker 00:
the right, or at least in the biop in this case, it was measured at the Iron Gate Dam, because that's the highest up point on the Klamath where there is spawning habitat, because that's as far as the salmon can go at this point.

[00:48:55] Speaker 00:
But the pertinency with respect to the upper Klamath Lake and the Klamath tribes is, I can't remember if it was Mr. Dumars or Mr. Marzula kept referring to it being downstream.

[00:49:07] Speaker 00:
I mean, that's really not quite right.

[00:49:09] Speaker 00:
There's a long border along the lake from the former Klamath reservation.

[00:49:18] Speaker 02:
Was the idea that the fish will swim back up into the Williamson River?

[00:49:24] Speaker 00:
Well, that's part of it, Your Honor.

[00:49:25] Speaker 00:
But the first part of my answer is that the stream, just like in winters, was a boundary water.

[00:49:31] Speaker 00:
And so it's not either upstream or downstream.

[00:49:33] Speaker 00:
It flows along.

[00:49:34] Speaker 00:
It's the lake in this case, but there's still flowing water in the lake.

[00:49:37] Speaker 00:
It comes in above the lake, and it goes out at the bottom.

[00:49:39] Speaker 00:
So it's essentially like a river, and it's flowing along the reservation.

[00:49:42] Speaker 00:
In the tribe, the historic record is that the tribe would fish for the sucker fish, the lost river and the short-nosed sucker

[00:49:51] Speaker 00:
from the... I don't understand.

[00:49:54] Speaker 04:
Is the upper climate lake in the reservation?

[00:49:59] Speaker 00:
I thought it was outside of the reservation.

[00:50:00] Speaker 00:
It's the border.

[00:50:01] Speaker 00:
That's what I was saying.

[00:50:02] Speaker 00:
It was the border of the former reservation.

[00:50:05] Speaker 04:
So just like in the winter's case... So wherever the lake begins, that's outside the reservation.

[00:50:11] Speaker 04:
But it's along the border of the reservation.

[00:50:13] Speaker 04:
The lake water.

[00:50:14] Speaker 04:
So you can fish... Wait, wait.

[00:50:14] Speaker 04:
Let me just understand.

[00:50:18] Speaker 04:
Sorry.

[00:50:18] Speaker 04:
Where the lake begins,

[00:50:21] Speaker 04:
is where the reservation ends.

[00:50:23] Speaker 04:
Is that right?

[00:50:24] Speaker 00:
Yes.

[00:50:25] Speaker 04:
OK.

[00:50:25] Speaker 04:
So then the Klamath tribe doesn't have a right to fish in the lake.

[00:50:34] Speaker 00:
They don't have an exclusive.

[00:50:35] Speaker 04:
Because their rights are reserved for on-reservation fishing.

[00:50:41] Speaker 00:
Their treaty right is an exclusive right, or was initially to fish on the reservation.

[00:50:47] Speaker 00:
So only the Klamath tribe could fish

[00:50:49] Speaker 00:
on reservation land.

[00:50:50] Speaker 04:
So if they're fishing in the lake, they're going beyond their treaty rights.

[00:50:54] Speaker 00:
They're standing on reservation land, and they're fishing from the lake.

[00:50:58] Speaker 00:
When they have the exclusive access to the reservation, they can fish in the lake from the reservation.

[00:51:03] Speaker 00:
But they're also fishing in the streams.

[00:51:06] Speaker 00:
Mr. Dumars mentioned the McCarran Amendment adjudication, of course, that's ongoing, the Climate Basin adjudication.

[00:51:14] Speaker 00:
There are specific findings of fact in the Klamath Basin adjudication that relate to the relationship between the fishery in Upper Klamath Lake and the rights of the Klamath tribes.

[00:51:27] Speaker 00:
And the court should be aware of those.

[00:51:29] Speaker 00:
And so what I'd like to is just read a little bit from the adjudicator's decision.

[00:51:34] Speaker 00:
And this is on claim number 622.

