In Re: Klamath Irrigation District v. Usdc-Orm ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: KLAMATH IRRIGATION No. 22-70143
DISTRICT,
______________________________ D.C. No.
1:21-cv-00504-
KLAMATH IRRIGATION AA
DISTRICT,
Petitioner,
OPINION
v.
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
OREGON, MEDFORD,
Respondent,
U.S. BUREAU OF RECLAMATION;
OREGON WATER RESOURCES
DEPARTMENT,
Real Parties in Interest.
Petition for a Writ of Mandamus
Argued and Submitted November 18, 2022
San Francisco, California
Filed June 5, 2023
2 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
Before: Richard R. Clifton and Bridget S. Bade, Circuit
Judges, and M. Miller Baker,* Judge.
Opinion by Judge Clifton;
Dissent by Judge Baker
SUMMARY**
Mandamus / Water Rights
The panel denied a petition for writ of mandamus
brought by Klamath Irrigation District (“KID”) to compel
the district court to remand KID’s motion for a preliminary
injunction to the Klamath County Circuit Court in Oregon in
a case involving a dispute over the allocation of water within
the Klamath Basin.
In 1975, Oregon began the Klamath Basin Adjudication
(“KBA”), a general stream adjudication comprising both
administrative and judicial phases. During the
administrative phase, the Oregon Water Resources
Department determined claims to water rights in Upper
Klamath Lake and portions of the Klamath River within
Oregon. Nearly forty years later, the Oregon Water
Resources Department entered an Amended and Corrected
Findings of Fact and Final Order of Determination
(“ACFFOD”), which provisionally recognized the
*
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 3
determined claims, in the Klamath County Circuit Court for
confirmation. The Yurok and the Hoopa Valley Tribes of
California (the “Tribes”) did not participate in the KBA, but
the Federal Circuit in related litigation concluded that their
rights were protected even though they were not adjudicated.
In 2021, KID filed a motion for a preliminary injunction
in state court seeking to stop the Bureau of Reclamation from
releasing water from Upper Klamath Lake in accordance
with its Endangered Species Act (“ESA”) responsibilities
and the Tribes’ rights. Reclamation removed the case to
federal district court under the federal officer removal
statute, and KID moved to remand. The district court
declined to remand, reasoning that the McCarran
Amendment’s waiver of sovereign immunity did not apply
because KID’s motion for a preliminary injunction did not
seek to adjudicate or administer ACFFOD rights; rather, it
sought to re-litigate federal issues—namely, Reclamation’s
authority to release water in compliance with the ESA and
tribal rights.
The panel considered the five factors in Bauman v. U.S.
District Court, 557 F.3d 813, 817 (9th Cir. 2004), in
determining whether mandamus was warranted. The panel
began with the third factor—clear error as a matter of law—
because it was a necessary condition for granting the writ of
mandamus. KID alleged that the district court’s remand
denial was clearly erroneous under the doctrine of prior
exclusive jurisdiction, which provides that when a court is
exercising in rem, or quasi in rem, jurisdiction over a res, a
second court will not assume in rem, or quasi in rem,
jurisdiction over the same res. The panel held that the
doctrine of prior exclusive jurisdiction did not apply
here. The KBA did not adjudicate Reclamation’s ESA
obligations or the Tribes’ senior rights, so the Klamath
4 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
County Circuit Court did not have jurisdiction over the rights
challenged by KID’s motion. The panel held that KID’s
other assertion—that the Klamath County Circuit Court had
prior exclusive jurisdiction because its motion seeks to
enforce rights determined in the ACFFOD—was
undermined by Klamath Irrigation District v. U.S. Bureau of
Reclamation (KID II), 48 F.4th 934 (9th Cir. 2022). The
panel rejected KID’s attempt to circumvent KID II, the
Tribes’ rights, and the effect of the ESA by characterizing
the relief it sought as an application of the ACFFOD. The
panel expressed no views on the merits of KID’s underlying
motion for preliminary injunction, and concluded only that
the district court did not err in declining to remand the
motion for preliminary injunction to the state court.
The panel held that it need not consider the remaining
Bauman factors because the third factor was dispositive, but
that KID’s petition did not satisfy them in any event.
Dissenting, Judge Baker wrote that the mandamus
petition filed by KID presented an important question
involving jurisdictional first principles: Does a
comprehensive state court in rem water-rights proceeding
have prior exclusive jurisdiction over a quasi in rem motion
to enforce a decree governing rights to in-state water when
the Bureau of Reclamation asserts defenses based on the
reserved rights of out-of-state Indian tribes and the
preemptive effect of ESA? He would hold that because the
Klamath County Circuit Court had prior exclusive
jurisdiction over the order that KID’s motion sought to
enforce, the district court necessarily committed a clear error
of law in failing to remand. He would grant the mandamus
petition and send KID’s motion back to state court.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 5
COUNSEL
Nathan R. Rietmann (argued), Rietmann Law P.C., Salem,
Oregon; John P. Kinsey and Christopher A. Lisieski,
Wanger Jones Helsley P.C., Fresno, California; for
Petitioner.
John L. Smeltzer (argued), Thomas K. Snodgrass, Robert P.
Williams, and William B. Lazarus, Attorneys; Todd Kim,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice;
Washington, D.C.; Michael Gheleta, Supervising Attorney;
Office of the Solicitor, United States Department of the
Interior; Washington, D.C.; for Real Party in Interest United
States Bureau of Reclamation.
Denise G. Fjordbeck and Nichole DeFever, Assistant
Attorneys General; Benjamin Gutman, Solicitor General;
Ellen F. Rosenblum, Attorney General of Oregon; Office of
the Oregon Attorney General; Salem, Oregon; Real Party in
Interest Oregon Water Resources Department.
6 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
OPINION
CLIFTON, Circuit Judge:
Disputes over the allocation of water within the Klamath
Basin in southern Oregon and northern California,
particularly during the recent period of severe and prolonged
drought, have prompted many lawsuits in this and other
courts. In this episode, Klamath Irrigation District (“KID”)
petitions for a writ of mandamus to compel the district court
to remand KID’s motion for preliminary injunction to the
Klamath County Circuit Court in Oregon. The motion had
originally been filed by KID in that Oregon court but was
removed to federal district court by the U.S. Bureau of
Reclamation (“Reclamation”), a federal agency within the
U.S. Department of Interior. Reclamation was identified by
KID as the respondent for KID’s motion.
A requirement for obtaining mandamus relief is a
determination by us that the district court’s order was clearly
erroneous as a matter of law. We conclude that the district
court’s order was not clearly erroneous. As a result, we deny
the petition and decline to issue the writ.
I. Background
A. The Klamath Basin and Klamath Project
The Klamath Basin encompasses approximately 12,000
square miles of “interconnected rivers, canals, lakes,
marshes, dams, diversions, wildlife refuges, and wilderness
areas” in southern Oregon and northern California. Klamath
Irrigation Dist. v. U.S. Bureau of Reclamation (KID II), 48
F.4th 934, 938 (9th Cir. 2022). Upper Klamath Lake is a
large freshwater lake in the Klamath Basin in Oregon that
drains into the Link River. Klamath Irrigation Dist. v. Or.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 7
Water Res. Dep’t (Or. Water Res. Dep’t), 518 P.3d 970, 973
(Or. Ct. App. 2022). From there, water flows into and
through Lake Ewauna to the Klamath River, which then
proceeds southwest into California and eventually joins the
Trinity River near the Pacific coast.
Since time immemorial, Indigenous Peoples, including
the Yurok and the Hoopa Valley Tribes of California (the
“Tribes”), have depended upon the waters of the Klamath
Basin and the traditional fisheries therein. Id.; see also KID
II, 48 F.4th at 939–40 (citing United States v. Adair, 723
F.2d 1394, 1414 (9th Cir. 1983); Parravano v. Babbitt, 70
F.3d 539, 541–43 (9th Cir. 1995)); Baley v. United States,
942 F.3d 1312, 1321–22 (Fed. Cir. 2019), cert. denied, 141
S. Ct. 133 (2020).
Pursuant to the Reclamation Act of 1902, 43 U.S.C.
§§ 371–390h, Reclamation operates the Klamath River
Basin Project (the “Klamath Project”), a series of complex
irrigation works in the region, in accordance with state1 and
federal law, except where state law conflicts with
superseding federal law. 43 U.S.C. § 383; KID II, 48 F. 4th
1
Both Oregon and California follow the doctrine of prior appropriation.
See Irwin v. Phillips, 5 Cal. 140, 146 (1855) (California); Teel Irrigation
Dist. v. Or. Water Res. Dep’t, 919 P.2d 1172, 1174 (Or. 1996) (Oregon).
The doctrine provides that water rights are “perfected and enforced in
order of seniority, starting with the first person to divert water from a
natural stream and apply it to a beneficial use (or to begin such a project,
if diligently completed).” Montana v. Wyoming, 563 U.S. 368, 375–76
(2011) (citing Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92, 98 (1938); Arizona v. California, 298 U.S. 558, 565–66
(1936); Wyo. Const. art. 8, § 3). “Once such a water right is perfected,
it is senior to any later appropriators’ rights and may be fulfilled entirely
before those junior appropriators get any water at all.” Id. at 376.
8 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
at 940–41. In doing so, Reclamation balances various
interests, three of which are relevant to the instant motion.
First, under the Endangered Species Act (“ESA”), 16
U.S.C. §§ 1531–1544, Reclamation must maintain specific
water levels in Upper Klamath Lake and instream flows in
the Klamath River. KID II, 48 F.4th at 940–41; Klamath
Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,
1213 (9th Cir. 1999), cert. denied, 531 U.S. 812 (2000);
Yurok Tribe v. U.S. Bureau of Reclamation, No. 19-cv-
04405-WHO, 2023 WL 1785278, at *5–6 (N.D. Cal. Feb. 6,
2023); Baley, 942 F.3d at 1323–25 (explaining the
obligations).
