Native activist calls for an end to the Klamath Agreements

This morning KlamBlog received a press release from Kayla Godowa-Tufti. The press release is presented below followed by an afterword by KlamBlog.

Godowa-Tufti is a member of the Confederated Tribes of Warm Springs of Oregon and a descendant of the Klamath, Modoc, Yahooskin peoples of the Upper Klamath Basin. She is an Indigenous rights/water advocate and freelance journalist who has been active in opposing the Klamath Agreements. Godowa-Tufti currently resides in Kalapuya Territory, Oregon. Kalapuya Territory is also known today as the Willamette Valley. The photos in this post were provided by Kayla Godowa-Tufti.

FOR IMMEDIATE RELEASE--

Stop the Klamath Agreements, Save our Wild Salmon

 

Will Senator Greg Walden attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement?

December 15th 2015 (Upper Klamath Basin, Oregon) 

The infamous Klamath water Agreements appear to be on their final days. Rumor has it that Tuesday December 15th Senator Greg Walden will attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement. But there’s a catch. The bill as it stands today will no longer include the language for dam removal, which has been a primary bargained for benefit to signatory tribes to improve historic Klamath River wild salmon runs that have been irreversibly damaged by settler occupancy.

Rate payers have been charged a fee on their monthly bills from PacifiCorp for a number of years for dam removal. But if legislators have no intention of removing the dams, where did all of the fees rate payers have been charged go?

California’s Hoopa Valley Tribe was part of initial Klamath Agreement talks but refused to support the accord on the grounds that it didn’t guarantee sufficient flows for struggling Coho and Chinook salmon populations. 

 

     A young member of the Hoopa Tribe protests while standing in salmon-killing algae.

The Klamath River flows directly through the Hoopa Valley Reservation in Northern California and the Trinity River is a major tributary to the Klamath River. Trinity water flows secured by the Hoopa Valley Tribe have contributed significantly to saving wild salmon populations in the Klamath River when Klamath water levels were not secured by enforcement of Klamath Tribes senior water right.

As of September 2015, The Yurok Tribe of California has been rumored to have withdrawn from the agreements.

If that is true, then the only two remaining signatory tribes are the Karuk Tribe of California and the Klamath Tribes of Oregon.

According to an article published December 11^th 2015 by Western Livestock Journal, Andrew Malcolm, Communication Director for Senator Greg Walden states, “The way the agreements work is that the tribes that have senior water rights would lock in river flows, and the tribes would allow water to flow to agriculture in the project. … The way the process works is, in the first few years, it’s a temporary exchange in terms of the tribes allow for these flows to happen, but then as certain benchmarks are met throughout the agreement, then that water becomes permanent.”

Malcolm agreed that the issue is largely a semantic one; while the Klamath Tribes are not waiving their senior water rights, they’re waiving a portion of the water their senior water rights grant them, assuming the agreements hold.

“The fact is we felt the need to remind people that we’re trying to protect the taxpayers here and that for the tribes to get land, they are giving up some of their senior water. [Gentry, Chairman of the Klamath Tribes] doesn’t like the word ‘waive,’ but in reality, once the agreements become permanent, that’s what they’re doing.”

In an article published by Dylan Darling in the Herald and News October 15^th 2003, the at time Tribal Chairman Allen Foreman in a message to members of the Tribes on Sept. 27 2003, stated “The Klamath Tribes are not interested in surrendering their claim for senior water rights in exchange for regaining portions of their former reservation, tribal officials said Tuesday.

A press release issued by the tribes said media reports indicating they were considering a trade of water rights for land now held by the U.S. Forest Service were incorrect.

Carl "Bud" Ullman, attorney for the Tribes, said the Indians have two objectives: gaining water rights in order to restore fish populations, and regaining about 690,000 acres of former reservation land now in public ownership.

Though both objectives are being discussed with federal officials, the Tribes aren't planning on turning over their senior water rights,” Ullman said.

Two paragraphs later Ullman states, the Tribes are considering foregoing some of their water rights in exchange for a restored sucker fishery, which has been closed since 1986. Under such an arrangement, the Tribes would hold their water rights but not seek enforcement of them if the federal government works to restore sucker populations.

According to Ullman, there had been progress in the last year and that an agreement could be reached by the end of that year, though it could then take another year to get approval from Congress.

That was 12 years ago. The current Klamath Tribes chairman Don Gentry and past chairman Allen Foreman have been operating on the same manipulative, double talk agenda.