[00:51:36] Speaker 00:
And it's the- Is this in the record?

[00:51:39] Speaker 00:
It's cited in both briefs.

[00:51:43] Speaker 00:
the plaintiffs cited from the KBA adjudication in their briefs.

[00:51:46] Speaker 00:
It's like a case decision.

[00:51:48] Speaker 00:
It's available online.

[00:51:49] Speaker 00:
It's in our brief, the link.

[00:51:50] Speaker 00:
And we've cited in the briefs to the page numbers that you can pull up to find the case.

[00:51:58] Speaker 00:
And I'd like to draw the court's attention to, and the pages are numbered with the abbreviation ACFFOD and then the page number.

[00:52:08] Speaker 00:
And it's page 4970.

[00:52:09] Speaker 00:
Again, it's a decision by the Klamath

[00:52:12] Speaker 00:
the KBA adjudicator.

[00:52:15] Speaker 00:
He says, quote, at the time of the treaty signing, that's the 1864 treaty, ad fluvial and andramidus fish made runs into the rivers and streams of the former reservation at least twice every year for generations.

[00:52:27] Speaker 00:
The fish in these runs were so numerous that tribal members were able to harvest the majority of their subsistence needs for an entire year.

[00:52:34] Speaker 00:
The evidence also indicates the tribes regularly harvested fish directly from a proclaiming plate.

[00:52:39] Speaker 00:
The key here is those fish.

[00:52:42] Speaker 00:
The sucker fish are lake-dwelling fish that swim up and they go to the shorelines and they swim up the streams to spawn.

[00:52:51] Speaker 00:
But they were so numerous in the lake that they were abundant in the

[00:52:55] Speaker 00:
in the stream systems when they spawn and they provide for the full subsistence needs of the tribes.

[00:53:00] Speaker 00:
That is the evidence that the fish swam up from the lake up the streams.

[00:53:04] Speaker 00:
The KBA adjudicator went on to say, based on the overwhelming weight of historical evidence, the right to take fish included the right to continue the fishing practices that were central to the tribe's subsistence and culture.

[00:53:18] Speaker 00:
He goes on to say, because the lake elevations claimed here

[00:53:21] Speaker 00:
are necessary to establish and maintain a healthy and productive habitat for the target species, the treaty must be interpreted to protect that right.

[00:53:30] Speaker 00:
The 2000 operations plan in this case

[00:53:34] Speaker 00:
set minimum lake levels that were slightly below the now adjudicated right in the KBA adjudication.

[00:53:41] Speaker 00:
Now, the KBA adjudication is ongoing.

[00:53:44] Speaker 00:
I don't want to say it's done.

[00:53:45] Speaker 00:
This is the adjudicator.

[00:53:46] Speaker 00:
This is the end of the administrative phase of the adjudication.

[00:53:49] Speaker 00:
It can now go to the court.

[00:53:50] Speaker 00:
It now can go to the court, and it can be challenged in court.

[00:53:53] Speaker 00:
But the court should be aware of that.

[00:53:56] Speaker 04:
How long has that adjudication been going on?

[00:53:59] Speaker 00:
It was delayed for a time when there were arguments over jurisdiction and the federal government challenged the jurisdiction.

[00:54:14] Speaker 04:
I know this litigation has been going on for 18 years.

[00:54:18] Speaker 00:
The litigation seems to be never-ending.

[00:54:21] Speaker 00:
But we hope that this adjudication could end here for the reasons that we've obviously stated in this presentation.

[00:54:28] Speaker 02:
Mr. Marzula said that you can't fish for these fish.

[00:54:32] Speaker 02:
I didn't say that the right way.

[00:54:34] Speaker 02:
But you can't try and catch these fish because it violates the Endangered Species Act.

[00:54:39] Speaker 02:
So the tribes can't fish for them, has that happened?

[00:54:42] Speaker 00:
Well, I think the evidence is that the Klamath tribes stopped fishing because of the damage to the fishery, and they wanted to recover their fishery.

[00:54:56] Speaker 00:
And they stopped a year or two before the actual listing.

