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Klamath Agreement in Principle: A Redistribution of wealth, rights, & water

by Erika Bentsen
January 9, 2014
Western Ag Reporter
Billings, MT

A recent press release announced a tentative agreement in the Klamath Basin water struggles (Dec. 12, 2013 Sortin' Pen) between the State of Oregon and representatives of the Obama administration.  An unusual choice of words, because there has seldom been any disagreement between those entities.  In this instance, the parties at odds with one another are upper Basin ranchers squaring off against several Indian tribes, Oregon Water Resources Department (OWRD), numerous branches of the Federal government, lower Basin Project farmers, and myriad environmentalist groups.

For several months a task force, spearheaded by Oregon's Sen. Ron Wyden (D), sought to include the upper Basin irrigators in negotiations from which they were previously barred, and try to settle their differences through talks.  As it was with the Klamath Basin Restoration Agreement (KBRA), which the upper Basin ranchers vehemently opposed (for reasons, see WAR Aug. 1 & Aug. 8), these settlement meetings were closed to the public, and only selected individuals were allowed to attend.

While the ranchers held hopes for a peaceful settlement, they were left in the dark during the process.  When the Agreement In Principle (AIP) was finally unveiled, however, upper Basin ranchers were shocked at what they were being forced to agree to; these included a choice between freedom of speech and being allowed to irrigate--at a much reduced level.  Just like the KBRA, the signatories are restricted from voicing any opposition to dam removals on the Klamath river, or making taxpayers purchase a 90,000 acre, $26 million reservation to replace the one the Klamath tribes sold in 1954, or express any negative opinions about the KBRA and its implementation.  An American citizen, by signing this document, is giving up his/her inalienable, God-given right to freedom of speech for the sake of making a pact with a sovereign nation. 

Even then there are no guarantees that this is where it will stop.  With the tribes holding irrigation water hostage in this "forever agreement," once landowners sign on, even if the tribes do something flagrantly illegal in the future the upper Basin ranchers cannot say anything publicly or their water will be shut off.

To meet the terms of this agreement, Senator Wyden, Governor Kitzhaber, OWRD director Philip Ward, John Bezdek of the US Dept of Interior, and representatives of the Klamath Tribes expects Americans to willingly surrender their First Amendment rights. 

Earlier in December members of the task force held a meeting to discuss the AIP with the public and answer questions about the tentative agreement.  When the spokesperson at the meeting was asked who is giving up their First Amendment rights in this agreement, she replied to the assembled ranchers, farmers, and landowners:  "Everyone in this room."

In addition to the gag order, other negative factors quickly rose to the surface, namely the fencing of at least 100 feet on each side of every stream, river, creek and making a riparian corridor which falls under tribal regulations, complete with an easement through private ranch land for an overseer to ensure tribal-approved riparian practices are being obeyed, the retirement of 30,000 acres of water rights in the upper Basin, and a fluctuating demand for river levels, although reduced from the current tribal water claims, still results in no one having as much water as was legally guaranteed to them by OWRD.

Ranchers are being told to compromise their individual rights permanently to end to this government imposed water dilemma.  All must comply to the new arrangement, or no one will get any water for irrigation.  In the meeting it was explained that peer pressure among neighbors will be highly encouraged to make everyone in the upper Basin capitulate, even though many believe this will have resounding negative repercussions throughout the country.  While ranchers struggle with their decision to surrender their rights for water, the immediate result of this potential agreement is to splinter the upper Basin's unity--the last of the opposition in this water situation.  This agreement may spell out the death knoll to private property rights in the country forever.

Legal experts on both sides of the argument have stated that the upper Basin ranchers and landowners have the law strongly on their side in this water battle.  Unfortunately, the Federal and State governments are already imposing their authority before the courts can decide the verdict.  As a result, the ranchers' opponents are counting on them to go bankrupt and lose everything before their case is fully heard, thus setting up a dire precedence for the rest of the country. 

Upper Basin leader and rancher Roger Nicholson said:  "In 2005 we signed a settlement agreement with the Klamath tribe that would have avoided all of this.  The agreement was signed by the tribes and myself in Washington D.C. and was heralded as the end of this potentially contentious situation.  Two weeks later the Department of Interior announced that it would not allow the Klamath tribes to settle.  Several weeks thereafter, a high-ranking Interior official told me that the reason they did this was that the Interior feels there is a shortage of water all over the western states and this is their chance to gain a major block of water simply for the price of litigation, realizing that the ranchers could not stay with the cost of litigation.  He stated that if it ever went to the Supreme Court we would probably win, but they would easily destroy us before it got that far."

Note:  Currently the west is experiencing one of the driest winters on record.  Even if the upper Basin landowners concede their rights and sign onto the AIP, they will immediately lose their freedom of speech, but in return will receive no water to irrigate this season, and for however many dry years are to come.  To many ranchers, it is easy to see what they've lost in the AIP and much harder to see what they have gained.

 Note 2:  When the Klamath tribe sold their reservation in 1954 there were 2,133 members.  A strong majority of 1,660 tribal members voted for termination and accepted payment for their share of the reservation sale.



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