The legal context of the Klamath Basin controversy is complex and involves competing mandates and processes. These include treaties with Klamath Basin Tribes, relationship of authorities between state and federal water law systems and of federal water rights, federal reclamation and energy laws, and the Endangered Species Act.
1. Tribal Trust Obligations and Reserved Water Rights:
The U.S. has a trust responsibility to protect tribal trust resources. Generally this requires that the U.S. must protect tribal fishing and water rights held in trust for the tribes. Winters v. United States, 207 U.S. 564 (1908) applying reserved rights to Indian reservations and Arizona v. California, 373 U.S. 546 (1963) recognizing reserved water rights for other federal lands.
Court decision re Klamath Tribe’s right to Klamath Basin water
Treaty between the United States and the Klamath Tribes
Kandra v. United States
In 1979 the 9th Circuit Court of Appeals in Kimball v. Callahan, 590 F.2d. 768, found that despite termination, the Klamath tribe retained treaty hunting and fishing rights.
In Kandra v. United State, 145 F.Supp2d 1192 (D.C. Or. 2001), the federal district court of Oregon found the Klamath Project irrigator’s water rights are subservient to the government’s trust responsibilities for protecting Indian treaty fishing rights.
The courts in United States v. Adair (9th Cir.1983) confirmed to the Klamath Tribes “a quantity of water flowing through the reservation not only for the purpose of supporting Klamath agriculture, but also for the purpose of maintaining the Tribe’s treaty right to hunt and fish on reservation lands." Adair I (U.S. v. Adair, 723 F.2d 1394 (9th Ci.r 1983), cert. denied Oregon v. United States, 467 U.S. 1252 (1984) (Adair II)) announced the legal standard for quantifying the Tribes' water rights by holding the Indians are still entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights. If the preservation of these rights requires that the marsh be maintained as wetlands and that the forest be maintained on a sustained-yield basis, then the Indians are entitled to whatever water is necessary to achieve those results. In Adair III (U.S. v. Adair, 187 F.Supp. 2d 1273, 1275 (D.Or. 2002)) the federal district court of Oregon found that the Klamath Tribe’s water rights include enough water to support the resources that the Tribes gather in addition to what they hunt, fish, and gather (i.e., enough water to support plants that the Tribes gather for food and other uses). The court also stated that the Klamath Basin Adjudication process should “in no event . . . reduce the Tribal water right to a level below that which is necessary to support productive habitat.”
The Lower Basin Tribes, the Yurok and Hoopa are Executive Order Tribes and thus have a water right on the Klamath River, with a senior priority date. (Parravano v. Babbitt, 70 F.3d 539, 545 (U.S. App. 1995); cert. denied, 518 U.S. 1016 (1996)). However, their right has not been quantified. The purpose of their treaties with the United States includes fishing rights to take anadromous fish within their reservations in California. The fishing rights of the Yurok and Hoopa entitle them to take fish for ceremonial, subsistence, and commercial purposes. The executive orders establishing the Yurok and Hoopa Reservations reserved rights to instream water flow sufficient to protect the Tribe’s rights to take fish within their reservations. The Tribes’ water rights also include the right to water quality and flow rates to support all life stages of the fish.
Upper Klamath Tribe’s summary of water rights issues in the Basin as they impinge on the Tribes. Links to all relevant cases and legal documents.
Water rights of Project water users stem from contracts between an individual and BOR or a water district and BOR pursuant to the Reclamation Act of 1902. Water is made available subject to its availability and thus may not be available due to drought, the need to satisfy prior existing rights, or compliance with other federal laws.
3. NWR Reserved Water Rights and Kuchel Act Requirements
The Wildlife Refuges have federal reserved water rights to the amount of water that was unappropriated at the time of their creation, needed to fulfill the purpose of the refuges. Winters v. United States, 207 U.S. 564 (1908), applying reserved rights to Indian reservations, and Arizona v. California, 373 U.S. 546 (1963), recognizing reserved water rights for other federal lands.
The doctrine of reserved rights was created to insure that lands set aside (reserved) for Indians and the public (for a specific purpose) would have sufficient water to realize the purpose of the reservation. Rights on federal reserved lands have a priority that is derived from the date the reservation was established. In quantifying these rights, Congress has consented to joining the United States as a party in comprehensive state court stream adjudications (McCarran Amendment 43 USC 666). The refuges are all junior to the Project irrigators. When they are in priority and there is sufficient water the Refuges do get water from the Project. The Lower Klamath and Tule Lake refuges also get significant water as return flows from Project irrigators. However, these flows contain added nutrients, and other agricultural residue.
The Kuchel Act, passed in 1964 (16 U.S.C. §§695k-695r), mandates management for “optimum agricultural use" of certain refuge lands (so-called "lease lands"). Some of the crops are grown for waterfowl food, in an attempt to delay southward migration and therefore to decrease crop depredation in the Central and Imperial Valleys of California.
