arguments loom in Klamath re-quantification ruling
by MATEUSZ PERKOWSKI Capital Press
An Oregon judge has agreed to hear
further legal arguments over his ruling that tribal water
rights in the Klamath basin must be re-quantified.
Because the judge’s legal opinion from
last month hasn’t yet been reduced to an order, that means
the Klamath tribes can enforce their water rights to shut
off irrigation in the meantime.
In February, Klamath County Circuit
Judge Cameron Wogan broadly upheld findings by state
regulators that the Klamath Tribes had time immemorial water
rights in the basin that hadn’t been abandoned or
These are the oldest water rights in
the basin, which the tribes can enforce to cut off
irrigation water to junior users when stream flows get too
The judge disagreed with the Oregon
Water Resources Department on a potentially important legal
point, though: Wogan said the agency hadn’t properly
considered the Klamath Tribes’ “moderate living standard” in
quantifying their water rights.
The opinion created an opening for
farmers and ranchers in the Upper Klamath basin to argue
that reduced stream flows could still satisfy tribal hunting
and fishing treaty rights, thereby freeing more water for
While Wogan has agreed to vacate the
OWRD’s quantification of tribal water rights, he hasn’t yet
issued an order that would make the opinion’s determinations
Due to a “water call” from the Klamath
Tribes, the agency has already begun issuing regulation
orders to cease irrigation diversions from the Williamson
and Sprague rivers in the Upper Klamath basin this month.
Until the court rules otherwise, OWRD
said it must enforce tribal water rights according to its
administrative findings from 2013. Those administrative
findings are now being adjudicated in state court by Wogan.
The Klamath Tribes have asked the
judge to clarify his opinion as to the quantification of
water rights, arguing that his conclusion was inconsistent
with other determinations in the ruling.
Specifically, the opinion found that
tribal water claims were correctly quantified under the
standard for ensuring “healthy and productive habitat” but
not under the standard for “moderate living,” according to
Nonetheless, the opinion vacated the
water rights quantification under both of these standards,
the tribes said.
The Upper Basin irrigators urged the
judge to reject this motion for clarification, arguing it’s
“really in substance nothing more than a motion for
However, Wogan has canceled the
previous deadlines for finalizing an order and has allowed
the parties to file arguments over the motion for
clarification until March 29.
Once the issue is resolved, OWRD can
issue a proposed order to which the other parties can object
at times that haven’t yet been specified.
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