[00:54:59] Speaker 00:
But again, the purpose of the Endangered Species Act completely overlaps with the senior right, because the purpose is to bring it back to the level where

[00:55:09] Speaker 00:
It can be fished again.

[00:55:10] Speaker 00:
And I believe that the tribe is still able to take some fish for ceremonial purposes.

[00:55:14] Speaker 02:
And to pick up with what Judge Chen was asking, I'm still not entirely clear.

[00:55:20] Speaker 02:
There is fishing on the lake?

[00:55:24] Speaker 02:
The tribe could fish on the lake?

[00:55:26] Speaker 00:
What I was saying was the historical evidence was that the exclusive fishing rights was to the reservation which boarded the lake.

[00:55:34] Speaker 00:
And the evidence was that they fished in camps on the lake shore.

[00:55:38] Speaker 00:
They would camp on the lake shore.

[00:55:40] Speaker 00:
What about in 2001?

[00:55:42] Speaker 00:
Where are they fishing in 2001?

[00:55:47] Speaker 02:
There wasn't fishing on the lake.

[00:55:48] Speaker 00:
There's a smaller reservation now.

[00:55:50] Speaker 00:
I'm not exactly sure where they take fish at the moment, Your Honor.

[00:55:53] Speaker 00:
But anybody can access the fish on the lake.

[00:55:55] Speaker 00:
It's now a shared resource, just like the salmon in the river.

[00:56:01] Speaker 00:
But the question is, are there sufficient stocks and habitat to maintain the fish for the tribal fisher?

[00:56:07] Speaker 04:
I thought Mr. Marzula said something about the Adair opinion, characterizing the Klamath tribes' rights to whatever their currently existing rights are.

[00:56:21] Speaker 04:
I guess whatever they are currently fishing

[00:56:23] Speaker 04:
That's really what they're fishing for.

[00:56:27] Speaker 04:
And so therefore, you need whatever water for them to continue to fish the fish that they're fishing at that point in time.

[00:56:37] Speaker 00:
Right.

[00:56:37] Speaker 00:
They're taking ceremonial fish now.

[00:56:40] Speaker 00:
In order to take the ceremonial fish, they need that fish not to go extinct.

[00:56:43] Speaker 00:
It's undisputed that the amount of water that was determined in the buyout is meaner.

[00:56:47] Speaker 04:
Well, I guess what I want to know first is, do you agree with Mr. Marzula's characterization of the Adair opinion, which seems to suggest that the rights can kind of evolve over time?

[00:56:59] Speaker 00:
The rights do not evolve over time.

[00:57:01] Speaker 00:
And what the Adair opinion was talking about was reacting to the notion that the tribes, because they originally controlled the entire territory and they could exploit the entire resource, that that was no longer the case today.

[00:57:14] Speaker 00:
What the opinion was saying is that the standards determine what the tribes' rights today was necessary for a subsistence fishery or to a reasonable living standard, which is different from perhaps historically having the ability to exploit the entire resource.

[00:57:36] Speaker 00:
That's the only thing that I understand and dare to be saying.

[00:57:39] Speaker 00:
in that context.

[00:57:40] Speaker 00:
Otherwise, the Ninth Circuit case law is clear on this issue.

[00:57:45] Speaker 00:
In the case of Colville Confederated Tribes v. Walton, a similar issue arose.

[00:57:52] Speaker 00:
And I'll quote from page 48 of 647F2.

[00:57:56] Speaker 00:
It says, when a tribe has a vested property right in reserved water, it may use it in any lawful manner.

[00:58:03] Speaker 00:
As a result, subsequent acts making the historically intended use of the water unnecessary do not divest the tribe of the right to water.

[00:58:10] Speaker 00:
That is the law.

[00:58:11] Speaker 00:
There can't be read as the way it was read.

[00:58:19] Speaker 04:
My last question is just maybe you said it and I lost track, but I don't think I heard an answer about why it is that the Bureau of Reclamation could just unilaterally choose to do what it did in 2001

[00:58:38] Speaker 04:
without going through the state adjudicatory process that we heard opposing counsel talk about?

