Adjudicating Water

Who Gets What and Why

By SARA HOTTMAN

H&N Staff Reporter

December 11, 2011 

   An administrative law judge recommended the adjudicator in the Klamath Basin adjudication process confirm the Klamath Tribes’ water claims on the Sprague, Sycan, Williamson and Wood rivers and their tributaries.

   Ultimately that means for the first time, Upper Basin irrigators won’t have free reign of their pumps. They’ll be subject to senior water rights — dating as far back as the beginning of time — resulting in the potential for many dry years for junior water right holders.

   But that’s Oregon water law: first in time is first in right. After 36 years and more than 700 claims and 5,000 contests, Klamath Basin adjudication is wrapping up with an adjudicator deciding who has the strongest right to water among farmers, ranchers and tribes.

   “It’s going to be really messy,” said Larry Dunsmoor, a fish biologist for the Klamath Tribes who has worked in the area for 30 years. “There’s going to be a lot of people who say this is just between the Tribes and agriculture as a whole. The truth is (outside the Tribes) there would still be calls placed and the junior people asked to shut off.  

   “Adjudication will produce winners and losers. That’s why we say that. … There’s no sharing. It’s who gets how much and what the pecking order is.”   

   The order

   Each proposed order is a recommendation from a judge to the adjudicator, who will make the final determination. Those who challenged the Tribes’ water claims may appeal the order, which the adjudicator will weigh with the judge’s conclusions.

   Officials said it’s unlikely the adjudicator will veer far from the proposed order.

   “The adjudicator received a tremendous amount of information,” said Tom Paul, deputy director of the Oregon Water Resources Department, which enforces water rights. “I don’t expect him to outright dismiss the order, but I also don’t think the order will stand as-is.”

   Meanwhile, the Tribes are postponing celebration and Upper Basin contestants are hoping the appeals process reduces their claim.

   “This was a victory for fish and for tribal treaty rights,” said Jeff Mitchell, a Klamath Tribes council member. “The proposed order clearly says that there’s no (diminution) of tribal treaty rights and the tribes deserve water to protect habitat of reservation resources.

   “But we caution that this is just one step in the process. Now we need to turn our attention to finding a balance between competing interests.”

   Tom Mallams, an Upper Basin contestant, cites as hope the fact that adjudication reduced the Tribes’ original water claims significantly as new studies were conducted to provide hard data for testimony.

   “Their claims dropped because they claimed amounts that could not hold up in court,” he said. “Even if (the final determination) does hurt the irrigators, we’re so much better off than where we would have been without the adjudication.”