Saturday, January 21, 2012

KlamBlog Report: The Brave New World of Klamath Water and Endangered Species Management

The KlamBlog Report which follows was written by Felice Pace. It is not casual reading. In the report, Felice focuses on what he calls "the federal agenda" in the Klamath River Basin and the water deal that agenda spawned - the Klamath Basin Restoration Agreement or KBRA. Because the companion dam removal deal (the Klamath Hydroelectric Settlement Agreement) has captured so much public attention, the KBRA Water Deal has remained largely in the shadows - a status its architects likely intended. 

Felice argues that implications of the KBRA for the future of the Klamath River and Klamath Salmon may be far greater than the more popular Dam Deal. By insulating the federal Klamath Irrigation Project and the irrigation interests it serves from "calls" for leaving more water in the Klamath River, the KBRA will focus efforts to increase salmon flows on private irrigators in the Upper Basin, Shasta and Scott Rivers. This stark political development has not been appreciated by reporters covering Klamath Water issues nor apparently by local politicians.

 The romance of Salmon, Traditional Native People, Dam Removal and "Peace on the River" 
has captured the public imagination obscuring implications of the complex KBRA Water Deal  

Our report delves deep into the relationships from which the KBRA emerged: the relationship between the federal government and irrigators on federally developed and subsidized irrigation projects; and the realtionship between federal Indian tribes and federal government agencies.It places those relationships within broader national and west-wide contexts. KBRA-type water deals have been done or are being negotiated in western river basins from Arizona to Montana. Felice explains why these high stakes water deals are happening and speculates on how historians of the future might view them. 

The report also explores the sensitive subject of how federal funding within the Basin - and the dependence of tribes on federal funding - intersects with tribal reaction to federal water policy. Some tribes may not appreciate seeing details of  their federal funding dependence revealed in the report. This aspect is sure to stir up controversy and motivate comment. 

Using PCFFA's Glen Spain as a foible and the words of the Irrigation Elite as his illustration, Felice proceeds to describe how the KBRA will impact tribal water rights and the federal trust relationship with the Basin's six federal tribes. He points out that altering federal trusteeship responsibilities is one among several aspects of the KBRA which can only proceed if federal legislation to authorize and fund the Deal passes Congress and is signed into law. 

While some aspects await legislation, the report analyzes how the KBRA is already having a "corrupting influence" on how the Endangered Species Act is being implemented in the Klamath River Basin. Finally, Felice draws two lessons which he suggests can be learned from the report's facts and analysis. 

In The Brave New World of Klamath Water and Endangered Species Management long-time Klamath River activist Felice Pace looks deeply into the meaning and implications of the KBRA Water Deal. The report attempts to demystify a complex and convoluted document written by water lawyers. The objective is to make clear what is at stake, who stands to benefit and who stands to lose out. If Felice is correct, the KBRA could make it virtually impossible to restore salmon abundance to the Klamath River Basin. The Report explains why he thinks that's the case. We hope you'll read it. 

A KlamBlog Report

The Brave New World of Klamath Water and Endangered Species Management

by Felice Pace

This report is an attempt to demystify a long, complex and convoluted legal agreement - the Klamath Basin Restoration Agreement or KBRA. I want to boil it down to what really matters: what it changes, who wins, who loses, what is at stake; how the River, the Salmon and the Basin's various communities and interests could be impacted. 

The Agreement, which I'll usually call the KBRA or Water Deal, is intentionally complex and obtuse. I believe it's authors intended that. Because it profoundly changes the water management rules in a manner that advantages some interests and communities over other interests and communities, those to whom the KBRA would bestow advantages don't want that known. These architects would prefer the KBRA is seen as a "restoration program" - hence the name. But at heart the KBRA is a political water deal. It changes the balance of political power in the Basin in ways that - if it is authorized and funded via the Merkeley-Thompson legislation already pending in Congress - will profoundly alter the future of Klamath River Salmon, Klamath River Basin communities and the River itself. This Deal is no mere restoration plan.

The public - and even a good many of those who were part of the "negotiations" which created the KBRA - have only vague and generalized ideas about what the KBRA does and how it will change the future if it is endored and funded by Congress and signed into law by the President. Below you'll find my analysis of the KBRA; my arguments with it and about it; and why I think key aspects are dangerous, damaging, corrupting and need to be brought down. 

