Thursday, February 14, 2008

Native American water rights on the line - It's not just happening here!

One of many contentious issues in the proposed Klamath Water Deal is tribal water rights. Because they have reservations, the Klamath, Yurok and Hoopa Tribes have rights to enough water to support a moderate standard of living for tribal members living on the respective reservations. The priority date for these rights is the date the reservation was established. The Karuk Tribe has no water rights because there is no Karuk Reservation.

The Klamath Tribes went all the way to the Supreme Court to have their water rights affirmed. The high court ruled those rights were not terminated when the reservation was terminated.

But having rights and having water are not the same thing. So to some tribal officials limiting water rights - or as in the Klamath River Basin case the ability to sue the federal government for not protecting those rights - makes sense. As usual the devil may be in the details and perhaps only history will be the final judge of whether those tribes who trade rights for other considerations are acting in the true interest of their people.

But deals with states, the federal government and white irrigators are not just an issue on the Klamath. According to the Native American Rights Fund
over the past 25 years, states, tribes and federal administrations have sent 21 deals to Congress for ratification and funding.

Maybe those of us pondering whether tribal leaders in the Klamath River Basin are acting wisely when they propose limiting their peoples' water rights - and especially the members of those tribes - can gain needed perspective by studying what has been done in this regard in other river basins. To this end an article from a Montana newspaper about a proposed water deal involving the Blackfeet Tribe is reprinted below.

The article also gives useful general background on tribal reserved water rights. The issues are not clearcut; securing actual water can be a long process for a right holder that does not physically control the water. In the case of the Klamath, one must also judge whether the water granted in the deal is sufficient to provide for tribal members the "moderate living" contemplated in the right.

KlamBlog invites Native Americans and especially members of Klamath River Basin tribes - whether federally recognized or not - to publish their thoughts on Indigenous Water Rights on the Klamath, in the US or in the world. Send your comments on this or any Klamath topic to and put "for KlamBlog on the subject line. Comments that are not offensive will be published on KlamBlog.

Here's the article from Montana ~

From the Great Falls Montana Tribune
Article published Jan 20, 2008
Stakes high in Blackfeet water pact

More than 1 million acre-feet of water — enough to cover a million football fields a foot deep — are on the line in semi-arid northcentral Montana.

Over the past century, much of the water has been put to use by white settlers and townspeople, often through federally funded irrigation projects.

Now the Blackfeet Tribe is exercising its federal right to use a bigger share.

In a new deal it has reached with the state, the tribe would gain control of a significantly larger portion of 1.2 million acre-feet of annual flow that leaves the reservation in streams and rivers. A bill that would set the amount of water and allocate funding is expected to be introduced in Congress later this year.

With the newfound cash and water, the tribe envisions building new storage and irrigation, marketing water off the reservation and maybe even building an ethanol fuel plant.

"It's for future generations, to use what we've fought for," said Don Wilson, the tribe's water-rights director.

The state has worked to protect off-reservation users, but downstream ranchers and farmers such as Bob Sill say the tribe's additional claim from Birch Creek, one of the main drainages involved, could come at a high price.

Those producers are opposed to the compact as it's currently written.

"If one of my sons decided he was going to farm, I certainly couldn't encourage him to buy (the ranch) at irrigated value and find out 25 years from now the water isn't going to be there," Sill said.

A vocal group of tribal members is also concerned, but for a different reason. The group fears the tribal government is giving up too much water in the agreement.

Negotiators with the tribe and state say the pact would, in fact, provide the tribe with millions of dollars in funding to develop and market the newly acquired assets.

The state describes the pact as "historic" since negotiations have proceeded in fits and starts for almost 30 years.

Across the West, negotiations over water are under way between states and tribes. In each case, negotiators are facing the same conundrum — how much water should tribes get? And how can existing users be protected?

In recent years, population growth, drought and climate change have ramped up interest in what happens to scarce water resources.

"It's made it all the more important to have that supply," said Sill, who grows barley in the Valier area and sells it to beer giant Anheuser-Busch.

The water is needed to grow crops and supply cattle and community water systems — and vast quantities are at stake.

