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(Klamath) Tribes call for agreement termination

by Holly Dillemuth, Herald and News 5/18/17

After mediation failed to find a solution to sustain the Upper Klamath Basin Comprehensive Agreement (UKBCA), Klamath Tribes and Upper Basin irrigators differ on the future of the agreement.

In an April 26 letter, Klamath Tribes Chairman Don Gentry asked U.S. Department of the Interior Secretary Ryan Zinke for the UKBCA’s termination through issuing a “Negative Notice,” citing unmet stipulations in the agreement and termination of the Klamath Basin Restoration Agreement (KBRA).

Gentry recently visited with U.S. Sens. Ron Wyden and Jeff Merkley, both Oregon Democrats, as well as U.S. Rep. Greg Walden (R-OR) in Washington, D.C. and Department of Interior staff regarding the UKBCA.

“We provided a status of the Upper Basin agreement, and our intentions to continue the Negative Notice,” Gentry said.

“It was centered on trying to resolve litigation over water,” Gentry said of the UKBCA. “It was never intended to be a stand-alone agreement. In fact, it really couldn’t survive without the KBRA.”

Agreement request

Upper Klamath Basin irrigators submitted an April 28 letter asking Zinke to keep the agreement in place, via attorney Dominic M. Carollo on behalf of Fort Klamath Critical Habitat Landowners, Sprague River Resource Foundation and the Modoc Point Irrigation District. Upper Basin irrigators continue seek a solution to keep the agreement intact.

“Terminating the UKBCA at this time, just as the irrigation season commences, would have devastating consequences for livestock producers in the Upper Klamath Basin by subjecting them to calls for fulfillment of Tribal in-stream water rights at their full levels as opposed to the reduced levels negotiated under the UKBCA,” Carollo said in the letter.

The Klamath Tribes met with Oregon representatives, land owner entities and Interior officials Oct. 3, 2016 to find a way forward following termination of the KBRA. Attempts for a solution failed.

“The Klamath Tribes determined that the parties could not cure the losses incurred by the termination of the KBRA or address the issues listed in our Notice, as these programs were inextricably tied to KBRA funding sources,” Gentry wrote in the letter to Zinke.

Mediation efforts

Following that determination by Gentry in October 2016, he and other Tribal members continued to seek a solution through mediation. On Feb. 23, Gentry met with a select group of landowners, officials from the Bureau of Indian Affairs, Interior’s Office of the Solicitor and the Department of Justice, as is required by the Upper Basin agreement.

Mediator Susan Driver, who led the mediation, concluded parties were unable to reach a solution, according to the letter to the Interior.

“The expiration of the KBRA is too big to overcome to successfully implement the UKBCA,” Gentry wrote in the letter to the Interior. “...The overall benefits the KBRA was designed to provide to the Klamath Tribes cannot be accomplished through the UKBCA alone.

“When the Klamath Tribes and the other parties negotiated the Klamath Basin Restoration Agreement, it was envisioned that they were going to try to bring as many parties that were battling over water together to reach a solution that would work for all,” Gentry added.

The KBRA terminated Jan. 31, 2015.

“When legislation didn’t move, KBRA died,” Gentry said.

Mediation failure

While the UKBCA remains in effect at this time, Gentry emphasized attempts to find a solution through mediation have failed, with the stipulation of the Klamath Tribes unsatisfied.

“The irrigation community hasn’t achieved the benchmarks that were outlined in the agreement, the Klamath Tribes as per the conditions of the agreement, have the ability to call to our full water right,” Gentry said.

In addition to the termination of the KBRA, Gentry stipulated several problems with the UKBCA, lack of implementation of a tribal jobs program, a funding program to provide access for exercise of treaty resources, and non-operational water-use and riparian management programs that no longer have binding agreements or identified funding sources.

Carollo, in the letter, writes: “The Upper Basin irrigation community recognized that while funding the UKBCA programs would be a challenge, it has been made even more difficult due to the expiration of the KBRA. However, despite these challenges, Upper Basin irrigators, through the Landowner Entity, have continued to work on the riparian restoration and water leasing and retirement programs to provide support for the Tribal resources envisioned under the UKBCA … The irrigation community remains committed to working through these issues.”

The Negative Notice and irrigators’ letter sent to the Department of the Interior are available to read with this story at heraldandnews.com.

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Pathway unclear for water settlement

A water settlement between the Klamath Tribes and irrigators — on and off the Bureau of Reclamation's Klamath Project — is not on the table at this time, according to Klamath Tribes Chairman Don Gentry.

On the heels of a letter submitted to Secretary of the Interior Ryan Zinke by the Klamath Tribes on April 26 to terminate the Upper Klamath Basin Comprehensive Agreement (UKBCA), Gentry also commented on the possibility of whether the Tribes could reach a point of settlement in the future.

“At this point we don't see a pathway to the major elements that were important to the Klamath Tribes in the past settlements,” Gentry said during a phone interview with the Herald and News.

“Our members have clearly not given us any direction to engage in settlement discussion at this time,” Gentry said, noting they are always willing to listen, but discussions regarding water settlement would need to make sure Tribal membership is involved in the process.

In the letter to Zinke, Gentry said the Tribes remain committed to the Klamath Basin's restoration and are always available to explore proposed solutions that may accomplish this goal.

“Our experience with Klamath Basin Restoration Agreement has taught us, however, that any future settlement process must allow the General Council to provide meaningful direction and guidance to its negotiating team, and sufficient time and opportunity to fully review, consider and approve any proposed settlement framework,” Gentry said.

At a minimum, Gentry said any framework for a settlement proposal must adequately address treaty resource reintroduction, restoration and protection resulting in sustainable and harvestable treaty resources that will support the meaningful exercise of treaty rights.

“This must include return of homelands and co-management of land and resources that affect treaty resources (e.g., forest health),” Gentry wrote. “... Ultimately, the Tribes' goal is a robust and sustainable tribal economy that will provide for the Klamath people and the regional community alike.”

— Holly Dillemuth




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