Post No. 2 established the specific litigation architecture that governs this basin — the forums, the instruments, and why the administrative record is the only battlefield that matters by the time any of this reaches a judge.

This post shows how the weapon operates inside a specific federal regulatory process, the Endangered Species Act. It is a step-by-step account of a legal procedure that has a correct sequence, what that sequence is designed to protect, and exactly how it is being subverted in the Klamath Basin. No legal training is required to follow this post. The mechanism is not complicated. It is just hidden.

I. What the Law Actually Requires: Section 7 Has Two Duties, Not One

Most people who have heard of the Endangered Species Act in the context of Klamath water know about one requirement: federal agencies cannot jeopardize listed species. That requirement is real. It is also only half of the statute.

Section 7 of the ESA imposes two separate and legally distinct obligations on federal agencies like the Bureau of Reclamation. They are written in consecutive subsections of the same statute. They have different verbs. They require different things. And in the Klamath Basin, only one of them has been enforced.

Section 7(a)(1) — The Duty to Actively Conserve

The first obligation is found at 16 U.S.C. § 1536(a)(1).¹ The statute states:

“All Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title.”

Read that precisely. It does not say “avoid harming species.” It says utilize their authorities to carry out programs for conservation. The verb is shall. Congress chose that word deliberately, after rejecting every qualifying phrase — “to the extent practicable,” “consistent with their primary mission” — that earlier drafts had included. When Congress passed the ESA in 1973, it deliberately stripped out all the escape clauses. The duty is absolute.

The U.S. Supreme Court confirmed this in TVA v. Hill, describing Section 7(a)(1)’s language as “stringent” and “mandatory” and characterizing it as “an explicit Congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.”⁵

Section 7(a)(1) is not a consultation trigger. It has no trigger at all. It begins the moment a species is listed and does not stop until that species is delisted. It requires action continuously, at all times, independent of any proposed project or pending BiOp cycle. The Secretary of the Interior — who holds supervisory authority over both Reclamation and USFWS — carries a parallel obligation to assist agencies in developing and implementing those conservation programs.²

Section 7(a)(2) — The Duty Not to Jeopardize

The second obligation, at 16 U.S.C. § 1536(a)(2),³ is the one most people know: federal agencies must ensure their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat. This is the requirement that triggers formal consultation, Biological Opinions, and the rest of the procedural machinery described in Sections II through IV of this post.

Section 7(a)(2) is a floor — a minimum standard. It says: whatever you do, do not push listed species closer to extinction. Section 7(a)(1) is the mandate above that floor: beyond not causing harm, actively pursue recovery.

The two duties are not alternatives. Both are mandatory. Both use shall. The Department of Interior’s own Office of the Solicitor confirmed in its February 2024 legal memorandum to the Director of USFWS that compliance with Section 7(a)(2) is explicitly not equivalent to compliance with Section 7(a)(1).⁴ An agency that passes its BiOp review has met the floor. It has not met the ceiling.

The Boundary That Cannot Be Crossed: What “Utilize Their Authorities” Means — and What It Does Not

Section 7(a)(1) directs each agency to utilize its own authorities. It does not grant new powers. It does not authorize agencies to act beyond their enabling legislation. The D.C. Circuit established this in Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC:⁶ an agency’s 7(a)(1) obligation is to use the authority it already has — no more, no less.

This boundary is critical for understanding what Reclamation can and cannot do in the Klamath Basin.

The Klamath Project was authorized under the Reclamation Act of 1902⁷ and formally established by the Secretary of the Interior in 1905. Its sole authorized purpose is the delivery of irrigation water to agricultural lands in the Klamath and Lost River Basins of Oregon and California.

That project authorization defines the outer boundary of Reclamation’s legal authority. Reclamation is an irrigation delivery agency in the Klamath Basin. It is not a habitat restoration agency. It is not a water quality regulator. It is not a forest watershed manager. It is not a hatchery operator. It is not a wildlife refuge manager. It cannot spend appropriated funds on programs that fall under the jurisdiction of other federal agencies. It cannot implement fish passage measures that belong to the Army Corps or USFWS. It cannot direct the Forest Service to manage upland watersheds. It cannot acquire water rights for in-stream flows absent specific congressional authorization.

When a Section 7(a)(2) BiOp’s Reasonable and Prudent Alternative requires Reclamation to implement conservation measures that fall outside its project authorization — measures that belong to USFWS, the Forest Service, or EPA — that RPA is legally defective. The Services can only require Reclamation to exercise its existing discretionary authorities differently. They cannot use a BiOp to assign Reclamation obligations it has no statutory power to perform.⁸

The practical implication is direct: Reclamation’s contribution to any Section 7(a)(1) conservation program is necessarily narrow, because its project authorization is narrow. The heavy lifting of species conservation in the Klamath Basin — habitat restoration, water quality improvement, watershed management, refuge operations — belongs to the agencies with authority over those resources. Those agencies have been required by law to do that work since the day each species was listed.

The Federal Agency Landscape: Who Holds What Authority, and What 7(a)(1) Requires of Each

Six federal agencies hold substantial operational authorities in the Klamath Basin. Each carries an independent, non-discretionary, species-specific Section 7(a)(1) obligation. Lost River and shortnose suckers were listed in July 1988. SONCC coho salmon were listed in 1997. Those listing dates are the triggering dates. Every agency below has been under a continuous 7(a)(1) obligation for between 29 and 38 years.

U.S. Fish and Wildlife Service

USFWS manages approximately 200,000 acres across six National Wildlife Refuges in the Klamath Basin: Lower Klamath, Tule Lake, Upper Klamath, Clear Lake, Bear Valley, and Klamath Marsh NWRs. These refuges encompass critical wetland and shallow lake habitat directly relevant to Lost River and shortnose sucker recovery — the same species for which USFWS is the lead biological review agency in the Section 7(a)(2) consultation process.

USFWS holds independent water rights associated with refuge operations. It has authority to manage water delivery to refuge wetlands, restore emergent vegetation, and improve spawning and rearing habitat for suckers using its own operational budget and land management authorities. It has had recovery plans for these species since the 1990s.

The Solicitor’s Memo is unambiguous that incidental benefits from programs designed for other purposes do not satisfy 7(a)(1). The programs must be species-specific and **meaningful.**⁹ A refuge management program that happens to benefit suckers as a byproduct of general wetland management does not meet the standard. A documented, funded, implemented program specifically designed to advance sucker recovery using refuge authorities does.

The administrative record of what USFWS has done under 7(a)(1) using its refuge operational authorities — specifically, for Lost River and shortnose suckers — as a documented programmatic instrument is not publicly established.

U.S. Forest Service

The Klamath and Fremont-Winema National Forests encompass the majority of the upper watershed — the headwater systems that feed Scott, Shasta, Salmon, and other tributaries critical to SONCC coho spawning and rearing. Forest management decisions on those lands — road construction and maintenance practices, riparian buffer standards, timber harvest prescriptions, livestock grazing terms — directly determine sediment loads, water temperature, and low-flow conditions in coho habitat.