Map of BLM Water Rights Claims in the Klamath Basin Adjudication
Since February 24, 1909, Oregon has issued state water rights permits that establish how much water may be used for what purpose. Water use predating 1909 is considered to be vested, subject to adjudication. The Oregon State Engineer initiated the Klamath Basin adjudication in 1975. Anyone claiming a pre-1909 water right in the Klamath Basin had to file a claim. The Oregon Water Resources Department made a preliminary evaluation of all claims that was followed by the filing of 5,600 contests including federal claims. Claims have been made by the U.S. Forest Service (214), U.S. Bureau of Land Management (52), National Park Service (21 claims for Crater Lake NP), FWS (22 claims for rights in the Refuges), U.S. Bureau of Indian Affairs (393 claims on behalf of the Klamath Tribes), Klamath Tribes (5 claims incorporating all BIA claims and in effect duplicating the BIA claims), and BOR (7 consolidated claims for the Klamath Project). Oregon recognized water rights for maintaining instream flows and lake levels in 1987. However, they are junior rights and only about 20% of Oregon’s instream water rights are reliably satisfied in the summer and fall. During adjudication the state has maintained a policy of not managing water with respect to a pending claim, effectively leaving all of the claimants to fend for themselves.
Listing under the ESA sets into motion a cascade of legal steps designed to promote a species’ survival and recovery. When a species is listed, “critical habitat,” should be listed and a “recovery plan” promulgated. The ESA also authorizes the purchase of habitat, prohibits federal agencies from engaging in actions that might jeopardize a listed species, and prohibits individuals from “taking” the species. Section 7 prohibits federal agencies from engaging in any activity that will “jeopardize” the continued existence of a species and requires agencies to consult with either the FWS or NMFS if jeopardy might occur. The Supreme Court has held that the ESA is substantive and the duty to prevent jeopardy is absolute. A BA is required for § 7 to determine whether a proposed major construction activity under the authority of a federal action agency is likely to adversely affect listed or proposed species or designated critical habitat. Those agency actions include construction, funding, and operation of water projects as well as the approval of permits, contracts, and other documents pertaining to water use pursuant to other federal statutory requirements. Section 7 requires that when the Services issue an Incidental Taking Statement (ITS) (incidental take is the take—actual harm to an individual or adverse modification of habitat essential to a listed species—that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by a Federal agency or applicant) that a specific number or level of disturbance to habitat must be described.
Congress has directed the FWS and NMFS to give the benefit of the doubt to the species of concern when developing BOs (H.R. Conf. Rep. No. 697, as cited in USFWS 2001 Section III, Part 2; Page 125). Additionally, in addressing the intent of the ESA courts have ruled that “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution’.” Tennessee Valley Authority v. Hill, 437 US 153, 194 (1978); accord Sierra Club v. Marsh, 816 F2d 1376, 1383-84, 1387 (9th Cir. 1987) as cited in Kandra et al. v. US et al., US District Court of Oregon, Civ. No. 01-6124-AA (2001).
Issuance of an ITS requires that if the Service finds that the take would result in jeopardy to the species or result in adverse modification of listed critical habitat, then the Service must issue Reasonably Prudent Alternatives (RPAs) to the proposed action that minimize the impact of the incidental take. Jeopardy has been legally defined as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species” (50 CFR 402.02).
The Ninth circuit ruled in Klamath Waster Users Association v. Patterson (15 F. Supp. 2d 990, 996 (D. Or. 1998), 204 F.3d 1206 (9 Cir. 2000)) that BOR is legally obligated to operate the Project “to meet the requirements of the ESA, requirements that override the water rights of the Irrigators.” The court relied on the principal that “contractual arrangements can be altered by subsequent Congressional legislation” even when the legislation was passed after the contracts were made.
The irrigators may have a claim for money damages against the United States for losses resulting from non-delivery of contract water. In Tulare Lake Basin Water Storage District, et al. v. U.S, 49 Fed.Cl. 313 (2001) the U.S. Court of Federal Claims held that the United States had taken plaintiff’s property without just compensation. The plaintiff had contracts to receive specified amounts of water from federal water projects. BOR reduced the amount of water it delivered to the plaintiff in compliance with ESA for winter-run Chinook salmon and delta smelt. The suit was brought in response to BOR’s adopted RPAs requiring BOR to decrease water flow to contract irrigators. The court found that the contracts conferred on the irrigators a right to use some quantity of water and that the exclusive use of those rights for a listed species resulted in a physical taking of property by the government (Id at 316).
In Kandra v. United States, 145 F.Supp2d 1192 (D.C. Or. 2001), the federal district court rejected arguments that RPAs benefiting listed fish were illegal because they are inconsistent with the primary irrigation purpose of the Project and found that Project water rights were subservient to the government’s ESA requirements. Thus the priority of purposes for which the federal government must manage water in the Klamath Basin is: species listed under the ESA, Tribal trust responsibilities, contract irrigation water, and the National Wildlife Refuges.