Second, the Tribes’ senior, non-consumptive rights
compel Reclamation to maintain specific instream flows in
the Klamath-Trinity River in California. Patterson, 204
F.3d at 1213–14; KID II, 48 F.4th at 941. The river and its
fisheries are integral to the Tribes’ existence. E.g., KID II,
48 F.4th at 940 (citing Parravano, 70 F.3d at 542); Yurok
Tribe, 2023 WL 1785278, at *6. Indeed, “one of the central
purposes” behind the establishment of the Tribes’
reservations was protecting the traditional fisheries. KID II,
48 F.4th at 940 (citing Parravano, 70 F.3d at 542, 546); see
also S. Rep. No. 100-564, at 14–15 (1988). “At the bare
minimum,” the Tribes hold rights to an amount of water that
is at least equal, but not limited to, the amount necessary to
fulfill Reclamation’s ESA responsibilities. Baley, 942 F.3d
at 1336–37; Yurok Tribe, 2023 WL 1785278, at *6; Or.
Water Res. Dep’t, 518 P.3d at 973–974.
Finally, Reclamation also contracts with KID, a quasi-
municipal Oregon irrigation district, to supply water
“subject to [its] availability” to KID’s irrigators. KID II, 48
F.4th at 940 (citation omitted); Or. Water Res. Dep’t, 518
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 9
P.3d at 972. Delayed access to or decreased amounts of
water cause “long-reaching damages” to the irrigators’
businesses.
KID and other irrigation districts in the region are
members of the Klamath Water Users Association
(“KWUA”), a non-profit organization that represents
irrigation districts within the Klamath Project. See Klamath
Irrigation Dist. v. United States, 75 Fed. Cl. 677, 687 (2007),
vacated on other grounds, 635 F.3d 505 (Fed. Cir. 2011);
see also Member Districts, Klamath Water Users Ass’n,
https://kwua.org/member-districts/ (last visited March 17,
2023).
B. The Klamath Basin Adjudication
In 1909, Oregon enacted the Water Rights Act, Or. Rev.
Stat. ch. 537, which provided that all waters of the state
belong to the public and rights existing before the Act’s
effective date must be determined. In 1975, Oregon began
the Klamath Basin Adjudication (“KBA”), a general stream
adjudication comprising both administrative and judicial
phases. Baley, 942 F.3d at 1321. During the lengthy
administrative phase, the Oregon Water Resources
Department (“OWRD”) determined claims to water rights in
Upper Klamath Lake and portions of the Klamath River
within Oregon. Or. Water Res. Dep’t, 518 P.3d at 973.
Nearly forty years later, the agency entered an Amended and
Corrected Findings of Fact and Final Order of Determination
(“ACFFOD”), which provisionally recognized the
determined claims, in the Klamath County Circuit Court for
confirmation. Id. While the judicial phase of the KBA is
pending, the ACFFOD rights are enforceable. See Or. Rev.
Stat. §§ 539.130, 539.170.
10 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
The Tribes did not participate in the KBA, but the
Federal Circuit concluded in related litigation that their
rights are protected even though they were not adjudicated
because “there is no need for a state adjudication to occur
before federal reserved rights are recognized[.]” Baley, 942
F.3d at 1340–41 (citing Agua Caliente Band of Cahuilla
Indians v. Coachella Valley Water Dist., 849 F.3d 1262,
1272 (9th Cir. 2017)). Under the ACFFOD, Reclamation
has the right to store water in Upper Klamath Lake, and KID
has the right to use a specific amount of water for irrigation.
However, KID’s rights are subservient to the Tribes’ rights
and Reclamation’s ESA responsibilities. Patterson, 204
F.3d at 1213 (the Tribes’ senior rights “carry a priority date
of time immemorial”); Baley, 942 F.3d at 1340 (quoting
Agua Caliente Band, 849 F.3d at 1272) (“[S]tate water rights
are preempted by federal reserved rights.”). Because
“Reclamation cannot distribute water that it does not
have[,]” water may not be available to KID, “for example,
due to drought, a need to forego diversions to satisfy prior
existing rights, or compliance with other federal laws such
as the Endangered Species Act.” KID II, 48 F.4th at 940
(citation omitted).
C. The Present Dispute
A severe, prolonged drought has reduced the amount of
water available in southern Oregon and northern California,
saddling Reclamation with the “‘nearly impossible’ task of
balancing multiple competing interests in the Klamath
Basin.” Id. at 938–40 (quoting Klamath Irrigation Dist. v.
U.S. Bureau of Reclamation (KID I), 489 F. Supp. 3d 1168,
1173 (D. Or. 2020)). In several federal lawsuits, KID and
similarly situated parties have repeatedly and unsuccessfully
challenged Reclamation’s authority to release water to
satisfy tribal rights and comply with the ESA. See, e.g., KID
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 11
I, 489 F. Supp. 3d 1168, aff’d, KID II, 48 F.4th 934;
Patterson, 204 F.3d 1206; Baley, 942 F.3d 1312; Yurok
Tribe, 2023 WL 1785278; Kandra v. United States, 145 F.
Supp. 2d 1192 (D. Or. 2001).
In 2021, KID filed a motion for a preliminary injunction
in the Klamath County Circuit Court seeking to stop
Reclamation from releasing water from Upper Klamath
Lake in accordance with its ESA responsibilities and the
Tribes’ rights. Due to the drought, such releases could delay
access to, or limit the amount of, water available to satisfy
KID’s ACFFOD-determined allotment. Reclamation
subsequently removed the action to federal district court
under the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1), on the grounds that KID’s motion implicated
issues of federal law and Reclamation planned to assert
federal defenses. KID moved for remand on the basis that
the Klamath County Circuit Court had prior exclusive
jurisdiction over the rights determined in the ACFFOD. The
district court declined to remand, reasoning that the
McCarran Amendment’s waiver of sovereign immunity did
not apply because KID’s motion for preliminary injunction
did not seek to adjudicate or administer ACCFOD rights;
rather, it sought to re-litigate federal issues—namely,
Reclamation’s authority to release water in compliance with
the ESA and tribal rights. Klamath Irrigation Dist. v. U.S.
Bureau of Reclamation, No. 1:21-cv-00504-AA, 2022 WL
1210946, at *4–5 (D. Or. Apr. 25, 2022). KID then filed a
petition for writ of mandamus in this court, seeking to
compel the district court to remand its motion for
preliminary injunction to the Klamath County Circuit Court.
12 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
II. Discussion
We have authority to issue a writ of mandamus under 28
U.S.C. § 1651. Mandamus is an “extraordinary” remedy
limited to “extraordinary causes.” Cheney v. U.S. Dist. Ct.,
542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S.
258, 259–60 (1947)).
Our court has long considered the following factors,
commonly called Bauman factors, in determining whether
mandamus is warranted: (1) whether the petitioner has “no
other adequate means, such as a direct appeal,” to attain the
desired relief, (2) whether “[t]he petitioner will be damaged
or prejudiced in a way not correctable on appeal,”
(3) whether the “district court’s order is clearly erroneous as
a matter of law,” (4) whether the order makes an “oft-
repeated error, or manifests a persistent disregard of the
federal rules,” and (5) whether the order raises “new and
important problems” or legal issues of first impression.
Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir.
1977). We do not mechanically apply the Bauman factors.
Cole v. U.S. Dist. Ct., 366 F.3d 813, 817 (9th Cir. 2004). As
such, “[a] showing of only one factor does not mean the writ
must be denied, nor does a showing of all factors mean that
the writ must be granted.” In re Mersho, 6 F.4th 891, 898
(9th Cir. 2021). ‘‘Mandamus review is at bottom
discretionary—even where the Bauman factors are satisfied,
the court may deny the petition.” San Jose Mercury News,
Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1099 (9th Cir. 1999).
A. Clear Error
We begin with the third factor—clear error as a matter of
law—because it is “a necessary condition for granting a writ
of mandamus.” In re Van Dusen, 654 F.3d 838, 841 (9th
Cir. 2011). Clear error is a deferential standard, requiring a
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 13
“firm conviction” that the district court “misinterpreted the
law” or “committed a clear abuse of discretion.” In re Perez,
749 F.3d 849, 855 (9th Cir. 2014).
Here, KID contends that the district court’s denial of its
motion to remand was clearly erroneous under the doctrine
of prior exclusive jurisdiction, which “holds that when one
court is exercising in rem [or quasi in rem] jurisdiction over
a res, a second court will not assume in rem [or quasi in rem]
jurisdiction over the same res.” Chapman v. Deutsche Bank
Nat’l Trust Co., 651 F.3d 1039, 1043 (9th Cir. 2011)
(citation and internal quotations omitted); State Engineer v.
South Fork Band of the Te-Moak Tribe, 339 F.3d 804, 811,
814 (9th Cir. 2003) (establishing that quasi in rem
jurisdiction is sufficient for the doctrine of prior exclusive
jurisdiction to bar concurrent state and federal proceedings).
According to KID, the Klamath County Circuit Court had in
rem jurisdiction over the ACFFOD (the res), and KID’s
motion for preliminary injunction could not be adjudicated
“without determining the extent and effect of the rights” in
that order.
The doctrine of prior exclusive jurisdiction does not
apply here, however. The KBA did not adjudicate
Reclamation’s ESA obligations or the Tribes’ senior rights,
Baley, 942 F.3d at 1323, 1340–41, so the Klamath County
Circuit Court did not have jurisdiction over the rights
challenged by KID’s motion. Cf. United States v. Orr Water
Ditch Co., 600 F.3d 1152, 1160–61 (9th Cir. 2010) (noting
that the doctrine of prior exclusive jurisdiction did not bar a
state court from exercising jurisdiction over an appeal of a
state engineer’s grant of water rights in a river, even though
a federal district court had previously adjudicated rights in
the same river, because the engineer’s ruling was based on
state law and did not affect the federally adjudicated rights).
14 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
OWRD has affirmatively taken the position in this matter
that the ACFFOD does not adjudicate the challenges
presented by KID’s motion and the Klamath County Circuit
Court’s jurisdiction does not extend to those issues. It so
stated in the answering brief that it filed in this case.2 As
noted above, supra page 9, it was OWRD that determined
claims and prepared the ACFFOD that remains in effect
while the judicial phase proceeds in Klamath County Circuit
Court.