The Forest Service has authority under the National Forest Management Act and the Organic Administration Act to manage these lands in ways that materially benefit listed species. An implemented, species-specific upper-watershed management program — reducing road-related sedimentation, enforcing riparian buffers, restoring stream channel conditions — would produce measurable coho habitat improvements that no Reclamation operational change could replicate, because Reclamation’s operations do not reach those tributaries.

A formal, documented Section 7(a)(1) conservation program for SONCC coho, implemented through Forest Service land management authorities in the Klamath and Fremont-Winema National Forests, coordinated with NMFS recovery objectives, has not been publicly established as an instrument in the administrative record.

Environmental Protection Agency

The Klamath River has carried Clean Water Act Section 303(d) impaired waters designation for temperature, dissolved oxygen, and nutrient loading. Toxic algal blooms — the microcystin events that previously exceeded public health limits in 58 percent of lower-river samples below Iron Gate — were driven in part by nutrient loading from multiple sources throughout the watershed. EPA holds authority under the Clean Water Act to establish Total Maximum Daily Loads (TMDLs) — binding, enforceable numerical limits on pollutant loads — and to require state water quality programs to implement them.

Temperature and nutrient TMDLs for the Klamath, if established and enforced, would directly benefit coho and sucker recovery independent of any change in Reclamation’s water delivery operations. EPA’s 7(a)(1) obligation requires it to use its Clean Water Act authorities affirmatively for listed species benefit. A final, enforceable Klamath temperature TMDL has not been implemented as an instrument of species recovery.

Bureau of Indian Affairs

BIA holds trust responsibilities to the Klamath Tribes (Klamath, Modoc, Yahooskin Band of Snake), the Yurok Tribe, the Karuk Tribe, and the Hoopa Valley Tribe. Tribal water rights, tribal hatchery programs, and tribal natural resources management directly affect basin hydrology and salmon populations. BIA’s 7(a)(1) obligation includes supporting tribal conservation programs through its trust management and technical assistance authorities.

U.S. Army Corps of Engineers

The Corps holds Clean Water Act Section 404 jurisdiction over dredge-and-fill activities in waters of the United States throughout the Klamath Basin. Wetland restoration, riparian buffer establishment, side-channel reconnection, and habitat enhancement projects that involve earthwork in jurisdictional waters require Corps authorization. The terms and conditions the Corps attaches to Section 404 permits — and the mitigation requirements it imposes — directly shape the pace and scope of habitat restoration in the basin. Under its own Section 7(a)(1) obligation, the Corps must orient its permitting and project-authorization authorities toward listed species recovery. A coordinated programmatic approach to Section 404 permitting in the Klamath Basin — one that actively facilitates restoration projects with recovery value — has not been established as a documented instrument.

Bureau of Reclamation

Reclamation’s 7(a)(1) obligations are the most constrained of any federal agency operating in the Klamath Basin, for the reason stated above: its project authorization is limited to irrigation water delivery. Within its operational discretion — timing of releases, storage management choices within permitted ranges, coordination with downstream operators, data collection and reporting — Reclamation can make choices that benefit or harm listed species. Those choices are real. They are also bounded by the project authorization. Reclamation’s 7(a)(1) contribution to basin-wide species recovery is structurally limited to what an irrigation delivery agency can do within its irrigation delivery authority.

The February 2024 Solicitor’s Memorandum: Interior’s Own Lawyers Confirm What Has Been Missing

On February 6, 2024, the Department of the Interior’s Office of the Solicitor issued a formal legal memorandum to Martha Williams, then-Director of USFWS, examining the scope of federal agencies’ obligations under Section 7(a)(1).⁴ The memo was prepared by Deputy Solicitor Sarah Krakoff and Attorney-Advisor Shawn Finley. It is formal legal guidance — the Department’s own authoritative legal interpretation of what the statute requires.

The memo’s conclusions, applied to the Klamath Basin, are unsparing.

The duty is non-discretionary. Agencies have discretion about how to design their conservation programs. They have no discretion about whether to have them. The Solicitor’s Memo states directly: “agencies’ core obligation to comply with ESA Section 7(a)(1) is not discretionary.”

The duty is species-specific. General conservation postures do not satisfy it. Incidental benefits from programs designed for other purposes do not satisfy it. Sierra Club v. Glickman — cited in the memo — rejected exactly that argument when USDA tried to claim that national farm programs incidentally benefited aquifer-dependent species. The court held that Section 7(a)(1) “requires species-specific measures developed in consultation with FWS.”¹¹ Each agency in the Klamath Basin must have a documented program for each listed species for which it holds relevant operational authority.

Programs must be meaningful. The Eleventh Circuit’s holding in Florida Key Deer v. Paulison — also cited — established that a program so insignificant as to have only incidental effects on species conservation amounts to inaction and violates 7(a)(1).⁹

The authority ceiling is fixed. The memo reiterates Platte River Whooping Crane: 7(a)(1) does not expand any agency’s statutory powers. Each agency works within its enabling act. For Reclamation in the Klamath Basin, that means the Reclamation Act of 1902 and the 1905 Project authorization. Irrigation delivery. Nothing beyond it.

The memo’s closing conclusion is the most consequential sentence in the document for Klamath Basin water users:

*”Robust Section 7(a)(1) programs therefore have the potential to streamline or, in highly successful cases, eliminate the need for consultation under Section 7(a)(2).”*¹⁰

Read that again. The Department of Interior’s own lawyers stated in writing, in February 2024, that if the agencies with actual conservation authority had built and implemented robust 7(a)(1) programs, the species recovery trajectory could have advanced to the point where Reclamation’s Section 7(a)(2) consultation burden is reduced or eliminated entirely.

Lost River and shortnose suckers have been listed since 1988. Coho since 1997. The agencies with the actual conservation tools — refuge management, forest watershed authority, water quality enforcement — have had non-discretionary obligations to build those programs for 29 to 38 years. They have not built them in documented, programmatic form. The Solicitor’s Memo, issued to USFWS Director Williams in February 2024, acknowledges the gap directly: it describes Section 7(a)(1) as having “the greatest unrealized potential to achieve the ESA’s conservation goals” and the provision as a “sleeping giant.”¹⁰

More than two years after that memo was issued, no formal inter-agency Section 7(a)(1) conservation framework for the Klamath Basin appears in the public administrative record.

The Cost-Shifting Structure: How 7(a)(1) Failures Load the 7(a)(2) Burden onto Irrigators

The consequence of 37 years of unmet 7(a)(1) obligations by the agencies with actual conservation authority is not abstract. It is structural.

Because USFWS has not implemented meaningful sucker recovery programs through its refuge authorities, because the Forest Service has not implemented species-specific coho watershed programs through its land management authorities, and because EPA has not implemented enforceable water quality standards through its Clean Water Act authorities — the species recovery that those programs would have advanced has not occurred. The listed species remain listed. The 7(a)(2) consultation cycle continues. And the entire visible regulatory burden of that continuing cycle falls on the one federal actor whose project authorization is most limited: Reclamation, and through Reclamation, onto the water users it serves.

The agencies with the broadest conservation tools face no parallel public accountability for their 7(a)(1) obligations. The agency with the narrowest conservation authority and the most concrete private-party obligations bears the entire weight of the regulatory structure.

