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’