Judge Favors Tribes in Upper Klamath Water Rights Adjudication

A recent proposed water rights adjudication decision in Oregon favored the long running claims of the Klamath Tribes over those of upper basin ranchers. The decision, if it is not reversed in further litigation, would support the habitat of the Lost River Sucker, shown above. / Photo by Tupper Ansel Blake for USFWS.

More Litigation Expected

By Malcolm Terence, Two Rivers Tribune Contributing Writer

Opponents of water rights of the Klamath Tribes are predicting more litigation despite six proposed orders recently issued by an administrative law judge favoring the tribes. The complex adjudication began 36 years ago.

The decision covered who has water rights and in what quantities for the Williamson, Sycan, Sprague and Wood Rivers along with many of their tributaries, as well as the Klamath Marsh and springs scattered throughout the former Klamath

Reservation. Cases involving Upper Klamath Lake and the Klamath River are expected to have decisions handed down in April.

The Klamath Tribes, composed of Klamath, Modoc and Yahooskin peoples in the Upper Basin, signed a treaty with the US in 1864, was terminated in 1954 and was restored in 1986.

Bud Ullman, a tribal attorney who has been on the case for 23 years, said there were further steps before there would be a final decision and added, “Water adjudications are infamous for taking many, many years. My opinion is that this is due to the number of water interests involved in any river basin, and the interconnectedness of the competing rights.”

Ullman cited as an example an unfinished adjudication on the Lost River in Southern Oregon which began in 1918.

Administrative Law Judge Joe Allen, at least the fourth hearing officer in the Klamath case, awarded the Tribes sufficient instream flows and water levels necessary to create a productive habitat for animals, plants and fish so that the Klamath can maintain their their rights to hunting, fishing and trapping stemming from the 1864 treaty.

Doug Whitsett, the Oregon State Senator who represents the area, said there were several more steps before the final orders were written. The final orders might follow Allen’s proposed orders, change them significantly or be totally rewritten.

Sen. Whitsett, in an email to Two Rivers Tribune, wrote, “I anticipate substantial further legal activity. A number of very learned water law attorneys hold serious reservations regarding both the content of the proposed orders as well as the process and legal precedents that the administrative law judge followed or failed to follow in reaching his proposed orders.”

Sen. Whitsett and other Upper Basin leaders who have opposed tribal rights have critics even among irrigators in the area. One of them, Cheri Bacchi Little, a fourth generation cattle rancher from Fort Klamath, published a candid opinion piece in the Capital Press.

She wrote, “Their preference for unsuccessful litigation the spread of fear of what ‘might’ happen is in the way of my goal to continue to ranch and leave a clear path for my grandchildren. (They) have told irrigators…repeatedly to oppose the

Klamath Basin Settlement Agreements (KBRA) because we should ‘focus on adjudication because only that will provide clarity.’ Well, (now) we have a good taste of clarity.”

Little concluded, “The proposed order in the adjudication is a painful slap of reality. Elected officials like Whitsett need to wake up..”

Another Whitsett critic was Matt Walter of Chiloquin, president of the Upper Klamath Water  Users Association. Walters wrote in the Klamath Falls Herald and News, “There is …a role for litigation in protecting interests, but it has to be combined with negotiated settlement work. So we have worked hard to craft a settlement with the Klamath Tribes, and they have been a good and trusted partner. The problem is some leaders in our community continue to oppose and undermine meaningful settlement efforts in the KBRA, where everyone gives a little so all can gain in the end.”

The decisions of the administrative law judges over the years are not easily read by non-lawyers but some parts approach ordinary English language. A sample, with a few explanations in parantheses:

“The quantification process for determining the amount of water will be a modified two-step process. Claimants (that’s the Klamath Tribes) have the burden to show the amount of water necessary to build or preserve a viable and self-renewing population of treaty species (a reference to the 1864 Treaty) including the healthy and productive habitat necessary to such a population, sufficient for the exercise of the Tribes’ aboriginal rights, and the Contestants (ranchers and farmers) have the burden to show that a lesser amount of water will accomplish the same productive, healthy habitat.”

If this paragraph makes a reader feel ready for law school, it is worth noting that it is just one relatively transparent passage in the 38 pages of one of six new orders. Also, preceding them there were years of hearings and a filing of 800 exhibits, so-called, which amounted to thousands of pages of evidence on all sides of the case.

In at least one point, 10 years ago, Klamath County Commissioners decided to give $50,000 to local irrigators to appeal a decision on the federal level which favored the Klamath Tribes. The federal courts had just reaffirmed that the Klamath Tribes had senior water rights in the Klamath Basin dating back to “time immemorial”.

The federal decision also said that the 1864 treaty entitled the Tribes to “whatever water is necessary” to support productive habitat for the Tribes’ hunting, fishing, trapping and gathering activities.

Bud Ullman, who was already the Tribes’ attorney, said at the time, “Local governments have historically been party to shameful treatment of native people, so I suppose this episode should not be surprising.”

The claimants in the case were the Klamath Tribes and the US Bureau of Indian Affairs as trustee on behalf of the Tribes. On the other side were the contestants, which included  landowners.

Among the landowner contestants are Roger Nicholson and Tom Mallams, who are singled out for particular criticism in Little’s opinion piece in the Capital Press along with Sen. Whitsett. She wrote, “We  work with the Klamath Settlement

Agreements to try to shape our future. To my amazement (they) now stand directly in the way of that goal.”

Mallams is a candidate for County Commissioner in Klamath County.

Bud Ullam, the Klamath Tribes’ attorney, said the proposed decision had not changed their support of the KBRA. He suggested that the Hoopa Valley Tribe, which took part in the basin settlement talks but has opposed the KBRA would “be better served by the KBRA than other wise.”