, Herald and News 11/2/2020
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.
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.
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.
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.”
Nathan Rietmann chalked it up to a shift in who controls the
water source for the Klamath River and the Klamath Project.
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
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
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.
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
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.
adjudication can’t encompass all the rights in that whole
water basin,” he said.
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.
are federal reserved water rights not governed by state
law,” the decision read.
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.
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.
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.
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.
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
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.