And as it now stands only 4 days remain until the Klamath Agreements sunset in Congress.

The "Historic dam Removal" campaign is set up to generate Republican push back against the Federal Energy Regulatory Commission (FERC) dam removal re-licensing process.  Signatory tribes and front groups have used those scare tactics to garner support and protect wealthy PacifiCorp shareholders from paying for dam removal.

The Klamath water Agreement issue is not about dam removal. The dams are out of compliance and will come down regardless. The Klamath Agreement issue is who's paying for dam removal?

An article published September 21^st 2015 by Adam Spencer in The Triplicate states, “The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of Appeals challenging that the federal dam regulatory agency has violated the Clean Water Act in its approach to the relicensing — or lack of it — of the Klamath River dams.

The hydropower license needed for PacifiCorp to operate its hydroelectric dams on the Klamath expired in 2006, but the Warren Buffett-owned power company has delayed the relicensing of the dams since then using a legal-gray-area strategy outlined in one of the Klamath Agreements. All in hopes that Congress would pass legislation implementing the Klamath Agreements. But that hasn’t happened after three years of sitting in Congress with little traction.”

The Hoopa Valley Tribe’s tactic of forcing the hand of the Federal Energy Regulatory Commission to get PacifiCorp to proceed with relicensing of the dams seems to have better odds of removing the deteriorating dams that have decimated wild salmon runs in the Klamath Basin than the glorified Klamath water Agreements.

To relicense the dams in compliance with the Clean Water Act, PacifiCorp needs to apply for Water Quality Certification from regulatory agencies in both California and Oregon, where the dams are located.

“Plainly the operation of the hydro project violates the water quality rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’ previous 1956 license pre-dates environmental law.

According to Spencer of the Triplicate, “even if water quality certifications were completed and a new license issued, it would require PacifiCorp to install ladders to provide for passage of migratory fish through the dams, an action already mandated by National Marine Fisheries Service.

Fish ladders would exceed the cost of dam removal and the dams would produce less energy and be less profitable, making dam removal the most economical option for shareholders and ratepayers.”

Both California and Oregon’s public utilities commissions have determined that dam removal is the best option for ratepayers.

The Klamath Hydroelectric Settlement Agreement (KHSA), the agreement focused specifically on dam removal, states “PacifiCorp shall withdraw and re-file its applications for Section 401 (water quality) certifications as necessary to avoid the certifications being deemed waived under the (Clean Water Act) during the Interim Period.”

According to the Clean Water Act, if a state fails or refuses to act on a water quality certification “within a reasonable period of time (which shall not exceed one year)” than the certification is considered “waived.”

Case law cited in Hoopa Valley Tribe court documents states, the purpose of the waiver provision is “to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification.”

A waiver would lead to the relicensing process outside of the Klamath Hydroelectric Settlement Agreement (KHSA), the less desirable option for Buffet’s grossly rich PacifiCorp.

Spencer of the Triplicate reported, “PacifiCorp has withdrawn and re-filed its water quality certification application in both California and Oregon eight times to keep the application active without having certification considered waived by the state agencies. Withdrawing and re-filing the application is done with a single email.”

“Their theory is that the letter gives the water board another full year to do nothing,” Schlosser said. “We kept saying ‘no, this is a violation of the Clean Water Act and you can't get around it by this letter writing campaign.’”

FERC denied the Hoopa Valley Tribe’s request for a hearing on the issue in October 2014. Though the agency released a statement that they do agree that PacifiCorp and state regulators are “clearly violating the spirit of the Clean Water Act” and possibly acting “contrary to the public interest by delaying the issuance of new licenses that better meet current-day conditions than those issued many decades ago.”

In the end, the FERC’s discussion concluded that while PacifiCorp may violate the spirit of the law “we do not conclude that they have violated the letter of that statute.”

“They are essentially saying that this little routine that PacifiCorp is using violates the spirit of the Clean Water Act but they are going to go ahead and approve it,” Schlosser said.“They are deciding to do nothing for a settlement agreement they never approved or reviewed. I’m optimistic that court of appeals will say FERC has fallen down on the job and they ought to dismiss the application for licensing.”

Without these corporate Klamath deals the Interior Secretary can make a finding on dam removal, to ultimately dismantle the dams.

Its past time to revise the Klamath agreements and address problems in a sequential cost effective fashion, that won’t drive wild salmon stocks to extinction.

