Water for Life files lawsuit challenging secret water right negotiations

News
Dec 11, 2009
by WLJ

Water for Life and a halfdozen individual irrigators have filed suit against the Oregon Water Resources Department and director for denying public access to the Tribal water rights negotiations surrounding the Klamath Basin Restoration Agreement in violation of Oregon law (ORS 539.310 et seq.).

The lawsuit, filed in Marion County Circuit Court, seeks to enjoin the Oregon Water Resources Department from continuing to engage in closed-door water right negotiations with the Klamath Tribes and other parties. The lawsuit also seeks to enjoin the department from finalizing the Klamath Basin Restoration Agreement without providing public notice of negotiations and opportunity for interested parties to participate and file exceptions to the agreement as Oregon law requires. The primary statute on which Water for Life’s lawsuit is based, ORS 539.310(1), provides as follows:

(1) The Water Resources Director may negotiate with representatives of any federally recognized Indian tribe that may have a federal reserved water right claim in Oregon and representatives of the federal government as trustee for the federally recognized Indian tribe to define the scope and attributes of rights to water claimed by the federally recognized Indian tribe to satisfy tribal rights under treaty between the United States and the tribes of Oregon. All negotiations in which the director participates under this section shall be open to the public.

(2) During negotiations conducted under subsection (1) of this section, the director shall:

(a) Provide public notice of the negotiations;

(b) Allow for public input through the director; and

(c) Provide regular reports on the progress of the negotiations to interested members of the public.

The negotiations surrounding the Klamath Basin Restoration Agreement have taken place under a shroud of secrecy enforced by a written confidentiality agreement. All parties to the negotiations, including the Oregon Water Resources Department, have signed the confidentiality agreement. Water for Life and other plaintiffs say it is this aspect of the negotiations that violates the law.

“Oregon law is very clear,” said Water for Life spokesman Richard Kosesan. “The department has legal authority to participate in Tribal water right negotiations, but the negotiations must be open to the public.”

The Klamath Basin Restoration Agreement, which has yet to be finalized, is contingent on the removal of several dams, and contemplates agreed-upon limitations to Tribal water claims that will ensure irrigators on the Klamath Project receive a certain amount of water. The agreement is made possible, in part, by provisions calling for the retirement of 30,000-acre-feet of water in the Upper Klamath Basin. Yet, even though the agreement depends on the retirement of Upper Basin water rights, the Oregon Water Resources Department and other parties to the closeddoor negotiations have repeatedly denied Upper Klamath Basin irrigators and the public access to the negotiating table.

“It is easy to reach agreement when the parties that will be forced to sacrifice are not allowed a seat at the negotiating table,” said Chad Rabe, an Upper Klamath Basin irrigator and plaintiff in the case.

While Water for Life and other plaintiffs want to protect Upper Basin irrigators who have been specifically denied access to the negotiations, they say the lawsuit is about something even more fundamental. “Water is a public resource and the state agency responsible for managing that public resource should not be participating in negotiations concerning that public resource behind closed doors,” said Ambrose McAuliffe, one of the plaintiffs in the case.

Rabe went even further, stating, “Open government is one of the fundamental concepts on which our country is based. It is reprehensible that a lawsuit is necessary to force public officials to conduct the public’s business publicly.” Said Rabe, “The average Oregonian may not care a whole lot about Tribal water right negotiations in the Klamath Basin, but history suggests that every Oregonian has reason to care about transparency in government. Our right to open government is what is at stake, and Oregonians should be supporting Water for Life’s legal efforts and watching this case closely.” — WLJ

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