An Open Letter to the Klamath Community from the Klamath Tribes Regarding Settlement of Off-Project Water Issues

Written by the Klamath Tribes Negotiating Team

The Klamath Tribes have been, and continue to be, committed to a settlement outcome that restores ecological health and brings peace and economic stability to the varied communities of the Klamath Basin .  We are pleased that the sane success has eluded the Off-Project landowners.  This failure is not in the Tribes' interest.

As the Tribes rededicate ourselves to finding resolution of Off-Project issues, we are mindful that the past years' work has taught us some things that can work, and some that cannot.  We want to offer some of the things we have learned as the community continues this important effort.  Resolving these issues is complicated.  It cannot be managed in sound-bites, and it cannot be negotiated in the media,  We hope the Commissioners, Off- Project irrigators and anyone who is interested will take the time to consider this letter and otherwise to "dig deeper" to understand what it will take to successfully reach settlement.

A comprehensive water settlement that stipulates a settlement to the Adjudication is a preferred approach for dealing with water issues for both the Klamath Tribes and Off-Project landowners.  This was the Klamath Tribes' goal throughout the KBRA negotiations.  It worked remarkably well for Project interests and Refuges.  But Off-Project representatives who participated in the KBRA consistently failed to provide, or even consider, a sound negotiating basis for a water settlement.  Yet there is still hope that this fundamental need can be met with hard work and a willingness to compromise as the issues reach a broader segment of the Off-Project community.

KBRA Section 16 is the appropriate "venue" for dealing with Off-Project issues, and mediation is not necessary for negotiation.  Because comprehensive water settlement is the preferred outcome for the Klamath Tribes and - we believe - most individual Off-Project irrigators, almost all parties in the Klamath Settlement Group (KSG) endorsed including Section 16.  This section anticipates development of Off-Project Water Settlement (OPWAS) that would provide more water security for both Off-Project irrigators and the Klamath Tribes.  In essence, it creates another opportunity to settle the Off-Project  water Issues without jeopardizing the future of Project irrigators, Tribes, coastal fishermen, and river recovery.

Our support for Section 16 makes very clear our stated interest in a) negotiating with Off-Project irrigators; and b) coming to a fair settlement on water issues.  However, negotiating a water settlement is an issue between specific parties:  Klamath Tribes, individual Off-Project water users (individual water right holders, claimants and contestants) and the Klamath Irrigation Project.  A County forum - as described below - could improve the environment for these negotiations.  But in the end, an agreed-up water settlement can only come from the Klamath Tribes speaking and working with a diversity of individual landowners and groups.  Off-Project landowners will have to sign any agreement as individuals.  Therefore, no one group or even three or four groups can claim to represent the entirety of the Off-Project area.

Accordingly, the Tribes will pursue conversations and negotiation with individual landowners and appropriate landowner groups, but we will not recognize Resource Conservancy or Klamath Off-Project Water Users (KOPWU) as exclusive representative entities for dealing with issues that are appropriately the concern of individual landowners,

We will use the following concepts in a rededication to a comprehensive Off-Project water settlement that can achieve stability for both the Klamath Tribes and Off-Project landowners:

1.  The Klamath Tribes Negotiating Team is developing an internal settlement approach we believe deserves consideration by the Tribes' General Council and the Off-Project landowners.  This will include elements desired by both the Klamath Tribes and Off-Project water users:  a proposed "water balance" that provides assurances about water for fish and water for agriculture, as well as voluntary mechanisms for ensuring healthy riparian and river conditions.

2.  We will be consulting extensively with a diversity of Off-Project irrigators to understand their operational needs and limitations, and to ensure that a settlement structure proposed by the Klamath Tribes would have a basis in reality and feasible for a majority of Off-Project irrigators.  We have to engage in an extensive - albeit accelerated - learning process before we can have a full "negotiation."  We are proceeding with a series of meetings with individual riparian landowners.  Having begun the process, we will complete it as quickly as the dueling demands of addressing the steady stream of misinformation coming from agitators, preparing for the April 4th re-start of the Adjudication, and development of a workable settlement approach will allow.

3.  It is not only Adjudication Contestants, but Claimants and other water right holders as well, whose interests are involved in an Off-Project water settlement.  While only Contestants have standing in the Adjudication to contest the Tribes' claims, they are a small subset of the much larger group of water right holders who also will be affected by a settlement.  In reality, settlement must work for more people than the subset of Contestants, because when the Watermaster begins regulation, he will make no distinctions between Contestants and others who have permits, certificates, or adjudication claims.

As a result, claims by the Resource Conservancy to represent the majority of Contestants, even if true, do not carry any particular weight.  We need to ensure that a negotiated "water balance" meets the needs of a diversity of water users, the vast majority of whom are Claimants and others who have permits or certificates, not Contestants, who at the end of the day must make their own decisions.