The KHSA minimizes PacifiCorp’s required operational changes until at least 2021, strips Federal Energy Regulatory Commission (FERC) of jurisdiction while the agreement remains in place, and also protects the utility from compliance with any other measures to improve water quality. (Sec. 6.1.1 and 6.3.4.A.)

The KHSA halts State water quality certification proceedings, which now are the only remaining step before FERC would force dam removal. (Sec. 6.5.)

Dam removal cannot be forced with the Klamath water Agreements in place. The Klamath Agreements will cost tax payers $750 million over a 15-year period.

The federal Indian policy questions raised by Senate bill (S.133) prompted more than 50 federally recognized Indian tribes to object when the Klamath Agreements were considered by Senator Lisa Murkowski’s Committee in the 113th Congress.

Among their criticisms was that the legislation would reverse longstanding federal Indian affairs policies of tribal self-determination, self-governance, and respect for property rights held in trust for Indian tribes.

The objecting tribes stated specifically that section 5(f) of the bill would authorize approval of settlement terms that would require the United States to abandon its trust relationship and subordinate tribal fishing and water rights to others unilaterally, without tribal consent.

They also maintained that the settlement terms required by the bill are associated with discredited tribal trust termination policies that were in effect in the 1950s.

Chairman Murkowski, on November 14, 2014 spoke about the Klamath settlement in the 113th Congress stating that: “There is another issue, and that is the estimated $500 million in needed funds over the next ten years called for under the agreement would come from. I can tell you from my perspective as an appropriator; we don’t exactly have an extra $50 million per year lying around under the seat cushions in my office.”

Many groups reached the same conclusion about the unavailability of funding and walked away from the Klamath Agreements.

The Hoopa Valley Tribe received over 50 letters of support from federally recognized Indigenous tribes from all across the United States in their efforts to oppose the Klamath water Agreements.

Warren Buffet is the richest man in the world because he has a manipulative mind for business. People like him don’t get disgustingly wealthy by playing nice. He has found tenacious individuals to lobby for PacifiCorp dam removal, tribes and front groups alike. All for California and Oregon tax payers to foot the bill, leaving Buffet’s corporation exempt of financial responsibility.

Members of the Hoopa Valley Tribe and Klamath Tribes refuse to endorse the fatally flawed Klamath agreements because they unilaterally terminate tribal water rights. Rights that are intended to be enforced to protect the environment.

“The ancestors pray for our fish. And our fish always pray with us because we take care of them and they take care of us.” Says Oni Rose Orcutt, 7 year old Hoopa, Yurok and Karuk descendant.

“We are asking you to not support Walden’s bill. Because this bill is killing our salmon and terminating our water rights. Ts’ediyah. Thank You. ” Stated 10 year old Presley Orcutt (sister to Oni Rose), also a Hoopa, Yurok and Karuk descendant.

Please help support our friends in the Hoopa Valley community and relatives of the Klamath Tribes in efforts to protect their salmon babies by not endorsing the following-- Senate Bill 133: Klamath Basin Water Recovery and Economic Restoration Act of 2015, The Klamath Basin Restoration Agreement (KBRA), Klamath Basin Hydroelectric Settlement Agreement (KHSA), Upper Klamath Basin Comprehensive Agreement (UKBCA)

Please help support an effort that will truly “Undam the Klamath and bring the salmon home.”

Happy belated birthday to Oni Rose and Presley, the girls of Hoopa Valley whose hearts are forever with our salmon and waters. This is dedicated to you and all our future generations to come. May all your hopes and dreams come true.

In collaboration with and in honor of our friends at the Hoopa Valley Tribe and our Klamath, Modoc, Yahooskin relatives at Honor the Treaty of 1864.

 Naat ciiwapk diceew'a “We help each other; We will live good.”

                                  Traditional Hoopa canoes on the Trinity River

 

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Afterword by KlamBlog:

Oregon's Klamath River Basin Water Rights Adjudication recognized some but not all water rights claims made by the Klamath Tribes, one tribal government comprised of three distinct Indigenous Peoples: the Klamath, Modoc and Yahoskin. In its Final Order of Determination the State of Oregon recognized the Klamath Tribes' claims to flows for  fish in streams discharging into Upper Klamath Lake but denied the Tribe's claims to flows in the Klamath River below Upper Klamath Lake. According to the State of Oregon's Press Release which accompanied the Final Order of Determination:
          The most senior determined claims in the Klamath River Basin Adjudication are claims held by the United States in trust for the Klamath Tribes.  These claims carry a priority date of “time immemorial.” The tribal claims were recognized for certain reaches of the major tributaries to Upper Klamath Lake, and for Upper Klamath Lake itself.  Other tribal claims were denied for streams outside the boundaries of the former Klamath Indian Reservation.  For example, the Klamath Tribes’ claim for portions of the Klamath River was denied.  

