Negotiation offers better prospects than litigation   

Herald and News

Editorial

January 25, 2012

   Klamath Basin ranchers, landowners, farmers and tribal members have spent millions of dollars trying to settle water rights issues in recent decades.

   Water users may be better served if the struggle now moves in the direction of negotiations to provide the best outcome for those with junior water rights.

   One of the key parts of the long, expensive struggle fell into place in December.

   After 35 years of research, claims, counterclaims and hearings, an Oregon administrative law judge handed down a draft decision dealing with the order in which water can be used in the Upper Klamath Basin. It deals with tributaries to Upper Klamath Lake and the Klamath River, but not yet with the lake and river themselves. Decisions on those bodies of water are expected in April.  

   There’s no reason to think that the Upper Klamath Lake and Klamath River decisions will differ in major ways from the draft decision that assigned first priority from Upper Klamath Basin tributaries — Klamath Marsh, and Sprague, Sycan, Williamson and Wood rivers, and their tributaries — to the Klamath Tribes based on their Treaty of 1864. The tribes filed a water rights claim of time immemorial and the administrative law judge upheld it.

   There’s still room for disputes and litigation as the process goes on. It goes from the administrative law judge to an adjudicator, who goes over the awards of water rights on a case-by-case basis. Eventually, a judge will make a determination that’s final. But at the end, there seems little chance the Tribes will not get what the draft decision in December said they were entitled to.  

   A new system

   The decision moves the use of water away from a priority system that determined use more by geography — where in the watershed a water user was located — than on historic use of the water. That’s going to change. Water will be allocated to those who have the most senior rights and those with junior rights may be left without irrigation water in some years. That’s the way water law works, and it’s not going to change.

   A few weeks ago, a group of irrigators on the Klamath Reclamation Project wrote a commentary for the Herald and News and part of it said this:

   “Disputes or contests within the adjudication can be settled in two ways: by negotiated settlements between contestants; or by litigation in a series of legal venues. Negotiated settlements have proven to be better outcomes as contestants retain control over outcomes and costs.  

   “With litigation, the courts and judges control outcomes resulting in ‘winners and losers, without compensation for loss. Many of the original ‘contests of claims’ have come to a negotiated settlement conclusion: Project irrigators have entered settlements and some off-Project irrigators have entered settlements.”

   It also said the Klamath Basin Restoration Agreement presents “incentives for contestants to negotiate settlements to be submitted to the adjudication process,” especially with respect to tribal claims.

   Whatever negotiating framework looks best to those whose water allocations are being profoundly affected, negotiation seems better than litigation. It costs less and offers quicker and better outcomes, including more certainty. It’s time to draw this part of the Upper Klamath Basin water wars to a close.

   Forum Editor Pat Bushey wrote today’s editorial.