FORT KLAMATH, Ore. -- Roger Nicholson was a
little perplexed as he looked out upon what appeared to be a
swelling Wood River on a rainy afternoon here earlier this
The rancher has not been able to irrigate his
pastures since July 5, as the Klamath Tribes' call on their
senior water rights has led to a series of water shutoffs to
large swaths of ranch land in the Upper Klamath Basin this
Nicholson and others who rely on water from
the Williamson, Sprague and Wood rivers may take just enough
water to fill their stock ponds, but no more.
"Cattle numbers are down, and the country's
drying up," he said. "My family's been there since the
1890s, and this is the first year we've been shut off. This
isn't about drought. It's about politics.
"It's been estimated that with the diminished
value of lands, the economic hit will be up to $500 million
from this," said Nicholson, adding he spoke to one implement
dealer in Klamath Falls whose seen his sales cut in half.
"It's just the same as shutting down several big factories."
Nicholson and some 200 other cattle ranchers
and hay farmers are caught up in the latest in a seemingly
endless string of water crises that have bedeviled the
Klamath Basin, where American Indians, farmers, salmon
fishermen and environmentalists have been fighting in courts
and legislative bodies over a limited water supply for
New battle lines
The latest battle lines were drawn in March
when the Oregon's Water Resources Department delivered what
it called "an historic document" to the Klamath County
Circuit Court, marking a milestone in a nearly 40-year
process to determine senior water rights in the basin. The
most senior determined claims in the adjudication were those
held by the federal government in trust for the Klamath
Tribes, a federation which includes the Klamath, Modoc and
Yahooskin tribes, which carry a priority date of "time
The tribal claims were recognized for certain
reaches of the major tributaries to Upper Klamath Lake and
for the lake itself. Other tribal claims were denied for
streams outside the boundaries of the former Klamath Indian
Reservation, including the tribes' claim for portions of the
Klamath River, the agency explained.
In June, the tribes and the federal
government made calls on their water rights, forcing tens of
thousands of acres in the drought-stricken Upper Basin to go
without irrigation this summer. The tribes are maintaining
river flows for fish, while the U.S. Bureau of Reclamation
is using its water for the 225,000-acre Klamath Reclamation
Project along the Oregon-California state line south of
In July, Klamath County Circuit Court Judge
Cameron Wogan denied a request from about 40 Upper Basin
ranchers and farmers to stay the state's order until a
process for disputing the adjudication could be completed in
The latest crisis marks a role reversal of
sorts from the summer of 2001, when biological opinions for
two imperiled fish led to shutoffs for project irrigators
while Upper Basin landowners still received water. This time
it was the off-project irrigators who staged a "bucket
brigade" rally in downtown Klamath Falls on July 1 to
protest their plight.
Since then, many ranchers have had to ship
out thousands of cattle that typically summer in the basin
because of a lack of feed. In early August, Linda Long and
her husband, Pete Bourdet, had to send 1,100 head of cattle
off the family's 1,000-acre ranch on Modoc Point to greener
'A considerable loss'
The family was running the cattle "on the
gain," which means they're paid for the weight the cattle
gain while grazing on their land. Typically the cattle ship
out in early October, but their early departure cost the
family payment for about 120 pounds per head, Long said.
"So it got to be a considerable loss," she
said. "We usually bring in around 500 yearlings after the
steers leave, but we won't be doing that this year. It's a
big hit for us."
Long is board chairwoman for the Modoc Point
Irrigation District, whose 60 customers run about 3,000 head
of cattle on 4,300 acres.
Recently the district used federal funding to
replace an old dam on the Williamson River with fish screens
and a state-of-the-art pump house. Since June 26, a yellow
shutoff notice from the state Water Resources Department has
been attached to a locked gate at the pump house.
Long said one of her neighbors had to let his
cows graze on ground he'd intended as a hay field, which
will eliminate his hay crop this year.
"They've been there since 1959, and it's the
first year they haven't had water," she said.
The yellow shutoff notices are ubiquitous on
bridges that overlook rivers and streams in the Upper Basin,
promising fines and prison for those who violate the order.
So far, no one has, said Scott White, the state's District
17 watermaster in charge of enforcing the shutoff notices.
"Generally speaking ... folks are pretty
understanding of Oregon water law," White said. "People had
a lot of questions. They were upset at the call that was
made, but they're not necessarily aiming their frustrations
at me or my staff. We've been driving around doing follow-up
and checking, and we've had overwhelming compliance with
folks. It's actually been rather welcome to see that."
Affected landowners have done plenty of
complaining, however. Some voice frustration that rivers
appear to be full, although White said they're measuring at
less-than-average capacity even with no one irrigating. Some
residents, including Nicholson, insist the tribes are taking
more water than they need.
Among those who hold that view is Nathan
Jackson, a Cow Creek Indian who manages his family's ranch
near Bonanza in Klamath County. Jackson said during a
farmers' meeting recently the Klamath Tribes have "asked for
an unreasonable amount of water to support their hunting and
fishing rights." He said the quantity of the tribes' water
call is "decimating the entire industry in the Klamath
However, determining the level of the tribes'
water needs "was a long process" that involved consultants,
scientists and specialists who measured not only what was
needed for fish but for "the maintenance and function of the
streams," said Don Gentry, the Klamath Tribes' chairman.
