Questions & answers 

About the negotiations

Klamath Falls Herald and News
April 4, 2008
Page C4

   Q: How could PacifiCorp not be included in the negotiations? Didn’t they initiate the talks as part of their re-licensing efforts? How can they claim to have been broadsided by the proposal to remove dams? 

   A: PacifiCorp did initiate conversations with stakeholders along the Klamath River about the utility’s dam re-licensing efforts, said PacifiCorp spokesman Toby Freeman. But issues between the stakeholders began to hamper meetings, so PacifiCorp excused itself to allow those issues to be resolved, leading to the Klamath Basin Restoration Agreement meetings. Stakeholders continued to meet with PacifiCorp, but with decreasing frequency, and provided only general information. PacifiCorp was aware that dam removal was being talked about, but was not aware of the scope until seeing the final 256-page document shortly before it was released Jan. 15. Others contend that PacifiCorp was more aware of what the stakeholders were developing. Steve Kandra, board member with Klamath Water Users Association, said the utility had knowledge, through meetings with the stakeholders, about what would eventually be proposed. “It is no surprise to PacifiCorp what we are bringing to them,” he said. 

   Q: If dam removal can’t be negotiated to fruition by all the parties, is there no other way to carry on with other major parts of the agreement? 

   A: Proponents said that final ratification is contingent upon an acceptable agreement being reached with PacifiCorp. Stakeholders such as the Klamath, Karuk and Yurok tribes and a few environmental groups have indicated that dam removal is the only acceptable course. “(Without dam removal,) I think all the parties would have to sit down and discuss next steps,” said Jeff Mitchell, Klamath Tribal Council member. 

   Greg Addington, executive director of Klamath Water Users Association, said he could see portions of the agreement moving forward without dam removal, but doing so would require further discussions. 

   Portions of the agreement would go into effect. Fish and wildlife officials point to an inevitable reintroduction of salmon to the Upper Basin because PacifiCorp would have to install fish ladders if dams aren’t removed. Without the agreement, that reintroduction wouldn’t include regulatory protections for irrigators. 

   Q: Was it necessary for the stakeholders group to keep all facets of the agreement private until the very end? Why was there no public participation? Or is that what’s happening now? If so, does that mean there could be some amending to the agreement because of public dialogue? 

   A: Bud Ullman, Klamath Tribes attorney, said it would have been unworkable to open the negotiations. He said some additional work is anticipated — Section 16 to resolve off-Project issues is an example, he said. 

   “Major areas that we believe cannot be substantially changed without upsetting the delicately balanced agreement include provisions related to water, power, regulatory assurances, county and Tribal programs, and fisheries restoration,” Ullman said. 

   Klamath Water Users Association President Luther Horsley said it’s possible some elements could have been discussed publicly. 

   “At the very beginning it was PacifiCorp that required a confidentiality agreement in order to participate,” he said. “There are good reasons for confidentiality. Parties need to be able to openly discuss possible terms without fear that it will be used against them in public or in litigation. “Many of the issues being discussed were, or are, subject to ongoing litigation. These could not be openly discussed.” Another reason that confidentiality made sense was because the agreement developed in parts, and it would have been more difficult if pieces surfaced independently of the complete package. Horsley believes there could be amendments to the document because of expanded public dialogue. “Nothing is done until it is done,” he said. “The goal is to achieve the broadest support that is possible.” 

   Q: Did the off-Project contingent represented by Edward Bartell decide not to stay at the table, or were they voted off? Why, in either case? Was the Bartell group involved up until the end, or did it quit the talks some time ago? Bartell said they were targeted. Is that true? 

   A: Edward Bartell, of the Klamath Off-Project Water Users, said the group remains at the table to this day. He said his side didn’t have enough votes to prevail when the stakeholders changed from a consensus-based to a majority-vote group. 

   “The rest of the settlement group decided to target upper Basin irrigators’ interests, rather than continuing with an equitable agreement,” Bartell said. “The proposed settlement agreement utilized upper Basin water to satisfy the rest of the parties’ desire for water.” 

   Luther Horsley of the Klamath Water Users Association disagreed. Off-Project users had the same opportunity that everyone else at the table had, he said. Horsley said it’s not in the best interest of the settlement’s success to consider any group expendable. “I don’t believe that happened,” he said. 

   He agreed that Bartell and the Off-Project Water Users Association have been at the table for the entire process. He said the group was never voted off. 

   “They were there in the beginning and Edward (Bartell) was in attendance at the last meeting held in Ashland on March 5-7, 2008 ,” Horsley said. “Other board members from the KOPWU also attended various group meetings, as did an attorney representing KOPWU.” 

   Q: It seems logical that proponents would prefer not having the public relations problem of off-Project users being left out. That would seem to indicate a failing in the process by the negotiators. What could off-Project negotiators have done to come away with an acceptable deal? 