Reliance by the dissent on State Engineer, 339 F.3d 804,
is misplaced. Dissent at 32–34. There, we determined that
a removed action was quasi in rem because the parties’ rights
in the res (a river) served as the basis of jurisdiction, even
though the action was brought against the defendants
personally. State Engineer, 339 F.3d at 811. Because the
action was quasi in rem, the doctrine of prior exclusive
jurisdiction applied to bar concurrent state and federal
actions, and remand to the state court was thus necessary.
Id. at 811, 814. The state court in State Engineer had
jurisdiction over the tribe’s rights because the rights were
governed by state law and subject to the state’s general
stream adjudication. Id. at 807–08.
Here, however, the Klamath County Circuit Court did
not have jurisdiction over the Tribes’ rights implicated by
KID’s motion because the Tribes’ rights at issue were not
2
OWRD’s different stance before the Federal Circuit in Baley, 942 F.3d
1312, is irrelevant. The Federal Circuit rejected the agency’s arguments.
Baley, 942 F.3d at 1340–41. Before our court, the agency has
reconsidered that losing position.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 15
governed by Oregon law and were not subject to the KBA.3
4 See Baley, 942 F.3d at 1323, 1340–41. The McCarran
Amendment, 43 U.S.C. § 666, “waives the United States’
sovereign immunity for the limited purpose of allowing the
Government to be joined as a defendant in a state
adjudication [or administration] of water rights.” United
States v. Adair, 723 F.2d 1394, 1400 n.2 (9th Cir. 1983). It
does not “authorize private suits to decide priorities between
the United States and particular claimants[.]” Metro. Water
3
The fact that, as the dissent notes, Dissent at 36–37, state courts can
have jurisdiction to adjudicate federal reserved water rights is irrelevant
here because neither the KBA nor the Klamath County Circuit Court
exercised jurisdiction over the Tribes’ rights. Baley, 942 F.3d at 1321,
1341 (observing that the Yurok and Hoopa Valley Tribes “did not
participate in the Klamath Adjudication” in Oregon state court). A fair
reading of United States v. Oregon, 44 F.3d at 770—and all other
relevant federal litigation regarding the KBA to date—belies the
dissent’s assertion that we held “the McCarran Amendment ‘required’
Reclamation to submit federal water-rights claims to the jurisdiction of
the Klamath County Circuit Court [on behalf of the Yurok and Hoopa
Valley Tribes, both of which are located outside of Oregon’s borders.]”
Dissent at 25–26. Rather, we held simply that the KBA is “the sort of
adjudication Congress meant to require the United States to participate
in when it passed the McCarran Amendment.” Oregon, 44 F.3d at 770.
That case did not involve out-of-state parties.
4
The dissent’s observation, Dissent at 28–29, 29 n.9, that Reclamation
acknowledged in an internal assessment that the ACFFOD barred water
releases “to augment or otherwise produce instream flows in the Klamath
River,” which would preclude compliance with the ESA and the Tribes’
rights, is irrelevant. As the Northern District of California recently
explained in response to OWRD’s attempt to stop Reclamation’s water
releases for non-ACFFOD rights and obligations, Reclamation must
comply with the ESA. Yurok Tribe, 2023 WL 1785278, at *14–19. The
court also held that OWRD’s order, which directed Reclamation to stop
releasing water for non-ACFFOD-determined rights, was preempted by
the ESA and therefore violated the Supremacy Clause. Id.16 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
Dist. v. United States, 830 F.2d 139, 144 (9th Cir. 1987),
aff’d sub nom. California v. United States, 490 U.S. 920(1988). Nor does it expand a state court’s subject matter
jurisdiction or empower a state to adjudicate rights beyond
its jurisdiction, which, at bottom, is what KID’s motion for
a preliminary injunction seeks to do. See United States v.
Dist. Ct. for Eagle Cnty., 401 U.S. 520, 523 (1971); Baley,
942 F.3d at 1341 (explaining that the Tribes’ “rights are
federal reserved water rights not governed by state law” and
that “states have the ability to adjudicate rights in a water or
river within their jurisdiction, but they cannot adjudicate
water rights in another state”).
The dissent’s focus on in rem jurisdiction because the
water is stored in Upper Klamath Lake is not entirely
misplaced, Dissent at 32–38, but it seems myopic for two
reasons.5
5
The dissent cites OWRD and U.S. Department of Justice documents
indicating that OWRD noticed and adjudicated federal reserved rights
for federal properties in northern California as part of the KBA. E.g.,
Dissent at 25 n.1, 26 n.5, 35. However, neither party entered these
documents into the record, nor discussed them in the briefs. As a general
rule, “we rely on the parties to frame the issues for decision[.]” United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). This “rule
reflects our limited role as neutral arbiters of legal contentions presented
to us, and it avoids the potential for prejudice to parties who might
otherwise find themselves losing a case on the basis of an argument to
which they had no chance to respond.” United States v. Yates, 16 F.4th
256, 270–71 (9th Cir. 2021).
Nevertheless, even if these documents were in the record, the fact
remains that the KBA did not adjudicate the Tribes’ rights—nor did it
need to. Baley, 942 F.3d at 1323, 1340–41 (“[T]here is no need for a
state adjudication to occur before federal reserved rights are
recognized[.]”). The Tribes’ rights take precedence over KID’s
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 17
First, under the dissent’s logic, Dissent at 34–35, a state
could control all surface water within its borders by
damming outflows, thereby attaining in rem jurisdiction
over the pooled resource, which is essentially the position
KID takes here.6 Such a result is antithetical to the Supreme
Court’s interpretation of the term “river system” within the
McCarran Amendment to mean one “within the particular
State’s jurisdiction[,]” which confines a state’s adjudication
to its own borders.7 8 See Eagle Cnty., 401 U.S. at 523.
ACFFOD rights under both the doctrine of prior appropriation,
Patterson, 204 F.3d at 1213 (providing that the Tribes’ senior rights
“carry a priority date of time immemorial”), and as federal reserved
rights, Baley, 942 F.3d at 1340 (quoting Agua Caliente Band, 849 F.3d
at 1272) (“[S]tate water rights are preempted by federal reserved
rights.”).
6
KID advanced this position at oral argument. See United States Court
of Appeals for the Ninth Circuit, 22-70143 Klamath Irrigation District
v. USDC-ORM, YouTube (Nov. 18, 2022), https://youtu.be/EAVWqqx
VTy4 (view minutes 14:18–16:16).
7
Caselaw does not support the dissent’s interpretation of the McCarran
Amendment as geographically indifferent “to the location or nature of
federal interests with asserted ‘water rights’ to an in-state ‘river system
or other source.’” Dissent at 45 n.23. We have never held that a state’s
adjudication could operate extraterritorially without the participation of
impacted parties hundreds of miles away entirely within another state.
8
The dissent’s conclusion that Reclamation should have asserted the
Tribes’ reserved rights in an out-of-state proceeding because it holds
their rights in trust, Dissent at 25–26, 26 n.3, ignores this limit on the
McCarran Amendment’s waiver of sovereign immunity. As the
Supreme Court explained in relation to the Colorado River in Eagle
County, 401 U.S. at 523, “[n]o suit by any State could possibly
encompass all of the water rights in the entire Colorado River which runs
through or touches many States.” The dissent ignores the Supreme
Court’s admonition and instead advocates for such an all-encompassing
18 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
Second, the dissent overlooks the forum shopping at the
heart of KID’s petition. KID and other similarly situated
parties have not succeeded in previous federal lawsuits. See,
e.g., KID I, 489 F. Supp. 3d 1168, aff’d, KID II, 48 F.4th
934, 947; Patterson, 204 F.3d 1206, 1213–14;9 Baley, 942
F.3d 1312;10 Yurok Tribe, 2023 WL 1785278, at *6; Kandra,
145 F. Supp. 2d 1192.
By filing its underlying motion in state court, KID sought
to litigate in a new forum, one it presumably hoped would
be less concerned with the commands of the ESA and the
rights of parties not before the court.11 With this perspective,
it might fairly be said that KID seeks to deny other affected
interpretation of the KBA here. But a “river system” within the
McCarran Amendment “must be read as embracing one within the
particular State’s jurisdiction.” Id. at 523.
9
Based on tax records, Kandra, 145 F. Supp. at 1201, and other
litigation documents, we infer that the Patterson plaintiff—the Klamath
Water Users Protective Association (“KWUPA”)—is the same entity as
KWUA, which is the business name of the Klamath Basin Water Users
Protective Association (“KBWUPA”). KID is a member of
KBWUPA/KWUA. See supra page 9.
Regardless of whether KWUPA is the same entity as
KBWUPA/KWUA, the fact remains that, in Patterson, the plaintiff
invoked its state contract rights to challenge Reclamation’s authority to
manage the Klamath Project in accordance with the ESA and tribal trust
obligations. This legal theory sounds familiar to us.
10
KID was a party in Baley until, following the trial and post-trial
briefing, KID and the other irrigation districts voluntarily dismissed their
claims before the court ruled against the remaining individual plaintiffs.
Baley, 942 F.3d at 1318.
11
To be clear, we do not insinuate that the Klamath County Circuit Court
would necessarily rule in KID’s favor. Rather, we mean only that KID
seems to be seeking a new umpire because it has repeatedly struck out in
multiple federal courts.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 19
entities a meaningful forum and remedy. The dissent does
not alleviate these concerns, offering only the possibility of
eventual review by the Supreme Court, after years of
misdirection of the water that is the subject of these claims.
Dissent at 39–40.
KID’s other assertion—that the Klamath County Circuit
Court had prior exclusive jurisdiction because its motion
seeks to enforce rights determined in the ACFFOD—is
undermined by Klamath Irrigation District v. U.S. Bureau of
Reclamation (KID II), 48 F.4th 934 (9th Cir. 2022).12 There,
we rejected KID’s characterization of its suit as an
administration of ACFFOD-determined rights and
concluded that it was instead an Administrative Procedure
Act challenge to Reclamation’s authority to release water in
compliance with the ESA and federal reserved water rights.