That asymmetry is not an accident of administration. It is the operational structure of the lawfare documented in this archive. By concentrating all ESA compliance accountability in the Section 7(a)(2) consultation cycle — where the record can be pre-negotiated, as Section IV of this post will show — and by leaving the 7(a)(1) obligations of other agencies entirely unaccounted for, the system achieves a precise result: the appearance of ESA compliance, the imposition of real economic cost on irrigators, and the insulation of the agencies with the most powerful recovery tools from any accountability for using them.

An irrigator whose water is cut under a BiOp RPA cannot point to decades of unmet Forest Service 7(a)(1) obligations and demand accountability before Reclamation’s operations are further constrained. That argument belongs in a proceeding that has never been opened. The current regulatory structure ensures it never is.

The Documented Financial Record: What Reclamation Has Actually Spent — and What It Has No Authority to Spend

The cost-shifting described above is not theoretical. It is documented in Reclamation’s own accounts, and the documentation reveals a compounding legal problem that has gone unresolved for more than three decades.

The scope of the spending. According to a memorandum prepared by Klamath Water Users Association Director of Water Policy Moss Driscoll on August 30, 2024, Reclamation’s unresolved ESA expenditures charged against the Klamath Project accounts exceed $100 million — more than five times the original cost to build the Project.²⁶ The spending encompasses not just compliance infrastructure like the A Canal fish screen headworks ($17.7 million, completed 2003) and the Link River Dam fish ladder (completed 2004, with the Driscoll Memorandum documenting a combined cost for both structures of over $21 million), but tens of millions in biological studies and investigations, private land acquisitions, grants to tribal governments, interagency agreements funding staff and offices at USFWS, NMFS, and USGS, and — in at least one documented instance — consulting fees channeled through the Bureau of Indian Affairs to the Department of Justice for tribal water rights litigation adversarial to the Project.²⁶ The annual ESA compliance budget for the Project grew every year for four consecutive years, from $13.3 million in fiscal year 2021 to $28.6 million in fiscal year 2024.

The absence of legal authority. The Reclamation Act of 1902 establishes the default rule: all costs in connection with a federal reclamation project are reimbursable unless Congress expressly provides otherwise.⁷ Congress has not enacted any law expressly authorizing the categories of ESA activities Reclamation has funded through Klamath Project appropriations, nor authorizing those expenditures to be nonreimbursable. The Driscoll Memorandum concludes directly: “No federal law expressly authorizes the kinds of activities that Reclamation has undertaken in connection with the Project, let alone for them to be nonreimbursable.”²⁶

The 1998 regional committee decision. The designation of these costs as nonreimbursable was made not by Congress but by an internal Reclamation regional committee in 1998, which reclassified over $10 million in past-incurred ESA costs as “non-project” costs on the basis that they benefited the entire Klamath Basin. The committee’s decision altered two project accounts — one for suckers, one for salmon — striking out the word “reimbursable” and replacing it with “nonreimbursable.” That decision has never been reviewed, challenged, or legislatively ratified. Hundreds of millions of dollars have been charged to those two accounts in the 26 years since.²⁶

The collapsed accounting record. Reclamation is required by its own manual to prepare an annual Statement of Project Construction Costs and Repayment (SPCCR) for every major federal reclamation project. The last complete, accurate SPCCR for the Klamath Project was issued in 1988 — the same year the first species listing triggered ESA obligations. The 1994 SPCCR was marked “INCORRECT” in writing across the front by Reclamation staff. A draft was prepared in 2001 but never signed. Attempts in 2010 and 2014 to produce a corrected document were abandoned. No SPCCR for the Klamath Project has been finalized or publicly released in this century.²⁶

The significance for Section 7(a)(1). The Driscoll Memorandum identifies the Agency Lake Ranch purchase — a $5.3 million acquisition of 7,300 acres adjacent to Upper Klamath Lake in 1998 — as the only documented instance in the entire history of Klamath Project operations where Section 7(a)(1) of the ESA was formally cited as the authority for Reclamation’s actions on behalf of listed species.²⁶ Every other expenditure described above — the studies, the monitoring programs, the tribal grants, the interagency agreements, the restoration projects — proceeded without a governing Section 7(a)(1) framework. They were funded through the 7(a)(2) consultation cycle’s BiOp requirements, or through informal agency practice, with costs charged to Project accounts and no congressional authorization on record.

What this means in plain terms. Reclamation has spent well over $100 million of Klamath Project irrigation appropriations on activities that its own project authorization does not permit, under a cost classification made by a regional committee without congressional authority, against an accounting record that has not been completed in over 30 years, with no documented Section 7(a)(1) programmatic framework governing how any of it advances species recovery. The money has been spent. The mandatory legal structure that would give it accountability, transparency, and measurable conservation objectives has never been built.

The January 2026 memorandum from KWUA Counsel Paul Simmons to Executive Director Elizabeth Nielsen confirms that Reclamation has recently raised the possibility that some of these ESA expenditures may be reimbursable by Project water users — a position for which, as the Driscoll Memorandum establishes, there is no legal foundation.²⁷ Meanwhile, KWUA has separately compiled a basin-wide accounting of federal, farmer, and ratepayer expenditures on Klamath ESA programs. The Klamath Irrigation District’s October 2024 letter to Congressman Bentz, with its attached table of Klamath projects since 1988, identifies more than 98 discrete line items with documented taxpayer costs totaling in excess of $614 million across a period the document acknowledges is substantially incomplete — with dozens of additional line items, including all ongoing USGS, USFWS, NMFS, and NOAA species monitoring programs, USDA programs, and multiple dam removal projects, listed as costs unknown. The cover letter’s own stated summary is $560 million in American taxpayer expenditures, with the difference from the independently tallied $614 million attributable to the document’s notation that $162 million in BIL funds is duplicative of individually listed projects. Additional losses to Klamath farmers are characterized as exceeding $1.06 billion.²⁸

Taken together, these documents establish a financial record that is inseparable from the procedural inversion described in Section IV of this post. An agency that has spent more than five times its original project construction budget on ESA activities without congressional authorization, whose accounting records are 30 years out of date, and that has never implemented the Section 7(a)(1) programmatic framework the law requires, is an agency that has every institutional incentive to pre-negotiate its 7(a)(2) Proposed Action rather than submit an honest one. A clean administrative record — of the kind Section VI of this post describes — would require a complete accounting of both.

II. The Section 7(a)(2) Consultation Process in Plain Terms

When a federal agency plans to do something — deliver water, build a dam, manage a federal project — and that action might affect a listed species, the ESA requires a formal review process called Section 7 Consultation.

The consultation process has one fundamental design principle: the agency that runs the project decides what it is going to do first, independently, and then a separate biological agency evaluates whether that plan will harm listed species.

That order matters. The project agency is not supposed to ask the biological agency what they want it to do. The project agency is not supposed to negotiate with environmental groups about what to propose. The project agency is supposed to look at its legal obligations — what it is required to do by contract, by statute, by water rights law — write that down honestly and completely, and hand that document to the biological reviewers so they can evaluate it.

