Pace on KBRA: "There is a better way"

On Thursday April 18th KlamBlog editor and chief writer Felice Pace made a public presentation in Klamath Falls in the Upper Klamath River Basin. Titled The Klamath Adjudication and the KBRA: Implications for tribal water rights, fish and wildlife, the presentation was requested by members of the Klamath Tribes who have joined together as the Klamath Claims Committee.

The focus of the presentation was on the State of Oregon's recent denial of the Klamath Tribes' claims to water rights above and below the former Klamath Reservation. Felice believes those off-reservation water rights are the key to restoring the Klamath Tribes' treaty fishing and hunting rights - including the recovery of Klamath River Salmon.

 The Klamath River below Klamath Falls (Keno Reach)

The State of Oregon denied the Klamath Tribes right to flows

needed to recover Klamath Salmon abundance  

Where federally recognized tribes have treaty guaranteed hunting and fishing rights, federal courts have ruled that they also have a right to the amount of water in stream needed to support a moderate living standard for tribal members relying on tribal fisheries. The hunting and fishing rights of the Klamath Tribes have been upheld by the US Supreme Court. Those rights were not terminated when the federal government abolished the reservation in the 1960s and turned reservation lands into the Winema National Forest. 

Leaders of the Klamath Tribes' elected government were apparently not happy that the presentation was made. The Klamath Falls Herald and News reported that tribal leaders issued a press release critical of the Klamath Claims Committee. The press release has not been posted to the Tribes' web site. The Herald and News also published a news report on the presentation itself. 

In his presentation, Felice pointed out that international norms endorsed by the UN and the USA require tribal leaders to obtain the "informed consent" of tribal members whenever they propose giving up important tribal rights. In the KBRA the Klamath Tribes have agreed not to assert tribal water rights whenever asserting those rights would result in curtailment of irrigation within the Bureau of Reclamation's 200,000 plus acre Klamath Irrigation Project.

Felice contends that it is precisely those water rights which are needed in order to recover Klamath Salmon and other tribal trust species like Kuptu and Tsuam (aka Shortnose and Lost River Suckers). The ESA can only prevent salmon extinction, but tribal treaty water rights could restore salmon to abundance.

The Klamath Tribes held two member votes endorsing the KBRA and the linked KHSA Dam Deal.  The Tribes must now decide whether or not to challenge Oregon's denial of their off-reservation water right claims in court. In Felice's view, honoring the principle of "informed consent" requires that tribal leaders discuss with members the connection between off-reservation water rights and the likelihood that Klamath Salmon and other tribal trust species can be restored to abundance: "tribal members need to be informed that the rights their leaders propose trading away are likely the key to whether or not salmon and other tribal fisheries can be restored to abundance." 

There is a better way

During the presentation Felice distributed several handouts. One of the handouts is reprinted below. Klamath Justice for All: An alternative vision to the proposed Klamath Basin Restoration Agreement (KBRA) presents an alternative to the KBRA. It is a direct response to those who contend that the KBRA may not be perfect but that there is no other viable alternative.

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The Klamath Adjudication and the KBRA: Klamath Falls Presentation on April 18th

On Thursday evening April 18th KlamBlog editor and long-time Klamath River activists Felice Pace will present “The Klamath Adjudication and the KBRA: Implications for tribal water rights, fish and wildlife” at the Klamath County Museum in Klamath Falls. The presentation – along with follow up q&a and discussion - will take place between 7 and 9 PM. The Klamath County Museum is located at  1451 Main Street in Klamath Falls, Oregon. The public is invited to attend.

 Early 1900s: Salmon Fishing at Link River below Upper Klamath Lake

The State of Oregon has denied the Klamath Tribes right to flows for salmon

The presentation is sponsored by the Klamath Claims Committee in order to inform and foster discussion among members of the Upper Klamath River Basin Community concerning developments which are of critical importance to the future of the Klamath River Basin and to natural and human communities throughout the basin.  Members of the Claims Committee are all members of the Klamath Tribes - a single tribal government with members who are Indigenous Klamath, Modoc and Yahoskin natives.

The goal of the presentation is to cut through the public relations spin which has issued from several sources concerning the proposed Klamath Adjudication Order and the KBRA. It will clarify how the proposed Order and the KBRA are related as well as how both would impact tribal water rights if they become final as proposed by the State of Oregon.

The proposed Klamath Adjudication Order and KBRA will be placed within the context of a major push by the federal government beginning in the 1980s to settle existing and potential tribal water rights claims throughout the American West.  It will focus on the State of Oregon’s denial of the Klamath Tribes’ claims to off-reservation water rights to support treaty hunting and fishing rights, including the denial of the tribe’s claims to flows in the Klamath River below Klamath Falls. This will include the likely impact of the proposed Adjudication Order and the KBRA on Klamath Salmon, Lost River and Shortnose suckers and on Klamath Wildlife Refuges should the Order and KBRA be adopted and implemented in their present form.     

The presentation concludes with description of a plan and vision for restoration of the Klamath River Basin and recovery of treaty fisheries which is radically different from the vision embodied in the KBRA. 