There has been confusion over the Klamath Tribes Water Rights because the media reported only that Oregon had accepted the Klamath Tribes' claims. For example, the headline in the Eureka Times Standard's report on the Final Order read "Oregon backs Klamath Tribes water rights; effect on Lower Klamath Basin unclear". The article failed to mention that Oregon denied the Tribes' claims to Klamath River flows.

Oregon's action in the Klamath Adjudication with respect to the Klamath Tribes' water rights claims is properly understood as recognizing those claims which, in effect, maximize irrigation water delivery to federal irrigators and denying those claims which could provide more water for salmon in the Klamath River. Upper Klamath Lake is the main source of federal irrigation water. Maximizing inflows to Upper Klamath Lake via the Klamath Tribes' water claims also maximizes the amount of water available each year for federal irrigation. Oregon's denial of the Klamath Tribes' claim to Klamath River flows sacrifices Klamath River Salmon in an attempt to insulate federal irrigators from tribal water rights claims that could reduce the amount of water available for federal irrigation.

     This map of the Upper Klamath River Basin shows the Klamath River flowing out of 
         Upper Klamath Lake and the sprawling Klamath Irrigation Project in orange

Under the earlier KBRA Water Deal neither the Klamath Tribes nor any other tribe relinquished water rights, Under the more recent Upper Basin Agreement, the Klamath Tribes agree not to challenge in court denial of their claim to flows in the Klamath River; but only if Congress restores a portion of the Tribes' former reservation, which is now the Winema National Forest, and provides funding for a tribal lumber mill and wood products business.

KlamBlog does not believe it is morally right to force the leaders of the Klamath Tribes to choose between water for salmon and restoration of their reservation which was illegally terminated in the 1960s. As KlamBlog editor Felice Pace has written elsewhere, the federal government is forcing tribes across the West to choose between the funds they need to provide basic services to their people and their rights to water.

As they have in the Klamath River Basin, the feds are doing all they can to keep water to which tribes have a right with mostly white irrigation interests and in particular with federal  irrigation projects administered by the US Bureau of Reclamation. In favoring white irrigators over tribal water rights, the federal government is abrogating its responsibility as trustee to act in the best interest of federally-recognized tribal peoples.

2

Klamath Politics Tests KBRA Friendship Bonds

Those who pay attention to Klamath River Basin issues are by now very familiar with claims that former Klamath adversaries - Farmers, Tribes, Fishermen and Environmentalists - have overcome former conflicts, forged friendships and now support each other. Five years after the KBRA Water Deal was signed, those claims are still being made, not just by the "parties" that signed the Deal but by politicians, newspaper editors and a host of fellow travelers. A recent announcement by the Yurok Tribe, one of the KBRA's main architects, stating that it was withdrawing from the Deal because it was no longer possible to obtain the benefits for the Klamath River it had negotiated, has not stemmed the rhetorical claims that harmony now reigns among the Basin's tribes and irrigators.

That will not be surprising to those who have studied over 30 western water deals involving federal tribes which have been ratified and funded by Congress since the late 1980s.  Every one of those deals has been heralded as "historic"; both the deals and those making them have received lavish praise from federal irrigators, governors, newspaper editors, the media generally and by the federal officials who funded the negotiations and helped craft the deals. 

Local, state and federal establishments heap praise on these deals not because they end conflict over water which, contrary to the claims, they never accomplish for very long, but because, in the face of tribal water rights that could reallocate a good part of the West's water to tribal and instream uses, the deals keep most of the water with white irrigators in general and with federal irrigators in particular.

The KBRA is no different in that respect from any of the other hundred or so tribal water deals which have either been endorsed by Congress, are awaiting Congressional action or are currently being negotiated.

Friendship tested

Numerous testimonials over the five years since the KBRA was signed, as well as two films, dwell on the respect and friendship which grew up among tribal and agricultural leaders who negotiated the KBRA Water Deal. Ag and tribal leaders have claimed again and again that, as good neighbors should, they now look out for each others interests. Until recently, however, those assertions have been untested.