"It's an enormous amount," Wilson said.

Today's water fight between states and tribes has its genesis in the late 1800s and the early 1900s, when the federal government began constructing huge water diversion systems to get water from streams and rivers to areas where settlers grew crops.

Federal policy encouraged private irrigation companies to do the same. States decided who was able to use the water and how much of it they received.

"They forgot about the Indians," said the Blackfeet's Wilson.

Then came the 1908 U.S. Supreme Court Winters decision. The ruling, known as the Winters Doctrine, continues to guide Indian water-rights policy a century later. The gist of the ruling was that tribes had implied — or automatic — federally reserved water rights when reservations were created.

In the 21st century, the hen has come home to roost, with tribes invoking the Winters Doctrine to claim large amounts of water that nonIndians have long come to rely on.

"Here we find ourselves in a situation now where virtually all the water has been allocated," said Craig Bell, executive director of the Salt Lake City-based Western States Water Council.

Despite the obstacles to divvying up water, several breakthroughs are possible this year, which marks the 100-year anniversary of the Winters Doctrine.

More than 15 negotiations between states and tribes are under way in Montana, New Mexico, Idaho, Nevada, California and Washington that involve quantifying water rights, according to the Water Council, which tracks negotiations.

Over the past 25 years, states and tribes have sent 21 deals to Congress for ratification and funding.

Montana's Rocky Boy's Indian Reservation received $50 million in 1999, which the tribe is using to partner with area communities on a huge drinking-water system for northcentral Montana.

The funds help the tribes turn a "paper" right into a "wet" right — building storage reservoirs and irrigation systems so they can use the increased allocation of water.

This year, seven or eight water-rights settlements could be introduced in Congress, including two from Montana, Bell said. In addition to the Blackfeet, the Assiniboine and Gros Ventre tribes on the Fort Belknap Reservation are working with the state on federal legislation.

Water-rights experts said it's not uncommon for election years to bring forth a rash of Indian water-rights legislation.

In New Mexico, the Navajo Nation has reached a compact with the state that would give the Navajo 56 percent of the flows from the San Juan River. The tribe is seeking an $800 million settlement from Congress. That would make it the largest Indian water-rights settlement ever, said George Hardeen, spokesman for Navajo Nation President Joe Shirley, Jr.

The money would be used to build a 200-mile pipeline. Hardeen said people on the Navajo Reservation are in a "time warp" because of the lack of good water.

"You can't put up an office building if you can't put a bathroom in it," he said. "It sounds like small potatoes, but it's really a very fundamental piece of any kind of development."

Funding isn't guaranteed for any water-rights deal.

"The congressional piece is the hard one," said Susan Cottingham, the program director for the Montana Reserved Water Rights Compact Commission, which negotiates on behalf of the state.

State and Blackfeet officials are planning to travel to Washington, D.C., later this month to speak with the Montana's congressional delegation about introducing a bill asking for money to implement the proposed compact.

The state Legislature also would have to sign off when it meets again in 2009. Tribal members also have to approve the compact.

In the past, said Wilson, the tribe's water-rights director, the tribe has taken the stance that, "This is our water and nobody has a right to tell us how much we can use and how."

Some reservation residents still feel that way. Alvin Reevis Sr., who heads the Southern Blackfeet, an elders group, contends the state of Montana does not even have the authority to negotiate a treaty, which he considers the compact to be, with a sovereign nation such as the Blackfeet.

"We're not just going to let them steal our water, because once they steal our water, our lands are next," he said.

Wilson, however, said the state has been willing to listen to the tribe, and the tribal council prefers negotiating a deal as opposed to fighting it out in court, in which case the U.S. government would represent the tribe. There's no love lost between the federal government and the Blackfeet.

"We don't want them representing us," Wilson said.

David Gover, a staff attorney for the Native American Rights Fund based in Boulder, Colo., which represents tribes in water-rights cases, said early Indian water-rights cases often were fought in court. Today, the trend is to negotiate to avoid costly litigation, which leaves little funding to build infrastructure even if the tribes win, he said.

"In the end, you ultimately have winners and losers," he said.

