KBC tribes water in the west 081104

PORTLAND, Ore. - The story goes like this: "Grandmother," said the young Indian girl, "what are those big things in the river?" The grandmother raised her eyes toward the broken blocks of massive concrete through which the river poured. "Daughter," the old woman said, "those are the dams the white people left."

Since the Klamath tribes don’t expect the white people to leave anytime soon, they’ve mounted a lawsuit to get owners of a hydropower business to compensate the Indians for the loss of their fishery.

A cool $1 billion is what the Klamath tribes - a confederation of the Klamath, Modoc and Yahooskin Band of Snake Pauite people - are seeking for loss of its salmon runs on the Klamath River in southern Oregon. Citing abrogation of treaty rights and destruction of traditional fishing grounds, the tribes filed suit against PacifiCorps with the U.S. 9th Circuit Court of Appeals in May.

PacifiCorp - a Portland-based subsidiary of the British industrial giant, ScottishPower - operates four dams on the Klamath River. Built without so much as a nod to fish passage during the first half of the century, the dams effectively cut salmon off from their spawning grounds beginning in 1911. Denver-based lawyer who filed the claim, Dan Israel, said "That’s why the damages are high. This was intentional and reckless."

Before the basin was developed, the Klamath was the third leading producer of anadromous fish after the Columbia and the Sacramento rivers. Two years ago the section of the Klamath below the dams suffered the worst loss of fish in U.S. history when 33,000 salmon died due to low stream flows.

Over-appropriation and drought continue to plague the Klamath River Basin. Between a large Bureau of Reclamation irrigation project and the hydropower projects, fish have fallen through the cracks in water use equations since the area was settled in the late 19th century.

For much of the period the Klamath tribes were in no position to protect the fishery that once formed a significant part of their traditional economy. While the tribes survived the late 1800s and early 1900s when the majority society devised all manner of machinations to assimilate Indians, when the federal government decided to ‘get out of the Indian business’ in the 1950s, the blow almost broke the spirit of Klamaths.

Under the now-discredited Termination Act, the Klamaths lost their reservation and their federal status in 1954. A period of severe demoralization followed. In 1974, however, a year before the Indian Self-Determination and Education Act of 1975 began to reverse a century of misguided federal Indian policy, the courts ruled that the Klamaths had not forfeited their treaty rights. Then a decade later, under the Klamath Tribes Restoration Act of 1986, federal status was restored, a tribal government was established, and the community of people clustered around the upper reaches of the Klamath River Basin began picking up the pieces of their shattered political, social and economic lives.

In the 30 years since, the Klamaths have generally become an increasingly significant interest group in the Klamath Basin, a region largely dominated by agriculture and propped up irrigation. Farmers, long used to getting the lion’s share of the water, have largely opposed the tribes’ increasing involvement. So have the hydropower interests. Still, in one court case after another, decisions affirming the treaty rights of the tribes have been handed down. Not only do the Klamaths have the oldest and most valuable water rights in the basin, their rights to fish, hunt and gather at their usual and accustomed places was established in the 19th century treaty they signed with the U.S. government, a treaty that forfeited a land-base the size of Rhode Island.

Problems in the Klamath Basin largely boil down to over-appropriation of scarce water resources. The Klamath River drains high desert land, classic arid land of the West marked by sage and Ponderosa pine. At least that’s how it was before the Bureau of Reclamation came in and built its huge irrigation project in the early 1900s. That’s also when the first of the dams that blocked the salmon runs on the Klamath were built, and by 1962 the last of the structures was erected.

The era, of course, was one in which Americans in the majority society were on the go. It was the era of development. The idea that the tribes and the fish and the birds and the natural world generally needed to be considered was alien to decision makers of that time, buoyed as they were by the ascendance of America as an economic and political powerhouse.

The 21st century, though, has little in common with the 20th. Gone are the days when agriculture was the darling of the nation and gone are the days when hydropower interests can act with single-minded impunity.

The 151-megawatt hydroelectric project on the Klamath River generates enough power to serve 77,000 homes. According to PacifiCorp officials, power produced at the Klamath River dams is important because it is used to meet peak summer energy demands.

Regardless of how significant PacifiCorp thinks the Klamath project is, its federal license will expire in 2006, and terms of the re-licensing have yet to be worked out. In a 3,000-page re-licensing application to the Federal Energy Regulatory Commission, PacifiCorp made a gesture toward fish, although not salmon. The company proposed spending $10 million on a fish ladder at one of the dams to benefit trout and other non-anadromous species. But, PacifiCorp officials said adding new ladders and fish screens required to move salmon through the dams would run $100 million and is cost prohibitive. Conservationists and others argue that the company should not receive new licenses for the outdated dams since the company is unwilling to upgrade the facilities. Some groups are calling for decommissioning, or removing the dams that serve power interests to the exclusion of the larger ecosystem.

Israel, who has specialized in tribal river rights and taken cases to the Supreme Court, said the tribes’ lawsuit should take from 18 months to two years to get a decision. Even then the 9th Circuit Court will be determining only whether or not PacifiCorp is liable. If the judges find the power company at fault, further lengthy proceedings will determine the extent of damages and the monetary award.

Over the course of his 32 years representing tribes in river rights cases, Israel has worked on the Missouri, Snake, Klamath, and Colorado rivers. He has been involved in two of the largest river water judgments ever awarded to the tribes, a $450 million settlement for the Colorado Utes and a $250 million award for the Northern Utes.

"These rivers in the West are becoming more like national parks because of the high degree of federal legislation influencing public streams," said Israel. "A century-and-a-half ago many tribes were put on reservations right in the middle of these water basins. Today the tribes probably control about half of the unused water in the West, and that stuff’s getting real valuable."

Israel said an acre-foot of water in the Southwest is worth as much as $30,000, with Colorado River water having the greatest value. While he assists tribes in this arid region with getting their rights to take water out of rivers honored, in the Northwest the situation is reversed. Israel’s goal there is to help tribes keep enough water in the rivers to support beleaguered fisheries. No matter where the river, though, "the tribes are major players on western rivers," Israel said.

"The idea is to elevate the tribes. I hire engineers because they are the people who can tell you how to fix rivers. Then I bring the economists in to figure the costs and help prove damages." Israel explained. "When we put sophisticated expertise like this at the table, good things happen."

Israel continued, "You have got to hammer these companies with the law and the figures. When we do, the tribes realize that they are equal to their opposition."

Israel understands all this is probably the reason the Klamaths hired him. But whatever the case, the fact that the Klamaths are suing PacifiCorps on behalf of the salmon indicates that the tribes realize times have changed. There’s more support in the majority society for not only environmentally-sustainable economies, but also for business that is conducted in ways that respects diverse cultures. It may take two years, and the jury is still out, but after 150 years of disenfranchisement, it might be the Klamath’s turn to share in the abundance of a land they once called home.