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Klamath farmers hope settlement leads to certainty

KBC NOTE: Notice the word "hope" in the title. Keep in mind, ""20.4. Reservations. 20.4.1. Reservation of Rights by the Tribes.The Tribes hereby reserve their rights to enforce any Regulatory Approval, including biological opinions under the Endangered Species Act, contemplated by and Consistent with this Agreement under Applicable Law. The obligations of Section 20.3.B.iii (1) through (4), and iv (1) through (4), do not apply to such  enforcement; provided that Section 7.4.2 is applicable. Further, nothing in this Agreement shall preclude any Tribe from pursuing or obtaining authority under 33 U.S.C. sections 1377(e) nor limit its obligations under any such authority."
21.5. Reservation. By entering into this Agreement, NMFS and FWS are not prejudging the outcome of any process under the ESA and NMFS and FWS implementing regulations, and NMFS and FWS expressly reserve the right to make determinations and take actions as necessary to meet the requirements of the ESA and implementing regulations.
Klamath Tribe document of intensions -  putting land into tax-exempt trust, ...intends to "buy back private lands....and secure funding for purchasing retired water rights, conservation easements...assert tribes senior water rights...expand gaming...exchange for federal lands..."

Issue Date: June 10, 2009 By Christine Souza, Assistant Editor AgAlert, California Farm Bureau Federation

Scott Seus, with his son Spencer at a drainage ditch near Tulelake, says a settlement between irrigators and the Klamath Tribes could be an example for other regions that face water challenges.

"At the end of the day it is about ending the fighting," says Tulelake grower Scott Seus.

For Seus and other farmers on the California side of the Klamath Basin who receive irrigation water from Upper Klamath Lake in Oregon, water supply certainty is expected to come in the form of a recent settlement among the Klamath Water Users Association and the Klamath Tribes of Oregon.

The tribes and irrigators in the Klamath Water Project signed an interim settlement of disputes over water in Upper Klamath Lake and the Klamath River. The settlement results from ongoing efforts by some 26 stakeholders in the basin to increase stability for tribal, agricultural and fishing communities through the implementation of a Klamath Basin Restoration Agreement.

Regardless of what happens, Klamath Water Project irrigators say they will not have to worry about the Klamath Tribes making a call on their water, because they worked together to settle a long-time dispute.

"This is the product of a lot of hard work and good faith by the parties," said Luther Horsley, president of the Klamath Water Users Association. "We commend our neighbors the Klamath Tribes for the collaborative approach that led to this big step forward."

Klamath Tribal Council member Jeff Mitchell said the parties would realize immediate benefits.

"After years of bitter disputes and lawsuits, we can turn our attention to providing economic and water stability to both communities. If the restoration agreement can be finalized these fights will be over for good, with all sides winning," he said.

All interests in the Klamath Basin are also taking part in an adjudication process for the state of Oregon to determine how much water they are each entitled to receive.

Klamath Water Users Association Executive Director Greg Addington said that under the settlement, project farmers withdraw their contests against tribal water rights claims in the adjudication. In exchange, the Klamath Tribes agree not to interfere with project water use at levels agreed in the proposed restoration agreement.

"The reason we were able to settle with the Klamath Tribes in the state adjudication was because of the last four years of dialogue that has gone on with the Klamath Basin Restoration Agreement," Addington said.

The restoration agreement provides for a schedule to lead to a limitation on project diversions and a plan to ensure individual irrigators can either irrigate or receive fair compensation if they agree not to irrigate. The interim settlement, filed in the Klamath Basin Water Rights Adjudication, will become permanent if and when essential elements of the restoration agreement become effective. In the meantime, the settlement results in putting aside long-standing disputes in the adjudication process.

"This is the exact same water settlement with project irrigators we would be agreeing to under the restoration agreement. We found a way to do it in anticipation of the agreement and still protect everyone's interests. It shows the enormous potential to bring stability to the basin," said Klamath Tribes attorney Bud Ullman.

Seus agreed that the settlement provides "a better picture where we all see the future clearly and we don't have all of this uncertainty that makes it hard for us to plan from year to year, to get operating loans, to be able to sign contracts with processors and to make arrangements with landowners that we are renting from."

The settlement does not preclude other parties from contesting the tribes' claims. But Horsley noted that it does directly benefit many off-project water users who otherwise would be affected by the tribes' claims.

The tribes also have claims for flows in the tributaries to Upper Klamath Lake that are not addressed by the settlement with project water users. Mitchell said the agreement with the project irrigators supports his belief that all the tribes' adjudication claims can be settled.

"We have had serious disagreements with the project in the past. When we sat down with the commitment to address each other's needs, we found a way," he said.

Seus said the interim settlement among Klamath Basin irrigators and the tribes will save both sides millions of dollars in legal fees.

"If we are successful here, the adjudication claims are dropped and we have an agreed allotment of water," he said. "As an irrigator in the Klamath Project I'm funding those lawyers that are fighting out the adjudication claims. As a farmer I have everything to lose if a judge decides at the end of the day that somebody else has got my water rights."

The Klamath Basin's unified approach to solving the region's water issues, Seus said, is an example for other growing regions in California that face what seem like impossible water challenges. He recalls the 2001 water shutoff to Klamath Basin irrigators, which occurred after the federal government issued biological opinions under the Endangered Species Act that required higher water levels to protect endangered suckerfish and higher flows to protect threatened coho salmon.

"In 2001 when they shut off the water to irrigators in the Klamath Basin I said, 'This is a roadmap to a much bigger deal. If they are successful this year here, they can shut off the water anywhere,'" Seus said. "If this is what we all have to look forward to, then certainly taking matters into our own hands by working out arrangements with those that are our adversaries and building alliances and relationships with people we have been opposed to for the last 50 years is the only way to survive."

The goal of the restoration agreement is to serve as a comprehensive solution for the region's water needs that supports removal of four dams owned by PacifiCorp, to give threatened coho salmon and other fish species access to 300 miles of habitat in the river and improve water quality. Stakeholders include irrigators represented by the Klamath Water Users Association, as well as environmentalists, tribes, fishing groups and government agencies.

Scott River and Shasta River valley irrigators downstream, who were not at the table during negotiations for the agreement, remain concerned about how the removal of the dams will affect their farming operations.

"We are concerned about the effect that this will have on the Shasta and Scott rivers that flow into the Klamath River," said Mike Ruiz, Siskiyou County Farm Bureau past-president. "By removing the dams, the Klamath River in dry years will not have any water because it will not have the storage to keep the water flowing for the fish. We believe they would come after water in the Shasta and the Scott rivers and make us stop irrigating out of those to get the Klamath flows for the fish."

Until long-term water issues can officially be worked out, Seus and other Klamath Basin irrigators will have to evaluate their water needs on a monthly basis.

"We have to meet certain lake elevations at the end of each month. I think we are going to be fine for June, so now we are focusing on July and August so it might be nip and tuck," Addington said. "This is why we are pursuing the restoration agreement. We have to do better than this."

Although Upper Klamath Lake did not fill as much as irrigators would have liked, the water outlook for this season, Addington said, appears to be good thanks to some early spring rains.

Last week, Seus said he was "licking his wounds" after rainstorms and hail hit the Tulelake region with 2 inches of precipitation in 20 minutes. He was working on his first cutting of alfalfa and scouting onion and horseradish fields for any signs of disease or crop damage.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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