4.  It is irrational to expect successful negotiations with the same personalities who have been unsuccessful so far.  We have negotiated for many hours face-to-face with a few people who claimed to represent all Off-Project interests.  Contrary to many false public statements made that Resource Conservancy was excluded from negotiations, Resource Conservancy participated in numerous Klamath Settlement Group meetings over the past 16 months.  More importantly, KOPWU and Resource Conservancy representatives were lead negotiators in talks with the Klamath Tribes about water issues during KBRA negotiations.  The talks were unsuccessful for a number of reasons - and not just with the Tribes; no other Settlement Group participant was able to reach agreement with these participants either.  One major problem was that the participants actively refused to convey information to their Off-Project constituents (so constituents now complain, correctly, of a lack of information)>  Another was outright intractability and disrespect, which rendered successful negotiations impossible.

We recognize that some landowners value these participants' counsel and their willingness to devote time and expense in meetings on water issues.  However, a successful outcome will not flow from continued reliance on the personalities that could not reach agreement in lengthy talks so far.  We hope individual landowners will understand our frustration with these individuals does not in any way carry to other individual Off-Project irrigators.  We value agriculture as part of this community (many of our members are Off-Project landowners, ranchers and irrigators themselves), seek for it to continue, value the individuals who practice it, and seek to find a way to move forward with mutual solutions.  Successful settlement can only come from reasonable people working together to find a way to succeed - that is the process we are implementing.

5.  We will seek to create ways that allow us to settle with individual landowners while allowing others to pursue litigation if they choose to.  For too long, the futures of a large majority of individual landowners have been in the hands of a few remaining Contestants with whom it has been consistently impossible to reach a negotiated settlement.  We believe individual landowners should not have their futures jeopardized by decisions of a few Contestants.  But for those who feel like they just have to litigate, the courthouse door will remain open.

A forum hosted by the Klamath County Commissioners with appropriate facilitation could assist in preparing a proper atmosphere for the process outlined in Section 16.  We appreciate the County Commissioners recognizing the importance of settling Off-Project and Klamath Tribes' water issues.  We would be interested in discussing the merits and potential elements of a county-sponsored forum.  These will need to be further defined to meet the needs of all parties, and clarify their scope.

We believe that one of the greatest impediments to an Off-Project Water Settlement is the lack of reliable information available to average irrigators, as well as straight fear-mongering and creation of false expectations that could doom any reasonable effort for water settlement.  Therefore, we submit that the following issues would be the appropriate focus of the County process:

a)  Disagreements of fact over the water-related contents of Draft 11 of KBRA.  There is abundant misinformation in the Off-Project community suggesting that somehow the Tribes are already in a position to cause injury through their water rights because of the agreements struck in KBRA with the Klamath Irrigation Project.  Fundamental matters of water law must be addressed before we can have an appropriate environment in which to carry out any further dialogue or negotiations.

b)  Clarifying boundaries for "re-opening" KBRA sections on Regulatory Assurances and Power.  Sections of the KBRA that address Regulatory Assurances and Power are established elements of the Agreement.  The provisions for Power assistance (monetary support and mechanisms for its use) and Regulatory Assurances (affirmative support and budgets to control the impact of the Endangered Species Act) provide the most practicable, realistic path for moving forward with a comprehensive settlement.  The Klamath Project arguably has greater exposure on both of these issues and negotiated hard for the best-possible protections (often with little or no support from Off-Project negotiators).  Again, the job is to transparently clarify the facts, recognize the limitations under law, and address the political realities.  Exaggeration and misinformation in this regard has been used to create false expectations for Off-Project irrigators - something which creates an impossible context for real-world settlement of water issues.

c)  Clarifying the use of "consensus" and the meaning of the January 2007 "framework" in the Klamath Settlement Group process.  The public and Off-Project irrigators deserve to know that "consensus" was recognized as a desirable goal, but not the final rule of decision, of the Klamath Settlement Group in developing KBRA terms because true "consensus" would mean giving every party - including, for example, Oregon Wild - veto power, which would not allow for settlement.  In fact, any given party would have been "outvoted" on any number of issues had it simply stood on a position; instead, the majority struggled to identify acceptable compromises.  Further, the role and context of the "framework" should be made clear, as should the many distortions of its content made by Save Our Family Farms and others.  Clarifications of this nature would be an enormous help to settlement.

We would consider participating in a properly crafted process designed to clarify these factual and contextual issues.

Finally, the Klamath Tribes remain committed to a positive outcome for all our communities, Project and Off-Project, Upper Basin and Lower Basin , farmers, ranchers, fisherman, and the Tribes.  Our belief is that the Klamath Basin Restoration Agreement provides us with a solution to the multiple resource and economic issues that have torn these communities apart for decades, offering us all a pathway to long term stability.  Let's not waste our best opportunity for a settlement.  We may never have this chance again.  Our communities, our children, and future generations deserve a better future, so let's not allow a very few to keep us from continuing to build on what so many have worked so hard to construct in the KBRA.

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