Let's get started. 

Understanding the Context 

While it has unique aspects, the Klamath Basin Restoration Agreement – the KBRA Water Deal – is not an isolated phenomenon. Instead it is one among a series of tribal water rights settlements which the federal government has been negotiating in the American West since the Western Governors' Association and the Native American Rights Fund in the late 1980s convinced Congress to fund a concerted multi-decade effort to negotiate settlements to all pending and potential tribal water rights claims. The amount of water involved west-wide is huge but unquantified. There is no doubt, however, that if tribal claims had been asserted and developed, cities and whole states would have lost substantial amounts of water and many federal irrigation projects would have either dried up or come under tribal ownership.

KlamBlog has looked at several of these negotiated settlements. While there are variations, in essence the settlements all involve tribes giving up substantial water rights in exchange for money from the federal government. In some cases the funds are used to develop real (wet) water for tribal communities; in other cases the money is used to fund jobs in restoration, fisheries and other parts of the tribal government bureaucracy. In all cases I’ve investigated, tribes are trading away water rights – or the ability to exercise those rights - for pennies, or fractions of pennies, on the dollar.

Klamath Irrigation Project Pumps
If tribal water rights were honored most federal irrigation projects would dry up or come into tribal ownership 

While I understand why cash-strapped tribes dependent on federal funding would make such settlements, I wonder whether the jobs are worth what is being given up. I suspect historians will look back at this water settlement period as the second great rip-off of Indigenous Native Americans at the hands of the US government: first they took the land and tried to exterminate Indigenous peoples; this time they are taking the water. Ironically, it is primarily white lawyers who are negotiating away these tribal rights; we suspect historians will have something to say about that as well.   

The Federal Agenda

In spite of its name, the Klamath Basin Restoration Agreement (KBRA) is a classic federal water deal. As such it illustrates how the feds work...particularly in those river basin's where there is a federal irrigation project. In all western river basins – including the Klamath- the feds are working to extinguish, settle or buy off tribal water rights so that there will be no tribal "call" for water to protect tribal trust resources. In the case of the Klamath, the responsibility for maintaining tribal trust resources which the feds want off their backs is directly related to Klamath Salmon.

The feds know that tribal rights take priority - that is settled law. They fear having to meet Klamath River flows sufficient to restore the good fish runs to which downstream tribes have a right. The amount of water needed to restore Klamath Salmon is unknown but federal bureaucrats and fisheries biologists know it is much beyond the amount of water the Endangered Species Act (ESA) requires. As defined by the federal courts, tribal trust requires that the federal government restore abundance; the ESA is barely able to prevention "jeopardy". 

Tribal trust flows in the Klamath River would most likely mean that at least 50% of all Klamath River water would remain in the River at all times of year. That is no problem during winter when the issue is often how to deal with flood flows. Summer and early fall, however, is a different story  Currently irrigation consumes up to 90% of Klamath River water during the annual dry period. That means implementing tribal trust would reallocate 30% of summer base flows from agriculture to salmon - something the Bureau of Reclamation and the Irrigation Elite which the Bureau serves want desperately to prevent. The KBRA Water deal is their prevention tool.

Three Klamath River Basin tribes are going along with the federal effort to jettison federal trust responsibilities with respect to Klamath Salmon; three other tribes are not going along. Klamath legislation introduced by Oregon Senator Jeff Merkley and California Congressman Mike Thompson would terminate the federal trust responsibility for all six tribes.

While the prospect of involuntary termination of the federal trust obligation to tribes has ignited nation-wide opposition, the tribes which signed the KBRA point out that the termination is limited. Only the federal Klamath Irrigation Project would be shielded from tribal trust water “calls” for salmon. While the Klamath Project represents 40% of Klamath River Basin irrigation, all six federal Klamath River Basin tribes would still have a federal trustee required to go after the other 60% if that water was needed to restore salmon runs.

Sovereignty and Dependence

The three tribes which signed the KBRA did so as “sovereign” nations. But the sort of sovereignty the US Government allows federal tribes is limited. It was the US Supreme Court which first defined the “dependent sovereign” status of federally recognized tribes of Indigenous Natives; today federal courts continue to hear cases working out what that juxtaposition of apparently contradictory terms means in practice. The courts have long held that the "dependent' status of tribes renders the federal government their trustee. Federal case law has defined the nature and extent of federal trustee responsibility with respect to tribes; some aspects are still being litigated today.

