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Water adjudication moving slowly 
 

Klamath Tribes has 9 cases; one has settled 

 

By LEE JUILLERAT 

H&N Staff Reporter

September 23, 2010

 

     Adjudication of Upper Klamath Basin water cases involving the Klamath Tribes, a process that began in 1975, could be resolved within the next few years.  

 

   Overall, there are about 700 claims involving state and federal agencies and hundreds of individuals. Of those, the Tribes are involved in nine, said Carl “Bud” Ullman, the Tribes’ water attorney.

 

   The nine cases will determine water allocations to the Tribes and the opposing parties in the cases. The largest group of the three contesting parties consists of water users who live along tributaries to Upper Klamath Lake. They are known as the Upper Basin Contestants.

 

   One of the Tribes’ cases, involving what Ullman termed small amounts of water used for such purposes as landscaping at tribal cemeteries and firefighting at the Kla-Ma-Ya Casino, has been settled.

 

   In May, the Oregon Office of Administrative Hearings in Salem had a three-week hearing for “steam-flow” cases involving tribal water claims for the Sprague, Sycan, Williamson and Wood rivers and their major tributaries.

 

   The hearing was for people to cross-examine witnesses who submitted written testimony. A judge’s decision is expected in December 2011.     

 

   A second court hearing scheduled last July was not held because none of the parties asked to cross-examine any witnesses.

 

   Ullman said briefings for cases from the canceled July hearing begin in December. The cases involve tribal claims for the Klamath Marsh and seeps and springs on public land across the former Klamath Reservation.

 

   The administrative law judge hearing the cases is committed to issuing a proposed order by Dec. 1, 2011.

 

   Final cases

 

   The final cases involve Upper Klamath Lake and the Klamath River from below the Link River Dam to the Oregon-California state line. Written testimony will be filed beginning in October. A cross-examination hearing will begin April 18, 2011. After briefing, a judge’s decision is due by April 16, 2012.

 

   The judge’s rulings will be submitted as a recommendation to the Oregon Water Resources Department, which will decide whether to accept the recommendations, make changes or send it back to the judge for further consideration.

 

   After the Water Resources Department makes its decisions, those will be sent to the Klamath County Circuit Court for further review. The court can accept, change or send the decisions back to the Water Resources Department.

 

   Ullman said when  the department’s decision is sent to the Circuit Court it becomes enforceable. Although parties can appeal those decisions, the appealing party must file a bond if it wants to prevent the decisions from being enforced.

 

   “We’re still a long way from finishing with water adjudication,” Ullman said.

 

   He declined to speculate on impacts of possible decisions, saying, “We’ll have to see the rulings.”  

 

Side Bar

 

Attorney:  KBRA could help resolve other issues     

 

   Adjudication will not resolve such issues as water quality, habitat, impact of the Endangered Species Act and the stability of agricultural water supplies, a water attorney for the Klamath Tribes said.

 

   Those issues, attorney Carl “Bud” Ullman believes, could be best resolved through implementation of the Klamath Basin Restoration Agreement.

 

   “What would be most satisfying is seeing the KBRA in place instead of having people in the Klamath River Basin fighting among themselves year after year,” Ullman said.

 

   The KBRA aims to resolve water issues among stakeholders in the Klamath River Basin.

 

   “The KBRA is crafted in a way that allows the adjudication to continue while addressing the underlying disease,” Ullman said. “The KBRA also makes it easier for people to settle among themselves. It represents   a great improvement over the status quo.

 

   “The salient point is even if we settle the adjudication, we’ll still be faced with crisis-to-crisis management.”

 

   He said Klamath Basin adjudication dates back to the 1975 Adair case, when federal courts confirmed that tribal water rights survived termination. The pivotal court decision said the Tribes have a right to enough water to support treaty-protected hunting, fishing, trapping and gathering activities as reserved by the Tribes and the United States in the 1864 treaty.

 

   “It is important to understand the Tribes’ treaty rights are not something granted by the U.S., but are rights the Tribes held at the time of the treaty,” Ullman said. “The Tribes simply retained these rights with the U.S.’s agreement and guarantee, while the Tribes ceded the bulk of their land.”

 

 
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