“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
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
“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.
(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