Klamath Falls Mess: Judge denies livestock access to water

8/11/13 Western Montana Water Rights by Erika Bentsen

In a ruling June 13, 2013 county circuit court Judge Cameron Wogan in  Klamath Falls, Oregon refused ranchers' requests for a temporary  restraining order (TRO) to allow their cattle and horses access to drinking water.  Irrigation water out of the Sprague, Williamson, and Wood  Rivers, and their tributaries were shut off in June after new tribal calls  on rivers and streams feeding Klamath Lake left grazing lands and hay  fields baking in the sun.  In many cases, irrigation ditches are the sole  source of drinking water for the 100,000 head of cattle which graze the  basin area in the summer months.  Since the unprecedented calls stem from  merely a determination from an administrative law judge without being  heard in a formal court, Elizabeth Howard, lawyer for a group of ranchers  in the upper basin, asked for the June 13 hearing in circuit court.  She  argued for at the very least a 24 hour TRO to run pumps long enough to  supply drinking water to give ranchers a chance to find alternative  pastures or line up trucks to ship their cattle out of the county.  But Judge Wogan denied this request.

TEMPORARY FIX

It wasn't until July 2, 2013 the Oregon Cattlemen's Association put enough  pressure on OWRD, forcing them to expedite assembling a commission to  allow a minimal amount of water to be used for thirsty livestock.  But  even this will expire in 6 months.

THE LAST 12 YEARS

Much has happened in the years following the 2001 water shut offs in the  Klamath Basin and none of it is very good.  When Kimberly Strassel's  article on Rural Cleansing first appeared in the Wall Street Journal it  was farmers in the lower Klamath basin coming under assault by the federal  government and local Indian tribes. The Klamath area is made up of an  upper basin with cattle ranches above Klamath Lake, the largest surface area lake in Oregon, and farms below the lake in the lower basin.  

BACKGROUND

These  farms, known as the "Project," were established by the federal government  for veterans returning home after WWI & II.  Farm lots were won by lottery and the irrigation system of canals was set up with a 1905 water right,  regardless of what year the acreage it supplied was put into production.  

In 2001, the Project farmers' water was called because of the Endangered  Species Act protection of two species of sucker fish, previously known  universally as an inedible, bottom dwelling, trash fish, now elevated to  sacred status by the tribes.  At that point, upper basin ranchers united with the lower basin farmers and protested the shut offs.  When the  community was joined as a united front, the government and tribes backed down and the water was restored for the time being.

SO THEN THE TACTICS CHANGED

Exclusive meetings were held--quietly--between government agencies,  environmental groups and the tribes.  The public was not allowed to attend, nor were they permitted to know the context of the delegations. An oversight?  Doubtful. 

In a gesture of accord, a few key Project farmers were eventually invited, then a couple carefully selected upper  basin ranchers, some of whom received annual salaries by tribal subsidiaries.  But these meetings remained closed to the public. 

Then the  Klamath Basin Restoration Agreement (KBRA) was unveiled with pomp and promise.  This "Agreement," a tedious, several hundred page document was supposed to solve the water problems and create harmony between  environmentalists, tribes, government agencies, and agriculture.  But what did it really do?

THE LONG AND SHORT OF IT

When wading through the reams of acronyms and legalese, the document is  long on presumptions and short on guarantees.  A 50 year end date came to  light. 

Why?  If it was a good idea, why set it up to stop? 

Another choice nugget: only the invited attendees of these secret talks received any benefits.  The others who were barred from admittance were put on the chopping block.  Upper basin ranchers, local businesses, average  taxpayers, and utility customers were left high and dry.

Project farmers, influenced by their elected representatives, turned on the upper basin ranchers and cut a deal with the tribes.  If the Project farmers signed on to the KBRA and helped the tribes get a new 90,000 acre reservation and tear out 4 power generating dams on the Klamath River, the tribes would call the upper basin's water, predominantly dated 1864, and not call the Project's 1905 water, thus taking the water from the senior water rights holders and giving it to the juniors.  Even though the  tribe's water calls are for an in-stream use only, they are by-passing  this law and funneling the water to their new friends downstream who irrigate out of Klamath Lake.  Oregon's "first in time, first in line"  water adjudication has been thrown out the window and the tribes, in bed with the feds and state officials, are getting away with it.

QUICK LEARNERS

The tribes learned fast.  They altered their original claims on the river system to closer match the state's standards.  Then in March of 2013  thanks to an administrative law judge, a lackey of OWRD, the tribes were awarded time-immemorial rights to what amounts to nearly flood level flows.  With this the tribes have essentially halted all irrigation in the  upper basin.  Using tribal claim data, upper basin irrigators would have been shut off 89 of the last 95 years.

The tribes and government, hiding behind the skirts of the KBRA,  successfully divided the community by pitting farmer against rancher, and neighbor against neighbor.  The government and tribes learned from their  original failure when only one group was attacked.  By dangling incentives to some, they splintered their opposition.  And they continue peppering  the public with half-truths and misinformation, muddying the waters so that the average citizen doesn't know which group stands for what.

PRECEDENT SETTING

What's scary is the precedence being set.  If these tribal claims are validated by the court system, no river in the country is safe.  Other tribes throughout the nation are watching the Klamath water fight with interest.  Once precedence is established here, it makes it easy to attack other rivers. 

These family ranchers were specifically targeted because they aren't wealthy.  Families are being forced into bankruptcy since  their sole source of income is being taken away while the legal battles slowly grind on with delays and hearings and time-wasting lawyers. 

In  essence they are presumed guilty and punished without ever going to trial.  The tribes, with their $12 million a year kickback from the feds in addition to their casino earnings, can afford to drag this out in court  while the individual family rancher goes broke before the case even gets heard.

AN INDUSTRY DIVIDED

The upper basin ranchers are fighting this alone.  Their only ally, the Project farmers, have been turned against them.  Unity was what made the  2001 shut offs unsuccessful in the eyes of the tribes and federal  government.  So unity has been destroyed. 

The ranchers have their backs  up against the wall.  This was a calculated move by the tribes, with more egregious hardships planned in the coming months.

Ranchers have been holding raffles, auctions, and bake sales to get money for their defense. 

CARE TO LEND A HAND?

Donations from outside the Klamath Falls area are  desperately needed to stop this unconstitutional taking of private  property.  For those who are able to help with legal funding,  www.saveourklamathcountywater.org accepts donations on ranchers' behalf.   Click "Join Us" and make checks payable to Water For Life Foundation.

 
 

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