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Adjudication: $5,000 a day

Sorting through Klamath Basin water rights is expensive, complex
by Ty Beaver, Herald and News 9/13/08
(KBC NOTE: Author Beaver makes the case that Klamath Basin Restoration agreement will save the farmers money if they sign the agreement rather than pay for adjudication. The agreement says, "(15.3.2 B ii) “Recognizes the tribal water rights at the claimed amounts and with the priority date of time immemorial.” along with giving the Klamath Tribes land that they voted to sell and were paid for. Yes, the Tribes would like irrigators to settle. Tribes are claiming more water than exists in most years.). Go HERE for more on adjudication and tribal claims.

   About $ 5,000 a day is going toward adjudication of water rights in the Klamath Basin, according to water attorney Bill Ganong.
   Water users and their posses of lawyers, researchers and hired experts are wading through the state’s process of deciding who gets how much water as they await a decision from Portland-based PacifiCorp regarding removal of four Klamath River hydroelectric dams. A proposed water deal, the Klamath Basin Restoration Agreement, hinges on removal of the dams.
   Adjudication is a lengthy and expensive process where irrigators, the Klamath Tribes and other entities battle for the region’s water resources.
          Invaluable tribal water rights and tens of millions of dollars in property values and agricultural production are at stake.
   It could be decades before the region’s water conflicts are resolved. Until then, water users will either settle with their competitors or pursue legal action against them.
   “Individuals have to make the decision for themselves,” said Becky Hyde, a water user off the Klamath Reclamation Project.
   The Klamath Basin adjudication process applies to any individual or agency using surface water in the Klamath River watershed, which includes the river, Upper Klamath Lake and any streams that flow into the lake.
   Irrigators on and off the Klamath Reclamation Project, the Klamath Tribes and government agencies such as the U.S. Forest Service and the U.S. Fish and Wildlife Service are among some of adjudication’s prominent claimants.
   The seniority of water rights is already established: The Tribes have the most senior rights, the newest irrigators some of the least. Adjudication seeks to define how much water each should get.

Water adjudication - Adjudication and the Klamath water agreement

By TY BEAVER H&N Staff Writer

   Adjudication in the Klamath Basin started more than 30 years ago.
   More than 700 claims of water rights were filed, followed by more than 5,500 contests to those claims. About 200 of those contests have yet to be settled. Impact on the Endangered Species Act and involved federal agencies also require consideration.
   “We have issues today that weren’t around in earlier adjudications,” said Tom Paul, deputy director of Oregon Water Resources Department.
   In the background is the Klamath Basin Restoration Agreement. The document is in a holding pattern as PacifiCorp works with state and federal officials on the future of its Klamath River dams.
   Released in January, the restoration agreement advocates for dam removal and also seeks to restore migratory fisheries and wildlife habitat, provide land to the Klamath Tribes and provide stable water and energy rates to irrigators. Federal and state lawmakers would be asked for close to $1 billion to finance the agreement.
   Water users and other rights holders can’t wait for the restoration agreement to move forward, though. They have to continue the state’s adjudication process, with some seeking further settlement of issues to others pursuing litigation against opponents.
   Exchange of information
   Attorney Bill Ganong, who represents Klamath Irrigation District, and Bud Ullman, attorney for the Tribes, said claimants are exchanging information before depositions and testimony begins this fall. Further written testimony will be submitted beginning in the spring.
   The Tribes are pursuing water rights on their former reservation in northern Klamath County as well as rights on Upper Klamath Lake and the Klamath River. Klamath Irrigation District, along with other irrigation and improvement districts, seeks a claim to water in the lake that feeds into the Klamath Reclamation Project.
Proving water claims is expensive

   Experts were in the Basin for two days to work with water attorney Bill Ganong earlier this summer. Expenses for that time were up to $6,000, not including the wages of Ganong and other irrigation district officials.
   But what’s at stake is what keeps the process going. Ganong and off-Project irrigators Tom Mallams and Becky Hyde acknowledge

that the Tribes’ water claims could cripple irrigation. Tribal attorney Bud Ullman said the Tribes’ claims are beyond value.
   “The Tribes don’t put a dollar figure on their treaty water rights,” he said.
   Mallams said he couldn’t put a dollar figure on how much its costing him and other contestants to go through adjudication, but not to would spell economic disaster for the Basin.
   A long with blows to agricultural production and property values, he said, the region would suffer from a trickle down effect from the loss of irrigation water, impacting everybody in some way.
   “All the way down to McDonald’s,” Mallams said.
   It could be years before the adjudication process is fully resolved as those involved can appeal the state’s decision or appeals to the state’s position all the way to the U.S. Supreme Court.
   That’s one of the reasons it is state policy to encourage settlement in adjudications, said Tom Paul, deputy director of Oregon Water Resources Department.
   He said the agreement could resolve six of the larger remaining contests.

Some prefer adjudication, others, the deal

   While irrigation district boards and the Klamath Tribes prefer settlement through the Klamath Basin Restoration Agreement, there are those who see adjudication as the only option to resolving the region’s water issues.
   Tom Mallams, an off-Project irrigator near Beatty, said the restoration agreement is a train wreck that is inequitable and would devastate the region.
   As a contestant to the Tribes’ claims, he said he thinks the adjudication process will not provide even close to the amount of water the Tribes are claiming. He doesn’t like the process he has to go through to reach that conclusion.
   “I don’t look forward to years of litigation,” he said.
   Becky Hyde supports the water agreement. The off-Project irrigator’s family has already settled with the Tribes on the Yamsi Ranch outside Chiloquin. But, she said, the property she lives on near Beatty is still at risk. She’s working with neighboring landowners to form an organization to settle water claims with the Tribes.
About the water adjudication process

   The Oregon water adjudication process was established 100 years ago by state lawmakers to acknowledge vested water rights, or water rights that existed before the state’s water laws were established.
   Adjudication is broken into two phases: administrative and judicial. The administrative phase involves the state’s water resources department collecting documentation regarding claims of water rights as well as any challenges to those claims.
   The state’s adjudicator settles and defines the claims and challenges before issuing an order. The order interprets water law in the region in question until the courts issue a final decree.
   Once there is an order, the matter is turned over to the local circuit court for any legal challenges. The regular appeals process applies and a final decision over the state’s order can potentially appear before the U.S. Supreme Court.
   It is not unheard of for water adjudication judicial proceedings to continue for half a century.
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