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, Herald and News 11/2/2020

Recent legal testimonies assert that the Oregon Water Resources Department has not taken exclusive charge of stored water in Upper Klamath Lake, despite court orders requiring it do so.

In Klamath Irrigation District v. Oregon Water Resources Department, Judge Channing Bennett ruled in August that OWRD failed to comply with Oregon water law by allowing the Bureau of Reclamation to release flows down the Klamath River to improve habitat quality for endangered salmon. This case builds on a 2018 case that formally transferred control over stored water in Upper Klamath Lake from Reclamation to OWRD.

On October 13, the judge released an order requiring OWRD to “immediately stop the distribution, use and/or release of stored water from the UKL without determining that the distribution, use and/or release is for a permitted purpose by users with existing water rights of record or determined claims to use the stored water in the UKL.”

KID filed a motion for contempt last week asserting that OWRD has still not complied fully with the order.

“While OWRD says there is not going to be stored water released from UKL during the next several months, there is nothing OWRD has done that would stop Reclamation, or anyone else, from diverting stored water from UKL without a water right at any time,” the motion read.

KID executive director Gene Souza, in an accompanying declaration to the motion, wrote that he had not observed anyone from OWRD reviewing or approving of Reclamation’s operations plans or communicating that the Bureau could not release stored water for in-stream purposes without a water right. He also said OWRD was not present at any Reclamation meetings discussing the future needs of the Klamath River.

“By virtue of my position with KID, I would know if OWRD were making decisions that controlled how water is distributed from UKL,” Souza wrote. “To date, I am not aware of OWRD making any decision on how water in UKL is distributed.”

KID counsel Nathan Rietmann chalked it up to a shift in who controls the water source for the Klamath River and the Klamath Project.

Rietmann said the system of water allocation in the Klamath Basin drastically changed in 2014. The outcome of KID’s 2018 court case ordered OWRD to take over apportioning stored water from Upper Klamath Lake instead of Reclamation, based on a 2014 ruling. Now, Rietmann said Reclamation only has the authority to store water for the benefit of the Klamath Project, and OWRD determines how to distribute that water to individual users.

“People haven’t come to terms with it yet, because it’s been the other way so long,” Rietmann said.

The new system of water allocation may bring up conflicts between state and federal law in the future, however, if downriver tribes who retain federally reserved rights to take fish from the Klamath River don’t receive adequate stream flows to support those fisheries.

Had those tribes participated in the Klamath Basin Adjudication, Rietmann said OWRD would have been able to determine whether or not to release stored water in a manner consistent with Oregon water law. The order may imply that OWRD has no findings to make a determination to allocate water for downriver tribes and must stop those flows.

The Yurok Tribe filed a motion to intervene in the case on October 16, arguing that their rights as a sovereign nation were not being adequately considered in the proceedings, considering that previous litigation had established reserved water rights that include Klamath Project water.

“KID’s claims ignore the overarching requirement to comply with federal law, and the result could reduce flows from UKL to the Klamath River and impair the Tribe’s interests because the Tribe’s rights are not recorded under Oregon law,” the motion read.

Daniel Cordalis, outside counsel to the Yurok Tribe, said it wasn’t necessary for tribes in California to participate in another state’s adjudication due to their time immemorial water rights. He said those rights don’t depend on state adjudication because they’re federally recognized.

“One state’s adjudication can’t encompass all the rights in that whole water basin,” he said.

Cordalis pointed to Baley v. United States, during which the court found that tribes with reserved rights to fish in the Klamath Basin didn’t waive their time immemorial water rights because they didn’t participate in the Klamath Adjudication — even though those rights were never quantified.

“Their rights are federal reserved water rights not governed by state law,” the decision read.

The decision’s effect on future Klamath River flows is unclear, but if it interferes with the Yurok Tribe’s treaty rights to take fish from the river, it would leave the U.S. government in violation of that treaty. Though the Reclamation Act requires federal irrigation projects to comply with state law, Cordalis said the Constitution’s Supremacy Clause compels courts to uphold federal law (i.e. the federal government’s treaty obligations) when the two conflict.

Cordalis said Oregon water law doesn’t account for federal or out-of-state rights that may not be quantified in its adjudications, and that this case doesn’t mean OWRD can ignore the Yurok water right moving forward.

“There needs to be a way for OWRD to recognize that there’s federal rights they have to account for,” Cordalis said.

But Rietmann said there’s a distinction between water released from Upper Klamath Lake to flow “naturally” down the Klamath River and water stored in Upper Klamath Lake for the Klamath Project. KID’s case argued that, by releasing water for flushing flows on top of the water that already passes downriver through the Link River Dam, Reclamation illegally diverted water set aside for irrigators — and OWRD failed to fulfill their management responsibilities by not stopping it.

“Just because the Bureau has an obligation to provide water for the Yurok Tribe doesn’t give them the right to go steal someone else’s,” he said.

Cordalis said dividing Upper Klamath Lake’s water between Project irrigators and the Klamath River doesn’t change the fact that Reclamation, as an arm of the federal government, still has an obligation to provide the amount of water necessary to satisfy tribal treaty rights downstream, and that Baley v. United States found that Yurok water rights encompass both kinds of water.

“We have senior water rights here,” Cordalis said. “They’re as good as anyone’s.”

A previous version of this story said California tribes' water rights are "treaty" rights. California tribes do not have ratified treaties, but their fishing and water rights are still federally "reserved" and hold the same legal status as treaty rights.






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