Id. at 947. Here, we similarly reject KID’s attempt to
circumvent our prior decision, the Tribes’ rights, and the
effect of the ESA by characterizing the relief it seeks as an
application of the ACFFOD.13
12
We do not cite KID II for a preclusive effect, as the dissent alleges.
Dissent at 40 n.19, 42 n.21. As we explain, that case illustrates KID’s
framing of its legal theory as a McCarran Amendment “administration,”
when it actually sought to outmaneuver the force of the ESA and the
Tribes’ rights through an enforcement of the ACFFOD. Here, KID
attempts another end-run around the same federal rights under the guise
of the McCarran Amendment.
13
We are not persuaded by the dissent’s proposal to apply removal
precedent to determine whether KID’s petition is an “administration”
under the McCarran Amendment. Dissent at 43 (citing Bell v. Hood, 327
U.S. 678 (1946) (nonexistence of a cause of action is not a proper basis
for a jurisdictional dismissal); Jefferson County v. Acker, 527 U.S. 423(1999) (colorable federal defense is sufficient to invoke federal question
20 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
We do not reach the merits of KID’s motion for
preliminary injunction, as the dissent charges. Dissent at
39–40, 43. “We recognize that, at times, ‘jurisdiction is so
intertwined with the merits that its resolution depends on the
resolution of the merits.’” Orff v. United States, 358 F.3d
1137, 1150 (9th Cir. 2004) (quoting Careau Grp. v. United
Farm Workers, 940 F.2d 1291, 1293 (9th Cir. 1991)). “But
that is not the case here.” Id. Our determination that the
Klamath County Circuit Court did not have prior exclusive
jurisdiction over the rights KID seeks to re-litigate does not
depend on the merits of KID’s motion for preliminary
injunction “as the resolution of one does not depend on the
resolution of the other.” Id.Further, we have never held that any issue implicating
federal reserved water rights always goes to the merits of
such issue and precludes a jurisdictional analysis. The
dissent relies on inapposite cases to support this proposition.
Dissent at 23, 39–40 (citing United States v. Oregon, 44 F.3d
758, 770 (9th Cir. 1984); Eagle Cnty., 401 U.S. at 526; Colo.
River Water Conservation Dist. v. United States, 424 U.S.
800, 813 (1976)). These cases merely note that properly
preserved issues implicating the amount and scope of federal
reserved rights in state adjudications are reviewable by the
Supreme Court after final judgment from the state court. See
Eagle Cnty., 401 U.S. at 525–26; Colo. River, 424 U.S. at
813; Oregon, 44 F.3d at 768–70.
Again, we express no views on the merits of KID’s
underlying motion for preliminary injunction. We only
conclude that the Klamath County Circuit Court did not have
jurisdiction under the federal officer removal statute)). Both cases are
inapposite as neither deal with the McCarran Amendment, stream
adjudications, or any analogous issues to those before our Court.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 21
prior exclusive jurisdiction over the rights KID seeks to re-
litigate. As such, the district court did not err in declining to
remand the motion for preliminary injunction to the state
court.
B. Remaining Bauman Factors
We need not consider the remaining Bauman factors
because “the absence of the third factor, clear error, is
dispositive.” Burlington N. & Santa Fe Railway v. Dist. Ct.,
408 F.3d 1142, 1146 (9th Cir. 2005). KID’s petition does
not satisfy them, in any event. The district court’s order did
not “manifest[] a persistent disregard of the federal rules,”
nor did it raise legal issues of first impression. Bauman, 557
F.2d at 655.
KID has “other adequate means” to attain its desired
relief, id. at 654, as its underlying motion for preliminary
injunction has simply been removed to the district court.
Nothing prevents KID from seeking substantive relief before
the district court, because, contrary to the dissent’s
characterization, Dissent at 39–40, 43, we neither adjudicate
the merits of KID’s motion, nor direct the district court on
the merits. KID may also seek interim injunctive relief from
the district court.
Finally, KID will not be “damaged or prejudiced in a
way not correctable on appeal” by litigating the underlying
motion before the district court. Bauman, 557 F.2d at 654.
KID’s lack of success in previous federal lawsuits and
related litigation does not make the Klamath County Circuit
Court the proper forum by default. While the dissent
expresses concern that any eventual appellate relief would
be inadequate because KID’s members may suffer a loss of
water rights in the interim, Dissent at 46, the dissent’s
approach would threaten to impose exactly the same
22 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
deprivation on the Tribes, whose rights take precedence
under both federal and state law over those asserted by KID.
See Patterson, 204 F.3d at 1209, 1214; Baley, 942 F.3d at
1340; Kandra, 145 F. Supp. 2d at 1197, 1204; Parravano,
70 F.3d at 541–42, 545; see also Agua Caliente Band, 849
F.3d at 1272.
Accordingly, we do not conclude that this is an
“exceptional” situation “amounting to a judicial usurpation
of power or a clear abuse of discretion” that would justify
the “extraordinary remedy” of mandamus. See In re Holl,
925 F.3d 1076, 1082 (9th Cir. 2019).
KID’s petition for a writ of mandamus is DENIED.
BAKER, Judge, dissenting:
“[B]earing in mind the ubiquitous nature of Indian water
rights in the [W]est,” Colo. River Water Conservation Dist.
v. United States, 424 U.S. 800, 811 (1976), and that “in
stream adjudications . . . each water rights claim by its very
nature raises issues inter se as to all such parties for the
determination of one claim necessarily affects the amount
available for the other claims,” Nevada v. United States, 463
U.S. 110, 140 (1983) (cleaned up), the mandamus petition
filed by the Klamath Irrigation District (KID) presents an
important question involving jurisdictional first principles:
Does a comprehensive state court in rem water-rights
proceeding have prior exclusive jurisdiction over a quasi in
rem motion to enforce a decree governing rights to in-state
water when the United States Bureau of Reclamation asserts
defenses based on the reserved rights of out-of-state Indian
tribes and the preemptive effect of the Endangered Species
Act (ESA)?
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 23
In holding that the Klamath County (Oregon) Circuit
Court lacks such prior exclusive jurisdiction, the majority
gives four reasons. I respectfully disagree as to each.
First, the majority contends that because the Yurok and
Hoopa Valley Tribes (the Tribes) are California-based, the
Oregon state court lacks authority to adjudicate their rights
to in-state water in the first instance. Opinion at 16–17. But
as explained below, Oregon unquestionably has the power to
adjudicate the rights of the Tribes and other out-of-state
claimants to water within its borders through in rem
proceedings, even as its exercise of such authority must
respect federal reserved rights and interstate water rights.
The irony of today’s decision is that we may not pass
judgment on the Klamath County Circuit Court’s
jurisdiction as a matter of state law.
Second, the majority observes that the decree governing
the res (rights to stored water in Upper Klamath Lake in
Oregon) did not adjudicate Reclamation’s federal law
defenses. Id. at 13–14. But what matters here is that KID’s
quasi in rem motion asserts rights under that decree, over
which the state court has prior exclusive jurisdiction. The
Bureau’s defenses are irrelevant.
Third, the majority concludes that Reclamation’s
defenses defeat KID’s motion. Id. at 14–15, 15 n.4, 16 n.5,
22. It’s settled law, however, that questions concerning tribal
reserved rights and other federal defenses in comprehensive
water-rights proceedings “go to the merits,” United States v.
Oregon, 44 F.3d 758, 770 (9th Cir. 1994), and that state
courts are presumptively competent to adjudicate those
“federal questions which, if preserved, can be reviewed” in
the Supreme Court “after final judgment by the [state]
court.” United States v. Dist. Ct. in and for County of Eagle,
24 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
401 U.S. 520, 526 (1971). Even if the Bureau’s defenses are
well-founded as the majority contends, that has no bearing
on the state court’s jurisdiction, which we must presume
exists as a matter of state law.
Finally, the majority holds that the federal sovereign
immunity waiver of the McCarran Amendment, 43 U.S.C.
§ 666(a), does not apply here because permitting KID to
obtain relief under the decree would interfere with “the
Tribes’ rights” and the preemptive “effect of the ESA.”
Opinion at 19. Once again, the majority conflates the merits
with jurisdiction. We should instead hold that KID’s
assertion of a colorable claim to enforce the decree
governing the res suffices to trigger the Amendment’s
waiver under the test applied by the Supreme Court in
analogous jurisdictional contexts. Cf. Bell v. Hood, 327 U.S.
678, 682–83 (1946).
Because the Klamath County Circuit Court has prior
exclusive jurisdiction over the order that KID’s motion seeks
to enforce, the district court necessarily committed a clear
error of law in failing to remand. We should grant the
mandamus petition and send KID’s motion back to state
court where it belongs.
I
In 1975, the Oregon Water Resources Department
(OWRD) commenced a general stream adjudication (the
Klamath Basin Adjudication, or KBA). See United States v.
Oregon, 44 F.3d at 762. In so doing, OWRD sought to
ascertain “the relative rights of the various claimants to the
waters” of the Klamath Basin. ORS § 539.021(1). Under
Oregon law, a general stream adjudication determines all
water rights vested or initiated before February 24, 1909,
including—of critical importance here—reserved federal
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 25
rights. See ORS § 539.010(7) (authorizing OWRD to
“adjudicate federal reserved rights for the water necessary to
fulfill the primary purpose of the reservation”).
“[P]roceedings adjudicating” water rights in Oregon are
“in rem,” Masterson v. Pac. Live Stock Co., 24 P.2d 1046,
1048 (Or. 1933), meaning that the KBA is “directly against
the property”—in this instance, water rights in Upper
Klamath Lake—“and [involves] an adjudication against all
mankind equally binding upon everyone,” Linn County v.
Rozelle, 162 P.2d 150, 156 (Or. 1945). And because the
KBA is against the world, “person[s] . . . claim[ing] legal
title to a water right [were required to] file a claim in the
adjudication or lose the right.” Klamath Irrigation Dist. v.
United States, 227 P.3d 1145, 1166 (Or. 2010); see also ORS
§ 539.210 (same); Pac. Live Stock Co. v. Lewis, 241 U.S.