[00:58:47] Speaker 04:
And why there's some exception here for these Indian reserved rights as opposed to everybody else who has to go through the state adjudicatory process?

[00:59:00] Speaker 00:
We are going through the state adjudicatory process.

[00:59:03] Speaker 04:
Well, not in 2001.

[00:59:04] Speaker 04:
Right.

[00:59:04] Speaker 00:
But in 2001, of course, the Bureau of Reclamation had no choice but to meet the limits that were imposed through the biological opinions in the Endangered Species Act.

[00:59:14] Speaker 00:
It wasn't a choice to meet the senior right.

[00:59:18] Speaker 00:
They were obligated to do what they did under the BIOPs for purposes of the Endangered Species Act.

[00:59:24] Speaker 00:
Then the question for this court becomes, well, when the government takes regulatory action under a statute, what are the background principles of law that govern the property rights in that area?

[00:59:32] Speaker 00:
And did the government act within the scope of its own property rights?

[00:59:36] Speaker 00:
And what we are saying in this case is there can't be a taking from that ESA action because the government acted within the scope of

[00:59:44] Speaker 00:
the senior federal reserved water rights.

[00:59:48] Speaker 04:
So when is there a situation where federal water rights have to go through a state adjudicatory process first before the federal government takes action like this?

[00:59:59] Speaker 00:
There is no situation where there's no situation.

[01:00:02] Speaker 00:
In Oregon, people have been exercising their water rights.

[01:00:05] Speaker 00:
We have been exercising our water rights on behalf of the Climate Project since 1905 or whenever we got the canals set up.

[01:00:13] Speaker 00:
The right doesn't have to be adjudicated in order to exercise the right.

[01:00:17] Speaker 00:
They're completely confusing the notion of whether a property right exists and what is the mechanism for enforcing it and adjudicating it.

[01:00:24] Speaker 00:
The adjudication is to allow Oregon to have a ready process to enforce the water rights.

[01:00:30] Speaker 00:
And when that happens, there will be a process, maybe a call system, where

[01:00:33] Speaker 00:
where Oregon can then sort out priority and go through that process.

[01:00:38] Speaker 00:
But the United States doesn't have to wait for that process to complete in order to say, hey, we have a senior right in the water that we used in this circumstance, because we have a right to use our water right.

[01:00:51] Speaker 00:
It's a self-help right, essentially, but that's what everybody is doing who has a pre-1909 right before it's adjudicated in the Klamath-based adjudication.

[01:01:03] Speaker 00:
The adjudication, certainly, we have to be part of.

[01:01:07] Speaker 00:
That's part of the McCarran Amendment waiver, and that's why we're there, at least on behalf of the Klamath tribes.

[01:01:13] Speaker 00:
There was a suggestion that we needed to be there on behalf of the California courts.

[01:01:17] Speaker 00:
As we pointed out in our brief, the Caron Amendment waiver doesn't go beyond the jurisdiction of the state court.

[01:01:26] Speaker 00:
And the state court's jurisdiction is for diversions and beneficial use within the waters of Oregon.

[01:01:30] Speaker 00:
Once you get down to beneficial use and diversions from waters downstream in California that's subject to California's jurisdiction, the fact that the

[01:01:40] Speaker 00:
water rights on behalf of the California tribes were not claimed in the Oregon KBA is because they were not subject to the jurisdiction of the Oregon court.

[01:01:51] Speaker 00:
And we didn't have to have those adjudicated in order to assert them here.

[01:01:57] Speaker 00:
I've seen, I've worn out the patience of the panel.

[01:02:00] Speaker 00:
I didn't get the opportunity to address any of the contract questions.

[01:02:03] Speaker 06:
Let's hear from Mr. True.

[01:02:04] Speaker 06:
He can fill any.

[01:02:06] Speaker 00:
Mr. True didn't brief any of the contract questions.