On the Blackfeet Indian Reservation, which has about 10,000 residents, ranchers are sometimes forced to haul water to livestock, and domestic wells continually dry up, Wilson said. The Babb school sometimes is forced to shut down because its well goes dry.

"We have all these unusual situations like that," Wilson said. "At the same time, we have all this water."

The water being discussed in the negotiations between the Blackfeet and state flows in the St. Mary, Milk and Two Medicine rivers and Cut Bank, Two Medicine, Badger and Birch creeks.

Precipitation in Glacier National Park and nearby forestland fuels the drainages, which then cut across or near the reservation. After that, the remaining flows east off the reservation, where it's used for irrigation, drinking water and other things.

The Blackfeet Tribe is utilizing a relatively small portion of the 1.2 million acre-feet of water that flows in the streams, Wilson said. Under the agreement with the state, the tribe is looking to significantly increase its use and storage of the water.

If the compact fails, Wilson said, "We're back to square one."

Grain growers such as Sill don't argue that the tribe has a right to more water, but they're worried that too much could be granted from Birch Creek, and at a heavy price to their livelihoods and communities. Irrigated acreage is much more valuable, providing $15 million in additional profit a year to Sill and the 494 other shareholders of the Pondera County Canal and Reservoir Co.

Pondera Canal and Reservoir is the largest private irrigation company in Montana, providing irrigation to 83,000 acres of prime land that's used to produce hay and small grains.

The tribe is seeking a significant increase in water from Birch Creek, the main source of water for the company, and shareholders are worried. With less water, less land can be irrigated.

"It's a huge loss," Sill said.

"We could potentially lose over 40,000 acres of irrigated ground, or water for that ground," said John Bloomquist, the attorney for Pondera County Canal and Reservoir.

In the compact, the tribe has agreed to delay using any increased allocation, possibly for up 25 years. In the meantime, it would seek funding to improve Four Horns Reservoir. Water from the reservoir could then be piped to Birch Creek and sold to Pondera County Canal and Reservoir shareholders, replacing what they lose in the agreement. The state of Montana has agreed to contribute $14.5 million to the tribe to compensate for the deferral.

Bloomquist said shareholders want additional assurances they won't lose water after the deferral period is up. The company wants the state and federal governments to place money in a "mitigation fund" that the company could tap after 25 years in order to lease water from the tribe.

"We need a longer-term solution to have a successful compact," he said.

Friday, February 8, 2008

What ever happened to the KLAMATH CONGRESS?

The People of the Klamath River Basin have finally been able to see the proposed Klamath River Restoration Agreement and many do not like what they see. The proposed Deal has been attacked by irrigators in the Upper Basin, salmon activists in the Lower Basin and property rights advocates in the Mid-basin. Respected fisheries scientists have said that it will not lead to recovery of Klamath River Salmon; traditional natives are concerned that it would undermine Indigenous water rights. River advocates think the Deal will require paying for water that by Public Trust right belongs in rivers and streams; others believe it would render the Lost River Sub-basin a sacrifice zone where a small Irrigation Elite has a stranglehold on water and wildlife refuge management.

Even the governing boards of some organizations whose representatives negotiated the Deal have judged it to be inadequate and indicated that – unless changes are made – they will not sign or support it.

While those who spent so much time “bonding” in those closed door motel conference rooms appear genuinely surprised by the magnitude and intensity of the opposition, the reaction is really quite predictable. For one thing, although 26 entities participated – some along with a staff of lawyers and scientists - few of those in the room actually live in the Klamath River Basin and among those who do live here many work for federal agencies. So it is understandable that the creators of the deal would be out of touch with the People of the Klamath River and its Upper Basin.

In addition, history has demonstrated time and again that deals negotiated in secret rarely if ever provide real solutions; it is just too tempting under such circumstances for those interests who are in the room to advance their self interest at the expense of those who are not in the room. Even if all interests were present, those with greater negotiating skills and larger staff resources will usually come out on top. When the losers recognize what has happened to them it is often too late.