The document that describes what the project agency is going to do is called the Proposed Action (PA). The evaluation the biological agency produces in response is called a Biological Opinion (BiOp).¹²

In the Klamath Basin, the project agency is the Bureau of Reclamation. Its legal obligations are straightforward: deliver irrigation water to farmers under long-term federal water contracts, and manage Project infrastructure for flood control. Those are not optional activities. They are legal commitments the federal government made decades ago, and they are what Reclamation is required to describe in its Proposed Action before consultation begins.

The two biological review agencies are NMFS (National Marine Fisheries Service) and USFWS. They review what Reclamation proposes and decide whether it jeopardizes listed species.

That is the legal design. Action agency goes first. Biological agencies go second. They do not collaborate on the script before the play begins.

III. The Correct Sequence, Step by Step

The ESA Section 7 Consultation Handbook¹³ and the governing regulation at 50 CFR § 402.14¹² establish four mandatory steps.

Step 1 — Reclamation Writes an Honest Proposed Action

Before Reclamation can write the Proposed Action, it must do something the public rarely hears about: it must formally sort its own operations into two legally distinct categories. This sorting step is not optional. It is required by 50 CFR § 402.03 and the ESA Section 7 Consultation Handbook, and it determines the entire scope of what gets evaluated.

The two categories are discretionary actions and non-discretionary actions. The distinction controls everything that follows.

Non-Discretionary Actions — The Environmental Baseline

A non-discretionary action is something Reclamation is legally required to do regardless of any ESA consultation outcome. The agency has no authority to modify, reduce, or withhold a non-discretionary action to avoid harming a listed species. The law requires it. Full stop.

For the Klamath Project, the delivery of contracted irrigation water is non-discretionary. Reclamation holds long-term water-service and repayment contracts with Project irrigation districts. Those contracts are legal obligations. Reclamation does not have the authority to unilaterally reduce contracted deliveries because a biological agency finds it inconvenient. The obligation exists independent of the ESA.

Flood control operations mandated by Reclamation’s statutory authority over Project infrastructure are similarly non-discretionary.

Under the regulations and the Consultation Handbook, non-discretionary actions are not part of the Proposed Action. They are part of the environmental baseline — the existing condition of the world against which the Proposed Action is evaluated.¹⁴ They are described in the Biological Assessment so the Services understand the operating context, but they cannot be modified by a Biological Opinion’s Reasonable and Prudent Alternative. An RPA cannot instruct Reclamation to stop doing something it has no legal authority to stop doing.

This is a critical legal protection for water users. If contracted water delivery is correctly classified as non-discretionary and placed in the environmental baseline, the Services cannot use an RPA to cut it. Their authority to impose mitigation through the RPA process is limited to the agency’s discretionary actions — the things Reclamation actually has the legal freedom to change.

Discretionary Actions — The Proposed Action

A discretionary action is something Reclamation has genuine operational flexibility over — a choice within a range of legally permissible options. How it times certain releases. How it manages lake elevations within a permitted band. Operational decisions where the law leaves room for judgment.

Only discretionary actions belong in the Proposed Action. Only discretionary actions can be evaluated for jeopardy. Only discretionary actions can be modified by an RPA.

The Proposed Action is, therefore, a description of how Reclamation intends to exercise its discretionary operational authority — not a description of everything Reclamation does. The non-discretionary core — water delivery under contract — is the baseline. The discretionary operational choices — how Reclamation manages the system around that core — are what get evaluated.

Why this must be done without input from the biological agencies or outside groups: Because the classification of actions as discretionary or non-discretionary is itself a legal determination that belongs to Reclamation, based on its own statutory authority and contractual obligations. If outside parties are allowed to influence how Reclamation sorts its actions before the formal process begins, they can reclassify non-discretionary water delivery as a discretionary operational choice — and suddenly the contracted water supply becomes negotiable through the RPA process. The baseline gets converted into a bargaining chip.

That conversion is the foundation of the procedural inversion described in Section IV. It begins not with a bad BiOp, but with a corrupted Step 1 sorting exercise — one in which Reclamation’s non-discretionary obligation to deliver contracted water is quietly folded into the Proposed Action as though it were an operational choice subject to modification. Once that reclassification occurs, everything downstream is compromised.

The correct Proposed Action for the Klamath Project describes Reclamation’s discretionary operational choices — how it will manage the system — against a baseline that includes full contracted water delivery as a given. The biological analysis then evaluates whether those discretionary choices jeopardize listed species. The non-discretionary delivery obligation is not on the table. It never was.

Step 2 — Reclamation Officially Submits the Consultation Package

Once the Proposed Action is written, Reclamation formally initiates consultation by submitting a complete package to NMFS and USFWS under 50 CFR § 402.14(c).¹⁵ The package includes the PA, supporting technical data, a description of the affected area, and a description of which listed species may be affected.

When NMFS and USFWS receive the complete package, a 135-day clock starts running.¹⁶ During those 135 days, the biological agencies do their analysis. Reclamation waits.

The agencies are now in separate lanes. Reclamation has submitted its plan. The biological agencies evaluate it independently.

Step 3 — The Biological Agencies Evaluate the Plan and Issue a Finding

NMFS and USFWS study the Proposed Action. They look at the science: what water flows are proposed, what species are present, what the habitat looks like, what the best available biological data shows about harm thresholds.

Then they issue the Biological Opinion.¹⁷

The BiOp has one of two possible conclusions:

No Jeopardy — The proposed action, as submitted, will not push listed species toward extinction. Reclamation can proceed. For irrigation districts, a No-Jeopardy finding on a full-delivery Proposed Action is extremely valuable: it establishes on the official record that delivering full contracted water under current river conditions does not harm listed species. That finding is durable and defensible in court.

Jeopardy — The proposed action, as submitted, will push listed species toward extinction. Reclamation cannot proceed with that plan as written. But the process does not stop there. A Jeopardy finding automatically triggers the next step.

Both findings are useful. Both findings are honest. The process is designed to produce truth, not to produce a predetermined answer.

Step 4 — If Jeopardy Is Found, the Solution Phase Opens

A Jeopardy finding is not a dead end. It is an opening.

Under Section 7 of the ESA and 50 CFR § 402.14(i), once a Jeopardy BiOp is issued, the law requires the biological agencies to propose a Reasonable and Prudent Alternative (RPA) — a modified plan that (a) still accomplishes the core purpose of the project, (b) stays within the legal authority of the agencies involved, (c) is technically and economically feasible, and (d) avoids the jeopardy problem.

This is where irrigation districts enter the process with legal standing as formal applicants — not as commenters, not as stakeholders sitting in the back of the room, but as parties with a recognized seat at the table and the right to propose solutions.¹⁸

In the Klamath context, Step 4 is where a district could formally propose a “Flow-Through” operational model — a structured framework specifying exactly how much water passes through to the river to protect biological conditions at each point in the irrigation season, with the remainder delivered to farmers under their contracts. If accepted as an RPA, that agreement is enforceable, durable, and protects all parties from future ESA liability.

It is also where districts could elect a longer-term instrument: a Section 10 Habitat Conservation Plan (HCP).¹⁹ An HCP is a negotiated, legally binding agreement between the districts and the federal government, specifying mitigation measures in exchange for an Incidental Take Permit for the life of the plan — potentially 20, 30, or 50 years. Under the “No Surprises” rule, once an HCP is approved, the government cannot come back and impose additional restrictions beyond what the plan specifies.

