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Proposed settlement won’t end court cases, nor guarantee water

By CHRIS HOWARD Guest writer, Klamath Falls Herald and News May 18, 2008

   As a Klamath Reclamation Project irrigator, I am deeply concerned about the Klamath Settlement and the lack of debate over the merits. 

   Our irrigation district has only had one meeting to which patrons were invited. This meeting was a pep rally for settlement with a panel of proponents telling us it was the best thing since sliced bread with no productive debate as to whether it is good for us or not. 

   Then we read in the Herald and News that our district is proposing to sign off on settlement without even asking us, the patrons, whether we want to sign on or not. 

   I have read the settlement and I am firmly convinced that it puts us in a worse position than we are in today. 
   The Endangered Species Act shut us down in 2001, specifically the biological opinions. The settlement does not modify the biological opinions. 

   In fact the settlement is explicitly clear that the National Marine Fisheries Service and the U.S. Fish and Wildlife Service retain full authority to regulate us just like they did in 2001. Upon questioning, proponents ultimately admit there are no guarantees we will not be shut down.

What happens when salmon die?    

   Proponents say that shutdowns will be “less likely.” I believe regulation will in fact be more likely. This is due to the multiple concessions and admissions made in the settlement. 

   Among the many things the restoration program is supposed to accomplish is a harvestable salmon fishery in Upper Klamath Lake tributaries and “full participation in harvest opportunities” for the Tribes. 

   What happens when salmon go belly up in Klamath Lake and we have signed a document that says the restoration program will accomplish harvestable salmon? We will be back in court, only this time we have agreed to provide something we cannot provide. 

   The Klamath Basin Coordinating Council determines whether the restoration program is successful or not. It appears the council will be roughly the same 26 parties that came up with this settlement. This means agriculture only has two votes and the other parties will have the measuring stick to see if we are meeting our commitments under the agreement. 

   Another big promise of settlement is that it will end litigation, but when one truly looks at settlement, this is just another empty promise. 

   Even parties to the agreement can still sue the Klamath Project for more water if they “believe” diversions put endangered fish in jeopardy. One would be hard pressed to find an environmental group that does not believe irrigation diversions do not jeopardize endangered fish. 

But settlement gets far worse

   The settlement advocates granting the Klamath Tribes time immemorial water claims at the claimed levels. There would then be an agreement not to enforce these claims against the Klamath Project. 

   Separate legal counsel has informed us that this agreement cannot be enforced since there is no waiver of sovereign immunity in the document. There are arguments the McCarran Amendment somehow protects us. However, since the waiver as it is currently written is a separate contract outside of the water right, we doubt that it would. 

   If this waiver does not hold up, the Klamath Project will likely be shut down since the Tribes will hold title to the water with a time immemorial priority date. But even if one ignores the sovereignty issue, there is a huge loophole in the waiver in that the Tribes can still seek water rights for endangered species purposes and there is no limit to the quantity of water they can seek for those purposes.

Project’s attorneys failed before    

   We often hear that there have been Klamath Project attorneys working on this so it must be good. Many of these same attorneys were involved in major past failures; for example, Klamath Water Users vs. Patterson, a lawsuit we filed that verified our opponents water rights and questioned Project irrigators water rights. 

   We will have to live with settlement ramifications for the rest of our lives. We urge irrigation districts to rescind their support for this document until it has been fully vetted an debated. Legal counsel on both sides of this issue should present irrigators the pluses and minuses and patrons should have a right to vote on settlement.
The writer
   Chris Howard is the secretary for the Basin Alliance, an organization whose goal is to keep public lands in public ownership.  She and her husband Glenn Howard own an on-Project farm south of Klamath Falls.  They raise beef cattle and have been self-employed for 19 years.  She has lived and worked in the Klamath Basin for 30 years and has been on the Basin Alliance board of directors since 2002.
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