Klamath Watershed Conference

Communities, Resources & Restoration  

February 24-26, 2004

The Klamath Basin Adjudication  

Prepared by:  Reed Marbut

                       Oregon Water Resources Department  

Introduction  

Oregon Water Law.  As is the case in most western states, Oregon statutory law provides that all water within the state from all sources belongs to the public.[1]  All such water is subject to appropriation for beneficial use.  Once appropriated under the provisions of the state’s water code, the right to use the water continues in the owner so long as the water is applied to a beneficial use under and in accordance with the terms of the certificate of water right, subject only to loss by non-use.[2]  

In addition to the various state water right systems, certain authority to use and control water arises under federal law.  This authority includes the power of the federal government to set aside (reserve) land from public domain for particular purposes (e.g., national forests, national parks, Indian reservations, military bases, etc.); to develop of federal irrigation, flood control and hydroelectric projects; and to manage river and lakes for protection of threatened or endangered aquatic species.  

Klamath Project ( U.S. Bureau of Reclamation).  Pursuant to the Reclamation Act of 1902, on May 19, 1905, the U.S. Reclamation Service filed a notice in the office of the State Engineer stating that the United States intended to utilize “all of the waters of the Klamath Basin in Oregon, constituting the entire drainage basins of the Klamath River and Lost River, and all of the lakes, streams and rivers supplying water thereto or receiving water therefrom…” to furnish water to the Klamath Irrigation Project in Oregon and California.  

The Act of February 9, 1905 , authorized the Secretary “…to dispose of any lands … under the terms and conditions of the Reclamation Act of 1902.”  Since much of the area to be served by the Project consisted of [in 1905] submersed lands, Congress authorized the Secretary of the Interior to raise or lower the level of Lower Klamath Lake and Tule Lake.[3]  However, since the title to these submersed lands had passed to the States of Oregon and California at the time of admission to the Union , it was necessary for each state to cede title back to the United States .  

The Project was approved by the President on January 5, 1911 .  The total irrigable area of the Project was estimated at approximately 240,000 acres, of which approximately 210,000 acres was public land and 130,000 acres was in private ownership.  About 90,000 acres of the Project was to be located in California and 150,000 acres in Oregon .  The cost of the Project was estimated at approximately $4,500,000.  Major project facilities include Link Rive Dam (completed in 1921), Clear Lake Dam (completed in 1910), and Gerber Dam (completed in 1925).  

It should be noted that there was significant irrigation development in (the) vicinity of Klamath Falls before initiation of the Reclamation Service Project in 1905.  The Klamath Canal Company, Van Brimmer Ditch Company, the Little Klamath Water Ditch Company and the Big Water Ditch Company were in operation for many years before initiation of the federal Project.  The irrigation companies, along with a number of other private water users were incorporated into the Project and ultimately served by the Project facilities.  The Klamath Project currently delivers irrigation water to approximately 130,000 acres in Oregon and 70,000 acres in California .  

The Reclamation Act of 1905 and authorizing legislation for the Klamath Project authorized the U.S. Reclamation Service (later the U.S. Bureau of Reclamation) to enter contracts with individuals and duly formed irrigation districts for the delivery of water within the Project.  These contracts include, repayment contracts – commonly referred to as “A” contracts,[4] Warren Act contracts – commonly referred to as “B” contracts,[5] and annual surplus water contracts – commonly referred to as “C” contracts.  

Klamath Indian Reservation.  The Klamath Indians have hunted, fished and foraged in the Upper Klamath River Basin for many generations.  In 1864, the Klamath and Modoc Tribes entered into a treaty with the United States whereby they relinquished aboriginal claim to some 12 million acres in exchange for a reservation of approximately 800,000 acres in the Upper Basin .  The Tribes held the land in communal ownership until Congress passed the General Allotment Act of 1887.  Pursuant to the Allotment Act parcels of tribal land were granted to individual Indians in fee.  Approximately 25% of the original Reservation passed from tribal ownership to individual Indians.  Over time, many of these allotments passed into non-Indian ownership.

