Monday, June 17, 2013

Abuse of the Klamath River and Klamath Communities under the KHSA and KBRA is finally challenged

For weeks now, news from and about the Klamath River Basin has been dominated by speculation that “calls” for water would be made in the Upper Klamath River Basin. A water “call” is a term of art in western water law indicating when a water right holder with senior rights calls for those with junior rights to curtail water use so that the senior right holder gets water.

Speculation ended on June 10th when the US Bureau of Reclamation and the Klamath Tribes of Oregon1 asked the State of Oregon to shut down irrigation above Upper Klamath Lake so that the Reclamation and the Tribes' senior water rights could be met. 

Along with the Williamson and Sprague Rivers, the Wood River flows 
into Upper Klamath Lake. Hay and Cattle Agriculture dominate here.   

The current “calls” are the first ever in the Oregon portion of the Klamath River Basin and are possible now because the State of Oregon has completed its part of the long-running Klamath Water Rights Adjudication. The state proposed Final Order of Determination is now in the hands of state-court Judge Cameron Wogan where challenges to the proposed Final Order will be resolved.

Irrigators above Upper Klamath Lake are private entities and engage primarily in hay and cattle operations. Some of the pastures are used by cattle trucked in from California. According to the State of Oregon, irrigators above Upper Klamath Lake hold water rights which are junior to those of the Klamath Tribes for in-stream flows as well as to rights held by the Bureau of Reclamation for federal irrigation by private entities below Upper Klamath Lake.

Some of the irrigators who will be required to stop diverting water have asked Judge Wogan for a “stay” to prevent the state from enforcing the Adjudication's Final Order pending challenges in his court; a decision on the stay request has not issued. When the water “call” was made, these same irrigators asked Judge Wogan for a temporary restraining order to prevent irrigation shut offs. That request has been denied.

As surface water diversions above Upper Klamath Lake are shut down, more water will flow into Upper Klamath Lake. That means more water will be available to the Bureau of Reclamation. Reclamation will decide how to divide that water among three uses:
  • irrigation within the federal Klamath Irrigation Project, 

  • a water supply to maintain wetlands on Lower Klamath and Tule Lake National Wildlife Refuges, and 

  • flows in the Klamath River for ESA-listed Coho Salmon and to sustain Chinook Salmon, Lamprey and other aquatic resources to which the Yurok, Hoopa, Resighini and Quartz Valley tribes have a right by virtue of their federally-designated reservations.2
When not under court order, Reclamation has almost always prioritized delivering irrigation water to private growers within its Klamath Irrigation Project. This year will be no different. Buoyed by a new Biological Opinion on how its operations affect ESA listed species, the Bureau is already dewatering Lower Klamath National Wildlife Refuge

Spring flows in the Klamath River have been reduced by Reclamation to about 1,000 cfs which could be an historic low for spring river flows. In fact, during the current water year (beginning October 1st), Reclamation has been starving the Klamath River for water as it has every year since the KBRA Water Deal was signed. 

Below is a graph showing flows below Iron Gate Dam since October 1st along with the long term (52 year) average or median flows. This water year actual flows – which are controlled by Reclamation - have been far below the historic average except when the federal agency had to dump water down the river because high storm run-off had already filled all available Upper Basin storage.

Flows below Iron Gate Dam since October 1, 2012 
Historic (52 years) median(average) flows are the gold dots

The other water “calls”

Nearly lost amid the din over Upper Basin water “calls” have been calls of a different sort made at nearly the same time by the Yurok and Karuk Tribes. In a letter dated May 13, 2013, an attorney for the Yurok Tribe informed Ed Sheets – the contractor paid by the federal government to facilitate KBRA implementation – that the Tribe was invoking the dispute resolution provisions of the KBRA water deal. The letter states that:
“….the Oregon Water Resources Department is acting inconsistent with the Klamath Basin Restoration Agreement, denying the Yurok Tribe the bargained for benefits of the agreement. The Yurok Tribe seeks active participation in Klamath River management and assurances as to the in-stream water to meet ESA requirements and to protect anadromous fish species.

A copy of the Yurok Tribe's dispute filing which details the tribe's complaints can be found at the following link. 

On the same day the Yurok Tribe filed a dispute notice under the KBRA, the Karuk Tribe filed a dispute notice under the KHSA. The Karuk dispute challenged PacifiCorp's plan to apply algaecides to specific areas within Klamath reservoirs as a means to address blooms of toxic blue-green algae.A copy of the Karuk Tribes complaint can be found at this link.

PacifiCorp applied the algaecide last year as part of KHSAinterim measuresintended to mitigate the degradation of Klamath River water quality caused by the company's dams. The Karuk Tribe and other KHSApartieswere publicly criticized last year for not challenging PacifiCorp's use of algaecides in Klamath River reservoirs.  The Tribe's complaint this year maintains that the 2012 treatments were ineffective, providing no improvement in Klamath River water quality.

The Karuk Tribe also accuses PacifiCorp of ignoring the concerns of several other KHSA “parties”:
The Yurok Tribe, California Department of Fish and Wildlife, California State Water Resources Control Board, and Oregon Department of Environmental Quality all presented strong concerns and/or objections to the proposed algaecidal treatments and pilot study design based on technical analysis and impacts to tribal religious ceremonies.

What it all means

There are several ways the three water “calls” can be interpreted.

Callsmade by the Klamath Tribes and US Bureau of Reclamation are consistent with the agreement between irrigation interests the Bureau serves and the Klamath Tribes within the Oregon Adjudication and in the KBRA. Thecallgets all three what matters most to each of them.