Below I explore tribal “sovereignty” and “dependence” as they are playing out in and through the KBRA Water Deal. For those who want to read more about the concept and practice of tribes’ “dependent sovereign” status here’s a link to an excellent article by law professor Philip J. Prygoski. Readers who want background on tribal sovereignty as it applies specifically to water and fishing rights can find a general discussion at this link and an excellent longer exposition published by the Congressional Research Service at this link. 

Tribal Trust and Federal Irrigation

The assertion of tribal water rights in the Klamath River Basin created a dilemma for federal bureaucrats and administrations. While the feds wanted to prioritize delivery of water to irrigators and other entities which receive subsidized water from the Bureau of Reclamation’s Klamath Project (including a Golf and Country Club and a Hunting Lodge), the feds knew that the law and the courts require that as trustee for the tribes the top federal priority had to be helping the tribes get the water to which they have a right. Federal bureaucrats also knew there are only two ways they could get out of the trust responsibility:
1.      They could “persuade" the six federal tribes to “voluntarily” let the feds out of their trust responsibilities with respect to Klamath River water, or
2.      They could persuade Congress to involuntarily terminate the federal trust responsibility with respect to Klamath River Water.

In fact, the feds are employing both strategies on the Klamath. Three tribes – the Yurok, Karuk and Klamath Tribes – have placed their signatures on the KBRA Water Deal and thereby have agreed to voluntarily let the feds prioritize irrigation deliveries over tribal water rights; three tribes – the Hoopa, Quarts Valley and Resighini Tribes - have not agreed but will have their trust rights with respect to water diverted by the BOR's Klamath Irrigation Project terminated without their consent if legislation recently introduced by Senator Jeff Merkley of Oregon and Congressman Mike Thompson of California passes Congress and is signed by President Obama.   

In exchange for signing the KBRA - that is, for letting the federal trustee out of its trust responsibility with respect to Klamath water - the Yurok, Karuk and Klamath Tribes are already receiving tangible benefits; if the Merkley-Thompson legislation becomes law they stand to get more.

In the case of the Klamath Tribes, they want land in exchange for agreeing not to make a “water call” on the Klamath Irrigation Project. It has long been the Klamath Tribe’s goal to recover the tribal land base which the feds extinguished in the 1960s, creating the Winema National Forest from the former reservation. The Yurok and Karuk Tribes don’t get land in exchange for letting the feds out of the trust obligation – instead they get money.

Prior to termination, the old growth pine stands of the Klamath Tribes' reservation 
provided tribal members with regular employment and a moderate income   

While only the three KBRA signatory tribes expect to get benefits from the KBRA Deal, all six Klamath River Basin federal tribes are dependent on the federal government to a greater or lesser degree for money to run their government and to provide their people with services. Only the Hoopa Tribe has substantial revenues from tribal enterprises sufficient to significantly lower dependence on federal funding.   

For the Yurok and Karuk Tribes, tribal fisheries and restoration programs were once funded directly by Congress and the State of California. That money dried up a decade ago. Now these important tribal programs are heavily dependent on discretionary grants from the Bureau of Reclamation, the US Fish & Wildlife Service and other federal agencies. The key word is discretionary: federal agencies can grant or withhold funds based on whether or not tribal governments go along with the federal agenda. The Yurok Tribe and the Karuk Tribe need to keep federal funds flowing so that they can continue to do the restoration, fisheries and monitoring work which translate into much needed jobs. This gives the feds considerable leverage with respect to “sovereign” tribal decisions.  

Turwar Creek restoration project on the Yurok Reservation: 
Restoration funding provides much needed employment for tribal members

The “influence” with respect to tribal government decisions which funding dependence has provided to the Bureau of Reclamation, other federal agencies and the Obama Administration prompts questions:
  • What role did promises of federal funding play in the decision of the Yurok, Karuk and Klamath Tribes to sign the KBRA Water Deal?
  • Is dependence on federal agency funding decisions the reason the Yurok, Karuk and Klamath Tribes now remain silent even as the Bureau of Reclamation cuts Klamath flows to levels which these same tribes previously claimed in federal court would result in “jeopardy” for Klamath Coho Salmon? 
To put these questions in perspective let’s first get a better idea of the amount of money involved.The discretionary grant funded projects described below are not a complete list but they are notable examples of federal grants received by tribes which signed the KBRA Water Deal in 2008.