Whether or not those who want it enshrined in law succeed, it is clear that the Deal will not - as some have claimed - usher in a new era of Peace on the River. Legislation based on the Deal as currently written would result in huge fights in Congress and state legislatures and, if it were nevertheless passed into law, decades of bitter litigation would ensue.

So, for those who truly want to achieve a peaceful resolution to the Klamath’s persistent water conflicts, where did the process go wrong and what should we do now?

To find answers we need look no further than the year 2006 and the group sessions known, in honor of the man who facilitated them, as the “Chadwick Sessions.” After nearly a year of rotating encounter events sponsored by the Klamath Basin Compact Commission and funded by the Bureau of Reclamation, Chadwick participants – including those leaders who would come to dominate closed door Settlement Negotiations – were discussing formation of a Klamath Congress – an institution in which all the people and interests of the Klamath River Basin could have a voice in shaping a shared future where cooperation would replace competition and dialog would replace lawsuits.

This was not an idle proposal – the leaders who had stayed with the Chadwick process were serious. In fact, plans were made to use the 2006 version of the “Klamath River Basin Restoration Conference” scheduled for November in Redding to launch the Congress. Marshall Staunton – one of the most enlightened members of the Upper Basin Irrigation Elite and a Chadwick participant - even produced a 15 minute audio recording promoting the Klamath Congress.

But the Congress never happened. Instead of launching an open and democratic process to work for solutions fair to everyone, the good will generated in the Chadwick Sessions was highjacked and used to launch a closed door process to which certain interests were invited and from which other interests were excluded. Most importantly, there was no public oversight or even public disclosure about what was being discussed.

Is it any surprise then that the “Agreement” produced by such a process would engender conflict the likes of which we have not seen in this Basin since the days following the 2002 fish kill?

Some will respond that this dredging up of “old" history is not productive. To this KlamBlog must counter that ignorance of history has generally lead to unintended and undesired consequences. Often such ignorance has lead to war.

But our purpose here is not to sermonize on the importance of remembering the lessons of history. Rather it is to suggest that perhaps it is time to revive the idea of a Klamath Congress. While it is true that such a process would be messy, Democracy – with all its inefficiencies - remains the best system the world has yet devised to assure fairness and justice.

Is a fair and just accommodation on Klamath River water issues what we want? Is it what our leaders want? If so, the Klamath Congress is worth a try.

We are all fond of paying lip service to Democracy; maybe the time has come on the Klamath to actually give it a try.

Wednesday, February 6, 2008

Klamath Dams Debate - What do the economists say?

A news report published in Siskiyou County's two main newspapers - The Daily News and South Siskiyou Papers - reported on consideration of the Klamath Settlement deal by the Siskiyou Board of Supervisors. Opposition to dam removal is popular in Siskiyou County and includes representatives of the local Grange, People for the USA and Shasta Indian descendants calling themselves the Shasta Nation.

One of the speakers before the Siskiyou Supervisors was Jim DePree who recently retired as Siskiyou County's Natural Resources Specialists. Few are aware that at one time Depree worked for the Klamath Forest Alliance and that he has also worked for The Wilderness Society.

Depree, a forester by training, was part of the closed-door Klamath Settlement negotiations for about two years. His remarks are quoted as including the following statement:
“there is no indication that dam removal is the least costly solution.”

It is difficult to determine where DePree came up with that conclusion. The California Energy Commission and other entities have published economic studies indicating that removal of four Klamath River dams is likely to be significantly cheaper than the mitigations necessary to secure a license. Here’s what the studies say:

Estimated Relicensing Mitigation Cost

Mitigations likely to be required

Low estimate

(millions of dollars)

Mid-line estimate

(millions of dollars)

High estimate

(millions of dollars)

Fish passage




Other Fish mitigations




Water Quality








Estimated Replacement Power and Decommissioning Cost
(using PacifiCorp’s figures for replacement power)

Low estimate
(millions of dollars)

Mid-line estimate
(millions of dollars)

High estimate
(millions of dollars)




Source: Economic Modeling of Relicensing and Decommissioning Options for the Klamath Basin Hydroelectric Project (Klamath Report available at, along with other Energy Commission Klamath materials).