On October 18, 2005, a three-judge panel of the 9th Circuit Court of Appeals said the 10 year flow plan for the Klamath River failed to provide adequate water flows in the river to protect coho salmon until the final two years of the 10-year plan. This effectively means the Bureau of Reclamation, must come up with a new plan that more equitably divides river flows between farmers and the endangered fish. PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS V UNITED STATES BUREAU OF RECLAMATION, 9th Cir. 2005, no. 03-16718.
Bull Trout (Salvelinus confluentus) – listed as threatened under the ESA in 1998 –has critical habitat designated in the Klamath Basin. On September 23, 2005 USFWS complied with a court order by announcing its final rule designating approximately 3,828 miles of streams and 143,218 acres of lakes and reservoirs in Oregon, Washington, Idaho and Montana as critical habitat for the bull trout, a threatened species protected under the Endangered Species Act (ESA). Bull trout are members of the char subgroup of the salmon family. They require very cold, clean water to thrive. Bull trout have declined due to habitat degradation and fragmentation, blockage of migratory corridors, poor water quality, past fisheries management, and the introduction of non-native species. Many of the remaining populations are small and isolated from each other, causing them to be susceptible to local extinctions. In the Klamath Basin 50 miles of stream and shoreline and 24,610 acres of reservoir and lake have been designated as critical habitat for the trout.
KB Bull Trout Fact Sheet
Status of the Bull Trout in Oregon, prepared by Oregon Dept. of Fish and Wildlife
Oregon Native Fish Status Report (entire report)
Oregon Native Fish Status Report (Bull Trout chapter)
6. Klamath Basin Compact
See Klamath River Compact Commission
7. FERC Relicensing.
In February 2004 PacifiCorp began the process to relicense the Iron Gate Dam on the Klamath River in the Klamath Project by filing an application with the Federal Energy Regulatory Commission (FERC).
PacifiCorp notice of application for relicensing Iron Gate Dam on the Klamath River in the Klamath Project
Final License Application
Final Technical Reports (water, fish, terrestrial, cultural, recreation, land use, visual and aesthetic resources, socioeconomic)
In January 2005 PacifiCorp notified Oregon officials that with the expiration of its 50 year contract to run the dams in the KB they will be raising electricity rates. This will affect farmers, as the cost to pump irrigation water will increase. Rates may increase by tenfold. The low rates were a condition when the government let PacifiCorp's predecessor build hydroelectric dams on the Klamath River in 1917. Farmers say the company remains obligated to continue the discount, but PacifiCorp says it is not.
8. Takings Claims by Klamath Irrigators
Since 2001, irrigators with water contracts in the Klamath Basin have been in the courts pursuing $100 million in damages from the U.S. government because of water left in the Klamath River by BOR in 2001 to meet ESA requirements. Irrigators claim that the water is a property right for which they must be compensated and rely on the result in a similar case brought by the Tulare Lake Basin Water Storage District as precedent. See Klamath Irrigation District v. U.S.
On April 30, 2001, Court of Federal Claims Judge John Wiese found in Tulare Lake Basin Water Storage District v. U.S., 49 Fed. Cl. 313 (2001), that withholding contract water from irrigators in California’s Central Valley to protect the ESA listed delta smelt and winter-run chinook salmon constituted a physical taking. He said that the federal government “is free to preserve the fish; it must simply pay for the water it takes to do so.” The government did not appeal the ruling, despite substantial political pressure to do so. In February 2004, the court ordered the government to pay $23.7 million in damages and interest. On December 20, 2004, the government agreed to pay $16.7 million to settle the case.
See U.S. to pay $16 million in water rights case;
Senator Feinstein Urges Appeal of Court Decision Affecting Endangered Salmon in the San Francisco Bay-Delta
In February 2005 U.S. Court of Claims judge Francis Allegra ruled that fishermen represented by the Pacific Coast Federation of Fisherman’s Associations can intervene as a “full party” in the Klamath Basin irrigator’s “takings” suit because the fishermen are an “affected economic interest” in the irrigator’s case. Klamath Irrigation District et. al. v. The United States, (01-291L), February 28, 2005.
The fishermen claim that failing to leave water in the Klamath River damages the fishing industry. They argue that water releases made in 2003 and 2004 to benefit irrigators resulted in significant fish dies-offs that have resulted in significantly fewer fish available for commercial take.
The irrigators are claiming a private property right in the water that flows in the Klamath River while the fishermen are claiming dependence on the same water as a public right.
On March 30, 2005, the U.S. Court of Claims heard arguments on the Klamath Basin irrigator’s claims. (The U.S. court of Claims handles questions of monetary compensation from the federal government).
See Farmers, government face off over Klamath River water.