In 1954, Congress enacted the Klamath Termination Act,[6] under which tribal members could give up their interest in tribal property for cash.  A large majority of the tribal members chose to sell.  In 1958, the federal Government purchased 15,000 acres of the Klamath Marsh to create the Klamath Forest Wildlife Refuge.  In 1961, and again in 1975, the United States purchased large forested portions of the former Reservation to become part of the Winema National Forest .  In 1973, the United States condemned most of the rest of the tribal land and essentially extinguished the original Klamath Reservation.  The United States now hold title to approximately 70% of the former Reservation land.  

Oregon Adjudication Process

Pre-Code Water Rights and Adjudication.  Since February 24, 1909 , the right to appropriate water in Oregon has been governed by the provisions of ORS 537.110 through 270.  Any use of water which began prior to February 24, 1909 , is deemed to be a vested water right subject to quantification and documentation in an adjudication proceedings.[7]

Pre-1909 and federal reserved water rights[8] are verified, quantified and documented through such adjudication proceedings in the circuit court of the county in which the water use is located.  This adjudication procedure is set out in ORS 539.010 through 539.240.  Pre-1909 vested water rights in approximately two-thirds of the river basins in Oregon have been adjudicated.

Outline of the Oregon Adjudication Process.

1.       Director initiates adjudication with notice to basin property owners and the United States Attorney General.

2.       Individuals who believe they have pre-1909 water rights and the United States (federal reserved water rights) may file a “notice of intent” to claim a right.

3.       Before the 1987 amendments to ORS 539, Department prepared maps of water use which located all irrigation uses by quarter-quarter sections (Klamath).  Under the 1987 amendments, individuals must supply a map with each statement and proof of claim.

4.       Notice to individuals who filed “notice of intent” to file a “statement and proof of claim” during a specified claiming period.

5.       Claimants file statements and proofs of claim.

6.       Claims are reviewed by the Director (Adjudicator) for completeness.  Supplemental information/documentation may be requested.

7.       Preliminary evaluation of each claim is prepared.

8.       Open inspection is held.  Notice of the open inspection must be at least ten days before the beginning of open inspection period.

9.       The contest period begins immediately following the open inspection period.  Any person owning any irrigation works or claiming any interest in the stream involved in the adjudication may file a contest(s) opposing any claim or the Director’s preliminary evaluation of a claim(s).  The contest period must run at least 15 days and may be extended up to an additional 20 days at the discretion of the Director.

10.   Contests are referred to hearing.  Contests may be settled by negotiation (stipulation).

11.   The hearing officers submit preliminary orders and/or stipulations to the Director (Adjudicator).

12.   The Director (Adjudicator) submits findings of fact and order of determination to the circuit court in the county where the adjudication basin is located.

13.   The Director provides notice to all parties that the findings and order has been submitted to the court.  Any party may file exceptions to the finding and order.  If no exceptions are filed, the court must enter a judgment affirming the Director’s findings and order.  If exceptions are filed, the court may hear the case or remand to the Director or a referee for further findings.

14.   Appeal of the court’s final judgment is to the Oregon Court of Appeals and the Oregon Supreme Court if necessary.  If there is a federal question in the adjudication, a petition for certiorari (asking for review of the Oregon Supreme Court holding) may be filed with the United States Supreme Court.  

Klamath Basin Adjudication (KBA).[9]  The KBA is the seventh subbasin adjudication in the Klamath Basin .[10]  All persons claiming a right to water, the use of which began before February 24, 1909 , were required to file proofs of claim with the Department during the 1990-91 private right claiming period.  The United States and Klamath Tribes were required to file claims during the 1996-97 federal water right claiming period. Approximately 700 claims were filed in the KBA, including approximately 400 claims filled by various agencies of the United States Government and the Klamath Tribes.  The KBA is the first Oregon general stream adjudication in which large, complex federal claims have been filed.

Department staff conducted a preliminary evaluation of each claim.  The claims and the Department’s preliminary evaluation were made available for inspection.  Following the open inspection period, approximately 5600 contests were filed during the contest period.  All of the contests have been referred to the state Central Hearing Panel, and proceedings on several groups of contests are ongoing.