The "pull" of federal funding 

In a 2009 report the Yurok Tribe revealed that it received close to $1/2 million from the Bureau of Reclamation in the previous year; they also reported having another $157,000 in proposals pending for BOR funding.

This past July, Secretary of Interior Ken Salazar announced a grant of $1,944,000 for ongoing cooperation and participation of federal, tribal, state and local governments along with fishing, environmental and other organizations.”  The funds will be used to “collaboratively develop a basin-wide perspective on the climate change-related risks for supply and demand that may affect agriculture, anadramous and resident fish, recreation, municipal and domestic water supplies, hydropower and flood control facilities.” 

You can bet that the tribes which signed the KBRA will receive a substantial amount of this funding; tribes which have not signed the KBRA will either not receive funds or will more likely be given lesser or token amounts. The Bureau of Reclamation (BOR) is providing about half the federal funds. The BOR will closely control who gets what and how the funds are spent.  

As part of the recent EIS/EIR process, the Klamath Tribes published a document projecting benefits which they say will come to the Tribe if the KBRA is authorized, implemented and funded. In addition to providing funds to reestablish a land base in exchange for not asserting tribal water rights, it is clear that tribal leaders are also counting on other federal funds to flow to them under the KBRA. In the Klamath Tribes’ own words:
          “Tribal members anticipate that the KBRA Tribal Program could provide some employment opportunities…some express enthusiasm for the suggestion that the tribal members might assist in many of these habitat restoration tasks, especially those requiring construction and other forms of labor that might provide work for underemployed tribal members while also improving the health of the tribal homeland and culturally significant species….Beginning soon after 2012, KBRA activities and Tribal funding and participation would directly and possibly indirectly improve Tribal employment and incomes.”

As with the other tribes which have signed the KBRA, the Klamath Tribes have already received increased federal funding which appears to be a reward for signing the KBRA.  For example, in September 2010 the Department of Interior announced it would give the Klamath Tribes $1.6 million “to develop new approaches for managing water and a contingency drought plan for irrigation and fish and wildlife management in the Klamath Off-Project area.”  

The Trust for Public Land has assisted the Klamath Tribes negotiate a land deal which TPL “is confident” the federal government will fund as part of the KBRA Water Deal. According to TPL:           “The Klamath River Restoration Agreement includes $500,000 each year for the next ten years to enable the Klamath Tribes to develop the internal capacity to manage their own forestlands and public lands, as well as any affiliated businesses such as the proposed biomass facility.”

These examples are not a complete list and are meant to give readers an idea of the amount and nature of new federal discretionary funding that is flowing to the three tribes which signed the KBRA. I am not arguing that only the signatory tribes are receiving funding; however, I think it is clear that tribes which signed the KBRA Water Deal are receiving substantially more new federal discretionary funding as compared to tribes which did not sign the Deal.

Taken as a whole, the evidence confirms that all six of the Klamath River Basin’s federal tribes are dependent on discretionary federal funding to support key aspects of their government structures. Dependence on federal agencies – especially those like the Bureau of Reclamation which have deep pockets – has grown dramatically over the past decade. The amount of money which flows from the feds appears to depend on how sovereign tribes choose to behave. Considerably more funding has been delivered and promised to tribes which go along with the federal government’s Klamath Agenda, i.e. insulating the BOR’s Klamath Irrigation Project and the Irrigation Elite from tribal trust water claims. This is indeed a dependent form of sovereignty.     

Tribal leaders invoke their tribes’ sovereignty on a regular basis; rarely do these leaders talk openly about the dependency that applies legally - as defined by federal courts – and in fact as a result of dependence on federal funding.

Did the feds buy silence?

The chart below compares Klamath River flow plans for three months of the year - December, January and February. The chart makes clear that flows thrown out by a federal court as inadequate to prevent “jeopardy” to Coho Salmon - are now being implemented by the Bureau of Reclamation.

Klamath River Flow Plan



                                                      2010: Coho Biological Opinion: These are the flows which the National Marine Fisheries Service said in the 2010 Biological Opinion were necessary to prevent “jeopardy” to Klamath Coho.



