Oregon backs tribe's water rights

Apr 1, 2013

Following 38 years of legal proceedings, Oregon state officials have made a decision on one piece of the water battle in the contentious Klamath River Basin. The Oregon Water Resources Department (OWRD) issued its Final Order of Determination (Order) in the Klamath River Basin Adjudication (KBA) on March 7, 2013.

At issue was the validity of 730 claims to the use of surface water in the Klamath River Basin, along with 5,660 contests to these claims. The final decision—the Klamath Tribes’ water rights are considered to be time immemorial, so they will be adjudicated as the senior rights. So in short, ranchers in the area could have their water shut off by the local watermaster should a senior water user make a claim.

The family of rancher and farmer Roger Nicholson settled in the Klamath Basin in 1891 and acquired water rights under Oregon law. Under this new court ruling, 1891 was not early enough, and the family water rights acquired are basically voided.

According to Nicholson, the order is “essentially readjucating.”

While the exact date that the ruling is expected to go into effect is unclear, ranchers in the area are hoping for a stay in circuit court, and will file exceptions to start the process over. Without a stay, the appeals process could take several more years, leaving many ranchers and farmers in the area with no water.

“I don’t know if [a stay] will be available. If not, we won’t be irrigating,” Nicholson said.

The Klamath River Basin has been what some consider a national test case for resolving competing claims for water rights in the midst of federal and state laws governing endangered species protection and related policies. In addition to the water rights, the area is at odds over dam removal. The Klamath Basin Restoration Agreement (KBRA) is still in the middle of a legal battle, dividing the community into the “upper and lower” basin, with a number of endangered species being used as pawns in the arguments.

But this most recent court outcome has national implications relating to private property versus federal rights, according to Nicholson. “Klamath is really tied to the whole western livestock industry,” Nicholson added.

Tom Mallams, Klamath County commissioner, believes the outcome had more to do with the government wanting control of the water rights than the tribe needing them.

“When the government wants something, they will do whatever it takes, and they want control of the water,” he said.

The Endangered Species Act (ESA) has also played a role in this legal battle. One species in particular, the suckerfish, requires a certain water level in the basin for survival, according to ESA reports. In a drought year, water levels could affect the habitat of the fish, which would prevent irrigation.

According to Linda Long, rancher and real estate broker in the area, ESA has been instrumental in managing levels of the lake. But Long points out flaws in the studies used to reach the Order.

The science behind the water wars was primarily from the tribe. In February 2012, Dr. Paul R. Houser, scientist on the project for the Department of Interior, was fired for questioning the biology studies.

Houser, dubbed Klamath dam’s “whistleblower,” gave a statement on Dec. 13, 2012, to reporters: “The settlement of my wrongful firing ‘whistleblower’ claim is very good to get behind me. I can’t say much about the settlement, but that it was a good solution for me personally and it did not result in getting my job back. My scientific misconduct allegation is being handled separately and is still under investigation. The Department of the Interior had the final outside panel report delivered back in August/September. I have repeatedly asked the department for their findings and they indicate that statements will be issued soon.”

The Klamath Hydroelectric Settlement Agreement (KHSA) was signed in February 2010 with the hope that the deal would unite the Klamath River Basin and end the conflict over Klamath water. In light of the considerable conflict and controversy that has come to surround both Agreements (KHSA and KBRA), the hope that they would bring “Peace on the River” has been waning.

“It’s definitely a very big deal for our basin,” Long said. “Here we are, 2013, trying to make some sense out of this.”

According to legal documents, the tribal claims to the water rights pre-dated the Oregon Water Rights Code of 1909, or arose from the federal government’s authority to reserve the use of water as an element of a reservation of federal or tribal land. The most senior claims were advanced by the U.S. in trust for the Klamath Tribes, and carried a claimed priority date of “time immemorial.” The most senior claims, according to the courts, were based on the 1864 Klamath Treaty and were located within the boundaries of the former Klamath Indian Reservation.