The Final Facilities Removal EIS/EIR and the politicization of Klamath Science

With recent distribution of the Klamath Facilities Removal Final Environmental Impact Statement/Environmental Impact Report, the analysis and assessment phase for the KHSA (Klamath Hydroelectric Settlement Agreement) and KBRA (Klamath Basin Restoration Agreement) has officially ended. Including appendices and other material, the EIS/EIR is mammoth; it may well be the largest and most complex environmental impact report ever completed for anything pertaining only to the Klamath River Basin.

But producing those thousands of pages has been a rocky ride for the Department of Interior (Interior) and the California Department of Fish and Wildlife (CDFW); the process which produced the scientific studies, summary documents and even press releases for the analysis and assessment have been plagued by allegations of official misconduct. And while the first complaint by a whistleblower has already been rejected by Interior, other whistleblower complaints from scientists involved in producing information used in the EIS/EIR are still working their way through Interior's scientific integrity and whistleblower processes.

Whatever the disposition of the additional complaints turns out to be, scientific integrity reviews to date have already confirmed that the bureaucrats in charge of the EIS process intentionally skewed document summaries and press releases in order to emphasize conclusions their bosses at the US Department of Interior favor while omitting conclusions not favored by superiors. Remarkably, Interior's scientific integrity review said essentially that “spinning” press releases and omitting unfavored information from summaries does not violate scientific integrity so long as the underlying scientific reports are not manipulated.

Others have pointed out that members of Congress and other decision makers rely on those document summaries and rarely if ever read the underlying science reports.

This begs a question of propriety raised by KlamBlog early in the EIS/EIR process when the bureaucrat heading the EIS/EIR team made comments to authors on draft independent scientific reviews dealing with KHSA-KBRA impacts to Klamath salmon. KlamBlog believes comments to scientists from the head of an EIS/EIR team with the intention of influencing changes in a draft report (a report which was supposed to be “independent”) was inappropriate. Telling scientists what the head of the environmental review would like to see changed in their report was simply not appropriate because it could have introduced bias into a report that was supposed to be independent. 

The report is final

Whatever the problems in its making, the EIS/EIR is now final. Whether it is ever used as the basis for a decision to implement and fund the KBRA and KHSA, however, depends not on Interior but on Congress. That is the case because what both deals propose is outside the scope of the normal legal and administrative processes which apply to dams, federal water management and endangered species. Said another way, what Interior and other federal agencies want to do with the KHSA and KBRA is beyond the authority those agencies possess under the foundational laws which govern them.

Looked at another way, however, the EIS/EIR process has now provided the public, decision makers and the public itself with a wealth of newly integrated scientific, economic and social analysis which should enable us to better understand the impacts of these two complex and controversial deals – the KHSA and KBRA.

Well, almost.

The Final EIS/EIR does include analysis and assessment of impacts which are likely if the KHSA is implemented. With respect to the KBRA, however, we get the assessment without the corresponding analysis. That is because Interior chose to consider the KBRA programmatically. Programmatically is bureaucracy speak for deferring real analysis to what is know as the project phase, i.e. the time at which a component of the KBRA is ready to be implemented.

There are a couple of problems with Interior's programmatic approach. For one thing, many aspects of the KBRA are already being implemented by the Bureau of Reclamation and other federal agencies. Deferring analysis of actions that are already being implemented looks a lot like intentionally avoiding the analysis.

Assessing KBRA impacts in the Final EIS/EIR without the benefit of analysis means that the assessment and its conclusions are based on assumptions which may or may not correspond to reality. In numerous instances  KBRA provisions are assessed as “positive” and “beneficial” without any real analysis to back up the assertions.
Here are a three examples gleaned from many found in the Final EIS/EIR:

Example #1:

           The FEIS (Vol. I, 3.2-143) states: “If Upper Klamath NWR dries more frequently in the summer and fall, but for shorter periods that allow wetlands soil to remain wet in the root zone below the water level, the breakdown of peat soils may be minimized if not completely negated. Aldous et al. (2005) tested different hydrologic treatments for cores from undisturbed and restored wetlands around Upper Klamath Lake. If wetlands were allowed to remain moist, rather than dry completely, the release of phosphorus was minimized, and the undisturbed wetlands, which included Upper Klamath NWR, effectively had no phosphorus release. Because KBRA-flows and their effects on Upper Klamath Lake water elevation cannot be conclusively predicted at this time, it is not possible to determine whether the NWR wetlands or their soils would remain moist even if they are drained more frequently, which would minimize phosphorus release, or if they would dry out significantly more, which could foster some phosphorus release.”

          That sounds reasonable; but in reality the impact of the KBRA on how often Upper Klamath NWR dries out has already been demonstrated. For the past three water years, the Bureau of Reclamation has implemented what is essentially the KBRA approach to water management. Each time it has dried out – or in the case of 2013 plans to dry out – Upper Klamath NWR. The impacts of what is essentially the KBRA's approach to water management on phosphorus release to Upper Klamath Lake and the Klamath River could have been analyzed and disclosed using real life examples of KBRA water management, but that is not what those in charge of the EIS/EIR chose to do.

In accordance with the KBRA's water management scheme, 

the Bureau of Reclamation has dewatered Upper Klamath NWR 

 every year since the deal was signed