[01:02:08] Speaker 00:
But if the court has any questions on the contract defense, I would like the opportunity to answer.

[01:02:16] Speaker 06:
Well, all right.

[01:02:17] Speaker 06:
If so, we'll take it up.

[01:02:19] Speaker 06:
But let's hear from Mr. True.

[01:02:22] Speaker 00:
OK.

[01:02:22] Speaker 00:
Thank you, Your Honor.

[01:02:31] Speaker 06:
Okay, so no need to repeat what's been covered.

[01:02:35] Speaker 03:
Excuse me, Your Honor.

[01:02:36] Speaker 06:
I say no need to repeat what we've heard, whatever new points you wish to present.

[01:02:44] Speaker 03:
Thank you, Your Honor.

[01:02:44] Speaker 03:
I appreciate that, and may it please the Court.

[01:02:46] Speaker 03:
I'm Todd True, representing the Intervener Defendant Pacific Coast Federation of Fishermen's Associations, and I will be very, very brief.

[01:02:55] Speaker 03:
On the federal water rights issue, if you look at the Adair case, what it says is

[01:03:01] Speaker 03:
We are determining, in this case, the existence and nature of those federal reserved water rights.

[01:03:06] Speaker 03:
The exact and precise quantification of those will be taken care of in the subsequent state adjudication that's ongoing.

[01:03:14] Speaker 03:
What happened in 2001, given the nature and existence of those rights, which are based on fishing rights and so reserve enough water to support the fishery that takes both lake water and stream water, the court said,

[01:03:31] Speaker 03:
We don't know where the exact ceiling on that right is, but we can say for sure that it is at least enough water to keep the species from going extinct.

[01:03:42] Speaker 03:
And that's how we got to the conclusion in 2001 that all of the water that was available that year needed to be used to protect those reserves.

[01:03:51] Speaker 04:
When you say the court, are you talking about the trial court here or are you talking about the Adair court?

[01:03:56] Speaker 04:
The Adair court identified the nature and scope of the... So was it the trial court or the Adair court?

[01:04:04] Speaker 03:
You said the court already decided that...

[01:04:09] Speaker 03:
I was speaking of the Adair Court when I said the court already decided.

[01:04:14] Speaker 03:
What it decided is that there exist tribal reserved water rights that support the fishery of the Klamath tribe, and that those are the senior water rights in the basin.

[01:04:27] Speaker 03:
Those are federal rights.

[01:04:29] Speaker 03:
They aren't abandoned.

[01:04:30] Speaker 03:
They exist.

[01:04:31] Speaker 03:
There's tension between that and state water law, but those federal rights come first and the federal government has a duty to protect and make sure they are met.

[01:04:42] Speaker 03:
What the court below said is that in this case, the existence of those senior federal rights required at least as much water as was necessary to comply with the ESA because

[01:04:56] Speaker 03:
The ESA is intended to prevent the extinction of species.

[01:05:00] Speaker 03:
The federal rights are intended... Okay, so you were mixing the holdings of two court opinions.

[01:05:04] Speaker 03:
I was and I apologize.

[01:05:06] Speaker 03:
I hope that's clear.

[01:05:08] Speaker 03:
Okay, you can keep going.

[01:05:12] Speaker 03:
Okay.

[01:05:13] Speaker 03:
Thank you, Your Honor.

[01:05:16] Speaker 03:
The trial court here, the finding that the water was needed in 2001 to protect the reserved water rights is not clearly erroneous.

[01:05:25] Speaker 03:
And the court went through a lengthy analysis of the biological opinions and what was necessary to support those reserved rights.

[01:05:35] Speaker 03:
The other thing I would say is that the state court adjudication of the final amount of those senior water rights

[01:05:46] Speaker 03:
may ultimately control the way rights are used down the road.

[01:05:53] Speaker 03:
But the existence of those federal rights did not need to wait for a state adjudication to be protected from out of stream uses by others.

[01:06:07] Speaker 03:
So that they are a right that the federal government has a trust duty to protect, and that exists.

