PRESS RELEASE
August 14, 2026
Counties, Western Water and Agricultural Organizations Back KWUA in Major Klamath Project Water Case
Yesterday, three counties and ten major western water and agricultural organizations filed “friend of the court” briefs in the U.S. Court of Appeals for the Ninth Circuit, supporting a petition filed August 3 by Klamath Water Users Association (KWUA). In its filing, KWUA asked that an eleven-member court
panel review and reconsider a recent Ninth Circuit decision related to the application of the Endangered Species Act (ESA) to water deliveries in the Klamath Project (Project).
KWUA contends that a June 17, 2-1 split decision of a three-judge panel should be reviewed by a larger group of judges, to bring consistency to the Court’s decisions. The “petition for rehearing en banc,” prepared by KWUA Counsel Brittany Johnson of Somach, Simmons & Dunn following direction from the KWUA Board of Directors, invokes rules of the Court that allow a larger number of judges of the Court, in its discretion, to conduct broader review of decisions of three-judge panels.
The case centers on an important legal question: when does the ESA require the Bureau of Reclamation to curtail water deliveries despite the commitments in long-standing Klamath Project contracts?
KWUA argues that once Reclamation entered into many of its irrigation contracts – some of which have been in place for more than a century – its contractual obligations became nondiscretionary, unless the contracts specifically reserved authority to modify water delivery commitments. According to KWUA, that analysis matters because federal courts have held that ESA consultation requirements generally apply only when a federal agency has discretion to act for the benefit of listed species.
KWUA’s petition also contends that the panel majority relied on a decades-old decision rather than applying more recent and controlling Supreme Court and Ninth Circuit decisions that clarify how agency discretion should be evaluated. It also points to the dissenting opinion by Judge Ryan Nelson, who concluded that the majority should have conducted a contract-by-contract analysis to determine whether Reclamation retained sufficient discretion to trigger ESA consultation requirements.
In their friend of the court filing, prepared by the law firm of Nossaman, LLP, Klamath County, Oregon, and Siskiyou and Modoc Counties, California, (“Tri-Counties) state: “The Counties, though of limited means, are compelled to file this brief as amici curiae in light of the alarming potential for the panel majority’s decision to significantly harm the Counties and their respective residents. The Counties urge this Court to conduct the proper analysis called for by Supreme Court and Ninth Circuit precedent that the panel majority neglected to complete and to keep in mind the significant local interests that are implicated by these decisions.”
“Our counties know too well the harsh impacts of the ESA on rural economies and communities,” said Michael Kobseff, Siskiyou County Supervisor. “That’s one reason we act together to ensure that the ESA is at least applied fairly and consistently.”
“The Tri-Counties get engaged and they do their homework,” said KWUA President Scott Seus, who farms in the Tulelake area. “The farm and ranch community in Klamath, Siskiyou, and Modoc Counties notices that, and we’re grateful for it.”The case has drawn national attention because its outcome could influence how the ESA is applied to federal water projects and other federal actions across the West.
In a friend of the court brief prepared by the law firm Stoel Rives, ten individual organizations state, “The legal framework to determine whether Section 7(a)(2) of the ESA applies to agency action-including operation of Reclamation water projects-is a question of exceptional importance in the West. Millions of people across the West rely on Reclamation water and storage delivery projects. By its own estimates, Reclamation now provides one out of five Western farmers with irrigation water for 10 million acres of farmland that produce 60 percent of the nation’s vegetables and 25 percent of its fruits and nuts.”
“Water users throughout the west understand that what happens in Klamath can affect us all,” said April Snell, Executive Director of the Oregon Water Resources Congress. OWRC played a leading role in organizing the joint filing, which also included the Association of California Water Agencies, Oregon
Farm Bureau Federation, California Farm Bureau Federation, Family Farm Alliance, National Water
Resources Association, Agribusiness and Water Council of Arizona, Idaho Water Users Association, and Washington State Water Resources Association, Ms. Snell added: “our support for KWUA’s filing emphasizes the critical importance of these issues and impacts to irrigated agriculture.
Elizabeth Nielsen, Executive Director of KWUA, underscored the value of communication and relationships with organizations who have similar interests. “We have great partners and friends who work hard for irrigated agriculture,” she stated. “This is evident in the filings we saw, and it is greatly appreciated”
The Ninth Circuit will now decide whether to grant the request for rehearing according to the Circuit Court’s internal process. If accepted, the case would be reconsidered by a larger panel of judges, giving the court an opportunity to clarify how federal agencies should evaluate long-standing contractual obligations under the current legal framework for ESA consultations.
Reclamation and federal fisheries agencies have also embarked on a separate consultation process for future Project operations. KWUA will continue to advocate for a solid legal and scientific foundation for reliable water deliveries while meeting applicable federal requirements.