Step 4 is the district’s statutory moment. But it only opens if Step 3 produces an honest finding. And Step 3 can only produce an honest finding if Step 1 submitted an honest Proposed Action. The entire sequence depends on Step 1 being done correctly and independently.

IV. What Is Actually Happening — Procedural Inversion, Explained

Now that the correct sequence is clear, here is what procedural inversion means in plain language.

Reclamation is writing the Proposed Action together with the agencies and stakeholders who are supposed to evaluate it — before the formal process begins. The fix is in before the clock starts.

Before Reclamation ever formally initiates consultation, agency officials and their counterparts at NMFS, USFWS, state water agencies, tribal governments, and allied environmental organizations are in contact — through meetings, working groups, informal correspondence, and coordination calls. The subject of those conversations is not administrative housekeeping. The subject is: what will the Proposed Action say?

Specifically: What flow levels will it commit to? What curtailment triggers will it include? What Upper Klamath Lake elevation thresholds will it build in? What drought-tier restrictions will be written into the operating rules?

These are not incidental details. They are the operational constraints that determine how much water reaches farms, and when, and under what conditions deliveries can be cut off.

By the time Reclamation formally sits down to write the Biological Assessment, those questions have already been answered — informally, off the record, in rooms and calls that do not appear in the consultation file.

The document Reclamation then submits — presented as its independent determination of what it is legally obligated to do — is not that. It is a pre-agreed product dressed up as an independent agency determination.

The 2024 Biological Assessment and the resulting 2024 BiOp are the documentary evidence of this pattern.

The Proposed Action that Reclamation submitted in its June 2024 Biological Assessment²⁰ already included Keno Dam compliance flows, drought-tier curtailment rules, Upper Klamath Lake elevation requirements, and associated delivery restrictions — all of which reduce the water available to Klamath Project contractors below their contracted entitlements. These constraints were already baked into the document when it was submitted.

NMFS then received that pre-constrained PA, evaluated it, and issued its October 28, 2024 No-Jeopardy Biological Opinion.²¹

The No-Jeopardy finding is cited — publicly, frequently — as proof that Klamath Project operations are consistent with ESA obligations. It proves no such thing. It proves that a specific, pre-constrained, pre-negotiated operating regime — one that already cuts farmers’ water — does not jeopardize listed species. It says nothing about whether full contractual deliveries under current post-dam-removal river conditions would jeopardize listed species. That question has never been honestly posed. The answer is not in the record because the question was never put to the test.

The sequence was inverted. The conclusion shaped the premise. The administrative record reflects the endpoint of a negotiation, not the output of an independent scientific evaluation.

Note also what this means in relation to Section 7(a)(1). If Reclamation had fulfilled its affirmative conservation obligations under 7(a)(1) — by developing and implementing genuine conservation programs using its operational authorities — the Section 7(a)(2) consultation baseline would look materially different. An agency that has actively invested in conservation programs enters consultation with a record of good-faith performance. An agency that has done nothing under 7(a)(1) and then pre-negotiates its 7(a)(2) Proposed Action has compounded a statutory omission with a procedural inversion. Both failures run in the same direction: away from the honest, independent record that the law requires.

V. Why This Is Lawfare — Three Concrete Consequences

Procedural inversion is not an administrative technicality. It produces three specific, concrete harms to Klamath Project water users, each of which functions as a component of lawfare as defined in Post No. 1.

Consequence 1: The Administrative Record Is Corrupted — and It Cannot Be Challenged From the Outside

Federal courts reviewing agency action under the APA are limited to the administrative record.²² A judge evaluating whether a Biological Opinion was arbitrary or capricious looks at the documents in the record and asks whether the agency’s conclusion follows logically from what is in front of it.

The decisions that actually determined the outcome of the 2024 consultation are not in the record. The conversations in which Reclamation and the biological agencies agreed on what the PA would say — not in the record. The working-group meetings where curtailment thresholds were negotiated — not in the record. The informal coordination that produced the specific flow numbers and lake-level triggers — not in the record.

What is in the record is the finished product of those conversations, presented as an independent agency determination.

A reviewing court sees an agency that wrote a Biological Assessment, submitted it, received a BiOp, and followed the process. The court has no visibility into the pre-negotiation. The corruption is invisible because it happened before the reviewable record began.

For irrigation districts and their attorneys, this is a trap. The record they would need to challenge is the record that was already constructed against them, before they had any formal standing to object.

Consequence 2: The Notice-and-Comment Process Is Bypassed Entirely

The APA requires federal agencies to publish proposed rules, accept public comments, respond to those comments, and justify their final decisions in the record.²³ This notice-and-comment process is the primary mechanism through which affected parties — including farmers and irrigation districts — can challenge the factual premises of agency action before it becomes binding.

When Reclamation pre-negotiates the operational constraints that go into a Proposed Action, it achieves the same substantive result as a formal rulemaking — new, binding operational restrictions on water delivery — without publishing anything, without accepting public comments, and without creating a reviewable record of the decisional process.

Irrigation districts are not in the room where the constraints are agreed upon. By the time formal consultation begins and the public-facing documents appear, the substantive decisions are already made.

Pre-negotiation accomplishes, off the record and without accountability, exactly what formal rulemaking would require the agency to defend in public.

Consequence 3: The Districts’ Statutory Role in the Solution Phase Is Eliminated

The law gives irrigation districts a specific role at Step 4. It is a statutory right: to enter the process as formal applicants, propose RPAs, and pursue a long-term HCP that provides durable legal certainty.

That role only exists if a Jeopardy finding is issued at Step 3.

If the Proposed Action is pre-engineered to produce a No-Jeopardy finding, Step 4 never opens. The Solution Phase never begins. The districts are never recognized as applicants. The Flow-Through model is never formally evaluated. The HCP pathway is never pursued on the record.

The districts cannot propose solutions to a problem the record says does not exist.

They operate under a BiOp that evaluated a constrained plan they did not design, on behalf of a river that has fundamentally changed, with no formal record establishing what their full legal entitlements look like under current conditions. Their compliance is mandatory. Their remedies are foreclosed. Their strategic options are extinguished before the formal process begins.

That is the lawfare. Not the BiOp. Not the consultation. The pre-negotiation that made the BiOp’s outcome inevitable before the clock started.

Add to that the unmet Section 7(a)(1) obligation. Districts are being regulated under an escalating series of 7(a)(2) BiOps, each one built on a pre-negotiated baseline, while the affirmative conservation mandate that would require the agencies to actively invest in recovery — using their own authorities, at their own initiative — has gone unimplemented since the day the first sucker was listed. The regulated party bears the compliance burden. The regulating agency bears none of the affirmative conservation burden. That asymmetry is not an accident of administration. It is the structure of the lawfare.

VI. The Case for a Clean Record

What a clean record requires is straightforward: Reclamation submits a Proposed Action reflecting its actual, full non-discretionary legal obligations under current, post-dam-removal river conditions, and the biological agencies evaluate it independently. Simultaneously, Reclamation and USFWS develop and publish a formal Section 7(a)(1) programmatic conservation plan — finally accounting for the affirmative statutory duty that has gone unmet for decades.