Bottom line is that - if the estimates of the Commission and its economists are correct - it will be better for both the health of the Klamath River and PacifiCorp’s ratepayers (customers) if the dams come out and modern replacement power is developed. Here’s how the Energy Commission put it in a letter to the California Public Utilities Commission.

“The Klamath Hydro Project is presently a low-cost energy resource for PacifiCorp’s ratepayers because the legally-required investments in mitigation measures needed to meet modern environmental regulatory standards have not yet been made (KPAAM2 estimates current production costs at $19 per MWh). PacifiCorp’s ratepayers across six Western states will have to pay either to relicense the project and install substantial mitigation measures, or to decommission the project and procure replacement power elsewhere. Should PacifiCorp prevail in securing a new FERC license that allows for continued operation of the Klamath Hydro Project with the required mitigation, ratepayers will be paying for reduced levels of intermittent power from an old, nominal energy resource at high production costs: KPAAM2 estimates that relicensing with mitigation will increase production costs three-fold to $60.78 per MWh for the midline case, with a potential range of $48.12 to $73.19 per MWh.

Based on this information, we question the wisdom of investing hundreds of millions in ratepayer money to sustain a nominal and environmentally damaging power plant when a lower cost, environmentally superior project alternative is available and feasible.”

The economic studies that have been done indicate that the dams will come out because it is in PacifiCorp's financial interest to take them out. There is, therefore, no need for the bad Water Deal being promoted by special interests to fleece the taxpayers - and maybe the ratepayers too.

Friday, February 1, 2008

Water Deal Reactions – Revolt in the Upper Basin, Concerns in the Lower Basin

Views from the "Upper Basin"

The Klamath Water Users Association represents the large farm operations, golf resorts and timber companies who get subsidized water from the US Bureau of Reclamation. They use about 40% of the water diverted basin-wide for use within the federal Klamath Project. They also control most of the irrigation wells on the California side of the Lost River Sub-basin. Here's what they said in the front page banner headline story In the Capital Press, a West Coast agriculture weekly newspaper:

When Klamath Irrigation Project farmers entered into the settlement talks 21/2 years ago, Klamath Water Users Association president Luther Horsley said they had three main goals:
• A reliable source of water for irrigation.
• Affordable power for pumping.
• Assurance that growers wouldn't be negatively affected by Endangered Species Act regulations if fish return to previously shut-off habitat.

"We believe the agreement achieves those objectives," he said.

The Klamath Off-Project Water Users, were at the table but have rejected the proposed Deal. Here’s what their president, farmer Ed Bartell, had to say in the Capital Press about the Agreement:

The agreement also doesn't provide any concrete, legal assurances that farmers would actually be protected from ESA enforcement or future irrigation water shut-offs, he said….."We think it's just an empty promise in the settlement," said Bartell. "Everybody seems to have back-pedaled on everything, as far as assurances for agriculture."

Speaking in the K Falls Herald & News Klamath Tribe attorney Bud Ullman had this to say:

The first incorrect that the Klamath water settlement gives the tribes all the water in the Basin. He said its not true....."This is by far the best solution available." Ullman said, adding that all other alternatives will lead to friction and instability.

Save the Family Farm, apparently a new group that has emerged in the Upper Basin to fight against the Deal, spent over $800 on a ½ page ad in the Klamath Falls Herald & News. Here’s the bold headline:


Trey Senn, of the Klamath County Economic Development Association, offered his groups views in the K-Falls Herald & News:

….The group said it was concerned about the $960 million implementation cost and the (additional) cost of removing the dams….the cost of (dam) removal would be too much to saddle with PacifiCorp’s ratepayers alone.

Views from the “Lower Basin

Hoopa Tribal Chairman Lyle Marshall provided his Tribe’s position in a press release which has been highly quoted:

What began as dam removal negotiations got tuned into a water deal.
PacifiCorp left the room two years ago and negotiations with the company have since been separate from this negotiation. The terms of this so-called restoration agreement make the right to divert water for irrigation the top priority, trumping salmon water needs and the best available science on the river,”
Marshall said….. ….. The Tribal Chairman also said that agreement proponents talk about helping the river’s fish, but no real fisheries restoration objectives, standards, or assurances are in the agreement. “…..The declining fish population tells us the river is being compromised to death. Hoopa will retain its rights to defend the Klamath. We will work with any and all parties to remove the dams and assure a restored healthy river.

