Klamath Falls Mess: Judge denies livestock
access to water
8/11/13 Western Montana Water Rights by Erika Bentsen
In a ruling June 13, 2013 county circuit court Judge Cameron
Wogan in Klamath Falls, Oregon refused ranchers' requests for a
temporary restraining order (TRO) to allow their cattle and
horses access to drinking water. Irrigation water out of the
Sprague, Williamson, and Wood Rivers, and their tributaries
were shut off in June after new tribal calls on rivers and
streams feeding Klamath Lake left grazing lands and hay fields
baking in the sun. In many cases, irrigation ditches are the
sole source of drinking water for the 100,000 head of cattle
which graze the basin area in the summer months. Since the
unprecedented calls stem from merely a determination from an
administrative law judge without being heard in a formal court,
Elizabeth Howard, lawyer for a group of ranchers in the upper
basin, asked for the June 13 hearing in circuit court. She
argued for at the very least a 24 hour TRO to run pumps long
enough to supply drinking water to give ranchers a chance to
find alternative pastures or line up trucks to ship their
cattle out of the county. But Judge Wogan denied this request.
It wasn't until July 2, 2013 the Oregon Cattlemen's Association
put enough pressure on OWRD, forcing them to expedite
assembling a commission to allow a minimal amount of water to
be used for thirsty livestock. But even this will expire in 6
THE LAST 12 YEARS
Much has happened in the years following the 2001 water shut
offs in the Klamath Basin and none of it is very good. When
Kimberly Strassel's article on Rural Cleansing first appeared
in the Wall Street Journal it was farmers in the lower Klamath
basin coming under assault by the federal government and local
Indian tribes. The Klamath area is made up of an upper basin
with cattle ranches above Klamath Lake, the largest surface area
lake in Oregon, and farms below the lake in the lower basin.
These farms, known as the "Project," were established by the
federal government for veterans returning home after WWI & II.
Farm lots were won by lottery and the irrigation system of
canals was set up with a 1905 water right, regardless of what
year the acreage it supplied was put into production.
In 2001, the Project farmers' water was called because of the
Endangered Species Act protection of two species of sucker
fish, previously known universally as an inedible, bottom
dwelling, trash fish, now elevated to sacred status by the
tribes. At that point, upper basin ranchers united with the
lower basin farmers and protested the shut offs. When the
community was joined as a united front, the government and
tribes backed down and the water was restored for the time
SO THEN THE TACTICS CHANGED
Exclusive meetings were held--quietly--between government
agencies, environmental groups and the tribes. The public was
not allowed to attend, nor were they permitted to know the
context of the delegations. An oversight? Doubtful.
In a gesture of accord, a few key Project farmers were
eventually invited, then a couple carefully selected upper
basin ranchers, some of whom received annual salaries by
tribal subsidiaries. But these meetings remained closed to the
Then the Klamath Basin Restoration Agreement (KBRA) was
unveiled with pomp and promise. This "Agreement," a tedious,
several hundred page document was supposed to solve the water
problems and create harmony between environmentalists, tribes,
government agencies, and agriculture. But what did it really
THE LONG AND SHORT OF IT
When wading through the reams of acronyms and legalese, the
document is long on presumptions and short on guarantees. A 50
year end date came to light.
Why? If it was a good idea, why set it up to stop?
Another choice nugget: only the invited attendees of these
secret talks received any benefits. The others who were barred
from admittance were put on the chopping block. Upper basin
ranchers, local businesses, average taxpayers, and utility
customers were left high and dry.
Project farmers, influenced by their elected representatives,
turned on the upper basin ranchers and cut a deal with the
tribes. If the Project farmers signed on to the KBRA and helped
the tribes get a new 90,000 acre reservation and tear out 4
power generating dams on the Klamath River, the tribes would
call the upper basin's water, predominantly dated 1864, and not
call the Project's 1905 water, thus taking the water from the
senior water rights holders and giving it to the juniors. Even
though the tribe's water calls are for an in-stream use only,
they are by-passing this law and funneling the water to their
new friends downstream who irrigate out of Klamath Lake.
Oregon's "first in time, first in line" water adjudication has
been thrown out the window and the tribes, in bed with the feds
and state officials, are getting away with it.
The tribes learned fast. They altered their original claims on
the river system to closer match the state's standards. Then in
March of 2013 thanks to an administrative law judge, a lackey
of OWRD, the tribes were awarded time-immemorial rights to what
amounts to nearly flood level flows. With this the tribes have
essentially halted all irrigation in the upper basin. Using
tribal claim data, upper basin irrigators would have been shut
off 89 of the last 95 years.
The tribes and government, hiding behind the skirts of the KBRA,
successfully divided the community by pitting farmer against
rancher, and neighbor against neighbor. The government and
tribes learned from their original failure when only one group
was attacked. By dangling incentives to some, they splintered
their opposition. And they continue peppering the public with
half-truths and misinformation, muddying the waters so that the
average citizen doesn't know which group stands for what.
What's scary is the precedence being set. If these tribal
claims are validated by the court system, no river in the
country is safe. Other tribes throughout the nation are
watching the Klamath water fight with interest. Once precedence
is established here, it makes it easy to attack other rivers.
These family ranchers were specifically targeted because they
aren't wealthy. Families are being forced into bankruptcy
since their sole source of income is being taken away while the
legal battles slowly grind on with delays and hearings and
In essence they are presumed guilty and punished without
ever going to trial. The tribes, with their $12 million a year
kickback from the feds in addition to their casino earnings, can
afford to drag this out in court while the individual family
rancher goes broke before the case even gets heard.
AN INDUSTRY DIVIDED
The upper basin ranchers are fighting this alone. Their only
ally, the Project farmers, have been turned against them. Unity
was what made the 2001 shut offs unsuccessful in the eyes of
the tribes and federal government. So unity has been
The ranchers have their backs up against the wall. This was
a calculated move by the tribes, with more egregious hardships
planned in the coming months.
Ranchers have been holding raffles, auctions, and bake sales to
get money for their defense.
CARE TO LEND A HAND?
Donations from outside the Klamath Falls area are
desperately needed to stop this unconstitutional taking of
private property. For those who are able to help with legal
www.saveourklamathcountywater.org accepts donations on
ranchers' behalf. Click "Join Us" and make checks payable to
Water For Life Foundation.
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