What Next?

It's a matter of trust

By Phil Hayworth

Pioneer Press

Fort Jones , CA

Wednesday, January 23, 2008

page E8, column 1

pioneerp@sisqtel.net

It's been just over a week since the 256-page water settlement was unleashed on the public and it's likely very few have had a chance to read it, let alone absorb it all. It's replete with legal jargon that even those who wrote it agree is a bit dense.

Meanwhile, proponents - specifically, the Klamath Indian Tribes and users of water directly on the Klamath Project -- are hoping to sell the deal quickly to the general public and off-project users.

It'll be a tough sales job.

That's because the deal, while most recognize as on surface being a good first-step toward guaranteeing predictable water supplies and cheap power to pump that water, is still an unknown quantity. It'll take time to iron things out, say skeptics. More important, it'll take time to build a trust. Because if there's any one thing needed to get the public and off project users to sign up for the settlement, it's trust.

"If you think you have an issue with trust, the tribes do, too," said Bud Ullman, water lawyer for the Klamath Tribes.

He spoke before a packed room of farmers, ranchers and others who attended a meeting last week of the Klamath County Natural Resources Advisory Council. The group was one of the first to publicly to hash things out since the deal was released last Tuesday. Ullman cited the many times over the years that the U.S. Government has gone back on their promises to the Indian tribes. With the settlement, the tribes stand to gain perpetual, unassailable water rights and some 90,000 acres of Mazama forest land now in the hands of a private company.

"This is a chance for us to build our future," said Tribal Council Chief Joe Kirk.

But some in the room weren't buying it.

"We've given up everything and they've given up nothing," said Bill Ransom, member of the council. Others agreed.

Upper Klamath water user and farmer Edward Wolf most eloquently expressed the concerns of those farmers and ranchers who he says stand to lose the most from the deal.

Last week, he explained that he and others like him who depend on water from the Upper Klamath Lake and its various tributaries were more than willing to sign onto the deal - even if it meant giving up 30,000 acre-feet of water. All they wanted was a guarantee that the Indian tribes and environmentalists wouldn't ask for more later. He and others argue the settlement, as it stands, fails to offer those guarantees.

Even more, he argues that the deal - should he sign on - effectively agrees that the Klamath Tribes have water rights to the Upper Klamath from "time immemorial." By agreeing, even in concept, that they have those rights, he and others like him fear that that admittance could come back to haunt them. The settlement, he fears, could later be used against him and others in a court of law.

Tracey Liskey, a member of the Natural Resources Advisory Council member, comes from a long-line of farmers and ranchers with water rights dating  back to the mid 1800s. If she (he) signed, she (he) wondered last week, would she (he) be giving up her rights?

No, said Ullman. And she would still have access to the courts to fight it out, should she desire. But the whole reason behind the deal is to avoid such fighting, Ullman said.

"Haven't we had enough of that?" he asked.

Indeed, the history of the Basin is replete with legal fights over water and land use. Wolf said that he has personally been involved in over 100 such legal battles, and that some 2,000 or more have happened in his lifetime alone.

But the more who sign onto the deal, argues Steve Kandra of the Klamath Water Users Association, the fewer will chose to fight it out and instead settle their differences out of court. For those who sign on, they get the benefits of the protections the settlement allegedly locks in. Those who don't are on their own, he said.

"They have to ask themselves, 'Do I want the status quo?'" he said. "What do they have right now?"

Uncertainty, expensive legal battles and ill-will between on and off project users and the tribes, he said. Perhaps most important - and still most resonant in the minds of Klamath farmers and ranchers - is the notion that the Endangered Species Act could be invoked anytime, just as it was in 2001.

"The ESA isn't going away anytime soon," he said.

Knowing that, he argues, those who sign on could circle the wagons, so to speak, in the event of an ESA assault. Even more, through their collective efforts - that is, the efforts of tribes, farmers and ranchers - they could take pre-emptive measures to prevent such ESA assaults from happening. They could meet or exceed ESA specifications. At the very least, they could prevent or mitigate a major malfunction of the act, like the one that happened back in 2001.

