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Klamath irrigators press case this week

by HOLLY DILLEMUTH, Herald and News Jan 29, 2017 

Lon and Nancy Baley Takings caseLon and Nancy Baley of Merrill on Thursday. Lon left for Washington, D.C. Saturday and will be testifying this week in the Takings case before Judge Marian Horn. H&N photo by Kevin N. Hume

Lon and Nancy Baley of Merrill share a moment while discussing the 2001 water crisis on Thursday. Lon left for Washington, D.C. Saturday and will be testifying this week in the Takings case before Judge Marian Horn.

Lon Baley isn’t nervous, even when he thinks about testifying for the first time before a federal judge this week in Washington, D.C.

Maybe it’s because the third-generation Merrill potato farmer has been preparing to share his story and struggle with the historic water shutoff to his crops since 2002.

“Farmers can handle more stress than the average person anyway,” Baley said with a laugh as he talked with the H&N recently. “I’m not nervous … I’m ready.”

Baley is one of more than 20 people scheduled to testify in the United States Federal Court of Claims so-called “takings” trial in Washington, D.C. Formally, it is the Klamath Irrigation District et al., vs. United States and Pacific Coast Federation of Fisherman’s Associations; a case that could impact the process involved in the enforcement of the Environmental Species Act as it relates to water delivery for irrigators.

The “takings” case is based on biological opinions issued by the U.S. Fish & Wildlife Services and National Marine Fisheries Service in April 2001, which prompted the shutoff of irrigation water for local irrigators to protect fish downstream.

The opinions declared that water diverted from Upper Klamath Lake by Klamath Project irrigators would endanger suckers and coho salmon, citing the Endangered Species Act.

The opinions prompted the historic Bucket Brigade protest in downtown Klamath Falls on May 7, 2001, where local residents drew 50 buckets of water from Lake Ewauna, dumping them into the A Canal with the help of those lined all along Main Street.

But after 16 years, many continue to look for resolution to the water shutoff.

“It took us 10 years until 2011 when our financial statements looked like they did in 2001,” Lon said.

He is scheduled to testify sometime early this week, but others will start sharing testimony on Monday. The trial in front of Judge Marian Horn could take up to three weeks.

The effects of the water shutoffs in 2001 took a toll on the Baley family, in addition to many others, with issues that continue today.

“We were able to farm 25 percent of our Frito Lay (potato) contract that year, but only because we were able to lease land that had wells on it,” Lon said. “We were very fortunate in many ways that we were able to do that.

“There were some farms — they harvested zero crops,” Lon added.

“We were some of the lucky ones,” said Nancy Baley, Lon’s wife of nearly 40 years.

The immediate aftermath of the water shutoff is just as real in Lon and Nancy’s memory as if it happened yesterday.

A growing business hit by crisis

“Our business was really growing with contracts and people loved our product,” Nancy said. “And then, the water issue hit.”

The Baleys grow fresh market potatoes with Nancy’s brother Mark Trotman.

“We signed our first contract with Frito (Lay) about ‘87 or ‘88, I believe,” Lon said. “In 2001, we’d grown our business with Frito from 20,000 sacks to 800,000, and we were on a growth phase to be up to 1.3 million within the next three to four years. By 2005, that’s where we should’ve been.”

But plans didn’t pan out.

In 2005, the Baleys were back to selling only 600,000 sacks to Frito Lay from a previous 800,000.

“We lost 200,000 sacks because of the water year and we’ve never regained it,” Lon said. “We’ve never been back there.”

“It was just so uncertain,” Nancy said. “We talked about moving to Southern California and farming.”

The water shutoff affected Nancy’s career as well as her family’s business.

A retail pharmacist for nearly 40 years, Nancy almost bought the drug store owned and operated by her parents in Merrill. But her plans changed in 2001. A lot of things did.

“Things were so uncertain,” Nancy said. “I went to work in Klamath and now I work up at Sky Lakes Medical Center.”

It was Nancy’s job that Lon believes kept the couple and their family business afloat during the water crisis and beyond.

“It helped keep me farming,” he said. “Nancy’s profession was probably one of the reasons we were able to survive 2001.”

The Baleys also lamented the impact of the water shutoff on the generation of irrigators to follow them.

“It took a full 10 years … before any high school graduates or college graduates even considered coming back to farm,” Lon said.

The Baley’s daughter, Hollis, moved away from the area after graduating high school in 2001.

“It was a huge, huge impact on her and the way that her last year of high school finished,” Lon said. “I truly believe that we had no idea how that impacted her until after her college career.”

Like many children of irrigators at the time, there was little optimism for a future in farming.

The adage has been, “I’ve seen what my parents are going through, I don’t want any part of this. This isn’t fun,” he said.

The Baley’s hope the “takings” case helps promote a secure future for agriculture in the Basin, which they both believe will always be in high demand.

No stranger to nation’s capital

Lon Baley is no stranger to visiting the nation’s capital, and recently visited for the National Potato Council. Baley also visited in 2001 and 2002 when he believed the case was close to going to trial.

“I lived for three years in courtrooms, hearings, we had our own attorney hired,” Lon said. “Just because of our farming interests, our business. We were prepared as a Basin within six months to a year after we filed the lawsuit.”

But the visit to Washington, D.C., this week will be different.

Irrigators seeking $30 million

A decision in favor of the irrigators could award them a total $28 million to $30 million, according to Bill Ganong, special counsel to irrigators in the case.

Lon wondered aloud whether to use the words “restitution” or “resolution” to describe the desired outcome for the case, but emphasized most dollar amounts wouldn’t be able to roll back the events of the last 16 years. 

“It’s not even close to enough to make things right,” Lon said. “The actual loss and the loss of future business, I mean it would have to be $100 million, I think.”

The impacts of the water shutoff can’t be quantified in dollars in a way for the couple, and for some others affected.

The impact is emotional as well, even after 16 years. Lon admitted during the interview he was holding back tears a couple times.

“That generation and my father’s generation — their whole demeanor changed,” Lon said. “They used to do fun things all the time as groups of men and families. And that just quit. I think everybody was just afraid (for) their livelihood.”

“It destroyed families,” Nancy said, “You have a third-generation family farm and they’re saying, we’ve got to get out, let’s sell. Then you have your older generation saying, ‘No, I came here. I got one of these homesteads. I was in the war. This is what the government gave to me, and you could see families were torn apart … Longterm friendships were torn apart. People didn’t speak to each other.

“So many people had their own ideas of how this was going to be solved,” Nancy added. “I think that’s what tore apart the relationships, because some people thought this was the way … Everyone was frantic. This was their livelihood. This was their business.”

Nancy said neither she nor her husband were certain the case would reach the point of a trial. The couple took part in depositions starting in 2014 and were told at that time the trial could start within six months.

“It’s been about a year and a half since we expected it to go to trial,” Lon said. “We were starting to wonder if it was starting to happen in our lifetime.”

Regardless of the outcome, the Baleys are optimistic about the future of their potato growing operation, and for the future of agriculture in the Klamath Basin.

“We do have a niece and nephew who are coming into the business to take over,” Nancy said. “They talk about their children farming, so, it will go on.”


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