Now comes, in quick succession, a call by Oregon Governor Kate Brown to jettison Klamath dam removal (a key "benefit" of the KBRA for signatory or "party" tribes) and draft legislation by Oregon Representative Greg Walden which does just what Governor Brown called for. Brown's letter is straightforward: she wants the water supply "certainty" and the many other benefits the KBRA delivers to federal irrigators and she is ready to jettison dam removal to get what the irrigators want. 

 Iron Gate, lowest of PacifiCorp's five Klamath River Dams. For the 

three federal "party" tribes, removal of four of the dams is a key part of  the 

Klamath Deals. The fifth dam, Keno, would be transfered to federal ownership. 

Greg Walden's draft Klamath Bill not only jettisons dam removal but would turn over 200,000 acres of national forest land to Siskiyou and Klamath County Governments which want to bring back the good-old days of unlimited clearcutting.  Democrats consider the public land giveaway a "poison pill" which they can not support; in their press release, the Karuk Tribe also railed against Walden's draft legislation.

While press releases for and against Walden's Klamath legislation have been flying, the Klamath Water Users Association (KWUA), which represents the Basin's federal Irrigation Elite, and the closely allied Family Farm Alliance have so far been silent on Walden's draft. That is unusual. Both organizations have well paid staffs who are highly skilled in the art of the press release. Typically these two organizations are among the first to get their spin on Klamath developments delivered to media outlets.

 Now Executive Director of the Family Farm Alliance, Dan Keppen was a  major 

architect of the KBRA Water Deal while he served as Executive Director of KWUA. 

What explains the unusual silence of the Irrigation Elite in the face of Walden's draft legislation?

Walden's legislation presents a dilemma for the Klamath's federal irrigators and their organizational instruments - KWUA and the Family Farm Alliance. It gives the irrigators what they most want: the certainty that tribal water rights will not impact their ability to irrigate 200,000 acres of reclaimed lake bottoms and semi-dessert; but it throws the deal they made with their new friends in the Karuk and Yurok Tribes under the bus.

Does the Irrigation Elite's silence indicates that they have given Walden's draft the green light in order to get what they want? Are federal irrigation interests willing to abandon the relationships they have spoken about so often and passionately and which two films, countless news features and an impressive stream of editorials from the New York Times down to the tiniest newspapers have heralded as a model for how to deal with contentious water issues in the increasingly water-challenged American West?

The true test of  any relationship is what those in it do when the going gets tough. Clearly, the Yurok and Karuk Tribe's believe they are deeply wronged by Governor Kate Brown and Congressman Greg Walden. Will the federal irrigators who pledged unshakable bonds of friendship stand with them publicly? Or, as KlamBlog suspected from the start, was all the talk about good will and unshakable friendship just a sham show for the media?

KlamBlog challenges the Klamath Water Users Association and the Family Farm Alliance to take a public position on Walden 's draft legislation. We challenge those reporting on Klamath issues to put the question directly to the two organizations: Do they support Walden's draft legislation or do they stand with the tribes in opposition?

Another salmon disaster in the Klamath River Basin

There is another salmon disaster taking place right now in the Klamath River Basin but, like much that is newsworthy concerning the plight of salmon in this river basin, it is not being reported. 

By late October most of the fall run of Chinook salmon should have already spawned in tributaries that flow into the Scott River Valley. Those streams, including Shakleford, Kidder, Etna, French, Sugar and the South Fork Scott rise in the Trinity, Russian Peak and Marble Mountain Wilderness areas. As a result they have cold water and clean gravel perfect for salmon spawning. 

But at 6.5 cfs (cubic feet per second) flows in the Scott River are so low that a reportedly large run of Chinook salmon is stuck in the lower reaches of the River and can not reach the majority of spawning grounds which are located about 20 river miles upriver from the Scott's confluence with the Klamath River. 

 Salmon mass near the river's mouth waiting for enough water to make their spawning run

Unless sustained heavy rains come soon, most Chinook salmon production from the Scott River Basin will be lost this year and Coho spawning will be curtailed, continuing a trend toward extirpation of Scott River Salmon from the basin. The lack of access to spawning grounds in and above the Scott River Valley is not particular to this drought year but rather occurs with increasing regularity (see, for example, the 2012 KlamBlog at this link). Sometimes the rains and flows come in time for the Chinook and sometimes not. Because their spawning run occurs in November and December, Coho spawning is less often affected.