440, 447–48 (1916) (same). Accordingly, OWRD provided
notice of the KBA to federal users in both Oregon and
California.1
Even though we held that the McCarran Amendment
“required” Reclamation to submit federal water-rights
claims to the jurisdiction of the Klamath County Circuit
1
In 1996, OWRD gave notice “to the United States Attorney General
claiming a federal reserved right or a right to the use of the waters of the
Klamath River and its tributaries, diverted in Oregon and used within
Klamath, Jackson, and Lake Counties, Oregon[,] and Modoc and
Siskiyou Counties, California,” that it would receive proofs of claim
between October 1, 1996, and January 31, 1997, from “all parties
claiming rights to the use of waters of the Klamath River or any of its
tributaries.” KBA order at Appendix H-2 (emphasis added), available at
https://www.oregon.gov/owrd/programs/WaterRights/Adjudications/Kl
amathAdj/KBA_APP_133626.PDF. Reclamation “uses” water by
releasing it from Upper Klamath Lake for the benefit of the California-
based Tribes.
26 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
Court, United States v. Oregon, 44 F.3d at 770, the Bureau2
failed to file any such claim on behalf of the Tribes, to whom
the government owes trust obligations. See Arizona v. San
Carlos Apache Tribe of Ariz., 463 U.S. 545, 549 (1983);3 cf.
Nevada v. United States, 463 U.S. at 143–44 (explaining that
an Indian tribe’s water rights were lost because the
government failed to assert them in “a comprehensive
adjudication of water rights intended to settle once and for
all the question of how much of the Truckee River each of
the litigants was entitled to,” as “water adjudications are
more in the nature of in rem proceedings”).
In 2014, OWRD filed a decree (the KBA order)4 that
provisionally governs water rights in Upper Klamath Lake,
including the rights of federal properties in California,5
2
Under the Reclamation Act, absent superseding federal law, the Bureau
must “comply with state law in the ‘control, appropriation, use, or
distribution of water.’ ” California v. United States, 438 U.S. 645, 674–
75 (1978) (quoting 43 U.S.C. § 383); see also id. at 675 (“The legislative
history of the Reclamation Act of 1902 makes it abundantly clear that
Congress intended to defer to the substance, as well as the form, of state
water law.”).
3
Thus, the majority’s contention that the “Tribes’ rights at issue . . . were
not subject to the KBA,” Opinion at 14–15, is incorrect. Reclamation is
subject to the KBA and holds the Tribes’ rights in trust.
4
The parties call the KBA order the “ACFFOD,” shorthand for
“Amended and Corrected Findings of Fact and Final Order of
Determination.”
5
The Justice Department explains that “[i]f the administrative findings
and conclusions [in the KBA order] are ultimately sustained by the state
circuit court, they will approve numerous significant federal reserved
rights and state appropriative rights for a national park, national forests,
wilderness areas, wild and scenic rivers, wildlife refuges, Indian
reservations, and the Klamath Reclamation Project encompassing
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 27
pending a final adjudication by the state court. See ORS
§ 539.170; see also Lewis, 241 U.S. at 455 (“[I]t is within
the power of the state to require that, pending the final
adjudication, the water shall be distributed according to
[OWRD]’s order, unless a suitable bond be given to stay its
operation.”). Under Oregon law, the “Klamath County
Circuit Court has exclusive subject matter jurisdiction to
review the KBA order.” TPC, LLC v. Or. Water Res. Dep’t,
482 P.3d 121, 129 (Or. App. 2020).
On March 29, 2021, KID moved for a preliminary
injunction in the Klamath County Circuit Court,6 arguing
200,000 acres in southern Oregon and northern California.” U.S. Dep’t
of Justice, Environment & Natural Resources Division, ENRD
Accomplishments Report Fiscal Year 2013, at 74 (emphasis added),
https://www.justice.gov/sites/default/files/enrd/legacy/2015/04/13/ENR
D_Accomplishments_Report_2013_2.pdf. One of the national wildlife
refuges that DOJ referred to is the Tule Lake National Wildlife Refuge,
located entirely in Northern California. See Kandra v. United States, 145
F. Supp. 2d 1192, 1196 (D. Or. 2001) (“Two national wildlife refuges,
the Lower Klamath and Tule Lake National Wildlife Refuges, depend on
the [Klamath Reclamation] Project for water and receive large quantities
of return irrigation flows and other Project waters.”).
6
Earlier, KID sued Reclamation in Oregon district court seeking relief
under the Administrative Procedure Act (APA). See Klamath Irrigation
Dist. v. Bureau of Reclamation, No. 1:19-cv-451-CL, Dkt. No. 70 (D.
Or.) (KID’s second amended complaint for declaratory and injunctive
relief). After the Klamath and Hoopa Tribes then intervened to seek
dismissal, the district court dismissed the suit in 2020 for lack of
jurisdiction. The court reasoned that the Tribes were required parties,
Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 489 F. Supp. 3d
1168, 1176–81 (D. Or. 2020) (KID I), and that sovereign immunity—
which they did not waive—prevented their joinder, id. at 1181–82. While
its appeal to our Court was pending, KID filed its motion in the Klamath
County Circuit Court. We later affirmed the district court’s dismissal.
28 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
that Reclamation’s ongoing water releases violate the KBA
order, which provides that the United States only owns the
right to store water. Pet. 667 (citing KBA order, Pet. 109);
see also KBA order, Pet. 121 (providing that “[t]he United
States also holds a separate right for storage of water in
Upper Klamath Lake for the benefit of the irrigation rights
recognized in this Partial Order of Determination”)
(emphasis added).8
KID’s motion also contends that Reclamation’s right to
store water does not give the Bureau any right to use that
water, quoting Cookinham v. Lewis, 114 P. 88, 91 (Or.
1911), for the proposition that a primary storage right “does
not include the right to divert and use [. . .] stored water,
which must be the subject of the secondary permit.” Pet. 66;
see also KBA order, Pet. 122 (“[T]he right to store water is
distinct from the right to use stored water . . . .”). The motion
asserts that the KBA order instead grants “KID and other
water right holders” the “secondary right to beneficially use”
the water stored by the Bureau. Pet. 66 (citing KBA order,
Pet. 121–22).
The motion further argues that KID’s “secondary water
rights to stored water in [Upper Klamath Lake] reservoir
cannot be ‘called’ or curtailed by any water rights—even
Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934(9th Cir. 2022) (KID II).
7
This citation, and others in the same form, refers to the ECF page
number in the upper right corner of KID’s mandamus petition and
attached exhibits, e.g., “(66 of 1311).”
8
I recount KID’s allegations in some detail because, as discussed below,
these allegations are highly relevant to whether it has asserted a
colorable claim that Reclamation water distributions violate the KBA
order.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 29
senior water rights—[downstream] in the Klamath River.”
Pet. 67 (emphasis in original and citing various Oregon
statutes and authorities). Indeed, the motion explains that
Reclamation admits that the KBA order bars the Bureau
from “releas[ing] water previously stored in priority and
otherwise required for beneficial use by Klamath Project
beneficiaries from Upper Klamath Lake for the specific
purposes of producing instream flows in the Klamath River
either in Oregon or California.” Pet. 64 (quoting Bureau of
Reclamation, Reassessment of U.S. Bureau of Reclamation
Klamath Project Operations to Facilitate Compliance with
Section 7(a)(2) of the Endangered Species Act, Jan. 2021,
Pet. 174).9 Nevertheless, the motion claims that the agency
is distributing “vast quantities of stored water” out of the
lake “to provide enhanced instream flows in the Klamath
River in California.” Id. at 67.
Anticipating defenses likely to be raised by Reclamation,
KID’s motion asserts that the Bureau’s trust obligations to
the Tribes “afford no water rights to use stored water in
[Upper Klamath Lake], as neither Tribe (nor Reclamation
on their behalf) has ever claimed a water right in [Upper
Klamath Lake] in the Klamath Adjudication.” Pet. 60
(emphasis added).10 Similarly, the motion argues that the
9
That same statement from Reclamation explains that the KBA order
“preclude[s] releases of water previously stored in priority in Upper
Klamath Lake for satisfying the Yurok and Hoopa Tribes’ federally
reserved water right.” Pet. 175 (emphasis added).
10
If Reclamation forfeited the Tribes’ rights by not filing a claim on their
behalf in the KBA, they would not lack a remedy for the government’s
breach of its trust obligations. See 28 U.S.C. § 1505 (Indian Tucker Act
providing for jurisdiction in the Court of Federal Claims for claims by
tribes against the United States); cf. Nevada v. United States, 463 U.S. at30 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
ESA does not override the agency’s Reclamation Act
obligation to comply with state law in distributing water
from Upper Klamath Lake. Pet. 77–80.11
Finally, KID’s motion includes declarations from several
of its farmer and rancher members, irrigators who depend on
the water of Upper Klamath Lake. One explains that
“[f]arming involves significant up-front costs with long
delays before the crops actually result in revenue.” Pet. 294.
All the declarants assert that they face the risk of bankruptcy
144 n.16 (“In this case, the Tribe, through the Government as their
representative, was given adequate notice and a full and fair opportunity
to be heard. If, in carrying out their role as representative, the
Government violated its obligations to the Tribe, then the Tribe’s remedy
is against the Government, not against third parties.”); see also id. at 145(Brennan, J., concurring) (“I join the Court’s opinion on the
understanding that it reaffirms that the Pyramid Lake Paiute Tribe has a
remedy against the United States for the breach of duty that the United
States has admitted.”).
11
The majority contends that “KID’s rights are subservient to the Tribes’
rights and Reclamation’s ESA responsibilities.” Opinion at 10 (citing
Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,
1213 (9th Cir. 1999)). But the administrative adjudication phase of the
KBA was then ongoing, prompting us to qualify our holding: The KBA
“will . . . decide[]” “questions of relative amounts and priorities, at least
within the State of Oregon . . . . Our decision in this case . . . relate[s]
only to questions involving the Bureau’s operation and management of
the [Klamath Basin] Project, and not to the relative rights of others not
before the court to the use of the waters of the Basin.” Patterson, 204
F.3d at 1214 n.3 (emphasis added). KID was not a party to Patterson,
and to what extent its rights under the KBA order are “subservient” to
the Tribes’ rights and Reclamation’s ESA responsibilities when the
Bureau failed to assert a claim on the Tribes’ behalf is precisely the
question raised by KID’s motion. In any event, even if KID were bound
by Patterson, it could not have asserted any claim in that action to
enforce the KBA order, which OWRD only first issued in 2013 (some
14 years after our ruling in Patterson).