The post-dam-removal Klamath River is a materially different system from the one on which every prior consultation was based. In 2025, 51,277 adult fall-run Chinook returned to the basin at 205 percent of the pre-season forecast — while Project operations continued without modification.²⁴ More than 400 miles of anadromous habitat has been reopened. Microcystin blooms that previously exceeded public health limits in 58 percent of lower-river samples are now non-detectable in 82 percent.²⁵ Chinook have been documented spawning more than 360 river miles from the ocean for the first time in over a century.

Not one of these changed conditions has been evaluated against a full-delivery Proposed Action. The operating restrictions on Klamath Project water users were calibrated against a river that no longer exists. The Section 7(a)(1) conservation programs that should have been running for thirty years have not been written.

A clean record forces both evaluations. The outcome — whatever it is — becomes the honest, legally defensible basis for operational decisions going forward.

If No Jeopardy: the districts have a durable record establishing that full deliveries are consistent with species recovery under current conditions. If Jeopardy: Step 4 opens, districts enter as applicants, and the Flow-Through model and HCP are formally evaluated with all parties’ rights on the record.

Either outcome is better than what exists today: a consultation record built on a pre-negotiated baseline, governing a river it was not designed for, producing legal cover for delivery restrictions that were never independently evaluated — and a Section 7(a)(1) conservation mandate that has been ignored by the very agencies charged with enforcing it.

This archive will continue to document the gap between the process as it is required to function and the process as it is currently functioning. The administrative record is the battlefield. Building a clean one is the objective.

Footnotes

¹ 16 U.S.C. § 1536(a)(1), affirmative conservation mandate. Full text: https://www.law.cornell.edu/uscode/text/16/1536

² The Secretary of the Interior’s obligation under 16 U.S.C. § 1536(a)(1) to “assist” federal agencies in carrying out conservation programs is a co-obligation, not merely advisory. USFWS, as a bureau within the Department of the Interior, operates under direct Secretarial authority on this point.

³ 16 U.S.C. § 1536(a)(2), jeopardy consultation mandate. Full text: https://www.law.cornell.edu/uscode/text/16/1536

⁴ Office of the Solicitor, U.S. Department of the Interior. Memorandum: Federal Agency Obligations under Section 7(a)(1) of the Endangered Species Act. February 6, 2024. From: Sarah Krakoff, Deputy Solicitor for Parks and Wildlife; Shawn Finley, Attorney-Advisor, Division of Parks and Wildlife. To: Martha Williams, Director, U.S. Fish and Wildlife Service. Available at: https://www.fws.gov/sites/default/files/documents/federal-agency-obligations-under-section-7-a-1-memo-2024-02-06.pdf. The memo expressly states that compliance with Section 7(a)(2) is not equivalent to compliance with Section 7(a)(1), citing CBD v. Vilsack, 276 F. Supp. 3d 1015, 1032 (D. Nev. 2017).

⁵ TVA v. Hill, 437 U.S. 153, 185 (1978). The Supreme Court described Section 7(a)(1)’s language as “stringent, mandatory language” and held that the legislative history reveals “an explicit Congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.”

⁶ Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 34 (D.C. Cir. 1992). The court rejected the argument that ESA Sections 7(a)(1) and 7(a)(2) obligate agencies to do “whatever it takes” to protect listed species when doing so would exceed the limitations contained in the agency’s relevant enabling authority.

⁷ Reclamation Act of 1902, 32 Stat. 388, 43 U.S.C. § 371 et seq. The Klamath Project was formally established under this authority in 1905. The Project’s enabling authorization describes a single authorized function: delivery of water to irrigable lands in the Klamath and Lost River Basins of Oregon and California. Full text: https://www.usbr.gov/lc/region/g1000/reclamationact.pdf

⁸ The limitation on RPA scope is established by 50 CFR § 402.14(i)(3), which requires that a Reasonable and Prudent Alternative “can be implemented in a manner consistent with the scope of the Federal agency’s legal authority and jurisdiction.” An RPA requiring Reclamation to implement conservation measures outside its project authorization would fail this test. See also Platte River Whooping Crane, 962 F.2d at 34.

⁹ Florida Key Deer v. Paulison, 522 F.3d 1133, 1147 (11th Cir. 2008). The court held that an agency’s conservation program producing only insignificant effects on listed species amounts to inaction and violates Section 7(a)(1). Cited in the Solicitor’s Memorandum, supra note 4.

¹⁰ Solicitor’s Memorandum, supra note 4, at conclusion. The full quoted sentence: “Robust Section 7(a)(1) programs therefore have the potential to streamline or, in highly successful cases, eliminate the need for consultation under Section 7(a)(2).” The memo also references J.B. Ruhl, Section 7(a)(1) of the “New” Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies’ Duty to Conserve Species, 25 Envt’l L. 1107, 1109 (1995), describing the provision as “the sleeping giant of the ESA programs.”

¹¹ Sierra Club v. Glickman, 156 F.3d 606, 618 (5th Cir. 1998). The court rejected USDA’s argument that national farm programs providing incidental benefits to aquifer-dependent listed species satisfied Section 7(a)(1), holding that the statute requires “species-specific measures developed in consultation with FWS.”

¹² 50 CFR § 402.14, Formal Consultation. Full text: https://www.ecfr.gov/current/title-50/chapter-IV/subchapter-A/part-402/subpart-B/section-402.14

¹³ U.S. Fish and Wildlife Service and National Marine Fisheries Service. Endangered Species Consultation Handbook: Procedures for Conducting Section 7 Consultations and Conferences. March 1998. Available at: https://www.fws.gov/sites/default/files/documents/endangered-species-consultation-handbook.pdf

¹⁴ The discretionary/non-discretionary distinction and the environmental baseline concept are codified at 50 CFR § 402.03 (”Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control”), 50 CFR § 402.02 (definition of “action”), and elaborated in the ESA Section 7 Consultation Handbook at pp. 4-21 to 4-23. The environmental baseline is defined in the Handbook as “the condition of the listed species or its designated critical habitat in the action area, without the consequences caused by the proposed action.” Non-discretionary agency obligations are part of the baseline condition, not the proposed action, and are not subject to modification through a Reasonable and Prudent Alternative. See also 50 CFR § 402.14(g)(2).

¹⁵ 50 CFR § 402.14(c), initiation requirements for formal consultation — specifying the content of the written request and supporting documentation required to begin the formal 135-day period.

¹⁶ 50 CFR § 402.14(e). The 135-day consultation period runs from the date the Services receive the completed initiation package. A 60-day extension is available under 50 CFR § 402.14(e)(2).

¹⁷ 16 U.S.C. § 1536(b)(3), Biological Opinion requirements. See also 50 CFR § 402.14(h) for the full regulatory specification of required BiOp contents including the incidental take statement.

¹⁸ 50 CFR § 402.14(i), Reasonable and Prudent Alternatives. RPAs must be consistent with the scope of the action agency’s legal authority, economically and technologically feasible, and capable of avoiding the likelihood of jeopardy.

