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Legal flap erupts over (Klamath) county's exit from KBRA

Other signatories say the agreement is a binding contract
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Tim Hearden/Capital Press

Beatty, Ore., farmer Tom Mallams holds a sign at a rally in opposition to the Klamath Basin restoration and dam-removal projects in October 2011. He and other Klamath County commissioners voted Feb. 26 to withdraw from the project.

by TIM HEARDEN, Capital Press 3/7/13

KLAMATH FALLS, Ore. -- A county commissioner here rejected arguments from proponents of the Klamath Basin Restoration Agreement that Klamath County cannot legally withdraw from the pact.

Commissioner Tom Mallams, a longtime project critic, said the panel was fully within its rights when it voted 3-0 on Feb. 26 to have County Counsel David Groff draw up an order to drop out of the project.

The Board of Commissioners will take a final vote on the issue March 12, only a few months after a previous commission voted to join the 41 other signatories in agreeing to a two-year extension.

"One board cannot by law in Oregon bind a future board," said Mallams, a hay farmer from Beatty, Ore. "They cannot do it. They've been raising that argument, but in the KBRA meetings it was made very plain in all the discussions that if anybody wanted out, they would be let out.

"There was never, ever a concept of being forced to stay in it at all," he said.

Two other signatories -- the Karuk Tribe and the Klamath Water Users Association -- have said the county can't pull out because the agreement is a binding contract.

Ed Sheets, facilitator of the panel that oversees the project's implementation, told the Capital Press he has asked Groff to point to the language in the agreement the county is citing as its basis for withdrawing.

"There are only a few, very narrow provisions for a party to withdraw from the agreement," Sheets said.

One of those provisions is if a portion of the pact is found to violate existing laws, he said. The pact does acknowledge that one Congress cannot bind future congresses when it comes to the appropriation of money, but Sheets said he is unaware of similar language for other governmental bodies.

Groff said he could not comment about the county's legal position without consulting the commission further. He said Oregon law "is fairly consistent with other state bodies of law" regarding commissions' inability to bind future commissions.

The flap is only the latest in a long string of controversies and challenges facing the 3-year-old water agreement, which includes the removal of four dams from the Klamath River and numerous conservation efforts.

As funding and authorization has languished in Congress, U.S. Interior Secretary Ken Salazar last year indefinitely put off making a final determination of the feasibility of the project, which he had hoped to do by this month.

The latest setback comes as tribes may be on the verge of having their senior water rights affirmed by a long and complex adjudication process. In addition, another biological opinion on the water needs of imperiled suckers and coho salmon is due out this spring.

Mallams said the KBRA was successful at bringing people together, but he argued the parties should scrap the current agreement and craft a new one that doesn't exclude some interested parties from the conversation.

"We need a settlement here," he said. "That's one thing I have been optimistic about is the tone in some of these last meetings we've had. The project irrigators and the tribes want us to be talking and that's great. That has changed somewhat, so I am optimistic that's what needs to happen."



Klamath County Board of Commissioners: http://www.klamathcounty.org/commissioners/

Klamath Basin Restoration Agreement: http://klamathrestoration.gov/





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