Water pressure:  Adjudication looms

By TY BEAVER
H&N Staff Writer

February 29, 2008

   Bill Ganong has been in the thick of the water adjudication process since 1975, and he expects Klamath Basin water challenges to continue long after he’s left this world. 

   The Klamath Irrigation District water attorney says there were more than 5,500 challenges filed against water claims, including those filed by irrigators on and off the Klamath Reclamation Project, the Klamath Tribes and conservationists — all before what’s considered to be one of Oregon’s largest-ever lawsuits even goes to the courts. 

   “It’s a lawyer’s dream,” Ganong says.

   What is it?

   The Oregon water adjudication process was established about 100 years ago by state lawmakers to acknowledge vested water rights, or water rights that existed before the state’s water laws were established. 

   Adjudication can be broken into two primary phases: administrative and judicial (or legal). 

   The administrative phase involves the state’s Water Resources Department collecting all the documentation pertaining to water rights claims as well as any challenges to those claims. 

   Through the state’s adjudicator, claims and challenges are settled and defined before an order is issued, which determines how water law is followed until the courts issue a final decree. 

   Once there is an order, the matter is turned over to the local circuit court for any legal challenges. The regular appeals process applies and a final decision on the state order can potentially appear before the U.S. Supreme Court. It can be sent back through any administrative portion if the courts deem that necessary. 

   It is not unheard of for water adjudication legal proceedings to continue for half a century or more. 

   Who is involved? 

   In the Klamath Basin , the adjudication process applies to anyone or any agency that uses surface water in the Klamath River watershed, which includes the river, Upper Klamath Lake and any streams that flow into the lake. Irrigators and the Tribes as well as the U.S. Forest Service, U.S. Fish and Wildlife Service and other agencies have a stake in adjudication.

   What’s at stake? 

   There is no clear indication of how the water adjudication process will be resolved and any final resolution is likely decades away. It is possible that no party could end up with everything it seeks, and potential extreme conclusions motivate those involved to continue fighting. 

   n For irrigators, both on and off the Klamath Reclamation Project: 

   The best-case scenario is that any claims challenging their abilities to use water for irrigation would be found inapplicable or not be granted a substantial enough water right to threaten supply. 

Ed Bartell

   The worst-case scenario would be that a substantial water right is granted to the Klamath Tribes or some other party. The Tribes or others could then potentially shut down any irrigation that relies on surface water. 

   n For the Klamath Tribes: 

   A best-case scenario would be that they are granted a substantial water right, allowing them to provide flows they view necessary to fulfill hunting, fishing and gathering needs provided by treaty rights. 

   Worst-case scenario would involve the Tribes not being granted enough water to ensure the flows and lake levels they view necessary, specifically for restoring their threatened and lost fisheries.

What about the agreement?

   The proposed Klamath Basin Restoration Agreement wouldn’t end the adjudication process, but it could make it shorter and less costly for on-Project irrigators and Tribes as water rights are more clearly defined. In the agreement, on-Project irrigators agree to limit their use of Upper Klamath Lake to no more than 385,000 acre-feet of water a year, depending on water conditions. In exchange, the Tribes agree to no longer challenge the Project’s use of the watershed. 

   The state of Oregon is willing to embrace those groups’ efforts. “Anything that helps to resolve those problems and issues, of course we support it,” says Ruben Ochoa, spokesman for the Oregon Water Resources Department. 

   But pressure is building to move the process along.

Pros and cons?

   The Tribes benefit from the agreement by knowing that some level of water will be in the lake, contributing to restoration efforts. Both Tribes and irrigators benefit from diminished conflict and litigation.  

   “This is by far the best solution,” says Bud Ullman, tribal attorney. 

   But others criticize the agreement, saying it doesn’t provide the protections that proponents say it does. n Ed Bartell, president of the off-Project Water Users, says the Tribes will still be able to take water from the Project because they do not surrender their sovereign nation rights in the agreement. 

Dave Solem

   Ganong, Ullman and Dave Solem, Klamath Irrigation District manager, say that it would be difficult for future tribal leaders to overrule a legal contract. The Tribes do not want to end agriculture in the Basin and leaders from both sides want to foster a better relationship. 

   “We would not settle if the Tribes could come back and say the deal’s off,” Solem says. 

   n Bartell also says that off-Project irrigators (those irrigators whose land is not within the Reclamation Project’s borders) will still have to go through the adjudication process with no certainty of an outcome. 

   Ullman says that the off-Project irrigators had the same opportunity to negotiate with the Tribes as those on the Project. 

Doug Whitsett

   n State Sen. Doug Whitsett, R-Klamath Falls, criticized the agreement before it was even released, saying his sources indicated that it would not comply with Oregon water law, among other issues. 

   But Ochoa says one of the reasons the state supports the settlement agreement is because it complies with Oregon water law, adding that the state does not share the state senator’s concerns.

Bud Ullman

What’s been done?

   Water adjudication has been a drawn out process in the Klamath Basin . The state began it officially in 1975, but pending federal lawsuits suspended it. 

   In the early 1990s, the state began to request more claims and challenges, and 1996-1997 was the last period they were accepted. In all, 730 claims and 5,664 challenges were filed; only 24 claims went unchallenged. 

   Ganong says on-Project irrigators have spent an estimated $4.2 million on water adjudication to date. That money paid legal and court fees, travel, and the costs of services needed to support on-Project claims. 

   For example, historians were hired by irrigation districts to research and find water rights documentation. Others were hired to make extensive maps to demonstrate and verify claims. 

   In all, Klamath Irrigation District filed 10,000 pages of forms with their claims, along with another 10,000 pages of supporting documentation.

Greg Addington

What’s next?

   A decade later, the state’s role in the adjudication is nearing completion. Nearly all the claims and challenges are settled administratively; the remaining 56 claims and 201 challenges pertain to the Tribes. Of the claims and challenges already settled, Greg Addington, executive director of Klamath Water Users Association, said they haven’t gone in favor of one side or another. 

   As opponents and proponents debate the proposed Klamath Basin Restoration Agreement, the state has suspended adjudication to provide time for those affected to consider their options, but they only have so long. 

   Water Resources requested an extension of the suspension until April 4 but officials say they will not make any further requests. 

   Ochoa says the department is eager to move the process forward because the Legislature set aside money for the process during the 2007 regular session and wants to honor that decision. The department also believes that two months should be sufficient to reach a decision on the agreement. If a decision isn’t reached or if the settlement is scrapped, adjudication would continue as scheduled, leaving the future of on-Project irrigation in the hands of attorneys and judges. 

   Ganong says that without the settlement, the water adjudication process could drag on for three-quarters of a century or more. 

   Costs would rack up as on-Project irrigators would need to continue to challenge evidence produced against their claims. 

   Water has become an increasingly valuable resource and without negotiation, the conflicts over it will not end soon. “It’s become worth fighting over,” Ganong says.

What else?

   n The Klamath Basin isn’t the first to go through the process. Basins such as John Day and much of Malheur and Deschutes , all in the eastern part of the state, already are adjudicated and all western states have dealt with similar processes. 

   n Other claims and challenges are pending above Upper Klamath Lake involving the Tribes and there would still be some administrative proceedings as the agreement would function as a recommendation to the adjudicator, not a final order. Off-Project water users also have a challenge filed against on-Project irrigators.

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