[01:06:12] Speaker 03:
Why not, in view of, say, the McCarran Amendment?

[01:06:16] Speaker 03:
because they are federal rights.

[01:06:19] Speaker 03:
And if you go through the Adair case, I think what it does is try to balance the McCarran Amendment Comprehensive Adjudication with the federal rights that are the basis of the tribes' rights and the fishery and the reserved water rights.

[01:06:39] Speaker 03:
And so it says these senior reserve rights exist, and they are

[01:06:45] Speaker 03:
enough water to support the fisheries that the tribes reserve the right to continue.

[01:06:53] Speaker 03:
And it doesn't matter whether there are fish to catch today, tomorrow, or yesterday.

[01:06:57] Speaker 03:
What matters is that the tribe has that right.

[01:07:01] Speaker 03:
It's doing everything it can to restore that fishery.

[01:07:03] Speaker 03:
And I'm sure it would prefer that the fish were not listed under the Endangered Species Act.

[01:07:08] Speaker 03:
But that doesn't matter to their right

[01:07:15] Speaker 03:
to have a fishery and to do everything they can to protect that fishery.

[01:07:24] Speaker 04:
Has the federal government been violating the 1864 treaty by allowing these two types of sucker fish to get so depleted?

[01:07:33] Speaker 03:
I think the tribes would tell you the answer to that is yes.

[01:07:38] Speaker 03:
That they have not been upholding their duty.

[01:07:40] Speaker 03:
They did not uphold it for many years.

[01:07:42] Speaker 03:
that because these rights aren't abandoned, diminished, or thrown away because there are too few fish, I don't think that matters.

[01:07:54] Speaker 03:
And if the tribe one day wants to bring some kind of claim for violation of the treaty, they may well do that.

[01:08:00] Speaker 03:
But I believe the tribes would tell you that their rights have been treated very poorly over the years to water into these fisheries.

[01:08:11] Speaker 03:
So let me just wrap up by saying that the court below got it exactly right that the senior reserved water rights of the tribes, both in the lake and in the river, required all of the water that was available in 2001.

[01:08:27] Speaker 03:
And so there was no property to be taken from the plaintiffs.

[01:08:34] Speaker 03:
Let me just clear up one thing.

[01:08:36] Speaker 03:
Your Honor, if you look at footnote 24 in a dare, it talks about the issue of pertinency where tribal rights are concerned.

[01:08:45] Speaker 03:
And it makes the point that these rights are not like use rights.

[01:08:50] Speaker 03:
They are rights to a fishery connected to a reservation.

[01:08:55] Speaker 03:
So whether there is land

[01:08:58] Speaker 03:
immediately adjacent to where that fishery is exercised is not the critical issue.

[01:09:03] Speaker 03:
So the word of pertinency is used ordinarily with use rights.

[01:09:09] Speaker 03:
In reserved rights, it just means there is a reservation that created those rights.

[01:09:17] Speaker 03:
And the water that's needed to support the rights connected to that reservation, wherever it is, has to be protected.

[01:09:27] Speaker 03:
Thank you, Your Honor.

[01:09:28] Speaker 06:
Any more questions?

[01:09:31] Speaker 06:
Thank you.

[01:09:31] Speaker 06:
Mr. Marcello, you have some rebuttal time.

[01:09:35] Speaker 01:
Thank you, Your Honor.

[01:09:36] Speaker 01:
And I will be quite brief, but I don't want the court to walk away with the impression that we agree with the government on what I think is a very extraordinary contention, that there is an overlap, a complete overlap, we heard, between the Endangered Species Act

[01:09:58] Speaker 01:
and the tribal fishing rights.

[01:10:01] Speaker 01:
That is utterly inconsistent with the facts found in this case.

[01:10:07] Speaker 01:
Let us remember that in January of 2001, Reclamation proposed to deliver water to the plaintiffs.

[01:10:16] Speaker 01:
consistent with historical deliveries, the same kind of thing they've been doing year after year.

