By GARRETT ROSEBERRY 

Guest writer

Herald and News

December 22, 2011

      A series of guest columns in the Herald and News and the Capital Press have made unfounded attacks on upper Klamath Basin agricultural leaders, with reference to the recent decision by the hearings officer in the Klamath Basin adjudication.

   The Klamath Tribes had filed massive claims in the Klamath adjudication for most of the surface water, with a priority date of time immemorial. Time immemorial means the Klamath Tribes’ water right priority will trump all other surface water rights. The adjudication is outlined in state law as a complaint-driven process, meaning if irrigators had not challenged these Tribal claims, they would more than likely have been granted.  

   Much of the area outside the Klamath Project in the Klamath Basin is made up of private irrigators. Unlike irrigation districts, irrigators cannot be forced to pay for the common defense of their rights. As a result, many private irrigators and a few off-Project irrigation districts joined together and elected leaders to challenge the Tribal and other claims adverse to their interests.

   Some irrigators chose not to challenge the claims, and did not file legal contests to prevent these claims from being granted. They chose to let their neighbors pay the legal fees, and attend the meetings, and do the leg work necessary to try and protect their water rights.

   Armchair quarterbacking

   These armchair quarterbacks now have lots of advice for what should have been done differently, namely, that the Upper Basin irrigators should have negotiated. This ignores the fact that negotiations have been ongoing for the last 15 years. It also ignores the fact that if it had been left up to the armchair quarterbacks, there   would have been nothing left to negotiate. These claims would have been granted, sailing through unchallenged. (Remember, the adjudication is a complaint driven process.)

   By challenging these claims and pointing out the enormity of them, upper Basin leaders have already obtained substantial reductions by getting Tribal experts to admit to lower claim levels. For example, on the Sprague River in August, the Tribal habitat maintenance claim No. 642, prior to the hearing, was 406 cubic feet per second. The advisory ruling in claim No. 642 was reduced to 174 cfs.

   Another bankrupt argument is that irrigators should have supported the Klamath Basin Restoration Agreement (KBRA).  

   Final offer made

   The final offer made to the Upper Basin irrigators in the KBRA permanently set many of the Tribal instream claims at substantially higher rates than the Tribes were granted in the recent hearing, and irrigators would have surrendered their right to appeal these claims.  

   Upper Basin irrigators rejected this offer. The KBRA now states that irrigators who sign on to the agreement have to support all facets of the agreement, including the acquisition of the 92,000-acre Mazama Tree Farm for the Klamath Tribes, removal of four hydroelectric dams on the Klamath River, and all other provisions in the KBRA. Then, and only then, after you sign, can you attempt to negotiate a position for survival.

   Upper Basin leaders have been tremendously successful in saving Klamath Basin agriculture. In fact, they have settled all the contests against the Forest Service in the adjudication, claims which, like the Tribal claims, would have threatened irrigation. Don’t forget the more than $30 million saved by all Klamath irrigators through   the off-Project rate shock bill.

   It is unfortunate that there seems to be an urge to attack the upper Basin contestants. Their intentions have been to protect and defend their private property, their water rights, and their livelihoods.