[env-trinity] Oregon backs Klamath Tribes water rights; effect on Lower Klamath Basin unclear

Tom Stokely tstokely at att.net
Sun Mar 10 12:41:45 PDT 2013

More articles are at: http://www.nwpr.org/post/after-38-years-study-oregon-backs-tribes-water-rights-klamath-basin 

Oregon backs Klamath Tribes water rights; effect on Lower Klamath Basin unclear
Grant Scott-Goforth/The Times-Standard and Jeff Barnard/The Associated Press Eureka Times Standard
The state of Oregon this week backed the Klamath Tribes' claim to have the oldest water rights in the upper Klamath Basin.

The findings filed with the Klamath County Circuit Court in Klamath Falls gives the tribes a new dominant position in the long-standing battles over sharing scarce water between fish and farms in the Upper Klamath Basin. Farmers and ranchers used to drawing irrigation water from rivers where the tribes now have the oldest claim could be restricted in drought years.

The oldest water rights have the first claim to water, and Oregon Water Resources found that the tribes' claim on Upper Klamath Lake and major segments of its tributaries dates to “time immemorial.” The lake is the primary reservoir for a federal irrigation project serving 1,400 farms covering 200,000 acres, and the major habitat for two endangered species of sucker fish held sacred by the tribes. Tribal claims to portions of the Klamath River, which flows out of the lake, were denied.

Karuk Tribe Klamath Coordinator Craig Tucker said the effect on the lower basin of the Klamath River will depend on how the Klamath Tribes use their water rights.

”If the lake's full, then we'll probably get more flow downstream,” Tucker said.

The department filed its findings after a decade of hearings on more than 700 disputed water rights in the Klamath Basin, a process known as adjudication.

The court still has to hear counterclaims and issue a final order, a process that could go on for years.

While challenges can still be made, the tribes' senior water rights go into effect immediately in water disputes, said Jesse Ratcliffe, an attorney for the water resources department.

The tribes have been willing to work with farmers and others in the basin to share the water, and have used the anticipation they would win the water rights battle as leverage for plans to regain some of the reservation timberlands they lost when the tribe was dissolved in the 1950s, and to restore the ecology of the basin.

They joined in the Klamath Basin Restoration Agreement, a companion to an agreement to remove four hydroelectric dams on the Klamath River to open up hundreds of miles of spawning habitat for salmon. Both deals have been stalled in Congress by opposition from Republicans, and the Klamath County Board of Commissioners recently voted to withdraw from the restoration agreement.

”Interestingly, the people who will be most harmed by Klamath exerting their water rights would be the same people who opposed the KBRA,” Tucker said. “KBRA is a much softer landing for those guys than the blunt instrument of adjudication.”

Tucker said the adjudication could harm the commission's stance.

”It should reveal that what Klamath County commissioners are doing is setting their own community up for a trainwreck,” he said. “When people start getting their water taken away from them by force, things kind of start to unravel. I think there's a real risk of violence in those communities up there.”

If the parties reject the Klamath Basin Restoration Agreement, the tribes will have to rely on their adjudicated water rights, said Jeff Mitchell, a member of the tribal council and the tribes' lead water negotiator.

”It's going to take some give and take by all the parties in the community to create the long-term stability we are looking for here,” he said. “We will use adjudication as a tool, if that's all that's available to protect our tribal interests.”

Some in the lower basin opposed to the KBRA say lower Klamath Tribes should exert their water rights to secure water flows, Tucker said, but the problems with that tactic are evidenced in the recent adjudication.

”The Klamath filed their water rights claim mid-70s, and the adjudication is just now happening,” he said. “I think what this illustrates is it took 30-something years for the adjudication to play out and millions of dollars spent by the Klamath Tribes. It's still murky what it all means. When you push things into a courtroom, you have to live with what a judge decides.”

He said the Karuk and Yurok tribes considered that option before entering into the KBRA.

”We were forced to ask ourselves would we do better if we simply exerted a senior water act claim,” he said. “It's more certain we get fish through KBRA than going through the courts and reaching adjudication.”

Farmers on the project also anticipated this outcome, and signed an agreement with the tribes to provide them water. They also joined in the agreement, which has provisions for sharing water in drought years.

”We view this as a positive outcome,” said Greg Addington, executive director of the Klamath Water Users Association.

Grant Scott-Goforth can be reached at 441-0514 or gscott-goforth at times-standard.com.
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