¹⁹ 16 U.S.C. § 1539(a)(2), HCP requirements for incidental take permits. “No Surprises” assurance: 50 CFR § 17.22(b)(5).

²⁰ Bureau of Reclamation, Biological Assessment for Klamath Project Operations, October 2024 – September 2029, submitted to NMFS and USFWS, June 2024. The operational constraints incorporated into the BA — Keno Dam compliance flows, drought-tier curtailment rules, Upper Klamath Lake elevation requirements — are the pre-negotiated elements described in Section IV.

²¹ National Marine Fisheries Service, Biological Opinion on Bureau of Reclamation Klamath Project Operations (FY2025–FY2029), October 28, 2024. Available at: https://www.fisheries.noaa.gov/s3//2024-11/biological-opinion-klamath-project-operations-2024.pdf | Document page: https://www.fisheries.noaa.gov/resource/document/2024-klamath-project-biological-opinion

²² Administrative Procedure Act, 5 U.S.C. § 706. Review is confined to the administrative record compiled by the agency. Full text: https://www.law.cornell.edu/uscode/text/5/706

²³ 5 U.S.C. § 553, Rule Making. Notice-and-comment requirements apply to substantive rulemaking. Pre-decisional informal negotiations that functionally determine the binding operational content of a Proposed Action are not insulated from APA scrutiny by the label of “consultation planning.”

²⁴ California Department of Fish and Wildlife, “Salmon Everywhere”: One Year After Klamath Dam Removal, November 2025. Available at: https://wildlife.ca.gov/News/Archive/salmon-everywhere-one-year-after-klamath-dam-removal. Return data also reported in: Fishing the North Coast, Klamath Fall Chinook Return Tops Expectations in 2025, February 19, 2026. Available at: https://fishingthenorthcoast.com/2026/02/19/klamath-fall-chinook-return-tops-expectations-in-2025/

²⁵ NOAA Fisheries, Final Step in Klamath River Dam Removal Opens Path for Returning Salmon. Available at: https://www.fisheries.noaa.gov/feature-story/final-step-klamath-river-dam-removal-opens-path-returning-salmon. Every prior Klamath Project Biological Opinion — 2002, 2008, 2010, 2013, 2019 — was developed under pre-dam-removal river conditions. The four lower-mainstem dams were removed between summer 2023 and October 2024.

²⁶ Driscoll, Moss (Director of Water Policy, Klamath Water Users Association). Memorandum: Endangered Species Act Costs Incurred in Connection with the Klamath Project. To: Paul Simmons, Executive Director and Counsel, KWUA. August 30, 2024. On file with KWUA, Klamath Falls, Oregon. The memorandum provides a detailed analysis of Reclamation’s project authorities under the Reclamation Act of 1902, the 1998 regional committee decision to reclassify ESA costs as nonreimbursable, the collapsed SPCCR accounting record, and the absence of any federal law authorizing the ESA activities funded through Project appropriations. The memorandum further identifies the Agency Lake Ranch purchase as the only documented instance in Klamath Project history where Section 7(a)(1) was cited as the formal authority for Reclamation action benefiting listed species. The specific ESA compliance budget figures — $13.3 million (FY2021) through $28.6 million (FY2024) — are drawn from this memorandum.

²⁷ Simmons, Paul (Executive Director and Counsel, KWUA). Memorandum: Project Debt. To: Elizabeth Nielsen, Executive Director, KWUA. January 12, 2026. Transmitting the Driscoll Memorandum and providing supplemental analysis of outstanding cost issues including the A Canal fish screen and headworks (subject of a 2016 OIG report finding the costs reimbursable by KID), the Clear Lake Dam replacement, and the C Siphon repayment contract. The memorandum notes that Reclamation has raised the reimbursability of ESA costs in recent meetings and correspondence with KID, and that no complete or accurate SPCCR has been produced for the Project in any year in the current century. Copies to Wyatt Kane, Mark Limbaugh, Chris Kearney, and Brittany Johnson.

²⁸ Souza, Gene (Executive Director, Klamath Irrigation District). Letter to Congressman Cliff Bentz re: Klamath Watershed Restoration Activity Summary, with attached Table of Klamath Projects since 1988 (13 pages). October 18, 2024. On file with Klamath Irrigation District, Klamath Falls, Oregon. The cover letter states it provides “estimates of the economic burden on the American People, the Klamath Farmers, and the communities in the Klamath watershed between 2001 and 2027”; the attached table is titled “Table of Klamath Projects since 1988” and includes line items dating to 1988. The document identifies 98 discrete line items with documented American taxpayer costs. The cover letter’s own summary states: American taxpayer expenditures in excess of $560 million; additional losses to Klamath farmers exceeding $1.06 billion. The dam removal line item in the table lists $250 million (California) plus $45 million Oregon/California contingency in the American Taxpayer column, and separately records $200 million in the “Levied Costs on rate payers without a vote” column, with that figure labeled in the source document as “Tribal & Ecological groups PR & litigation, ???.” The sum of all documented line items in the table’s American Taxpayer column, independently tallied from the table, exceeds $614 million; the difference from the letter’s stated $560 million reflects the document’s own notation that the $162 million BIL figure is duplicative of several individually listed projects, as well as rounding methodology.

Next in the Foundational Archive — Post No. 4: The Biological Opinion as a Legal Instrument: How Jeopardy Findings, RPAs, and Incidental Take Statements Distribute Legal Risk Across the Consultation Record.

Klamath Basin Lawfare is an independent public archive. All source material is derived from public records, statutes, regulations, and agency guidance documents. This archive applies the procedural inversion framework only where the administrative record demonstrates a documented departure from the mandatory consultation sequence — not from the fact of regulatory constraint alone. Editorial correspondence and records submissions may be directed to the archive.

Klamath Basin Lawfare — Foundational Post No. 1

The term “lawfare” circulates widely in political commentary, frequently stripped of its analytical precision and reduced to a rhetorical charge. This archive uses it in a specific, documented, and academically grounded sense. Before this publication tracks a single case, files a single records request, or publishes a single exhibit, it is necessary to establish exactly what lawfare means, where the definition comes from, how it has been challenged, and why—properly bounded—it remains a legitimate and necessary analytical instrument.

I. The Origin: Law as a Substitute for Traditional Means

The term was introduced into formal strategic discourse in 2001 by Major General Charles J. Dunlap Jr., then-Deputy Judge Advocate General of the United States Air Force, in a paper delivered at the Humanitarian Challenges in Military Intervention Conference, hosted by the Carr Center for Human Rights Policy at Harvard University’s Kennedy School of Government.¹

Dunlap defined lawfare as:

“The strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”

The definition is deliberately value-neutral. Dunlap was not describing something categorically illegitimate. He was identifying a strategic category: the use of legal process as an instrument of operational power, capable of achieving outcomes that would otherwise require conventional force, negotiation, or political capital. He subsequently elaborated this framework in a 2008 article in the Yale Journal of International Affairs, acknowledging that legal mechanisms can serve either constructive or destructive ends depending on their deployment.²

The key phrase is “substitute for traditional means.” The legal system, in this framework, is not primarily a venue for establishing truth or resolving disputes on their merits. It is a tool—deployable, scalable, and effective against a target who cannot afford to ignore it.