                                                      2011-12:  BOR’S Winter Flow Plan: Approved by NMFS in late 2011, these flows will allow the BOR to fill Klamath Lake as quickly as possible in order to maximize irrigation deliveries later in 2012  



                                                      2002:  Flows proposed by BOR:  Klamath Basin tribes, PCFFA and others told a federal court these flows would not protect tribal trust and would  result in “jeopardy” for Klamath Coho 



                                                        Tribal Trust Flows:                         The studies needed to define Klamath River flows needed to restore salmon abundance have not been done)



Comparison of Klamath River Flow Plans in the chart above prompts important questions:
  • Why is PCFFA - the Pacific Federation of Fishermen’s Associations - not back in court as they were as lead plaintiff in 2002 challenging the BOR’s reduced flows? Why are flows which PCFFA said then would threaten Coho survival now OK?
  • Why are the three KBRA signatory tribes silent today when in 2002 through 2005 they claimed in federal court that these same flow levels would result in "jeopardy" for Coho?
  • Why are the governments of two of the Klamath River Basin’s salmon tribes willing to accept flows which will not restore the salmon abundance which is the reserved right of their peoples?
  • Why have the studies needed to scientifically define Salmon Trust Recovery Flows – that is, the flows necessary to restore salmon to abundance in order to provide tribal people with a “moderate income”- never been done?  Is not that in itself a breach of the federal government’s tribal trust responsibility? 
How much does federal funding dependence explain the silence of the Yurok, Karuk and Klamath Tribal governments? Coho biology has not changed, no new flow studies have been completed, nor have the basic scientific findings on the needs of salmon changed. What has changed is that the KBRA Water Deal is now final and has been signed by these three tribes. The amount of discretionary federal funding flowing to signatory tribes has also grown dramatically as has the gap in funding levels between tribes which signed the KBRA and those insisting on preserving their tribal trust rights. 

What else except these changes can explain the silence of tribes which were once ready to take to the streets and go to court on behalf of Klamath Salmon?

Is the KBRA a “good deal” for Klamath Salmon?

Tribal apologists and that KBRA Water Deals #1 apologist – PCFFA’s Glen Spain – claim that cuts to Klamath River flows which the BOR decided to make in November, December and January are not a big deal. Having been forced to abandon the silly argument that the Water Deal is needed to get the Irrigation Elite’s support for the Dam Deal, Spain and other KBRA promoters now claim the Deal is necessary to set a limit on the Bureau of Reclamation’s Klamath River diversions. Spain claims that in the absence of the KBRA the BOR and Irrigation Elite would face no limit to the amount of water they could divert from the Klamath River.  

The argument is absurd. Unless KBRA legislation preempts it, the amount of Klamath River water which the BOR can divert for the Irrigation Elite will be set by Oregon's Klamath Adjudication – an adjudication which is nearing completion. In the Oregon Adjudication the Klamath Tribes hold the trump card – a Supreme Court decision that they have water rights sufficient to support hunting and fishing on the prior reservation. That means flows and lake levels which will not only prevent extinction of Klamath River Salmon but which will restore all tribal trust species to abundance. Furthermore, the Supreme Court gave the Klamath Tribes a water right priority of “time immemorial” which is to say, the best water right in the Basin.  

Unless preempted by Klamath legislation introduced by Oregon Senator Jeff Merkley and California Congressman Mike Thompson - the Oregon adjudication will set a “cap” on the BOR/Irrigation Elite Klamath River diversions which will be well below the "cap" contained in the KBRA. That’s why the Irrigation Elite cut the Deal – they get more water under the KBRA than they will get if the Adjudication is allowed to run its course.

In fact, if they get the Merkley-Thompson legislation, the Irrigation Elite will control so much water that they will sell some of it back to the federal government in drought years. That will be necessary because it is the only way during droughts to meet KBRA river flows while also diverting the amount of Klamath River water the Deal allows the Irrigation Elite to control. Under the KBRA, the Irrigation Elite will receive subsidized water courtesy of the Bureau of Reclamation and sell it back to the Bureau at the full market price. That is indeed a sweet deal for these elite water users. 