In a Sacramento Bee report on the proposed Deal, Karuk Tribe spokesperson Craig Tucker said:

"I think we're on the brink of totally redefining how the Klamath River is operated, and making a landscape change in the upper basin that will be good for everybody."

Highly respected fisheries biologist Bill Trush reviewed the proposed Deal for the Northcoast Environmental Center and North Group Sierra Club. Trush appeared on his own before the Humboldt County Board of Supervisors on January 22nd. Here's a quote from his remarks:

"…..what we’re being told in the Settlement Agreement is that the water that is left over — and that is what the fish are going to get — is enough for recovery. My job is to lift the hood and see where that statement came from, how it could be proved, and I don’t see it there. Now that’s not to say there shouldn’t be a Settlement Agreement. But what I can say with fair certainty or feeling is that I have not had an argument made to me that says that the water that’s left over is capable of restoration."

Independent Klamath River Activist and Klamath Glen resident Felice Pace was quoted in the Mt. Shasta Herald. This quote was also in an Opinion Commentary by Pace which was published in the Del Norte County Triplicate:

A deal that clearly favors some irrigators over others, some tribes over others and some counties over others does not seem like a recipe for peace on the river.

Views from Outside the Klamath River Basin

In the LA Times Glen Spain of the Pacific Coast Federation of Fishermen's Assns said:

"Never has the basin been so unified around the necessity for removal of those dams,"

The commercial fishing association’s directors have since met and, in a letter to the Settlement Group, stated that they have problems with a number of the Deals provisions but will keep talking for now.

Also, in the LA Times Bob Hunter from Water Watch of Oregon said:

"The ironic thing is there's not even dam removal in this dam-removal deal,"…. "It seems they released it now because time is running out for the Bush administration to deliver to its political allies in the Klamath farm community."

Chuck Bonham, who represented Trout Unlimited in the negotiations, was quoted in the Environmental News Service’s article on the Deal:

"It hasn't been easy; it was a tough several years putting this proposal together, but I've got new found respect for all the communities involved from tribal to environmental and farming," said Chuck Bonham of Trout Unlimited. "I am also hopeful we can develop a good business deal that works for PacifiCorp and for the river too. We can and should do both."

The federal government's chief negotiator at the talks, Steve Thompson of the U.S. Fish and Wildlife Service, was quoted in the LA Times:

(Thompson) said he participated free of political influence from the White House and continues to hold out hope that PacifiCorp will sign on to the proposal in coming weeks.

Steve Rothert of American Rivers was also quoted in the LA Times:

"We are on the cusp of ending decades-long disputes and charting a better future for farmers, tribes, fishermen and all the communities that depend on a healthy Klamath River."

Steve Pedry of Oregon Wild – one of two groups excluded from the talks mid-way - said:

"What began as an effort to help salmon and remove dams has turned into a plan to farm American taxpayers," said Steve Pedery of Oregon Wild, the other dissenting group.

Here’s what PacifiCorp is saying

Spokesperson Paul Vogel in the LA Times:

….the company initiated the talks as part of its bid for a new federal operating license for the dams. But he said PacifiCorp was "shut out of the room" for most of the last year as the final plan was cobbled together by more than two dozen state, federal and local government agencies, tribes and other groups.
"You really have to question if there's enough substance there to be worth the paper it's printed on," he said.

And in the Oregonian:

"Calling something a comprehensive, basinwide settlement of all the issues without renewable hydro in the discussion is just a tad irresponsible," said Paul Vogel, a PacifiCorp spokesman in Portland. "What really needs to be restored is the presence of the license holder and hundreds of thousands of customers in the room."

PacifiCorp executive Pat Reiten in a Guest Commentary in the Klamath Falls Herald & News:

We don’t think special interests can be allowed to hijack the hydro license settlement process for their own more diverse agendas, nor write a blank check and force our customers to cover it.