Klamath adjudication confirms tribes water rights 120411

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Adjudication confirms Tribes’ water rights

Judge verifies Tribes’ claims for six bodies of water; two decisions expected later

By SARA HOTTMAN, Herald and News 12/4/11

A critical water adjudication decision was delivered Friday, confirming the Klamath Tribes’ claims for six of eight water bodies in the Klamath Basin.

An administrative law judge in six separate proposed orders verified the tribes’ entitlement to the amount of water they say is necessary to maintain habitats for hunting, fishing, trapping and gathering on the Williamson River, Sprague River, Sycan River, Wood River, Klamath Marsh, their tributaries, and springs on the former reservation, said Bud Ullman, attorney for the Klamath Tribes.

Two other decisions on the most contested water bodies, Upper Klamath Lake and the Klamath River, are due in April 2012.

With a time immemorial priority date — the most senior water right — and their desired water quantity claims confirmed, Klamath Tribes officials are calling this a victory in the 36-year-long Klamath Basin adjudication process.

But, they say, the decision signals the need for irrigators and tribes to work together for fair distribution of water.

“It is good news for the Tribes,” Ullman said. “But what this does is highlight for the Tribes the need for everyone in the Basin to seek a settlement that everyone can live with.

“The Tribes knew all along that adjudication is a very blunt instrument to solve water resource issues in the Basin. That’s why we put so much effort into the (Klamath Basin Restoration Agreement): it’s the best tool for resolving water resource issues.”

KBRA

The Klamath Basin Restoration Agreement, or KBRA, is an $800 million agreement that seeks to establish sustainable water supply and power rates for irrigators, fund habitat restoration, and help the Klamath Tribes acquire the 92,000-acre Mazama Tree Farm, all contingent upon removing four PacifiCorp owned hydroelectric dams on the Klamath River.

While the agreement was signed in 2010, it is still awaiting Congressional approval, required for dam removal and funding its programs.

Supporters say the adjudication decision vindicates the agreement, in which the Klamath Tribes receive land in exchange for sacrificing some of their water rights, which would benefit irrigators.

“Folks opposed to (KBRA) should be supporting it, because they’re the ones who will get a benefit,” said Hollie Cannon, director of Klamath Water and Power Agency. “The concept is everybody gives, everybody gets. If there’s no KBRA, the tribe has nothing to get so has no reason to give.

“We’re hoping people opposed to the KBRA realize what risk they really stand. You hear anti-KBRA people saying, ‘kill KBRA to have adjudication.’ Well, they don’t realize all of these years in the Upper Basin (irrigators) took whatever they wanted for water because (Oregon Department of Water Resources) wasn’t regulating anything. With the order of determination, that picture changes completely.”

Tom Mallams, a vocal opponent of the KBRA and a contestant to the Tribes’ water claims, said the KBRA doesn’t help irrigators who have junior water rights, which is the main issue in the Upper Basin.

But, he said, adjudication allowed irrigators to challenge the Tribes’ claims, forcing them to lower the amount of water the Tribes said they needed.

“This validates the adjudication process,” he said. “The tribal instream claim would never have dropped … The KBRA doesn’t give us anything. They (reduced) because they claimed amounts that could not hold up in court.

“Adjudication is a complaint-driven process. If you don’t protest, you automatically lose. If we hadn’t been involved, (the Tribes) would have been granted the full amount they asked for. Adjudication was a successful venture.”

In the proposed orders, the reductions are called “downward adjustments” and are attributed to new information becoming available. Mallams said that information came to light in part because of contestants.