II. The Mechanism: Compliance-Leverage Disparity

In his 2016 work Lawfare: Law as a Weapon of War, published by Oxford University Press, legal scholar Orde Kittrie systematized Dunlap’s framework into operational subcategories with documented historical case studies.³ The subcategory most directly applicable to domestic regulatory and land-use contexts is Compliance-Leverage Disparity Lawfare.

The mechanism operates as follows:

Party A is a regulated entity—a farm, a water user, a rural business—that holds permits, operates under agency oversight, and has a documented legal and financial commitment to regulatory compliance. Departure from that compliance carries severe consequences: permit revocation, fines, injunctions, loss of operating authority.

Party B initiates or supports legal and administrative challenges against Party A. Party B’s objective is not necessarily to prevail on the merits of any given argument. The objective is to impose costs.

The disparity is structural:

• Party A cannot walk away from the legal process without forfeiting the permits and authorizations their operations depend upon.

• Party A must retain legal counsel, respond to discovery, appear at hearings, and manage agency relationships—indefinitely, and at full cost.

• Party B faces no equivalent constraint. A challenge can be filed, withdrawn, amended, or re-filed at minimal expense relative to the cost it imposes on the target.

The result is asymmetric attrition. The legal system’s procedural architecture—designed to ensure due process—is inverted into a cost-imposition engine. Time, capital, and organizational capacity are drained from the target, regardless of the underlying legal merit of the challenge.

In domestic administrative practice, this pattern has an established parallel: the Strategic Lawsuit Against Public Participation (SLAPP), a term coined by legal scholars George Pring and Penelope Canan following their systematic study of retaliatory civil litigation.⁴ While SLAPP doctrine was originally developed to protect public participation rights against powerful institutional plaintiffs, the same structural asymmetry operates in reverse when administrative challenges are used against individual regulated parties who lack the resources of the challenging organization.

III. The Counterargument: The Term Has Been Weaponized

This is the objection that must be addressed before this archive proceeds.

A significant body of legal scholarship argues that “lawfare” is itself a politically loaded term—one that has been selectively deployed by state and military actors to delegitimize legitimate human rights litigation, war crimes accountability mechanisms, and judicial oversight of executive power. The critique deserves a precise statement.

Legal scholar David Kennedy, in his influential work Of War and Law (Princeton University Press, 2006), documented how legal framing has become inseparable from the conduct of modern war—used by all parties, including powerful states, to authorize violence, manage accountability, and shape public narrative.⁵ The implication is that “lawfare” accusations can function as a shield against legitimate legal scrutiny, not merely a description of abusive legal tactics.

Scott Horton, writing in the Case Western Reserve Journal of International Law, made this critique most directly: that the lawfare label has been applied opportunistically by actors who find legal accountability inconvenient, effectively stigmatizing human rights advocates and plaintiff-side litigants as bad-faith combatants rather than legitimate legal participants.⁶

Lisa Hajjar’s comparative analysis of Israeli and American military legal doctrines further demonstrated that the accusation of lawfare is frequently asymmetric—invoked against challengers of state power while the legally aggressive conduct of state institutions escapes the same characterization.⁷

This archive takes these objections seriously. They establish something important: the lawfare label, used imprecisely, is a rhetorical cudgel. Applied without evidentiary discipline, it can be used to pre-emptively delegitimize any legal challenge brought by any party the labeler dislikes. That is not analysis. That is advocacy dressed as terminology.

IV. Why the Framework Remains Valid—With Discipline

The scholarly critique of lawfare does not invalidate the concept. It defines the conditions under which the concept is analytically legitimate.

The Dunlap-Kittrie framework is valid when the following conditions are demonstrable from the record:

1. The procedural pattern is documentable. Filing frequency, withdrawal timing, and cost-imposition effects must be traceable through court records, agency dockets, and disclosed financial data—not inferred from political alignment.

2. The merit-to-cost ratio is assessable. Lawfare, properly defined, is distinguished from aggressive but good-faith litigation by the relationship between the legal arguments advanced and the procedural costs imposed. Cases that produce substantial legal costs while advancing novel, weak, or repeatedly rejected legal theories warrant scrutiny that cases litigated to clear, contested legal questions do not.

3. The compliance asymmetry is structural, not merely tactical. The defining feature of compliance-leverage disparity is that one party’s regulatory exposure prevents exit from the legal process while the other faces no equivalent constraint. This must be demonstrated, not assumed.

4. The pattern is longitudinal. A single aggressive legal challenge is not lawfare. A documented pattern—of challenges filed, withdrawn, refiled, or transferred across forums as prior venues close—is a different analytical object.

This archive commits to applying the framework under these conditions only. Where the record does not support a lawfare characterization, that will be stated. Where it does, it will be documented.

V. The Local Application: What This Archive Is

The Klamath Basin presents a documented environment for compliance-leverage disparity analysis. Water adjudications, federal regulatory proceedings, agency rulemaking, and multi-party litigation have run concurrently and sequentially in this region for decades. The cumulative burden on individual water users, agricultural operators, and local governments is measurable—in legal fees, foregone investment, administrative staff time, and operational uncertainty.

Klamath Basin Lawfare exists to track and document these patterns at the local level, under the evidentiary discipline described above.

This publication operates on a specific standard: direct public records and government receipts. Court filings, agency correspondence, permit records, administrative decisions, and official transcripts. No anonymous sourcing. No inference where documentation is available. No allegation unsupported by an exhibit.

The archive’s function is taxonomic and longitudinal. Individual legal actions are rarely self-explanatory in isolation. Patterns become visible over time, across cases, and across institutions. This publication intends to build that record—and to hold itself to the same evidentiary standard it applies to the conduct it documents.

Footnotes

¹ Dunlap, Charles J., Jr. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts.” Paper presented at the Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, November 29, 2001.

² Dunlap, Charles J., Jr. “Lawfare Today: A Perspective.” Yale Journal of International Affairs, Winter/Spring 2008, pp. 146–154.

³ Kittrie, Orde F. Lawfare: Law as a Weapon of War. Oxford University Press, 2016.

⁴ Pring, George W., and Penelope Canan. SLAPPs: Getting Sued for Speaking Out. Temple University Press, 1996. Pring and Canan’s original study analyzed over 300 civil actions filed against citizens engaging in public participation and identified the structural pattern of cost-imposition as the operative mechanism regardless of legal merit.

⁵ Kennedy, David. Of War and Law. Princeton University Press, 2006.

⁶ Horton, Scott. “The Dangers of Lawfare.” Case Western Reserve Journal of International Law, Vol. 43, No. 1 & 2 (2010), pp. 163–180.

⁷ Hajjar, Lisa. “Lawfare and Armed Conflicts: A Comparative Analysis of Israeli and American Doctrines and Agendas.” In The Militarization of Law: Lawfare, the Rule of Law, and the Ethics of Warfare, ed. Austin Sarat et al. Forthcoming volume cited in Lawfare: Law as a Weapon of War at 47 n.112.

Klamath Basin Lawfare is an independent public archive. All source material is derived from public records. Editorial correspondence and records submissions may be directed to transparency@KlamathBasinLawfare.org.