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 31
or liquidating assets because of Reclamation-induced water
shortages. Pet. 86–100; Pet. 293–310. For example, one
states that “[w]ithout the water KID and I own rights to, I
cannot grow crops, and therefore cannot generate revenue to
pay debt and maintain the business.” Pet. 93. The effects
from “water shortages in a particular year can impact not
only year-to-year crops, but crops that require a longer-term
investment and commitment.” Pet. 294.
Citing the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1), the Bureau removed KID’s motion to the
district court. Reclamation’s removal notice admits that
KID’s motion seeks to bar the Bureau’s releases of water
from Upper Klamath Lake to the extent such releases
“conflict with state-based water rights determined in the
[KBA order].” Pet. 353 (emphasis added). The notice
expressly identifies two federal “defenses” to KID’s claims,
“senior federal reserved Tribal fishing and water rights” and
“sovereign immunity.” Pet. 354.
KID then moved to remand, arguing that the prior
exclusive jurisdiction doctrine applies here. Under that
doctrine, even if removal were otherwise proper,12 the
district court nevertheless lacked jurisdiction if KID’s
motion is in rem or quasi in rem, because the state court
proceeding is in rem. See Goncalves ex rel. Goncalves v.
Rady Child.’s Hosp. San Diego, 865 F.3d 1237, 1253 (9th
Cir. 2017) (“If both courts exercise either in rem or quasi in
rem jurisdiction, then the courts may be simultaneously
12
See State Eng’r of State of Nev. v. S. Fork Band of Te-Moak Tribe of
W. Shoshone Indians of Nev., 339 F.3d 804, 809 (9th Cir. 2003)
(“Section 1442 . . . merely allows the federal government to remove a
case to federal district court; it does not determine whether the court has
jurisdiction to hear it.”).
32 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
exercising jurisdiction over the same property, in which case
the prior exclusive jurisdiction doctrine applies and the
district court is precluded from exercising jurisdiction over
the res.”).
The district court denied the remand motion, reasoning
that “KID seeks to reach beyond the limited waiver of the
McCarran Amendment to litigate federal issues, most
notably Reclamation’s release of water to satisfy the
instream water rights of the Yurok and Hoopa Valley Tribes
and the co-extensive demands of the ESA.” Pet. 1263.
Because “KID’s motion for preliminary injunction does not
come within the McCarran Amendment’s waiver . . . the
KBA [does not] possess exclusive jurisdiction over the
claim.” Id. KID then filed its mandamus petition.
II
It’s undisputed that the Klamath County Circuit Court
has in rem jurisdiction over rights to the stored water (the
res) of Upper Klamath Lake in Oregon. It’s similarly
undisputed that the KBA order provisionally governs
Reclamation’s distributions from that res pending a final
adjudication by the state court. As described above, and as
the Bureau admitted in its notice of removal, see Pet. 353,
KID’s motion manifestly seeks to enforce that order.
This case is therefore much like State Engineer, where
we held that to determine whether a removed action
encroached upon prior exclusive jurisdiction of a state court,
a district court must “look behind the form of the action to
the gravamen of a complaint and the nature of the right sued
on.” 339 F.3d at 810 (cleaned up). As in State Engineer,
“[t]here can be no serious dispute that [KID’s motion] was
brought to enforce a decree”—the KBA order—“over a
res”—i.e., the rights to the stored waters of Upper Klamath
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 33
Lake. Id. at 811. “Given the zero-sum nature of the resource,
any party’s unlawful diversion of water from the [lake]
necessarily affects other users.” Id. Thus, the district court
cannot adjudicate KID’s and Reclamation’s “personal
claims to [the] property without disturbing the first court’s
jurisdiction over the res.” Id. While KID’s motion “is
brought only against the [Bureau] personally,” because “the
parties’ interests in the property”—the KBA order—“serve
as the basis [for] jurisdiction,” the motion “is quasi in rem,
and the doctrine of prior exclusive jurisdiction fully applies.”
Id. (cleaned up); see also Hanson v. Denckla, 357 U.S. 235,
246 n.12 (1958) (defining quasi in rem actions as including
those in which “the plaintiff [seeks] to secure a pre-existing
claim in the subject property and to extinguish or establish
the nonexistence of similar interests of particular
persons”);13 Penn Gen. Cas. Co. v. Pennsylvania ex rel.
Schnader, 294 U.S. 189, 195 (1935) (if “two suits are in rem
or quasi in rem, . . . the court first assuming jurisdiction over
13
In a quasi in rem action, “the basis of jurisdiction is the defendant’s
interest in property, real or personal, which is within the court’s power,
as distinguished from in rem jurisdiction in which the court exercises
power over the property itself, not simply the defendant’s interest
therein.” Black’s Law Dictionary 794 (6th ed. 1990). Applied here, the
basis of jurisdiction over KID’s quasi in rem motion is the KBA order,
which adjudicated the parties’ interests and over which the Klamath
County Circuit Court has continuing exclusive jurisdiction. See TPC,
482 P.3d at 129; cf. United States v. Alpine Land & Reservoir Co., 174
F.3d 1007, 1013, 1014 (9th Cir. 1999) (a federal district court had prior
exclusive jurisdiction “over the water rights in question when it
adjudicated the Alpine and Orr Ditch Decrees and . . . continued to retain
such jurisdiction,” and “to construe these Decrees so that the district
court does not retain exclusive jurisdiction would render the retention of
jurisdiction a nullity”).
34 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
the property may maintain and exercise that jurisdiction to
the exclusion of the other”).
The majority, however, offers in essence four reasons
why the prior exclusive jurisdiction doctrine does not apply
here. I consider each in turn.
A
Although not expressed as such, the majority implies that
the Klamath County Circuit Court lacks jurisdiction ab initio
insofar as Reclamation defends its water distributions based
on the reserved rights of the California-based Tribes.
Opinion at 16 (averring that a state may not “adjudicate
rights beyond its jurisdiction, which, at bottom, is what
KID’s motion for a preliminary injunction seeks to do”)
(citing Eagle County, 401 U.S. at 523, and Baley v. United
States, 942 F.3d 1312, 1341 (Fed. Cir. 2019)). Eagle County
observed that the term “river system” in the McCarran
Amendment “must be read as embracing one within the
particular State’s jurisdiction,” for “[n]o suit by any State
could possibly encompass all of the water rights” in an entire
interstate river system such as the Colorado River. 401 U.S.
at 523 (emphasis added).14
The Klamath County Circuit Court’s exercise of
jurisdiction over the Tribes’ claims is consistent with Eagle
County, however, because the water in question is inside
Oregon. As to “ ‘property within its limits,’ ” a state
“possess[es] the power to provide for the adjudication of
titles to [property] not only as against residents, but as
14
Citing this observation, in Baley the Federal Circuit simply asserted—
with no analysis to speak of—that the Klamath County Circuit Court
lacked the power to adjudicate the rights of the California-based Tribes
to water stored in Oregon. See 942 F.3d at 1341.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 35
against nonresidents, who might be brought into court by
publication.” Am. Land Co. v. Zeiss, 219 U.S. 47, 61 (1911)
(emphasis added) (quoting Arndt v. Griggs, 134 U.S. 316,
320 (1890)). Such an in rem “procedure established by the
state . . . is binding upon the federal courts.” Arndt, 134 U.S.
at 321. Oregon has established such a procedure for water
rights, and it specifically confers jurisdiction to “adjudicate
federal reserved rights.” ORS § 539.010(7).
That Oregon cannot subject the Tribes to in personam
jurisdiction is irrelevant because the KBA is in rem. See 4A
C. Wright & A. Miller, Federal Practice & Procedure
§ 1070 (4th ed. 2022 update) (“The fact that the court cannot
obtain jurisdiction over the person of all defendants or
claimants to the property is considered irrelevant to whether
in rem or quasi-in-rem jurisdiction is constitutionally
permissible.”); see also Tenn. Student Assistance Corp. v.
Hood, 541 U.S. 440, 453 (2004) (same); Arndt, 134 U.S. at320–21 (same). And because the KBA is in rem, as described
above, OWRD—after giving notice—exercised its authority
under state law to adjudicate the reserved rights of federal
properties in both Oregon and California in the KBA order.15
15
Invoking the party-presentation rule, see United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020), the majority contends that because
KID did not cite OWRD’s notice to federal users in California or the
Justice Department’s public acknowledgment that the KBA order
governs water rights of federal properties in California, we should ignore
those documents, Opinion at 16 n.5, even though they bear directly on
KID’s contention that the order adjudicated water rights, including
federal reserved rights, “as against the whole world,” Pet. 25 (quoting
Goncalves, 865 F.3d at 1254); see also Pet. Reply at 21 n.2 (arguing
“Reclamation’s suggestion that California tribes who did not participate
in the [KBA] may still claim water rights in [Upper Klamath Lake] is
36 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
That a state court’s exercise of in rem jurisdiction in the
context of water rights requires it to respect federal reserved
rights and other limits on its authority such as interstate
compacts does not mean that it lacks power in the first
instance to determine those constraints. The Supreme Court
has repeatedly emphasized that states have “plenary control”
over water within their borders, California v. United States,
438 U.S. at 657–58 (quoting Cal. Or. Power Co. v. Beaver
Portland Cement Co., 295 U.S. 142, 163–64 (1935)), even
as this “total authority” is subject to “the reserved rights or
navigation servitude of the United States,” id. at 662; cf.
Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990
P.2d 46, 54 n.12 (Colo. 1999) (“The availability of water
arising in Colorado for beneficial use in Colorado is limited
by the delivery requirements of the interstate compacts and
equitable apportionment decrees to which Colorado is a
party.”); Mississippi v. Tennessee, 142 S. Ct. 31, 41 (2021)
wrong” because an “in rem proceeding . . . determines rights in particular
property against the entire world”).