[01:10:20] Speaker 01:
You'll find the biological assessment at Appendix 2616.

[01:10:24] Speaker 01:
The biological assessment that Reclamation prepared said, we're going to deliver the water, and that is consistent with our trust responsibility.

[01:10:34] Speaker 01:
But it's likely to impair or jeopardize the continued existence of the species.

[01:10:42] Speaker 01:
Therefore, under the Endangered Species Act,

[01:10:45] Speaker 01:
we have a duty to consult.

[01:10:48] Speaker 01:
Following that consultation, on April 6th, the two fishery agencies having issued biological opinions, the Bureau of Reclamation

[01:11:01] Speaker 01:
put out a press release the day after the biological opinions came out and said, we are reversing our original plan of operations.

[01:11:10] Speaker 01:
We are now not going to deliver water to the plaintiffs.

[01:11:15] Speaker 01:
Why?

[01:11:16] Speaker 01:
Because the biological opinions prohibit that.

[01:11:20] Speaker 01:
This is found at Appendix 3026.

[01:11:25] Speaker 01:
Not the senior water rights prohibited, but the Endangered Species Act prohibits it.

[01:11:30] Speaker 01:
And you'll see a letter of April 26, about three weeks later, at Appendix

[01:11:36] Speaker 01:
3028, in which Reclamation assures the Fish and Wildlife Service, we will now be operating in compliance with the so-called reasonable and prudent alternatives stated in the biological opinion.

[01:11:51] Speaker 01:
At least as of 2001, the government did not think there was an overlap.

[01:11:57] Speaker 01:
The facts certainly don't show that there was a, quote, complete overlap between the Endangered Species Act and the tribal fishing rights.

[01:12:06] Speaker 01:
Number two, the government has repeatedly referenced

[01:12:14] Speaker 01:
trust responsibility.

[01:12:16] Speaker 01:
The trust responsibility is an obligation of the United States vis-a-vis the treaty.

[01:12:20] Speaker 01:
And I think that the counsel who just spoke before me may well be right that there has been a breach of the treaty obligations that the United States owed to the tribes with respect to their fishing rights over the many decades and more than a century.

[01:12:38] Speaker 01:
They may have a cause of action for that.

[01:12:41] Speaker 01:
Does that give them the right to take

[01:12:44] Speaker 01:
property that belongs to someone else to satisfy the government's trust responsibility?

[01:12:50] Speaker 01:
I think the answer is pretty simple.

[01:12:53] Speaker 01:
Let's suppose instead of fish, we're talking about deer that is hunted by the tribes to provide their subsistence.

[01:13:00] Speaker 01:
If the deer populations had been decimated by government action, could the government take over some farmers' land?

[01:13:09] Speaker 01:
to raise deer in order to provide adequate deer for the tribes?

[01:13:16] Speaker 01:
And could they say, well, it was our trust responsibility to do that, so we have the right to take your property?

[01:13:22] Speaker 01:
Third point, with respect to the Klamath Basin adjudication finding specifically as to the claim of the Klamath tribes as to

[01:13:37] Speaker 01:
Water rights, you know in Klamath Lake that is hotly contested.

[01:13:41] Speaker 01:
It was not contested previously It is in trial.

[01:13:45] Speaker 01:
It is in the circuit court.

[01:13:46] Speaker 01:
I don't want the court to misunderstand and I'm sure that counsel for our Mickey would concur that

[01:13:55] Speaker 01:
That is being contested.

[01:13:58] Speaker 01:
It wasn't contested originally.

[01:13:59] Speaker 02:
You're saying the determination of the adjudicator with respect to the tribal rights vis-a-vis the lake is now an issue before the Oregon Circuit Court.

[01:14:08] Speaker 01:
Absolutely, Your Honor.

[01:14:09] Speaker 01:
And that finding is being contested.

[01:14:12] Speaker 01:
Originally, there was a settlement agreement.

[01:14:14] Speaker 01:
The other half of that finding, Your Honor, was that the tribes had agreed not to try to enforce

[01:14:23] Speaker 01:
any such right.

