Pacific Coast Federation of Fishermen's Associations v. United States Bureau of Reclamation

MEMORANDUM **

The Klamath Water Users Association (“KWUA”) appeals the district court’s order enjoining the U.S. Bureau of Reclamation (“BOR”) from making irrigation diversions from the Klamath Reclamation Project (“Klamath Project” or “Project”) under the 2002 Biological Opinion. The district court, acting pursuant to our previous decision in Pacific Coast Federation of Fishermen’s Associations v. United States Bureau of Reclamation, 426 F.3d 1082 (9th Cir.2005) (“PCFFA III”), ordered an injunction to remain in place until a new biological opinion consistent with the provisions of the Endangered Species Act (“ESA”) has been produced. We affirm the district court’s order.

The KWUA raises two issues on appeal. 1 First, the KWUA argues that the government’s supplemental analysis eliminated the legal basis for enjoining the government from executing the Klamath Project. In PCFFA III we found unlawful the first two phases of the three-phase, ten-year flow plan issued by the NMFS. Upon remand to the district court, the NMFS released a “supplement” to the invalidated plan in hopes of avoiding a permanent injunction. Notably, however, the supplement made no changes to the flow plan for…