Klamath Adjudication Cases

United States v. Adair[11]

In September of 1975, the United States filed suit in federal district court in Portland for a declaration of water rights within an area whose boundaries roughly coincide with the former Klamath Indian Reservation.  The Klamath Tribe and State of Oregon intervened in the case.

The United States and Tribe argued that, notwithstanding the Klamath Termination Act, the Tribe and individual Indians retained an implied reserved water right for agricultural purposes and to protect their traditional hunting and fishing lifestyles.

The federal district court (Judge Solomon) held:

1)      The 1864 Treaty with the Klamath and Modoc Indians granted the Indians an implied reserved water right to as much water on the Reservation as was necessary to preserve their hunting and fishing rights;

2)      The Klamath Termination Act did not abrogate such water rights;

3)      Individual Indians who were allotted lands within the former Reservation are entitled to water essential to their agricultural needs with a priority date of 1864;

4)      Non-Indian successors to Indian allottees have an 1864 water right for actual acreage under irrigation when the non-Indian obtained title from the Indian and to additional acreage developed with reasonable diligence; and

5)      The United States Forest Service acquired reserved water rights for timber production and conservation of water flows.

The United States , Tribes and Oregon all appealed the District Court decision to the 9^th Circuit Court of Appeals.  The 9^th Circuit generally affirmed Judge Solomon, while providing more specific detail as to the various reserved water rights within the former Reservation.

The priority date of the Tribes reserved water right to support its hunting and fishing lifestyle is time immemorial.  The right is non-consumptive, instream water right not based on the doctrine of prior appropriation – it is a right to prevent depletion below a protected level.

The priority date of the individual Indians holding allotted lands is 1864.  This right is to be determined by the “practicably irrigable acreage” (PIA) standard as set out in Arizona v. California,[12] and is not forteitable.  Non-Indian Successors (Walton Rights) have a priority date of 1864 for acreage under irrigation on the date title passes from his/her Indian predecessor, with additional acreage developed with reasonable diligence.  This right can be forteited for non-use under state law.

Lastly, the 9^th Circuit held that the federal agencies that took over control of the land within the former Reservation did not receive an “Indian” reserved water right with a time immemorial or 1864 priority date.  However, these agencies (the United States Forest Service and Fish and Wildlife Service) will be able to claim reserved water rights for forest and wildlife purposes in the state adjudication.

Adair III No. 75-914 (Filed January 16, 2001 )

The United States and the Klamath Tribe filed a “Motion for Exercise of This Court’s Continuing Jurisdiction” in Federal District Court in Portland on January 16, 2001 .  The United States’ motion asks the court “… to construe certain legal issues regarding the priority date and scope of the Klamath Tribes’ water rights that were previously decided in this action and thereby provide the necessary direction to certain parties to this case who are also parties to the State of Oregon’s Klamath Basin Adjudication.”

The District Court issued an opinion an order specifying that the Klamath Tribes’ instream flow rights may not be quantified or reduced “to a level below that which is necessary to support a productive habitat.”  Ultimately, the 9^th Circuit Court vacated the District Court’s judgment and ordered a stay of “… all federal proceedings pending completion of the Oregon Adjudication …”

United States v. Oregon [13]

On December 20, 1990 , the United States filed suit in federal district court in Portland seeking a temporary restraining order (TRO) and a permanent injunction to prohibit Oregon from requiring the federal government to file claims in the Klamath adjudication.[14]  This suit was filed on behalf of various federal agencies that manage federal land in the Basin, including the Bureau of Reclamation, as operator (of) the Klamath Project.  The Klamath Tribes and the individual Klamath Indian allottees filed for intervention in the suit.[15]

The federal district court granted the TRO and injunction to allow the case to be argued on the merits.  The United States and Oregon entered a stipulated agreement to not require the federal agencies to file claims until 60 days after the suit was concluded.