Post-Sineneng-Smith, however, we have recognized that “when an
issue or claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of
governing law.” Does v. Wasden, 982 F.3d 784, 793 (9th Cir. 2020)
(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
KID’s mandamus petition squarely raises the issue of whether the KBA
order is effective against the world, and just as we may consider cases
not cited by the parties bearing on that issue, we may also sua sponte take
judicial notice of relevant public records. See Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“[A] court may
take judicial notice of matters of public record . . . .”) (cleaned up); Where
Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 858 n.2 (9th
Cir. 2022) (sua sponte taking judicial notice). Thus, the majority sua
sponte takes judicial notice of a public document in an attempt to link
KID to the Klamath Water Users Association. Opinion at 9, 18 n.9.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 37
(“When a water resource is shared between several States,
each one has an interest which should be respected by the
other.”) (cleaned up).16
Not only does the Klamath County Circuit Court have
the power to adjudicate inter se the water rights of all
claimants to the waters of Upper Klamath Lake, but we also
lack the prerogative to opine on the state-law limits of that
court’s exercise of such authority. See San Carlos Apache
Tribe, 463 U.S. at 561 (stating that whether state courts have
jurisdiction over Indian water-rights issues “is a question . . .
over which the state courts have binding authority” and that
where, as here, a state court has taken jurisdiction, federal
courts “must assume, until informed otherwise, that—at
least insofar as state law is concerned—such jurisdiction
exists”). As far as we are concerned, the only relevant
question is “whether there is a federal bar to the assertion of
state jurisdiction” by the Klamath County Circuit Court. Id.The only such bar raised here by Reclamation is sovereign
immunity, discussed below.
B
According to the majority, the second reason the
Klamath County Circuit Court lacks prior exclusive
jurisdiction over KID’s motion is because “[t]he KBA
[order] did not adjudicate Reclamation’s ESA obligations or
the Tribes’ senior rights . . . .” Opinion at 13 (citing United
States v. Orr Water Ditch Co., 600 F.3d 1152, 1160–61 (9th
16
The Klamath River Basin Compact governs the equitable
apportionment of water between Oregon and California users in the
Klamath Basin. See ORS § 542.620. That compact, while otherwise
binding in the KBA, see id. Art. XII.A., expressly excludes reserved
federal rights, including tribal rights, from its scope. See id. Arts. X, XI.
38 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
Cir. 2010)). Along the same lines, the majority attempts to
distinguish State Engineer, contending that while the state
court there “had jurisdiction over the tribe’s rights because
the rights were governed by state law and subject to the
state’s general stream adjudication,” here the Klamath
County Circuit Court “did not have jurisdiction over the
Tribes’ rights implicated by KID’s motion because the
Tribes’ rights at issue were not governed by Oregon law and
were not subject to the KBA.” Id. at 14–15.
Whether the KBA order adjudicated the Bureau’s federal
defenses, however, is irrelevant because the prior exclusive
jurisdiction doctrine turns on “the nature of the right sued
on.” State Eng’r, 339 F.3d at 810 (emphasis added); cf.
Hanson, 357 U.S. at 246 n.12 (noting that in a quasi in rem
action “the plaintiff [seeks] to secure a pre-existing claim in
the subject property and to extinguish or establish the
nonexistence of similar interests of particular persons”)
(emphasis added). The KBA order is the source of KID’s
asserted water rights, and under state law the Klamath
County Circuit Court has prior exclusive jurisdiction to
enforce and interpret it. TPC, 482 P.3d at 129.
The majority’s reliance on Orr Water Ditch is therefore
misplaced. In that case, we held that the district court with
prior exclusive jurisdiction over a Nevada water-rights
decree lacked jurisdiction over an Indian tribe’s attempt to
enforce water rights based on “state law” rather than “the
Tribe’s rights under the [federal] decree.” 600 F.3d at 1160.
Here, by contrast, KID’s motion asserts rights under the
KBA order, over which the state court does have
jurisdiction, and prior exclusive jurisdiction to boot.
Moreover, whereas we had authority in Orr Water Ditch to
opine on the district court’s jurisdiction, we have no such
authority as to the Klamath County Circuit Court.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 39
C
The majority’s third reason for holding that the state
court lacks jurisdiction over KID’s motion is that
Reclamation did not “need” to assert any claim on behalf of
the Tribes in the KBA to avoid forfeiture because their rights
are “not governed by Oregon law” and “take precedence
over KID’s.” Opinion at 14–15, 16 n.5, 22. Similarly, the
majority contends that the Bureau’s ESA obligations
preempt the KBA order that KID seeks to enforce. Id. at 15
n.4.
In so holding, the majority errs by putting “the merits
cart before the jurisdictional horse.” Bean v. Matteucci, 986
F.3d 1128, 1137 (9th Cir. 2021) (Rawlinson, J., dissenting).
In United States v. Oregon, we held that “concerns” over
“federal reserve[d] water rights” “go to the merits.” 44 F.3d
at 770 (emphasis added). We explained that “in
administering water rights the State is compelled to respect
federal law regarding federal reserved rights and to the
extent it does not, its judgments are reviewable by the
Supreme Court.” Id. (citing Eagle County, 401 U.S. at 525–
26); see also Eagle County, 401 U.S. at 526 (“All . . .
questions” in state water rights adjudications “going to the
merits,” “including the volume and scope of particular
reserved rights, are federal questions which, if preserved,
can be reviewed here after final judgment by the [state]
court.”); Colo. River, 424 U.S. at 813 (same).17 Thus, the
17
The majority hints that Oregon courts might tolerate “years of
misdirection of the water” before the Supreme Court could step in.
Opinion at 19. But under Our Federalism, cf. Younger v. Harris, 401 U.S.
37, 44 (1971), “[s]tate courts are adequate forums for the vindication of
federal rights,” Burt v. Titlow, 571 U.S. 12, 19 (2013), for they, “as much
40 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
majority’s determination that Reclamation’s federal
defenses are meritorious18 is irrelevant to whether the state
court has jurisdiction to decide KID’s motion to enforce the
decree, including those defenses.19 As a matter of state law,
we must presume that “such jurisdiction exists.” San Carlos
Apache Tribe, 463 U.S. at 561.
D
Finally, the majority contends that the Klamath County
Circuit Court lacks prior exclusive jurisdiction as a matter of
federal law because the McCarran Amendment does not
apply to KID’s motion. Opinion at 14–15, 19. That statute
as federal courts, have a solemn obligation to follow federal law,” San
Carlos Apache Tribe, 463 U.S. at 571. In any event, “[a]ny state court
decision alleged to abridge Indian water rights protected by federal law
can expect to receive, if brought for review before this Court, a
particularized and exacting scrutiny commensurate with the powerful
federal interest in safeguarding those rights from state encroachment.”
Id.18
In the face of the majority’s blanket endorsement of Reclamation’s
defenses, the only thing left for the district court to do on remand is to
enter summary judgment for the Bureau—if it doesn’t first dismiss for
lack of jurisdiction if the Tribes intervene, as in KID I.
19
The majority’s charge that KID is guilty of forum shopping is similarly
irrelevant to the actual issue before us, as there is no “forum shopping
exception” to the prior exclusive jurisdiction doctrine. Insofar as the
majority applies preclusion by another name, see Opinion at 11, 20, and
21 (characterizing KID’s motion as an attempt to “re-litigate”
Reclamation’s federal defenses), it fails to explain—putting aside the
failure of the government to even raise that defense, cf. Sineneng-Smith,
140 S. Ct. at 1579—how the requirements of preclusion are satisfied
here. Finally, even if preclusion might otherwise operate as a merits bar
to KID’s motion to enforce the KBA order, that would still not deprive
the Klamath County Circuit Court of its prior exclusive jurisdiction to
adjudicate the merits, including any preclusion defense asserted by the
Bureau.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 41
waives federal sovereign immunity as to “any suit (1) for the
adjudication” or “(2) for the administration” “of rights to the
use of water of a river system or other source . . . .” 43 U.S.C.
§ 666(a).
To begin with, it is undisputed that the KBA order is an
“adjudication” of water rights as to Upper Klamath Lake
under the McCarran Amendment, as the order provisionally
determined “all of the rights of various owners on a given
stream,” Dugan v. Rank, 372 U.S. 609, 618 (1963) (quoting
S. Rep. No. 755, 82d Cong., 1st Sess. 9 (1951)), including
the relative rights of KID and the United States. We have
held that where, as here, “there has been such an adjudication
and a decree entered, then one or more persons who hold
adjudicated water rights can” sue to “administer” such rights
under the statute. S. Delta Water Agency v. United States,
767 F.2d 531, 541 (9th Cir. 1985) (quoting United States v.
Hennen, 300 F. Supp. 256, 263 (D. Nev. 1968)).
So the question is whether KID’s motion is a McCarran
Amendment “administration.” We have held that “[t]o
administer a decree is to execute it, to enforce its provisions,
to resolve conflicts as to its meaning, to construe and to
interpret its language.” Id. (quoting Hennen, 300 F. Supp. at
263). As detailed above, KID’s motion manifestly seeks to
enforce the KBA order, resolve conflicts as to its meaning,
and construe and interpret its provisions. Indeed,
Reclamation’s notice of removal expressly acknowledges
that KID’s motion alleges that the Bureau’s ongoing water
releases “conflict with state-based water rights determined
in the [KBA order],” Pet. 353 (emphasis added), and thereby
42 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
tacitly admits that KID’s motion is a McCarran Amendment
“administration.”20
For its part, the majority “reject[s]” what it portrays as
KID’s “characteriz[ation] [of] the relief it seeks as an
application of the [KBA order]” because that
characterization “circumvent[s] our prior decision [in KID
II], the Tribes’ rights, and the effect of the ESA.” Opinion at
19.21 In substance, my colleagues appear to conclude that
20
Because KID’s motion seeks to enforce the KBA order, the majority’s
assertion that KID’s motion is a mere “private suit[] to decide priorities
between the United States and particular claimants” (and thus outside the
McCarran Amendment), Opinion at 15 (quoting Metro. Water Dist. of S.
