Rights Adjudication Milestone: Oregon Water Resources
Department Submits Its Final Order of Determination to
the Klamath County Circuit Court
2013 by Richard S. Deitchman,
Somach, Simmons and Dunn, Attorneys for Klamath Water
On March 7, 2013, the Oregon Water Resources
Department (“OWRD”) submitted its Final Order of
Determination (“FOD”) for the Klamath River Basin
Adjudication (“Adjudication”) to the Klamath County
Circuit Court. The FOD is the culmination of a 38-year
administrative process, and provides the basis for water
rights-based regulation in the Upper Klamath Basin until
the Circuit Court has issued a judgment after its trial
on exceptions to the FOD that parties may file. The FOD
represents OWRD’s determination of the validity of
certain rights to Klamath Basin water diverted or used
in Oregon, specifically: (1) rights under state law
based on appropriation prior to 1909 (the year of
enactment of Oregon’s water code); and (2) federal
reserved rights. firstname.lastname@example.org.
Among its most significant findings, the FOD recognizes:
(a) substantial water rights with “time immemorial”
priority for the Klamath Tribes to instream flows in
tributaries of Upper Klamath Lake and to water levels in
Upper Klamath Lake itself; (b) irrigation rights for
diversion and consumptive use for persons owning
property within the former Klamath Indian Reservation;
(c) state water rights for diversion and use of water in
the Klamath Reclamation Project (“Project”) for
agricultural purposes, including characterization of
interests of the United States, irrigation districts and
beneficial users in those water rights; and (d) federal
reserved rights for various national wildlife refuges
and other federal lands. The FOD initiates the
beginning of the Adjudication’s judicial phase, in which
water rights claimants and contestants will have the
opportunity to file exceptions to OWRD’s order in
Klamath County Circuit Court.
Somach Simmons & Dunn serves as counsel to Project water
rights holders in the Adjudication.
Oregon’s Adjudication Process
Since 1909, Oregon law has required that all rights to
water by appropriation be acquired through an
application for a permit from OWRD or its predecessor
agency. The permits (and certificates issued upon proof
of beneficial use under the permits) specify all
elements of the rights, including priority date, point
of diversion, place of use, and other elements. Thus,
all post-1909 water rights under state law are
“determined.” Rights initiated by pre-1909
appropriation, and federal reserved water rights, are
undetermined unless adjudicated through the state’s
statutory adjudication procedures. Oregon Revised
Statutes (“ORS”) Chapter 539 outlines the process for
determining otherwise “undetermined” claims to surface
water. Like other state adjudications, the process
involves the filing of claims, contests, and litigation
of the validity of the claims; in Oregon the process
includes both an administrative and a judicial phase.
At the completion of the administrative process, OWRD
submits its order of determination and record to the
Circuit Court of the county where the stream or some
part of it is located. Or. Rev. Stat. § 539.130(1). In
the Circuit Court, claimants may file written exceptions
to the proposed findings and order of determination. Id.
§ 539.150. The Circuit Court holds a de novo hearing on
Between the issuance of the order of determination by
OWRD and the final decree by the Circuit Court, which
may be a gap of many years, OWRD is required to regulate
water use according to the findings and order. Or. Rev.
Stat. § 539.170. A party may seek a stay to prevent the
OWRD from regulating according to part or all of the
order of determination, but to do so it must post bond
in an amount set by the Circuit Court, and conditioned
on the party paying all damages that may result from the
order of determination not being enforced. Id.
§ 539.180. The Circuit Court’s final decision is a
final decree that specifies all water rights. Id.
§ 539.160. The decree becomes the basis for regulation
of water in the basin, unless it is modified on appeal
or on rehearing in the Circuit Court. Id.
Further appeals, including proceedings in federal
courts, are of course possible. Or. Rev. Stat.
§ 539.150(4). U.S.
v. New Mexico, 438 U.S. 696 (1978) (allowing United
States Supreme Court review of federal reserved rights
decided by state supreme court on appeal from a state
general stream adjudication); U.S.
v. Braren, 338 F.3d 971, 976 (9th Cir. 2003)
(holding that federal court evaluation of tribal water
rights was not ripe until completion of the state
adjudication). The courts may also send all or portions
of the FOD back to OWRD for further investigation.
Once court proceedings end, the Circuit Court decree is
conclusive as to all prior rights and all existing
claimants on the body of water adjudicated. Or. Rev.
Stat. §§ 539.160, 539.200. The effect of a decree is
res judicata as to all parties who were in the
adjudication and all water users claiming water rights
through those original parties. Id.
The Klamath Adjudication
The Klamath Adjudication is the most complex
adjudication in Oregon’s history, and the first in
Oregon to involve determination of federal reserved
water rights claims.
The United States filed the largest number of claims of
any claimant in the proceedings. Of greatest potential
consequence to existing diversions, the United States
Bureau of Indian Affairs filed claims on behalf of the
Klamath Tribes for instream water levels to protect
fisheries on the former Klamath Indian reservation (and
the Klamath Tribes asserted those same claims). Tribal
rights in the basin have a significant litigation
history. Most particularly, federal courts have
declared that the Klamath Tribes have federal reserved
rights to water to support hunting and fishing on former
reservation land, and such rights have a priority of
“time immemorial.” The federal courts left the
quantification of the rights to the state adjudication
v. Adair, 723 F.2d 1394 (9th Cir. 1983). The FOD
recognizes substantial instream rights for flows in
streams traversing the former reservation (including the
Wood, Sprague, Williamson Rivers, and tributaries) and
rights to elevations of Upper Klamath Lake.
