KWUA Response to Upper Basin Contestants Press Release and Action in Adjudication

August 20, 2009

On August 18th, 2009 the Upper Basin Contestants filed a motion with the Administrative Law Judge (ALJ) in the Klamath Water Adjudication and issued press release touting the action. The motion asks the ALJ to “reconsider and vacate” a conditional Settlement between the Klamath Project water users and the Klamath Tribes.

KWUA believes the motion has no merit. The only result will be that a whole bunch of good people in the Project and in the Upper Basin will be throwing more good money at this random act of litigation.

Background and relevant information:

• The Klamath Tribes have a “claim” in the adjudication for a certain amount of water.

• Klamath Project Water Users (KPWU) contested that claim as did the Upper Basin Contestants (UBC).

• Claimants and Contestants in the Adjudication have a few options – 1 Litigate, 2. Negotiate a Settlement, or 3. Withdraw the claim or contest.

• KPWU and Klamath Tribes chose to negotiate a Settlement. Doing so merely removes KPWU from that particular argument. It does not take away a third party’s argument, day in court, or right to due process. It in no way determines any party’s ultimate water right-which only the state can determine. The settlement entered into between the Klamath Tribes and KPWU does not confirm any water to the Klamath Tribes. UBC are free to continue to spend money and make their arguments against the Tribes through litigation.

• The conditional settlement was filed in May and is one of many settlements made in the adjudication to date. As in other settlements, the settling parties make commitments to each other that have no adverse consequence for anyone else.

• As long as UBC are contesting the Klamath Tribes’ Claim, the tribes will need to provide evidence to prove their claim. UBC has its full day in court.

• Upper Basin Contestants also contested the claim that the KPWU and Refuges made to water. UBC’s position is that no irrigation district aside from KID has a valid claim (or water right) in the adjudication. That is not a fair or equitable position to take. Appropriately, UBC lost that argument.

• Upper Basin Contestants never petitioned settlement parties to be at the table.

• Resource Conservancy was allowed to attend and did participate in settlement discussions via the Klamath Off-Project Water Users Association. Mr. Nicholson attended numerous meetings.

• The Project irrigators’ conditional settlement with the tribes indirectly benefits many off-project irrigators.