Court upholds Klamath Tribes' water rights,
irrigators plan to challenge
County Circuit Court upheld a majority of decisions
concerning the Oregon water rights of the Klamath Tribes on
Wednesday, but Basin irrigators say there could be changes
in how those rights are enforced down the road.
language wherein the U.S. government promised adequate
resources for hunting and fishing on the former Klamath
Indian Reservation, the Tribes had successfully proven the
existence of their time immemorial water rights in federal
court in the 1970s and 1980s. But that litigation required
their participation in the Klamath Basin Adjudication in
order to quantify those rights.
Cameron Wogan’s latest proposed
order upheld most of the
Oregon Water Resources Department’s decisions on tribal
water rights made during the adjudication’s administrative
irrigators, including those within the Klamath Project and
along the tributaries of Upper Klamath Lake, had made
several motions to limit the scope and quantity of those
In a general
sense, Judge Wogan denied the majority of those and upheld
the validity of the Tribes’ time immemorial rights. However,
he did grant a motion filed by irrigators along tributaries
to Upper Klamath Lake to vacate OWRD’s prior determination
of how much water the Tribes are entitled to, triggering a
re-quantification of those rights.
irrigators argued in their motion that OWRD’s adjudication
didn’t apply the “moderate living” standard, which allows
the Tribes’ water rights to be limited if doing so would
still allow for the viability of their treaty resources.
agreed, though he pointed out that previous litigation
outlined the quantification of tribal water rights as a
two-step process: First, adjudicators were obligated to
grant a water right adequate enough to support “healthy and
productive habitat” to sustain the Tribes’ fisheries.
Second, they were to apply the moderate living standard to
limit that water right to the extent that it didn’t
negatively impact habitat.
argued that, while the adjudication failed to complete step
two, applying the moderate living standard on remand may not
change the situation.
the moderate living standard may not have much effect upon
the level of water necessary to have a healthy and
productive habitat,” he wrote. “That is because the water
level cannot be reduced below what the evidence establishes
is the minimum required for a healthy and productive
Sue Noe, the
Tribes’ attorney with the Native American Rights Fund, said
the burden will be on irrigators to prove that the Tribes’
fishery doesn’t need as much water as it’s getting. She said
evidence the Tribes provided during the adjudication to
support the existing quantity was already geared toward the
minimum water level to support C’waam and Koptu (Lost River
and shortnose suckers) fisheries. Even then, she said the
goal of the standard is to keep the fisheries sustainable
enough to support tribal populations.
“It’s not just
to keep the fish alive — there have to be populations that
are sufficient to allow harvest,” Noe said.
Given that the
Klamath Tribes haven’t engaged in the subsistence harvest of
C’waam and Koptu in decades and the fish populations in
Upper Klamath Lake and its tributaries continue to decline,
Noe postulated that irrigators will be hard pressed to argue
a quantified water right for the Tribes that’s lower than
what they already have.
irrigators were grateful to be handed an opportunity to do
so. Martin Nicholson, a board member of Fort Klamath
Critical Habitat Landowners, Inc., said a settlement reached
between the Tribes and Wood River Valley irrigators , which
was terminated in 2017 but temporarily allowed flows to
irrigators, suggests that there’s room for the moderate
living standard to further limit the Tribes’ quantified
to have the opportunity to have the department reconsider
these flows. We thought they were too high when they were
part of the adjudication, and now the Water Resources
Department has the opportunity to get them right,” Nicholson
also denied a motion by irrigators to dismiss the Tribes’
claims to water in Upper Klamath Lake and the Wood River
Valley on the basis that those streams lay outside the
boundaries of the former Klamath Indian Reservation. He
cited legal precedent saying that streams that intersect or
border the reservation are claimable by the Tribes. Based on
language in the Klamath Treaty of 1864, which established
the reservation, the judge affirmed that Upper Klamath Lake
and the Wood River fit those requirements.
judge denied the Tribes’ motion to include the Klamath
River, which was part of their traditional territory but
ceded to the U.S. during the creation of the reservation.
Though some treaties made between tribes and the U.S.
government have included clauses that reserve hunting and
fishing rights in ceded territory, Judge Wogan determined
that this was not one of them.
“The Tribes do
not have reserved in-stream rights for completely off
reservation waters such as those they seek on the Klamath
River for a number of reasons. Unlike some treaties, the
language of this one does not support those claims,” he
Noe said the
Tribes will have the option to appeal that decision and
present evidence supporting their claim to water in the
Klamath River, though that’s quite a ways off in the
“We do think
that, under federal law, off-reservation sources should
support on-reservation rights,” she said.
executive director of the Klamath Water Users Association,
said Klamath Project irrigators are largely unaffected by
the decision, as a settlement prevents the Tribes from using
water rights in Oregon to curtail deliveries to the Project
from Upper Klamath Lake. But he said the denial of tribal
claims to the Klamath River was a “relief,” given that some
Project irrigation districts draw water directly from the
Klamath River below Lake Ewauna.
macro-existence of the Tribes’ water rights has been
affirmed,” Simmons said. “Some of the qualifications and
nuances could be beneficial for irrigation.”
If the court
issues an order in March that requires OWRD to re-quantify
the Klamath Tribes’ water rights, Simmons said irrigators
may have recourse to block calls for water the Tribes make
in the summer on tributaries to Upper Klamath Lake. But Noe
said that’s unlikely, given Oregon water law.
says that while OWRD’s order is pending in court, “the
division of water from the stream involved in the appeal
shall be made in accordance with the order.” Noe said that
since Judge Wogan has decided not to issue a final decree
until all litigation on the administrative findings has been
completed, the Tribes should still have the authority to
make water calls while their rights are being re-quantified.
counsel for Upper Basin irrigators, said that once the order
enforcing the judge's decision goes into effect, the fact
that the Tribes' rights are vacated means that there won't
be any quantifications to base a water call on.
quantifications are vacated, there are no flows in the order
for OWRD to enforce," Carollo said.
Chairman Don Gentry praised the ruling and Judge Wogan’s
interpretation of treaty rights.
“We are pleased
that Judge Wogan upheld the rulings from the administrative
phase of the KBA,” Gentry said. “He reaffirmed that the 1864
treaty entered into between the Klamath Tribes and the
United States reserved to the Tribes sufficient water to
keep our fisheries and other aquatic resources healthy so
that we can protect our natural resources and cultural
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