[01:14:24] Speaker 01:
And that's because there was a settlement agreement that had to do, very massive settlement agreement having to do with removal of dams on the river, had to do with fisheries and so forth.

[01:14:35] Speaker 01:
That settlement agreement did not eventually, Congress didn't fund it.

[01:14:39] Speaker 01:
So the parties are now back to contesting their point.

[01:14:42] Speaker 01:
So my only point here is I don't think that there was any significance to the fact that there was an uncontested finding originally, which is now contested.

[01:14:52] Speaker 01:
vis-a-vis a claim of rights in Klamath Lake.

[01:14:59] Speaker 01:
As to the appurtenance question, if you will, let's go back to this fundamental question.

[01:15:06] Speaker 01:
What did Congress intend when they created the Hupa Yurok Reservation?

[01:15:12] Speaker 01:
Well, we know that 88% of the flows of the Klamath River

[01:15:20] Speaker 01:
it come from the lower Klamath Basin.

[01:15:24] Speaker 01:
Klamath Lake is in the upper Klamath Basin, 200 miles away.

[01:15:28] Speaker 01:
Did Congress really intend

[01:15:31] Speaker 01:
that this lake, 200 miles away, which might supply?

[01:15:36] Speaker 01:
Well, there's no hydrologic testimony.

[01:15:38] Speaker 01:
The government didn't produce any testimony as to how or what Klamath Lake might supply.

[01:15:43] Speaker 01:
But did Congress really intend that this lake, 200 miles away, which might produce what?

[01:15:49] Speaker 01:
1%, 2%, no percent of the flows needed for the salmon runs at the Hoopa?

[01:15:57] Speaker 01:
Did Congress really intend that that would all come from Klamath Lake and not from anywhere else, like say the Trinity River, which has flows of over a million acre feet per year?

[01:16:10] Speaker 01:
Finally, I think that the United States will be

[01:16:17] Speaker 01:
mightily concerned, if counsel is right, and that the obligation of the United States to each and every tribe vis-a-vis water rights is to restore their original fisheries and that they have all the water rights that attached to those fisheries as they existed in the 19th century.

[01:16:38] Speaker 01:
That is certainly directly contrary

[01:16:42] Speaker 01:
directly contrary to the Supreme Court's decision in Washington versus Fishing Vessel Association, in which the Supreme Court said the United States does not have the obligation.

[01:16:53] Speaker 01:
There is not an obligation this long down the road to restore the original fisheries as they existed at a time when this country was unsettled.

[01:17:05] Speaker 01:
It's unfortunate.

[01:17:07] Speaker 01:
It's too bad.

[01:17:08] Speaker 01:
And we do need to do things to recover

[01:17:11] Speaker 01:
the fisheries and, for that matter, the wildlife of our nation.

[01:17:16] Speaker 01:
But the Indian treaties, the Indian fishing rights,

[01:17:21] Speaker 01:
do not include the rights, which once again are obligations on the United States created by the Endangered Species Act.

[01:17:32] Speaker 01:
And the Endangered Species Act does not reference, has nothing to do with Indian fishing rights, Indian hunting rights, or a duty of trust.

[01:17:42] Speaker 01:
But rather, it has to do with an obligation quite separate and independently

[01:17:47] Speaker 01:
of any of those things to restore the species as a paramount interest, as the Supreme Court said in TVA v. Hill, regardless of cost.

[01:17:57] Speaker 01:
And finally, I apologize, Your Honor, I do not have with me the reply brief in which we quoted here, but with the Court's permission, I'd be happy to submit the citation to that quote that I gave you.

[01:18:13] Speaker 06:
Any more questions?

[01:18:15] Speaker 06:
Thank you.

[01:18:16] Speaker 06:
Thank you, Ronald.

[01:18:17] Speaker 06:
The case is taken under submission.

[01:18:19] Speaker 06:
That concludes our argued cases for this morning.

[01:18:23] Speaker 01:
All rise.