Gary Wright, president of the Klamath Water Users Association (KWUA), called the Order a major achievement. “This is an extremely important milestone in a very long process. The Oregon Water Resources Department deserves a lot of credit for staying with it and moving the adjudication through this stage.”

But most ranchers and farmers in the area disagree. The lake is the primary reservoir for a federal irrigation project serving 1,400 farms over 200,000 acres. “[The outcome} economically ruins us,” Nicholson said, pointing out the long term implications that go beyond the ranching and farming communities.

Mallams agrees with Nicholson, considering the thousands of farming acres that are at risk of losing water. “The loss of land value alone will be close to $250 million in Klamath County alone,” Mallams said. “This is going to cripple our community.”

Despite the concerns, local media reports seem to be missing the big picture relating to the probable outcome. “Klamath River Basin water adjudication gets positive reactions,” Klamath Falls’ Herald and News reads.

“It sets a lot of darkness on our basin and our community,” Long said. “We have a niche that has worked well, and it does depend on irrigation,” she added.

Although the KBA has officially been pending since 1975, it began in earnest around 2000 when all the claims and contests had been officially filed. The document’s thousands of pages fill 11 stuffed binders.

Greg Addington, KWUA’s executive director, noted that it would take some time to evaluate the full effect of the order. “It’s enormous and it will take time to read and understand it all, but based on our preliminary review, the Order appears to be a very positive development for Klamath Project irrigators,” he said in a statement.

Up until now, there has been no management of water resources in the basin based on water rights, according to KWUA. Water management in the Klamath will now operate in the same manner as most other parts of the west, KWUA added in a press release.

Luke Robison, manager of two Klamath Project irrigation districts, added that “with continually increasing pressure on the basin’s water resources, it is important to know priority dates for water supply and the amount of water that is allowed for use.”

The order also confirms the collaborative settlement between the project districts (those that divert from the Klamath system) and the Klamath Tribes, which was based on the KHSA.

As a result, the Tribes’ water rights for Upper Klamath Lake levels will not be used as a basis for water right calls against pre-1908 water rights, which includes all Klamath Project agricultural land that receives water from the Klamath system, according to KWUA.

The Oregon Department of Water Resources said, “The completion of the Final Order of Determination means that the recognized claims are now part of Oregon’s “first in time, first in right” prior appropriation system.

According to the Oregon government website, adjudication is the process of determining claims to the use of surface water such as the Klamath River Basin. The first phase was the review and determination of these claims by OWRD, including the hearing of contests to claims and the issuance of proposed orders by administrative law judges from the State’s Office of Administrative Hearings. With department’s issuance of the Adjudicator’s Findings of Fact and the Order on March 7, 2013, this phase of the process is now complete.

The second phase of the process has begun. This is the review of the Order by the courts. Adjudication claimants or contestants who dispute the department’s determination of their claims or contests will have an opportunity to file exceptions with the Klamath County Circuit Court.

The Circuit Court will then review these exceptions, and will ultimately issue a water rights decree affirming or modifying the Order. According to the website, the department can issue water right certificates in accordance with the decree once it is issued by the court.

Adjudication claimants and/or contestants who dispute the department’s determinations will have an opportunity to file exceptions with the Klamath County Circuit Court.

The court will conduct trial on those exceptions, and eventually issue a decree, which may either affirm or modify any given part of the Fact and Final Order of Determination. However, until this second phase is completed, the state is required to regulate based on the Order.

With no immediate end in sight, those fighting for their water rights hope that the financial portion, the case has cost upwards of $3 million to date, doesn’t dry up before the water runs out. And in the meantime, the debate over whether it’s the tribes or the government that is rowing the water boat continues; with the ESA piece, most of the ranchers are convinced that the government is.

“If [the government] wants our water rights, they need to come buy them, not just steal them,” Long said. — Traci Eatherton, WLJ Editor