Cal. v. United States, 830 F.2d 139, 144 (9th Cir. 1983)), misses the
mark. In Metropolitan Water District, a water district brought an APA
action challenging the Interior Department’s enlargement of the
boundaries of an Indian reservation that resulted in the tribe’s assertion
of increased water rights in a then-ongoing water rights adjudication
between Arizona and California under the Supreme Court’s original
jurisdiction. 830 F.2d at 140–42. We held that the McCarran Amendment
was inapplicable because the water district’s APA action was not a
“general adjudication” to determine “the rights of all claimants on a
stream.” Id. at 144 (citing Dugan, 372 U.S. at 617–18). The KBA,
however, is indisputably such a general adjudication, and KID’s motion
seeks to enforce its rights under the order provisionally governing that
adjudication.
21
In KID II, we held that KID’s separate APA suit in the district court
challenging Reclamation’s water releases was not a McCarran
Amendment “administration” and thus was outside the scope of the
sovereign immunity waiver. 48 F.4th at 947. We expressly recognized,
however, that the KBA “was a McCarran Amendment case.” Id. at 946
(emphasis in original). KID II therefore does not control whether KID’s
motion—which seeks no relief under the APA and was originally filed
in the KBA—is an “administration” for purposes of the Amendment.
Tellingly, Reclamation does not argue that KID II is issue preclusive
here.
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 43
KID’s motion is not a McCarran Amendment
“administration” because Reclamation’s federal defenses are
meritorious.22
In so reasoning, the majority requires KID to “win [its]
case before [it] can” litigate its motion in state court.
Willingham v. Morgan, 395 U.S. 402, 407 (1969). But in
analogous contexts, the Supreme Court applies a simple test
that we should employ here: If the party invoking
jurisdiction asserts (as applicable) a colorable claim or
defense on the merits, that suffices for jurisdiction to attach,
even if the merits claim or defense ultimately fails. See, e.g.,
Bell, 327 U.S. at 682–83 (holding that an asserted federal
claim triggers federal question jurisdiction unless the claim
“clearly appears to be immaterial and made solely for the
purpose of obtaining jurisdiction or where such a claim is
wholly insubstantial and frivolous”); Jefferson County, Ala.
v. Acker, 527 U.S. 423, 431 (1999) (“To qualify for removal”
under the federal officer removal statute, a removing officer
need only “raise a colorable federal defense,” as the official
need not “win his case before he can have it removed.”)
(quoting Willingham, 395 U.S. at 407).
Thus, a valid defense does not oust a district court of
federal question jurisdiction if a complaint asserts a
colorable federal claim. See, e.g., S. New England Tel. Co.
v. Glob. NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010)
(“[W]hether a plaintiff has pled a jurisdiction-conferring
22
Insofar as the majority also implies that the McCarran Amendment
does not apply merely because Reclamation’s federal defenses are “not
governed by Oregon law,” Opinion at 14–15, that interpretation renders
the Amendment useless as such defenses by definition are never
“governed by state law,” id. at 14. The entire point of the statute is to
allow state courts “to determine federal reserved rights . . . .” Colo. River,
424 U.S. at 809.
44 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
claim is a wholly separate issue from whether the complaint
adequately states a legally cognizable claim for relief on the
merits.”); 13D Wright & Miller, Federal Practice &
Procedure: Jurisdiction § 3564 (3d ed. Apr. 2022 update)
(“Jurisdiction is not lost because the court ultimately
concludes that the federal claim is without merit.”).
Rather than asking whether KID’s motion can prevail
against the government’s ESA and reserved water rights
defenses as the majority does, we should ask—consistent
with the Supreme Court’s approach in other jurisdictional
contexts—whether KID’s motion asserts a colorable
McCarran Amendment administration claim. Just as
Reclamation’s assertion of “colorable” federal defenses in
its notice of removal permitted the Bureau to invoke the
federal officer removal statute here, Acker, 527 U.S. at 431,
I would correspondingly hold that KID’s assertion of a
colorable motion to enforce the KBA order is an
“administration” that implicates the Amendment’s waiver of
sovereign immunity—whether or not that motion states a
legally cognizable claim for relief on the merits.
Because “jurisdictional rules should be clear,” Lapides
v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621
(2002), we should adopt the easily administered, bright-line
test of Bell v. Hood for McCarran Amendment purposes.
Doing so would allow the Amendment to perform its
function of clearing the way for state courts to adjudicate the
merits of “collision[s]” between “private [water] rights and
[the] reserved rights of the United States” “in unified
proceedings” that avoid “piecemeal adjudication of water
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 45
rights in a river system.” Colo. River, 424 U.S. at 813(quoting Eagle County, 401 U.S. at 526).23
III
For the reasons explained above, the Klamath County
Circuit Court has prior exclusive jurisdiction to decide
KID’s motion. The district court therefore committed a clear
error of law in failing to remand that motion. See Chapman
v. Deutsche Bank Nat’l Tr. Co., 651 F.3d 1039, 1044 n.1 (9th
Cir. 2011) (stating that “if the [prior exclusive jurisdiction]
doctrine applies, it is legal error for a district court not to
remand, dismiss, or stay federal proceedings on account of
the state court’s prior exercise of jurisdiction”).
KID’s right to mandamus relief based on this error “is
clear and indisputable,” Cheney v. U.S. Dist. Ct. for Dist. of
Columbia, 542 U.S. 367, 381 (2004) (cleaned up), satisfying
a prerequisite for mandamus relief set forth by both the
Supreme Court and this Court. See id.; see also Bauman v.
U.S. Dist. Ct. for N. Dist. of Cal., 557 F.2d 650, 654–55 (9th
Cir. 1977) (outlining “five specific guidelines” governing
mandamus relief, the third of which is that the “district
23
Reclamation also argues (essentially in the alternative) that the
McCarran Amendment’s waiver does not extend to the Bureau’s
defenses to KID’s motion based on the reserved rights held in trust for
the out-of-state Tribes. Reclamation Response at 27–37. Reclamation
characterizes KID’s claims implicating those defenses as “interstate
disputes.” Id. at 27.
The McCarran Amendment, however, is facially indifferent to the
location or nature of federal interests with asserted “water rights” to an
in-state “river system or other source” subject to a comprehensive state
court adjudication. See 43 U.S.C. § 666(a). For that reason, the KBA
order adjudicated water rights in Upper Klamath Lake as to federal
properties in Oregon and California. See above notes 1, 15 and
accompanying text, and 16.
46 KLAMATH IRRIGATION DISTRICT V. USDC-ORM
court’s order is clearly erroneous as a matter of law”); In re
Walsh, 15 F.4th 1005, 1008 (9th Cir. 2021) (characterizing
the third Bauman factor, clear error as a matter of law, as “a
necessary condition for granting a writ of mandamus”)
(quoting In re Van Dusen, 654 F.3d 838, 841 (9th Cir.
2011)).
From that error, it also necessarily follows that KID has
“no other adequate means,” such as a direct appeal, to obtain
the relief it seeks. Cheney, 542 U.S. at 380; Bauman, 557
F.2d at 654 (identifying this factor as the first mandamus
consideration). Because the Klamath County Circuit Court
has prior exclusive jurisdiction, no other forum can provide
relief. Although an appeal in the ordinary course could
eventually provide relief, it would be inadequate, because in
the meantime KID’s irrigator members would suffer loss of
their water rights. See Pet. 86–100; Pet. 293–310. And apart
from the injuries identified by KID’s declarants described
above, loss of opportunities to use water rights by its nature
is akin to environmental injuries that we have characterized
as irreparable. All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011) (loss of opportunities to “view,
experience, and utilize” undisturbed areas of a national
forest was irreparable injury). KID’s petition thereby
satisfies Bauman’s second mandamus consideration: that
“[t]he petitioner will be damaged or prejudiced in a way not
correctable on appeal.” 557 F.2d at 654.
KID has therefore shown its entitlement to mandamus
relief under the first three factors of the Bauman balancing
test. See In re Williams-Sonoma, Inc., 947 F.3d 535, 538–40
(9th Cir. 2020) (granting writ of mandamus when first three
Bauman factors were satisfied but fourth and fifth factors
were not and explaining that “[t]he balance of the factors
weighs in favor of granting the writ of mandamus”); United
KLAMATH IRRIGATION DISTRICT V. USDC-ORM 47
States v. Tillman, 756 F.3d 1144, 1153 (9th Cir. 2014)
(same); Hernandez v. Tanninen, 604 F.3d 1095, 1101–02
(9th Cir. 2010) (same, and noting that district court order was
“particularly injurious” to petitioner’s interests); cf. Miller v.
Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc)
(finding third factor dispositive where first two factors
supported mandamus and last two did not).24
As “[n]ot every factor is needed for granting a writ of
mandamus,” Walsh, 15 F.4th at 1008, and “rarely if ever will
a case arise where all the guidelines point in the same
direction or even where each guideline is relevant or
applicable,” Hernandez, 604 F.3d at 1099, I would grant
KID’s petition based on its showing that the district court
clearly erred as a matter of law and that KID has no other
adequate remedy in view of the irreparable injury its irrigator
members will suffer from the delay occasioned by an appeal
in the ordinary course.
As the district court usurped the prior exclusive
jurisdiction of the Klamath County Circuit Court to resolve
all questions regarding the scope of the KBA order that KID
seeks to enforce, including whether Reclamation forfeited
the reserved rights of the Tribes by not asserting a claim on
their behalf and whether the ESA preempts that order, this is
a textbook case warranting mandamus relief. Cf. Cheney,
542 U.S. at 380 (mandamus is reserved for “exceptional
circumstances amounting to a judicial usurpation of power”)
(cleaned up). I therefore respectfully dissent from the denial
of the writ.
24
The last two Bauman factors are “(4) [t]he district court’s order is an
oft-repeated error, or manifests a persistent disregard of the federal
rules”; and “(5) [t]he district court’s order raises new and important
problems, or issues of law of first impression.” 557 F.2d at 655.