For the Klamath Tribes that is river flows above Upper Klamath Lake which they hope will reverse the decline of two culturally important speciesKuptu and Tsuam (aka Shortnose and Lost River Suckers). For federal irrigation interests thecallwill maximize the amount of irrigation water they receive via the Bureau of Reclamation's Klamath Project. That water is much less expensive than the irrigation water these folks pump when they can't get taxpayer-subsidized water. The Klamath Tribes, federal irrigators and the Bureau appear willing to see flows in the Klamath River cut and marshes on the refuges dry up so long as their top priorities are met.

The story is different downriver where the benefits the Yurok and Karuk Tribes thought they “bargained for” in the KBRA and KHSA have not materialized. KlamBlog has long maintained that Lower Basin interests were taken to the cleaners in these deals. Could it be that the leaders of these two tribes are finally admitting – at least to themselves - that they've been snookered?

Leaders of the Yurok and Karuk Tribes have desperately desired to become “water managers.” The KBRA got them into the back room with the main Klamath River water managers – the Bureau of Reclamation, Oregon and California – for the fist time. But, as the leaders of these tribes are learning, being in the back room does not produce water in the River when the only thing you've brought with you is promises of good will.

The Yurok Tribe made a decision long ago not to make a claim in the Oregon Adjudication but rather to rely on the federal government's trust obligations – and the Klamath Tribes claims to flows in the River - to protect the Yurok People's interests in Klamath River flows. That decision is beginning to look like it may have been “penny wise and pound foolish” the old saying goes.

Oregon has now denied the Klamath Tribes claims to Klamath River flows. It is not clear whether or not the Klamath Tribes will challenge the denial. And as for the “bargained for” KBRA higher spring flows for salmon – they have not materialized at all. We shall see if the Yurok Tribe's challenge under the KBRA produces any more water in the River. KlamBlog doubts that it will.

As for the Karuk Tribe, it blew its chance for a water right and a fishing right by failing to demand reservation status in exchange for its signature on the KBRA. No reservation means the Karuk Tribe has no possibility of obtaining a water right in either Oregon or California.

What “bargained for” benefits?

Other than money for tribal bureaucracies, the main “bargained for benefits” which the Yurok and Karuk Tribes thought they had obtained via the KBRA was higher spring river flows. Both tribes argued (along with PCFFA's Glen Spain) that it was OK to agree to lower summer, fall and winter flows – and to provide the Bureau of Reclamation” with “flexibility” - because a block of water would be available when the salmon most need it – in the spring.

The ink was not even dry on the KBRA and KHSA, however, when federal irrigation interests organized a campaign to scuttle plans for higher spring flows in favor of early filling of Upper Klamath Lake. Filling Upper Klamath Lake as early in the water year as possible results in maximum irrigation water delivery the following summer. But following that priority means, in most years, there will be no block of water available for higher spring river flows.

Now that the federal government has given its blessing to this “irrigation first” management with a new biological opinion, leaders of the Yurok and Karuk Tribes must be feeling bruised and wondering what happened to the river flows they thought they had obtained via the KBRA. 

Another leading promoter of the KBRA and KHSA – Glen Spain of the Pacific Coast Federation of Fishermen's Associations – has also been uncharacteristically silent. Where, KlamBlog asks, are the so-called “bargained for” benefits to the Klamath River? KlamBlog invites those who extolled the benefits of these deals most loudly and fervently – Spain, Tucker and Fletcher – to respond on this blog. Where are the promised spring flows? Where is the respect among your fellow deal “parties” for the River, its communities and its needs?

Invoking the KHSA and KBRA dispute processes, may indicate that the leaders of these two young tribes3 finally realize that the KHSA and KBRA are not the unadulterated sweetness and light their own propaganda suggested. The public embarrassment this entails is probably why neither tribe apparently issued a press release announcing their filing of disputes under the KHSA and KBRA.
On the other hand, perhaps the KBRA and KHSA dispute resolution process will prove that these deals actually do provide some benefit to the Klamath River and its communities. In a very real way, this is another test of the deals: so far, they have not delivered “bargained for” benefits to the Klamath River, Klamath Salmon and Klamath River Communities. Deal promoters must be hoping this time will be different.

Whatever their state of mind, it is a good sign that leaders of these two Lower Basin “parties” to the Klamath Deals are finally standing up for the River, the fish and their own integrity. Up until now these leaders have been acting like the abused but silent partner in a bad marriage.

Maybe before long Yurok and Karuk leaders will realize that divorce (from these bad deals) is the only way they are going to stop the abuse. Or maybe ending the abuse will have to wait until members of the two tribes – the Yurok People and the Karuk People – throw out the leaders who failed them and failed the River. 

 So far Yurok and Karuk tribal members have been patient and have continued to support the leaders who signed the deals. But if these dispute resolution efforts do not produce positive results for the River, that could change. 

1The Klamath Tribes are one federal tribal government made up of members of three Indigenous peoples – the Klamath, Modoc and Yohooskin. 

2The Karuk Tribe does not have reserved rights to salmon or anything else; the Tribe does not have a reservation and therefore can not have reserved rights. That will remain the case no matter what the ultimate fate of the KBRA and KHSA turn out to be. The Tribe missed their best chance to obtain a fishing right when they did not insist that such a right – or a grant of reservation status - be included in the KBRA.

3The Karuk Tribe was organized after federal recognition was granted in 1979; the Yurok Tribe was finally permitted to form a federally-sanctioned government in 1988. Both tribal governments are young and, arguably, immature.

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