Still, skeptics wonder if the two major parties to the settlement - the on-project users and the tribes - actually care about what happens to off project users and others. They fear that -- like sacrificial lambs - will get the short end of the deal, even as the on-project users thrive. They don't like the idea that a group of 26 entities can somehow force them to do anything - even if deep inside they know the settlement has its good points.

"I think people feel like this deal is being shoved down their throats," Ransom said.

If he thinks off-project farmers and ranchers are feeling that way, then imagine what the folks at PacifiCorps are thinking, who KWUA President Greg Addington and others are asking to tear down the four hydroelectric dams along the Klamath in California's Siskiyou County.
If those dams don't come out, he said, the settlement is a done deal. No exceptions. It'll be as though the last two years of negotiating the settlement were for nothing. But that argument is disingenuous, said PacifiCorps spokesman Paul Vogel.

"Look, how can this be a settlement when we weren't even at the table," he said. Sure, they were negotiating in the past, and he agrees that it was PacifiCorps who actually initiated the talks in the first place. But the company left the table in the final months of the settlement, ostensibly because they couldn't come to any kind of agreement as to who would actually pay for the dams' removal. Rumors are floating that the company wanted the State of Oregon to guarantee that they would pay for the removal. Now, PacifiCorps is using the age-old technique of appealing to a much larger constituency - their millions of power customers -- and their pocketbooks.

"We're concerned about our customers," he said. "Somehow, we'll have to replace the 168 megawatts of pure, clean hydro power with something else. What do we do? Replace it with carbon-emitting power?"

With PacifiCorps out of the deal, that 3 cents per kilowatt hour guarantee mentioned in the settlement is not exactly certain anymore. And without cheap power, things could get prohibitively expense for farmers and ranchers - especially those who pump their water. 

Meanwhile, PacifiCorps has taken a break from the poker game that has been the settlement talks, if only to regroup and confer with their legions of lawyers.  "At least we know what the kind of cards they have," Vogel said.

It's likely that they, the tribes and the on-project users will still be talking to each other, if only behind closed doors. One million dollars will be spent each year for 10 years to make the settlement a reality. That $1 billion, which will come from state and federal sources, will pay for mitigation efforts to bring the Williamson, Sprague and the lands around other tributaries to the lakes conform to the ESA and the Biological Opinions - the latest of which is expected to be released in May.

Ransom argues that water users should wait until the Biological Opinion - which guides and governs water use in the Klamath Basin on both sides of the border - comes out before voting on the settlement.

After all, he argues, the U.S. Fish and Wildlife Service and other federal entities are still the law of the land. And if they determine that more or less water should flow, then it's a done deal. No one can argue with them - no matter how united they appear.

But proponents of the settlement argue that, by signing on now and presenting a unified front, the federal agencies will be more likely to accommodate the collective interests of farmers, ranchers and tribes.

Meanwhile, the Hoopa Indian tribe backed out of the deal, arguing that it gives too much to farmers and ranchers. They want their fish, they argue, and to get them, the dams will have to come down. PacifiCorps isn't budgeting, citing last year's finding by the Federal Energy Regulatory Commission suggesting that the dams can stay, that fish populations can be sustained with fish ladders and that the summertime blooms of blue-green algae can be mitigated with technology.

Meanwhile, farmers, ranchers and tribes alike agree that it's a matter of trust- trust that the tribes won't ask for more, trust that those who sign onto the deal will be protected from the ESA and trust that PacifiCorps will still offer cheap energy to farmers.

Outsiders from New York to Portland are eyeing the situation with keen - if not detached - interest. After all, what does it matter to them if a few country folk lose their farms or get a little less water some year. But for those in the Basin, it's more than just a poker game - it's life and death. And everyone is hoping that the other guy isn't bluffing.

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