The Klamath 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.
Using treaty 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.
Judge 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 phase.
Basin 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 rights.
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.
Upper Basin 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.
Judge Wogan 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.
Judge Wogan argued that, while the adjudication failed to complete step two, applying the moderate living standard on remand may not change the situation.
“In practice 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 habitat.”
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.
Still, 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 water rights.
“We’re pleased 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 said.
Judge Wogan 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.
However, the 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 wrote.
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 process.
“We do think that, under federal law, off-reservation sources should support on-reservation rights,” she said.
Paul Simmons, 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.
“The 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.
ORS 539.170 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.
Dominic Carollo, 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.
"If the quantifications are vacated, there are no flows in the order for OWRD to enforce," Carollo said.
Klamath Tribal 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 traditions.”