By SARA HOTTMAN 

H&N Staff Reporter

January 22, 2012

   For more than 35 years water stakeholders in the Klamath Basin have been fighting for water in court as part of Klamath Basin Adjudication.

   Tens of millions of dollars, 730 water claims, 5,600 contests to those claims, and 724 settlements later, the Basin is nearing a landmark: at the end of the year, a judge likely will give a final order of determination, establishing water rights for permit holders and for the first time giving the Oregon Water Resources Department the authority to regulate Basin water.

   But that order won’t end the fighting, those involved predict.

   “I’ve been involved in adjudication since I graduated from law school,” said Bill Ganong, attorney for the adjudication contestants on the Klamath Reclamation Project. “My father said adjudication would not be completed in his lifetime. He was right; he passed away in 2005.

   “I’m confident adjudication will not be completed in my lifetime.”  

   Representatives from the Oregon Water Resources Department, the Klamath Tribes, Upper Klamath Water Users, and Klamath Reclamation Project contestants on Thursday gave their perspectives on the adjudication process.

   The talk was the first of PROSPER’s Klamath Conversations speaker series. Upper Basin contestants who were affected by the most recent adjudication in December declined to offer a representative, organizers said.

   Regardless of how a judge decides on individual claims, the Basin as a whole will change dramatically once it becomes an adjudicated basin.

   “It’s quite a milestone we’re coming to at the end of 2012,” said Doug Woodcock, representative from the Oregon Water Resources Department. “Things are going to change in the Klamath Basin as far as how water is managed.

   “Before (adjudication) we hadn’t really had anything to regulate for or against. After this decision, the Klamath Basin is going to be like the other basins, where water is regulated on a priority date.”

How adjudication could impact local irrigators   

   Doug Woodcock at one point was an assistant watermaster for the Oregon Water Resources Department in the Grants Pass area, which has long been adjudicated.

   There, after certain weather conditions, he expected a call from the most senior water right holder. When he drove out to the site, people along the canal would see him and begin shutting off, he said.

   “They’d been doing it for so many years, they knew where they stood in order of priority,” he said. “Everybody understands the rules, it’s easy.  

   “That’s in an adjudicated basin. In an unadjudicated basin … nobody knows. It’s going to take time to do this. It’s not an overnight process. It’s a steep learning curve.”

   Local irrigators haven’t gone through the experience of having their water shut off so their neighbor can irrigate, but they expected it wouldn’t be pleasant, especially in the context of the Klamath Tribes, who have a beginning of time priority date.

   So for decades irrigators have been in court.  

   Becky Hyde, a rancher near Beatty, said a fellow rancher with land on the Williamson River said he “could have bought and sold his land three times over based on the money he put into … litigation against the Tribes.”

   The Tribes responded, claiming the water was assured to them in the   Treaty of 1864, in which the federal government bought land from native tribes but did not formally take away hunting, fishing and gathering rights. Since then, courts have ruled tribes are entitled to those rights, as well as the water that supports them.

   A “time immemorial” priority date makes the Tribes the most senior water right holders.

   “It still matters in 2012 that native people were here first,” said Bud Ullman, attorney for the Tribes. “First in time, first in right.”

   After the final orders, the Tribes will be able to make a call on the amount of water specified in adjudication for their land, mostly the former Klamath Reservation, but affecting other water bodies.  

   The Klamath Reclamation Project, with a 1905 priority date, also will be able to make calls on junior users upstream, said Bill Ganong, attorney for Project contestants.

   “The Project has the last straw in the river. They’ve gotten what was left over year after year, and they have the (Endangered Species Act) on top of that,” Ganong said, referring to the protected status of two fish in the lake and river from which the Project irrigates.

   “With adjudication, that’s going to turn around somewhat,” he said. “They’re not going to be the last straw in the river.”

How an adjudicated Basin would work   

   Western water law is based on a simple principle: first in time, first in right.

   Klamath County commissioners Al Switzer and Cheryl Hukill said the county’s financial contribution to support the watermaster won’t be cut. Other funding comes from the state.