In a little noticed action, the Interior Department recently gave the Irrigation Elite another gift - funding to buy new pumps that will facilitate selling water to the feds during droughts. The feds gave the irrigators these new pumps even in the face of findings by its own US Geological Service that groundwater pumping by the Irrigation Elite is unsustainably lowering the water table and drying up drinking water wells in nearby towns. 

The Bureau of Reclamation and the Irrigation Elite are hoping legislation authorizing, implementing and funding the KBRA will pass Congress and become law before the Oregon Adjudication is complete. That is likely why they put a deadline on KBRA legislative approval. The deadline is December 31, 2012 – a little more than 11 months from now. After November there will be a lame duck Congress and possibly a lame duck president. That is when federal bureaucrats and the Irrigation Elite will push for passage of the Merkley-Thompson legislation.  

What has happened to the Defenders of Klamath Salmon?

This leaves the three tribes promoting the KBRA – and other promoters like PCFFA’s Glen Spain - in a strange position. In 2005 the Ninth Circuit Court of Appeals found that flows significantly higher than those we are seeing today in the Klamath River did not provide adequately for Klamath Coho Salmon. How does one claim that the KBRA will be good for the River when the feds just keep cutting the River’s flow to maximize irrigation deliveries?

Tribal leaders who once went overseas to protest on behalf of Klamath River Salmon
are now in the back room with the feds and the Irrigation Elite

Faced with the reality of what their signatures on the KBRA really mean, the response today is silence. Tribes and organizations which were formerly among the most vocal and active defenders of Klamath Salmon are not saying a word even as the Bureau of Reclamation cuts Klamath River flows. The former defenders are apparently not even brave enough to use the KBRA-KHSA “dispute resolution process” to question the cutting of Klamath River flows in order to maximize irrigation. These former salmon defenders have become toothless and compliant. So long as the Bureau keeps funds flowing, these job starved tribes will likely remain compliant with the Bureau of Reclamation’s priority – maximizing irrigation deliveries at the expense of Klamath Salmon.  

Muddying the Waters of Understanding

The Pacific Coast Federation of Fishermen's Associations' Glen Spain has emerged as the #1 apologist for the KBRA Water Deal. He seems to have also taken on the specific task of challenging KlamBlog. In spite of evidence drawn directly from the KBRA itself, Spain denies that the Deal has any affect on tribal water rights, ignores the importance of tribal trust as a means to recover Klamath Salmon abundance, and insists that the ESA and all other laws are “preserved” by the Deal.  

KlamBlog previously debunked Spain’s tribal water rights/tribal trust arguments by directly referencing the “trust termination” language in the KBRA (see KBRA section 15.3.9 at this link).

KlamBlog also pointed out in detail in a post how the KBRA corrupts Endangered Species Act implementation even as it claims to preserve the Act’s applicability.

In spite of these efforts to promote understanding of what is in the KBRA, Glen Spain keeps muddying the water by ignoring the evidence and repeating the same spurious claims over and over. The man definitely has chutzpah! Spain is implementing an old publicity trick used by those who lack cogent arguments: if one repeats something often enough folks will come to believe it is true whether or not the facts support that conclusion.

In an attempt to clear up the confusion Glen Spain has created, I turn to Spain’s new Klamath River Basin partners – the Irrigation Elite – who, in a published Q&A written by their main organization for their own skeptical members, describe how the KBRA does what Spain insists on denying. 

The Irrigation Elite's Klamath Water Users Association on whether the KBRA affects tribal water rights:  
  • …The KBRA would only resolve questions related to: whether or to what extent tribes can make a call against, or demand water from, the Klamath Project.
  • …Quantification of the Klamath Tribes’ rights would be decided in the state adjudication. The state adjudication is in progress.
  • …Beginning on the effective date of the KBRA, the Klamath Tribes would agree not to assert any tribal demands against ANY use of water in the Klamath Project.
  • …In other words, there will either be a final settlement or the parties will revert to their current positions, but in the meantime, tribal claims could not be asserted against the Project. (Section 15.3.9.C.)
The final bullet is particularly interesting. By their signature on the KBRA, have the Yurok, Karuk and Klamath Tribes and PCFFA surrendered their ability to raise objections when the Bureau of Reclamation cuts Klamath River flows to maximize water deliveries to the Irrigation Elite?