The underlying issue of the case is whether the United States is immune from suit in state court.  In general, the United States is immune to suit in state court unless Congress has expressly waived its immunity.  However, in 1952, the McCarran Amendment was enacted waiving federal sovereign immunity in state general stream adjudications.[16]  The United States argued that, notwithstanding the McCarran Amendment, it had not waived its sovereign immunity in the Klamath adjudication, and therefore, it need not file claims.  In addition, the Tribes argued that they would be deprived of due process because the State had a history of hostility to the Tribes’ treaty rights, including the claims to water rights.

The Federal District Court ( Portland ) held that the United States must file claims in the Klamath adjudication and must pay the state adjudication fees.  In addition, the Tribe must file claims, but is not required to pay fees.  The allottees’ motion to intervene was denied.  The United States and Tribes filed an appeal to the 9^th Circuit Court of Appeals.  The 9^th Circuit affirmed the District Court except for the fees, holding that the United States cannot be required to pay state fees under the McCarran Amendment.  The Klamath Tribes petitioned the United States Supreme Court for certiorari.  The United States opposed this petition.  The Supreme Court denied the Tribes’ petition and did not take the case.  The allottees eventually settled with the State and filed claims in the adjudication.

Klamath Basin Fact Sheet

Irrigation Demand (does not include Lost River Valley irrigation)

            Project (includes irrigation and refuge uses)

                        Acreage

                                    BOR   . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . . . .  . . . . . .  202,000 acres

                                    Districts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   187,000 acres

                        Water   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  +/- 500,000 af

            Upper Basin (above Upper Klamath Lake )

                        Acreage   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,000 acres

                        Water   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +/- 184,000 af

Storage Capacity

            Upper Klamath Lake    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  486,830 af

            Clear Lake    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481,300 af

            Gerber Reservoir   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   92,300 af

Adjudication Claims (approximate)

            Total Claims   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       700

            Private   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       300

            Federal Agencies and Klamath Tribes   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       400

Permitted, Certificated and Decreed Water Rights

            Water Rights

                        Surface   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     966

                        Groundwater   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     664

                        Reservoir   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    467

            Dams   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      54

            Total diversion rate   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5400 cfs

Summary Tabulation Of The Federal Agency Claims

U.S. Forest Service – 214 claim forms claiming 416 water rights

            17         Claims for consumptive uses

            117       Claims for instream flows for timber production, channel maintenance    

                         (favorable conditions of stream flow), fish, wildlife and recreation

13                 Claims for instream rights for lakes

62                 Claims for instream rights for springs

5                    Claims for wilderness water rights

U.S. Bureau of Land Management – 52 claims for water on BLM land

            51         Claims for waterholes (Public Reserve No. 107)

             1          Claim for the Klamath Wild & Scenic River

National Park Service – 21 claims for Crater Lake National Park

10                 Claims for instream water rights

11                 Claims for 44 consumptive uses

U.S. Fish and Wildlife Service – 22 claims for water rights in four wildlife refuges

            9          Claims for irrigation of approximately 63,000 acres

           12         Claims for approximately 200,000 acre feet of water/year for wildlife refuge

                        uses

            1          Claim for approximately 80 cfs for stockwater

U.S. Bureau of Indian Affairs – 393 claims on behalf of the Klamath Tribes

            5          Claims for consumptive uses

           52         Claims for instream flows in, above, and below the former Reservation

            1          Claim for minimum water level in Upper Klamath Lake

            1          Claim for minimum water level in the Klamath Marsh

           334       Claims for wildlife seeps and springs within the former Reservation

Klamath Tribes – five claim forms incorporating all of the claims filed by the Bureau of Indian Affairs

                                    In effect duplicate claims to the BIA filing

U.S. Bureau of Reclamation – seven consolidated claims for the Klamath Project

            Diversion of 3,505 cubic feet per second (cfs) for irrigation of 218,654 acres of

                         irrigation

            486,830 acre feet of storage in Upper Klamath Lake

            92,300 acre feet of storage in Gerber Reservoir

            481,300 acre feet of storage in Clear Lake

Status of Adjudication Contests