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Negotiated settlements provide better outcomes

Adjudication is not the only solution to complex water and economic issues

by KARL SCRONCE, MIKE BYRNE, JIM CARLETON, ROB UNRUH and STEVE KANDRA, guest writers, Herald and News 12/29/11

Most irrigation districts in the Klamath Reclamation Project are active participants in the Klamath River adjudication. However, as Project irrigators have experienced with water shut-offs, and off-Project irrigators are realizing from recent Proposed Orders, adjudication is not the complete solution to water supply and economic crisis in the Klamath Basin. The adjudication does not address the need for affordable electricity for pumping water. The adjudication does not resolve regulatory compliance with the Endangered Species Act or the Clean Water Act.


right” water rights claims. The Adair Case affirmed the Klamath Tribes water rights as time immemorial — or first in line — to support gathering, wildlife, and fisheries on the former reservation, based on the 1864 Treaty approved by the Tribes and Congress. The adjudication’s administrative law judge’s recent Proposed Order is the recommended quantification of the Tribal rights for waters tributary to Upper Klamath Lake.


in a series of legal venues. Negotiated settlements have proven to be better outcomes as contestants retain control over outcomes and costs.


With litigation, the courts and judges control outcomes resulting in “winners and losers” without compensation for loss. Many of the original “contests of claims” have come to a negotiated settlement conclusion: Project irrigators have entered settlements and some off-Project irrigators have entered settlements.


i.e. curtailment of water use based on adjudication, is involuntary.


The Klamath Project has a negotiated settlement with the Klamath Tribes contingent on implementation of portions of the KBRA and the Klamath Hydroelectric Settlement Agreement. The Project and Tribe’s proposed settlement has prevailed over several legal challenges from outside the Project. There is provision in the KBRA for those outside of the Klamath Project to negotiate voluntary settlements with the Klamath Tribes. Many have chosen to negotiate with the Tribes within the KBRA framework.


We support negotiated settlements within the adjudication, encouraged by the KBRA, that resolve long standing water disputes, and provide a pathway to affordable energy and regulatory relief.


KBC response:

Here for KBC > Adjudication Page.


The group claims the KBRA will "provide a pathway to affordable energy and regulatory relief."

We have seen no regulatory relief since they stakeholders at the negotiation table signed to uphold the ESA and biological opinions, that which has taken and will continue to take deeded water from irrigators.

Regarding the pathway to "affordable energy," read, or listen to, the audio below. KWAPA Holly Cannon states that irrigators are giving up 1/5 to 1/4 of their water, and said, "we can't guarantee.." the power rate will be lower than tariff rate. See and hear quotes, and entire audio below:

Monday Oct 3, Klamath Falls, meeting about signing up for cheaper power rater for irrigators, "Water For Power" (Approximately 50 people attended this meeting.
Below is the audio and some quotes from the Tulelake meeting:
AUDIO 9/28/11 - Klamath Basin "Power for Water Agreement" Holly Cannon, KWAPA / Klamath Water and Power Agency (power part of the KBRA / Klamath Basin Restoration Agreement), Executive Director, held meeting in Tulelake to urge irrigators to sign onto the "low-cost power for water" agreement..."...that's what the KBRA is about, is bringing "low-cost power..."
Cannon: "What you're giving up is water to get affordable power."
Q "What is the acre feet that we're giving away for this cheaper power rate?"
A  Cannon: "I'd say 20-25%, but it varies year to year.....What you're giving up is water to get affordable power...KWAPA is doing an On-Project plan that is designing how you're going to give up water..." 
Q "What happens if we find out with the program it looks good, then all of a sudden it could be higher than the tariff rate? You can't guarantee what that rate's going to be."
Cannon, "We can't guarantee it."
Q "It might not be that golden egg ...and the landlord says, 'no I don't want this,' and then he's stuck with it... and then it could be a liability problem too." 
Cannon, "it could be,"  
Q "and then he  comes back on whoever signs the contract."

Cannon, "yeah."


The authors infer that the choice is settlement or litigation. The KBRA does not claim to end litigation, however it makes rules on HOW litigation will happen. At the 12/15/11 KWAPA meeting on the KBRA On Project Plan, Klamath Water Users director Greg Addington stated that they can't guarantee that lawsuits won't shut down irrigation.


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