Glen Spain also claims that the KBRA has absolutely no impact on the Endangered Species Act. Here’s what KWUA’s Q&A says about the Deal’s impact on how federal agencies implement the ESA:
  • The KBRA does not guarantee that there will be no impacts from the ESA. To have an absolute guarantee would require repeal, or at least major amendment, of the ESA, which is extremely improbable. The KBRA does, however, contain numerous provisions to ensure the greatest possible protection under existing law from ESA and other regulatory impacts, in order to make a considerable reduction in risk. Among other things, these provisions are designed to move away from the approach of looking to the Klamath Project to solve species concerns; support stable and long-term regulatory mechanisms to reduce risk; and reduce exposure to, and adverse consequences of any potential litigation. These provisions include sections 3.2.4, 5.4, 6.4, 20.3, 21.1.3, and 21.2.
Glen Spain should explain how these statements from the Irrigation Elite square with his claim that the ESA is “not affected in any way” by the KBRA. Spain has made this claim on behalf of PCFFA numerous times in comments on KlamBlog and elsewhere; how does he square those claims with what the Irrigation Elite has published?

Why termination of federal tribal trust responsibilities matters

The key thing to understand about tribal treaty and reserved rights as they apply to Klamath Salmon is that they are not limited to the amount of water needed to prevent tribal trust species (salmon) from going extinct. Instead tribal trust river flows and water quality must be sufficient to restore salmon to levels which will allow tribal members to maintain a "moderate" income.

The federal government is the tribe’s trustee. Like any trustee the feds must look out for the welfare of the tribes. Settled law and court precedent defines the welfare of salmon tribes as a moderate income based on harvest, use and sale of salmon. If through Merkley-Thompson legislation the federal government is no longer responsible for helping tribes secure their rights to Klamath River water adequate to support recovery of abundance, Klamath River Salmon could be doomed to bare survival.

The ESA can prevent jeopardy; it cannot provide for recovery of abundance. Tribal trust rights, on the other hand, are not limited to survival; only tribal trust can keep recovery of salmon abundance in the Klamath’s future.


There are lessons to be learned from all of this: 

Lesson #1: Beware of water agreements with the feds...particularly when the Bureau of Reclamation is involved! All tribal water settlements we’ve seen involve either:
  • Tribes giving up water rights which – once asserted and perfected with the assistance of the federal government trustee - would be worth billions. These rights have been exchanged for a pittance in federal funding, or
  • Tribes losing the legal right to force the federal government to fulfill its trust responsibility by asserting and defending tribal water rights against all other users, including federal irrigation interests.
Lesson #2:  The Endangered Species Act will not be attacked directly because the Act’s opponents and federal bureaucrats have learned that they lose those fights. Instead, the core intent of the ESA - species protection - will be rendered toothless via agreements like the KBRA which – in the words of the Irrigation Elite - “ensure the greatest possible protection under existing law from ESA and other regulatory impacts.”

 The Lost River Basin should be a focus for endangered fish restoration;
Instead it is a KBRA sacrifice zone controlled by the Irrigation Elite

If the current legislation to authorize, implement and fund the KBRA becomes law, the Bureau of Reclamation and its “customers” - the Irrigation Elite - will be in an enviable position. While it will appear that the ESA is fully in effect, the Elite will enjoy not only “the greatest possible protection under existing law from (the) ESA” but also “the adverse consequences of any potential litigation will have been significantly reduced.”

Kudos go to the Irrigation Elite and the feds, they negotiated a KBRA Water Deal very advantageous to their interests.   

If the Merley-Thompson legislation becomes law, we will indeed be delivered into a Brave New World where less will be presented as more, tribes will be compliant with the desires of federal bureaucrats, and the ESA will be in place but toothless. Under these circumstances, those who seek real Salmon Recovery on the Klamath will of necessity be forced to focus their efforts on non-federal irrigators in the Upper Basin, Shasta River and Scott River because those will be the only water diversions still subject to the federal government’s tribal trust responsibilities.

How do you like the Brave New World of the KBRA Klamath? Leave your comment below.    

1 comment:

Tom Schlosser said...

Good report, Felice. A fact not well recognized is that chinook salmon returns are expected to DECLINE, not increase, after PacifiCorp stops providing the Iron Gate Hatchery production in 2028. Look at the Biological Assessment pages 214-15, found here It's truly sad how this process has divided the community that normally would support fish restoration.