Other factors that were considered included the needs of
plant life and wildlife, he said.
"It was based on the science and the facts
that support our claims," Gentry said. "The fact is there's
been unregulated use of water all this time, and the state
didn't have a way of enforcing all the water rights ... So
when that came out of the court, it was now enforceable
because now it has been quantified."
Gentry described the tribes' use of water as
an "inherent property right" that was affirmed in their
treaty with the U.S. government and has been upheld by
courts even after they sold their reservation in the 1950s.
He said tribal members stopped harvesting coho salmon and
suckers from the lake even before the two species were given
Endangered Species Act protections.
"It is important to the subsistence and
culture of our people," Gentry said of the right to fish,
hunt and gather. "It is important even in the modern age. A
number of tribal members rely heavily on the fish that were
there ... It certainly supplies the food, so there's an
economy to it. It's part of our culture and history ... The
way we look at it, it is part of who Creator intended us to
"I learned so much about who we are and about
my place in the community, my value to the community, by
catching those fish and taking them to the elders," he said.
"I really feel a sense of loss, especially since I realize
my grandchildren will never be able to catch and eat those
Gentry said some tribal members have had to
endure stares and "verbal confrontations" with other
community members who are upset about the water call.
However, the situation is part of an ongoing conflict over
water that has existed in the basin for more than a century.
The conflict began in the early 1900s, when
the federal government started drawing water from lakes and
rivers in the Upper Basin to irrigate crops on dry uplands.
Veterans of World War I homesteaded the Klamath Reclamation
Project, where potatoes, alfalfa, horseradish and cattle are
After the U.S. Bureau of Reclamation's abrupt
shutoff of water to hundreds of farms gained national
attention in 2001, the Bush administration restored water to
the farms, although environmentalists blamed warm water and
low levels in the Klamath River for the die-off of tens of
thousands of Chinook salmon the following year.
Talks lead to pacts
Mediation in the aftermath of the 2001 crisis
and PacifiCorp's application to renew their federal
operating license for four dams on the Klamath River led to
a five-year negotiation that culminated in 2010 with the
unveiling of a water-sharing pact known as the Klamath Basin
Restoration Agreement and a companion proposal to remove the
dams. While some restoration work has begun, funding for
dam-removal has languished in Congress.
Now the latest crisis has generated new
talks. A task force set up by Oregon Gov. John Kitzhaber and
U.S. Sen. Ron Wyden has been meeting this summer to discuss
a trio of issues -- water scarcity in the Upper Basin,
curbing the cost of irrigation electricity and cutting the
cost of the dam-removal and restoration pacts, which was
originally set at $1.1 billion and later tabbed at $800
The group headed by Richard Whitman,
Kitzhaber's natural resources advisor, has been meeting
every few weeks and is due to make recommendations by Sept.
10. Subcommittees have been working on various issues.
Greg Corbin, a Portland attorney who
represents the Upper Klamath Water Users Association, has
spent entire days on conference calls discussing Klamath
issues, he said.
"My clients are very much hopeful that they
can come to a resolution ... with the Klamath Tribes on
water rights issues that will allow for some stability and
certainty when it comes to the allocation of water between
fish and tribal rights ... as well as irrigation," said
Corbin, a partner with Stoel Rives LLP Attorneys at Law.
However, plenty of thorny points remain.
Gentry raised some eyebrows in June when he told a U.S.
Senate committee that ranchers facing water shutoffs would
have to agree to provisions of the KBRA to negotiate more
water from the tribes. The KBRA still faces much opposition
in the basin, where voters have supported its opponents in
campaigns for local office by as much as 85 percent, newly
elected Klamath County Commissioner Tom Mallams told the
Mallams, a Beatty, Ore., hay producer who
would be affected by the latest shutoffs were it not for
wells on his property, said this summer's water calls should
give the KBRA's supporters pause.
"It should scare everyone to death,
especially the project irrigators," he said. "If this isn't
a wakeup call, I don't know what would be a wakeup call."
Gentry said the tribes simply wanted to be
sure that resources would be preserved into the future. He
said the tribes would be willing to give up some water in
exchange for conservation and environmental restoration
efforts in the Upper Basin, which would also preserve
Such an agreement would prove a level of
trust on the part of the tribes, which would be giving up
water now for the promise of restoration funding in the
future, he said.
"Certainly it was a difficult thing for the
tribes to make this call knowing there would be impacts on
the community," Gentry said. "Our hope is we can come to the
place where there is a more appropriate balance of water
use, sustainable fisheries and sustainable agriculture.
There's just too much demand and not enough water for a
Both ranchers Nicholson and Long are on the
task force subcommittee negotiating with the tribes. Both
have opposed the KBRA, though Nicholson said he'd like a
settlement that is "parallel" to the existing agreements.
Even if a pact is reached by September, it
would be too late for this season, Nicholson said. But
unless something changes by next spring, some 100,000 head
of cattle could be displaced next year, which would affect
the livestock industry throughout the West, he said.
"None of the farmers and ranchers in the
Upper Basin are corporate farmers with big subsidies.
They're just families who love what they do and work hard at
it," Long said. "You'd like to leave it to your children,
but when they see their parents struggle and suffer, they
don't really see a place for them in the future."