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
KHSA
“interim
measures”
intended
to
mitigate
the
degradation
of
Klamath
River
water
quality
caused
by
the
company's
dams.
The
Karuk
Tribe
and
other
KHSA
“parties”
were
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.
“Calls”
made
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.
The
“call”
gets
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
species
– Kuptu
and
Tsuam
(aka
Shortnose
and
Lost
River
Suckers).
For
federal
irrigation
interests
the
“call”
will
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”...as 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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