Deal may ease conflicts

Proposed water may settlement ease could help with adjudication

By TY BEAVER

H&N Staff Writer

January 23, 2008  

   Since 1975, irrigators, tribal members and conservationists have filed 730 claims and 5,600 challenges against those claims for water rights in the Klamath Basin . 

   They also have spent millions of dollars defending or challenging how much water they or others should control in the region. And water adjudication, considered one of the largest lawsuits in Oregon , hasn’t gone to court yet.

   “The adjudication doesn’t end. It’s just in its infancy,” said Dave Solem, manager of the Klamath Irrigation District on the Klamath Project. 

   Water adjudication is a process established by the state about a century ago to determine and quantify vested water rights or water rights that existed before the state’s water laws. 

   It wouldn’t end adjudication, but a proposed water settlement deal — the Klamath Basin Restoration Agreement — would more clearly define water rights, removing some uncertainty between stakeholders such as Klamath Project irrigators and the Klamath Tribes, agreement supporters say. 

   The state of Oregon is willing to embrace the agreement, but time is running out as pressure builds to move the adjudication process along. 

    “Anything that helps to resolve those problems and issues, of course we support it,” said Ruben Ochoa, spokesman for the Oregon Water Resources Department. 

   The restoration agreement could expedite the process and avoid future legal issues if it’s approved by Klamath Project irrigation districts and the Klamath Tribes’ General Council. 

   In the agreement, on-Project irrigators agree to limit their use of Upper Klamath Lake to no more than 385,000 acre-feet of water a year, depending on water conditions. 

   In exchange, the Tribes agree to no longer challenge the Project’s use of the watershed. 

   The arrangement doesn’t stop adjudication, Ochoa said. Other claims and challenges are pending above Upper Klamath Lake involving the Tribes, and there would still be some administrative proceedings. 

   Not final 

   The agreement would function as a recommendation to the adjudicator, not a final order. 

   Still, it does help the process while eliminating some uncertainty that Project irrigation would be shut down if adjudication grants the Tribes a substantial water right. 

   The Tribes benefit by knowing some level of water will be in the lake, helping efforts to restore the region’s fisheries. Both groups benefit from diminished conflict and litigation. 

   “This is by far the best solution,” said Bud Ullman, tribal attorney. 

   But others criticized the agreement, saying it doesn’t provide the protections that proponents say it does. 

   Ed Bartell, president of the Off-Project Water Users, claimed the Tribes would still be able to take water from the Project because they do not surrender their sovereign nation rights in the agreement. 

   He also said that , regardless of a settlement, off-Project irrigators would still have to go through the adjudication process with no certainty of a positive outcome. 

   Solem and Ullman countered Bartell’s statements, saying it would be difficult for future tribal leaders to overrule a legal contract. The Tribes do not want to end agriculture in the Basin and leaders from both sides want to foster a better relationship. 

   “We would not settle if the Tribes could come back and say the deal’s off,” Solem said. 

   Ullman said off-Project irrigators had the same opportunity to negotiate with the Tribes as those on the Project. 

   State Sen. Doug Whitsett, R-Klamath Falls , criticized the agreement before it was released last week, saying his sources indicated it would not comply with Oregon water law. 

   But Ochoa said one of the reasons the state supports the proposed settlement is because it complies with Oregon water law. 

   Process suspended 

   The state has suspended the water adjudication process to provide time for those affected by the agreement to consider their options. 

   State water resource officials requested an extension until April 4. Ochoa said the state is eager to move forward because the Legislature set aside money for the process during the 2007 regular session. Officials also believe two months is enough time for stakeholders to reach a decision on the agreement. 

   If a decision isn’t reached or if the settlement is scrapped, adjudication would continue as scheduled, leaving the future of on-Project irrigation in the hands of attorneys and judges. 

   Solem said that even without the settlement, both the Tribes and on-Project irrigators could have better relations because of the dialogue they’ve already shared. But a signed agreement would make him breathe a little easier. 

   “I think we’ve really tried to come up with something that is workable,” he said.

   The adjudication process

   The Oregon water adjudication process was established about 100 years ago by state lawmakers to acknowledge vested water rights, or water rights that existed before the state’s water laws were established. 

   Adjudication can be broken into two primary phases: administrative and judicial or legal. The administrative phase involves the state’s water resources department collecting documentation pertaining to claims of water right as well as any contests, or challenges, to those claims. 

   Through the state’s adjudicator, claims and challenges are settled and defined before an order is issued, which determines how water law is followed in the region until the courts issue a final decree. 

   Once there is an order, the matter is turned over to the local circuit court for any legal challenges to the order. The regular appeals process applies and a final decision over the state’s order can potentially be made by the U.S. Supreme Court. 

   It is not unheard of for water adjudication legal proceedings to continue for half a century.

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