Considerable reduction of junior consumptive uses
(primarily irrigation above Upper Klamath Lake) will be
necessary in order to provide flows to meet the senior
tribal rights recognized in the FOD.
The FOD also recognizes water rights under state law for
the Klamath Reclamation Project with a priority of 1905
(and earlier for some limited areas of the Project).
Both the Bureau of Reclamation and the irrigation
districts filed claims that obtain water through Project
facilities, with the primary difference in the claims
based on disagreement over who holds the rights. The
FOD finds that the United States exclusively owns the
storage right for the Project, but finds also that
irrigation districts and users are holders of rights of
use of natural flow and stored waters.
The FOD also recognizes federal reserved rights for
national wildlife refuges. This includes Tule Lake and
Lower Klamath National Wildlife Refuges, both of which
receive water through Project or Project-related
facilities. These two refuges had claimed the 1905
Project priority for wetland uses on the refuges, but
those claims were not upheld because flooding of
wetlands was determined not to be within the purpose of
the Project or its water rights. There are recognized,
however, federal reserved water rights that are junior
to the Project’s state law rights.
In areas upstream of Upper Klamath Lake, individual
members of the Klamath Tribes claimed water rights as
Indian allottees for their share of the tribe’s
practicably irrigable acreage component of reserved
Arizona v. California, 373 U.S. 546, 600-01 (1963)
(approving the use of practicably irrigable acreage).
Allottees claim an 1864 priority date, rather than time
immemorial, for their water rights. In addition, Walton rights,
held by non-Indian successors to Klamath Indian
allottees claims, are involved. Colville
Confederated Tribes v. Walton, 647 F.2d 42 (9th
Cir. 1981) (declaring that non-Indian successors may
step into the shoes of Indian allottees). Claimants
must show a transfer of the land from a Klamath Indian
allottee to the claimant’s predecessor in interest, that
they began using water within a reasonable time after
transfer from allottee ownership, and that they have
continued to use water beneficially since then. Several Walton rights
are recognized in the FOD, some claims toWalton rights
were not approved, for various reasons.
The Adjudication is assigned to Judge Cameron F. Wogan
of the Klamath County Circuit Court. On March 7, 2013,
the Circuit Court issued Case Management Order No. 1,
which supplies initial procedures. The case includes a
service list of approximately 1,050 persons, entities,
and attorneys that were involved in OWRD’s
administrative phase of the Adjudication.
The state has filed a motion to set an initial hearing
date pursuant to Oregon Revised Statutes
section 539.300. The initial hearing date set by the
court will also serve as the deadline for filing
exceptions to the FOD, after which trial on the
exceptions will occur. In the short-term, it is
possible that a party will seek a stay of the FOD
pursuant to Oregon Revised Statutes section 539.180.
Otherwise, as discussed previously, OWRD must regulate
use based on the FOD.
The submission of the FOD brings to an end the long
administrative process for the Adjudication. While it
only begins the judicial process in the Oregon courts,
it is highly significant because Klamath water rights in
Oregon will be regulated according to the FOD, unless
the court grants a stay. Instream water rights
determined for the Klamath Tribes will not be met unless
OWRD regulates (curtails) a significant amount of
existing irrigation use upstream of Upper Klamath Lake.
Also, the FOD is significant from the perspective of the
Project, which has in the past seen its use regulated
based on the Endangered Species Act. With the
determination of rights in the Project, Project water
users will have an ability to seek water rights
regulation outside the Project based on the
appropriation doctrine. These two developments are
among those that may result in difficult circumstances
in the Upper Klamath Basin due to the first-time
enforcement of “first in time is first in right.”
In the meantime, in the background lies the Klamath
Basin Restoration Agreement (“KBRA”), approved by
approximately 40 parties in 2010. Based on agreements
reached in the KBRA, irrigation water users in the
Project will not have their use curtailed as a result of
senior tribal rights to water levels in Upper Klamath
Lake, at minimum, not until after the court’s decree
(potential curtailment thereafter is a function of
whether the KBRA is implemented as well as the outcome
of the decree). The KBRA provides a framework for a
resolution that would avoid and mitigate impacts of the
tribal rights on irrigation areas upstream of Upper
Klamath Lake as well, although specific terms of that
agreement have not been developed. At a more
fundamental level, the KBRA has not been authorized by
Congress and thus cannot be fully implemented. Thus, in
addition to the pending court proceeding, substantial
challenges lie ahead.
Copies of the FOD and related materials are available
from OWRD at:http://www.oregon.gov/owrd/pages/adj/index.aspx.
For more information on the Klamath Adjudication, please
contact Richard S. Deitchman at (916) 446 7979 or by
Somach Simmons & Dunn provides the information in
its Environmental Law & Policy Alerts and on its website
for informational purposes only. This general
information is not a substitute for legal advice, and
users should consult with legal counsel for specific
advice. In addition, using this information or sending
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attorneys does not create an attorney-client
relationship with Somach Simmons & Dunn.
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