   A: Ullman said off-Project negotiators could have done what all the other parties to the agreement did: Respected the legitimate needs of other negotiating parties, instead of insisting that the parties’ needs be subordinated to the off-Project positions. 

   Also, they could have taken a problem solving approach in which they worked with others to find outcomes that work for everyone, rather than viewing others’ needs as a problem incompatible with off-Project interests, Ullman said. And they could have acknowledged the need to change the way matters are dealt with in the Basin, rather than resisting outcomes that bring change. They could have kept their constituency involved in the process. 
   
   Finally, Ullman said, they could have expanded their view that only parties to the Klamath Basin Adjudication (i.e. contestants) have a stake in the water negotiations, recognizing that a wide spectrum of water users (contestants, claimants, and permit and certificate holders) have a lot at stake in the outcome, and taken steps to adequately represent those concerns. 

   But Andréa Rabe, Resource Conservancy Board member and off-Project rancher in the Sprague River Valley , countered that the Resource Conservancy was denied a vote or a seat at the negotiating table. 

   The purpose of Klamath Off-Project Water Users, which had a seat at the table, was to defend the off-Project power contract, not to litigate water matters. So Klamath Off-Project Water Users requested a seat at the table for the Resource Conservancy, which represents Upper Basin irrigation interests. The request was denied. Rabe said it should be clear that the Resource Conservancy does not place any blame on the Klamath Off-Project Water Users for their performance during negotiations. Klamath Off-Project Water Users successfully negotiated a settlement framework that contained broad protections for irrigators outside the Klamath Project. Unfortunately, she said, the other settlement parties determined that they could go after water outside the Project. 

   Q: Is it true that there were other off-Project parties that tried to be involved in the negotiations, but weren’t allowed? Was that group marginalized to make 

   A: Luther Horsley, president of the Klamath Water Users Association, said he remembers Roger Nicholson and other people from the off-Project area attending several meetings of the full stakeholders group. The most recent was late last summer when the Resource Conservancy asked for a seat at the table, Horsley said. 

   The Resource Conservancy, led by Nicholson, is a nonprofit group representing upper Basin irrigators. They are not part of the Klamath Project, but also are separate from the Off-Project Water Users Association headed by Bartell. Nicholson said the Resource Conservancy represents “the majority of Upper Basin irrigators and all but a handful of instream flow contestants.” 

   “The overall negotiations at that point were advanced and it was becoming clear some of the positions people were going to take,” Horsley said. “At about the same time, there was a request from at least one other organization. 

   “It was part of the group’s operating protocols that addition of new members required consensus.” 

   Horsley said a vote was not taken about admitting a new group. “It was pretty evident that a majority of the parties were not interested in expanding the group.” 

   He said it’s important to realize that most of the negotiations did not occur in a big room with all parties present. Instead, he said most issues were addressed initially by workgroups of interested parties and their results were then considered by the large group. 

   “There were considerable discussions outside the large group meetings with Mr. Bartell and Mr. Nicholson — presumably representing the Resource Conservancy — and the Klamath Tribes, Department of Interior, and KWUA,” Horsley said. “Had any resolutions been reached in those negotiations, those resolutions certainly would have been brought into the large group.” 

   Bartell said the Resource Conservancy requested a seat at the table, but they were not allowed to join the talks. 

   He added that many Resource Conservancy members are not members of the Klamath Off-Project Water Users because they divert water by gravity rather than by using power. 

   “Ultimately, all off-Project power users and irrigators were marginalized when the settlement group moved from consensus-based to majority vote,” Bartell said. “Of the 26 parties, agriculture only has two votes with the remaining parties consisting of environmental groups, Indian Tribes, and other government representatives.” 

   He said settlement parties made a determination that off-Project power users and irrigators did not have enough “political clout” to influence the agreement. “Therefore, they targeted Upper Basin water to meet other parties’ water desires without providing the requisite assurances,” Bartell said. Ullman said Bartell is wrong in stating that the settlement group ever required consensus as a condition of decision-making. “Consensus was an aspiration,” Ullman said, “but was never an agreed-upon requirement of the process because strict consensus would give everyone, including downstream interests that are profoundly anti-agriculture, veto power.” 

   Q: Is there a problem with legality from the standpoint of government agencies being involved in closed-door negotiations?

Paul Simmons, a Sacramento-based attorney who represents the Klamath Water Users Association, said he isn’t aware of any concerns with government agencies being involved in the settlement talks. 

   “Federal agencies regularly are involved in negotiations of all sorts,” he said. 

   State Rep. Bill Garrard and state Sen. Doug Whitsett, both R-Klamath Falls , raised concerns regarding the legality of the Oregon Water Resources Department participating in the settlement talks. 

   They point to a state statute that allows state agencies to negotiate water rights with tribes, but that they must do so in public meetings and allow public comment. 

   The department and the Oregon attorney general’s office are looking into the issue.  

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