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“Takings” outcome seen as win for Tribes

The Klamath Tribes shared positive reactions on Wednesday to the outcome of the “takings” opinion, viewing the outcome filed Sept. 29 by Judge Marian Blank Horn as a win for tribal water rights in the Klamath Basin.

The case opinion denies Klamath Basin irrigators compensation of upward of $30 million sought through the lengthy case stemming from the U.S. Bureau of Reclamation’s water shutoffs in 2001.

Water shutoffs were implemented due to a biological opinion by the BOR aimed at protecting the endangered shortnose and Lost River sucker and threatened coho salmon during the severe drought year.

Judge Horn noted in the opinion the superiority of the in-stream water rights deemed “time-immemorial” held by the Klamath, Yurok and Hoopa Valley Tribes over irrigators with junior water user rights.

“We are pleased with the decision,” said Don Gentry, tribal chairman, in a news release. “This affirmation of the Tribes’ water rights should be another positive step towards the healing and restoration of our tribal treaty fisheries.”

The Native American Rights Fund (NARF) submitted briefs on behalf of the Klamath Tribes to the court on Aug. 24, 2016 and April 24, 2017, but did not intervene in the case.

“We believe basically the judge got it right,” Gentry told the Herald and News. “We basically limited our participation to the filing of the briefs and (were) hoping the judge would fully consider the law.

“We’ve faced hardships forever,” Gentry added, noting the losses sustained by the tribal community


In a seven-page brief filed on April 24, NARF stated that water deliveries to irrigators prior to 2001 were irrelevant in the “takings” case, and that even if water was “physically” available in 2001, it was not “legally” available for use in 2001.

NARF also stated the Tribes are protected by an 1864 Treaty requiring the quantity and quality of water to support fish populations that allow the Tribes meaningful harvest.

“Because Plaintiffs (irrigators) have failed to demonstrate that the senior tribal water rights were fully satisfied in 2001 such that there was remaining water that could have legally been delivered by the United States to Plaintiffs under the junior Klamath Project water right, Plaintiffs have failed to meet their burden of proof and their claim must be denied,” Noe wrote in the brief.

“The Project irrigators took the position that the tribal water rights were irrelevant to their claims. Thankfully, the court has made clear that the days of junior water users ignoring the senior tribal rights is over,” Noe said in a press release.



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