Court may keep Oregon Water Resources Department out of KBRA negotiations 

Rietmann had filed a complaint for declaratory judgment/injunctive relief on behalf of Water for Life, Inc. and six upper-Klamath Basin irrigators on December 8, 2009, requesting that the court bar the OWRD from further participating in KBRA negotiations and from signing the document without first publicly disclosing all records of the confidential negotiations that have previously taken place.

The Water for Life, inc. Web site states that it is a “non-profit organization dedicated to protecting and promoting agricultural water rights while advocating responsible stewardship of the land.” The organization, along with the six individuals, have filed the complaint against the OWRD and its director Phillip C. Ward.

The complaint describes the general stream water rights adjudication initiated by the OWRD in the 1970s pursuant to Oregon Revised Statutes (ORS) Chapter 539, which deals with the determination of water rights initiated before February 24, 1909 and the determination of water rights of federally recognized Indian tribes.

The adjudication in question, which is still ongoing, according to the complaint, involves or can potentially affect the irrigator plaintiffs, all of whom have claimed an interest in how the OWRD will define the scope and attributes of federal reserved water rights claimed by Klamath tribes.

The plaintiffs claim that the confidential KBRA negotiations include determination of Klamath Tribal water rights, putting the negotiations in conflict with ORS 539.310, which reads “(1) The Water Resources Director may negotiate with representatives of any federally recognized Indian tribe that may have a federal reserved water right claim in Oregon and representatives of the federal government as trustee for the federally recognized Indian tribe to define the scope and attributes of rights to water claimed by the federally recognized Indian tribe to satisfy tribal rights under treaty between the United States and the tribes of Oregon. All negotiations in which the director participates under this section shall be open to the public.

“(2)During negotiations conducted under subsection (1) of this section, the director shall: (a) Provide public notice of the negotiations; (b) Allow for public input through the director; and (c) Provide regular reports on the progress of the negotiations to interested members of the public. [1987 c.81 §3; 1993 c.67 §2]”

The plaintiffs claim in the complaint, “Pursuant to ORS 539.310, plaintiffs are entitled to public notice and the opportunity [to] participate in any and all ongoing negotiations defendants are involved in concerning the scope and attributes of the federal reserved water rights claimed by the Klamath Tribes.

“To the extent those negotiations result in a final agreement involving the scope and attributes of rights claimed by the Klamath Tribes, defendants are required to act in accordance with ORS 539.320-ORS 539.340 by submitting the agreement to an appropriate court and providing public notice of the agreement so that plaintiffs and others similarly situated may exercise their right to file exceptions to the agreement with the court before the agreement takes effect.”

The plaintiffs continue in the complaint, stating that each believes that continued confidential KBRA negotiations by the OWRD causes injury to the public in general and the plaintiffs specifically for a number of cited reasons.

The judgment requested by the plaintiffs includes a declaration that the OWRD and its director “have acted in violation of ORS 539.310 by participating in confidential negotiations to define the scope and attributes of federal reserved water rights claimed by the Klamath Tribes without complying with the public notice and public participation requirements of the statute,” and also that the OWRD and its director comply with the statute in all future KBRA negotiations or any future negotiations relating to defining the scope of federal reserved water rights claimed by the federally recognized Klamath Tribes.

Also sought by the plaintiffs is an injunction restraining the OWRD and its director from participating in the KBRA negotiations or signing the KBRA without first having “publicly disclosed all records of the confidential negotiations that have previously taken place, affording the public meaningful participation in the negotiations consistent with ORS 539.010, and thereafter; submitting the agreement to an appropriate court, providing public notice of the right to file exceptions, and allowing those exceptions to be determined by the court before the agreement takes effect in accordance with ORS 539.310 et seq.”

Rietmann said Monday that before Dec. 25, 2009, Water for Life filed a motion requesting a preliminary injunction to keep the OWRD from participating in any further confidential negotiations before a ruling is made on the original complaint.

A hearing on the preliminary injunction motion was scheduled for Jan. 14, however, Reitmann said that on Dec. 31, 2009, Water for Life learned that parties to the KBRA had scheduled a final negotiation for Jan. 6 and 7, effectively allowing the OWRD to continue negotiations before the motion was heard in court.

That is why, according to Rietmann, the Marion County Circuit Court was scheduled to hold a hearing at 9:30 a.m. today on whether or not it will grant the plaintiffs a temporary restraining order to keep the OWRD from participating in the final negotiations until a ruling is reached on the preliminary injunction. He said that the temporary restraining order has a purpose similar to the preliminary injunction motion, but can be heard in court sooner.

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