DOI secretary makes rare appearance at Klamath
Trump will “expect results”
The Klamath Basin water crisis was
brought into sharp focus on Thursday, July 9 when U.S.
Department of the Interior (DOI) Secretary David Bernhardt
and Bureau of Reclamation Commissioner Brenda Burman made an
in-person appearance to talk with stakeholders. The purpose
of the trip, according to Bernhardt, was to “get a good
understanding of our own” about the decades-old—but still
contentious as ever—fight over water in the Klamath Project.
The officials came to the Basin after
local farmers held multiple protests this year regarding
water shut-offs. The secretary said he’d received numerous
phone calls from U.S. Reps. Doug LaMalfa (R-CA-01) and Greg
Walden (R-OR-2), asking him to come to the Basin.
The DOI oversees agencies such as
Bureau of Reclamation and U.S. Fish and Wildlife
Service—both big players in the Klamath Project conflict.
The last time an interior secretary came to the Klamath
Basin was 2002, the year following Reclamation’s infamous
water shut-off for project farmers.
On Thursday’s visit, Bernhardt and
Burman met with local agency officials in the morning,
followed by a meeting with the local Native American tribes;
a meeting with irrigators; and finally a “walk and talk”
event held in a dusty field, fallowed due to Reclamation’s
handling of Klamath Project water this year.
In the background were parked tractors
and rows of white crosses, planted there in May by
protestors to symbolize the loss of farming families in the
area. At the event were farmers, supporters of the Klamath
National Wildlife Refuge (which also depends on delivery of
water through the project), and several local, state and
federal elected officials.
After visiting with several local
farmers about their experiences, Bernhardt took a mic to
address the crowd of around 50.
“This whole day has been devoted to
learning more about the issues,” Bernhardt said. “Every
decision we make has to be grounded in the facts and the
law. And I think we’re walking away today with some ideas of
how we might look at this differently.”
Although Bernhardt and Burman shied
away from making specific promises of future actions, they
repeatedly stated the department would be “following the
law” and getting measurable results. Bernhardt also made
reference to “quite a bit [of new information]” regarding
the Klamath Project, “new data points” which called for
eminent decisions by DOI.
“The president, at the end of the day,
he’s all about outcomes,” Bernhardt said. “We don’t like to
waste our time, so we wouldn’t be here if we didn’t think we
could begin to move the ball.”
The Klamath Project was built by the
U.S. Bureau of Reclamation in the early 1900s for the sole
purpose of irrigating farmland. It consists of a complex
series of canals, supplied by water dammed in the Upper
Klamath Lake. All told, the project covers 230,000 farm
acres in both Oregon and Northern California, supporting a
farm economy of around $1.3 billion, according to the USDA.
However, farmers dependent on Klamath
Project water have faced grave water shortages each year
since 2001, when the federal government declared three fish
species took precedence over farmers’ use of the water that
year. Ever since then, Reclamation has allowed farmers only
a portion of their water rights each year, citing its
authorities under the Endangered Species Act (ESA) and its
obligation to provide local tribes water for fish. This
shift in water allocation from farmers to fish, which
changes each year according to agency discretion, has
created crippling uncertainty for farmers.
While Bernhardt did not delve into
specifics about the “new information” he now holds, recent
legal developments may be causing DOI to take a second look
at its position. These new developments hinge on the fact
that, after a 40-year process, the state of Oregon finally
issued a water adjudication for the Klamath Basin in 2013.
This adjudication determined that farmers own 100 percent of
the water being dammed in the Upper Klamath Lake. Those
senior water rights date back to 1905.
Since that final adjudication was
issued, project farmers have won several legal challenges in
the Oregon circuit court. WLJ spoke
to Nathan Rietmann, attorney for the Klamath Irrigation
District—the largest project irrigation district in Oregon
and the first one in line to receive water stored in the
Upper Klamath Lake. During Bernhardt and Burman’s Thursday
visit, Rietmann was able to speak directly to them about the
current legal climate.
Rietmann said the Klamath Irrigation
District has filed multiple legal challenges in both federal
and Oregon circuit courts since the 2013 adjudication. While
the federal case is pending, two Oregon circuit court orders
have directed the state of Oregon to “take charge of the
[Upper Klamath Lake] reservoir…for the purpose of deciding
whether Reclamation may use stored water…without a water
right.” One of those orders was issued in 2018, and a second
was issued in May of this year.
However, the state has failed to
enforce court orders to rein in the federal government, and
Reclamation has continued to proceed as though it owns and
controls the Klamath Project water. Thus, Klamath Irrigation
District has gone back to court yet again, asking for an
injunction against the state that would prevent Reclamation
from using water for environmental purposes without a water
Flawed assumptions by Reclamation?
Rietmann pinpointed two “fundamental
flaws” about Reclamation’s behavior.
“First, the U.S. government thinks it
owns all the water when it doesn’t. Second, it’s been acting
like the ESA empowers them to use water for environmental
purposes without a water right. But the U.S. Supreme Court
and a lot of case law over the past 10 years has knocked
that assumption down.”
He also argued against the validity of
the government’s proclaimed “tribal trust obligation” to
provide tribes with water from the project.
“The Hoopa and Yurok tribes never made
a claim to a water right in the Klamath adjudication,” he
said. “Under law, if you don’t make a claim, you don’t have
Indeed, a briefing filed by the state
of Oregon in 2018 made the same point, stating “[t]he Yurok
and Hoopa Tribes have no rights to the waters of Upper
“As for the Klamath tribe,” Rietmann
added, “they were effectively granted a 1908 water right,
which is junior to the farmers’ 1905 water right and can’t
curtail that senior right.”
DOI to “reassess” legal authorities
While it’s impossible to speculate
over what actions Bernhardt and Burman will take in light of
their meetings with the tribes, farmers, and other
stakeholders, Bernhardt did promise a fresh look at the
“I do think there are some specific
things that the department maybe hasn’t looked at for a
number of years that we can go back and reassess,” he said.
“So that specifically, you know, is in terms of our legal
perspective and our legal authorities.”
He also made sure farmers knew his
“What I think it’s important to know
is that you have a president who fundamentally believes that
we need to address and fix problems,” Bernhardt told
farmers. “And obviously he’s a strong believer in rural
America—that’s one of the reasons I came to work for him. He
has so much faith in what you do every day in terms of
producing for the American people and the world.” —
Theodora Johnson, WLJ correspondent
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