Losses of wild salmon production like those that are likely this year in Scott River, along with an epidemic of salmon diseases, are decimating the Klamath's wild salmon populations. As a result native, ocean commercial and sport fishermen and related economies are more and more dependent on salmon raised in hatcheries below Iron Gate and Trinity Dams. Dwindling wild salmon production  ultimately threatens the entire salmon run because over-reliance on hatcheries destroys the genetic diversity which allows salmon to survive in changing landscapes. 

Politically motivated reporting:

The Yurok Tribe's KBRA Withdrawal: Turning point or same old strategy?

The Northcoast and Klamath River Basin were astir last week when reports appeared on local news websites indicating that the Yurok Tribe would "no longer support" the KBRA Water Deal. Those reports brought hope to river communities that a federally-orchestrated deal which has divided tribes, fishermen, environmental groups and communities might finally meet its demise.

 When the KBRA was signed in 2010 it was almost universally heralded as

a balanced and durable solution to disputes over Klamath River water that would 

result in "Peace on the River". Events since reveal those claims as dubious at best.

.

Close reading of the notice released by the Yurok Tribal Government, however, indicates that the "withdrawal" is actually a negotiating tactic which seeks to use the KBRA's "dispute resolution process" to regain the "bargained for benefits" those leaders thought they had secured when they signed the KBRA.  The Notice requests that the Klamath Basin Coordinating Council, a body called for in the KBRA that has already been established, "expedite any attempt to resolve the dispute."
 

But the Yurok Tribe's  Notice of Withdrawal also states that The Upper Klamath Basin Comprehensive Agreement (UBCA), which was finalized in March 2014 without the participation of the Yurok Tribe, "provides additional benefits to member parties that upset the bargained for benefits of the KBRA and KHSA" and amounts to "a return to the old Oregon-California/Upper Klamath-Lower Klamath division of the Klamath River system..." 

The Yurok Tribe's statement goes even further, declaring that the "bargained for benefits" tribal leaders thought they had secured when they signed the KBRA "have become unachievable." The statement begs one fundamental question: if benefits to the Klamath River and the Yurok Tribe are now "unachievable" why are Yurok leaders invoking a process that is intended to "resolve" disputes? And why are they traveling to Oregon again this week to engage in further negotiations?

Tight-lipped leaders

Local reporters have sought clarification of apparent contradictions in the Yurok Tribe's statement. They have also asked tribal leaders to provide specifics on the "bargained for benefits" those leaders believe were promised in the KBRA but are now "no longer achievable". Yurok government leaders have so far declined to provide clarifications.

Meanwhile, the Eureka Times-Standard reports that the Karuk Tribe and Oregon's Klamath Tribes will also withdraw from the KBRA at the end of the year if Congress doesn’t pass legislation sponsored by Senator Ron Wyden to legalize and fund aspects of the KBRA, KHSA and UBCA. Craig Tucker, the Karuk Tribe's Klamath River Program Coordinator, has spoken to reporters; Tucker claims the dispute is not about funding for tribal government programs but he also failed to provide specifics on which KBRA "bargained for benefits....have become unachievable."

KlamBlog invites leaders of the Yurok and Karuk Tribe to open up and inform the people; this blog will publish messages from them which let river residents know the nature of "bargained for benefits" Yurok and Karuk tribal leaders hope to regain.  

Collaborative Water Management Vetoed by Irrigators

One KBRA "benefit" Yurok and Karuk leaders clearly expected when they signed the KBRA was a collaborative approach to managing Klamath River Basin water. That meant officials of tribes which signed the KBRA would be consulted when Reclamation develops Annual Operating Plans to manage Klamath River Basin water.

The KBRA was signed in 2010. Early in 2011 the US Bureau of Reclamation released its plan for managing Klamath River water in the coming year, including projected irrigation water delivery, lake levels in Upper Klamath Lake and flow releases to the Klamath River. As envisioned by the KBRA, "party tribes" (the three tribes that signed the KBRA) were involved in developing the 2011 Operating Plan.

The plan called for spring flows in the Klamath River in excess of those required to comply with the Biological Opinion implementing the Endangered Species Act. The higher flows were intended to ameliorate a growing salmon disease epidemic in the Klamath River below Iron Gate Dam. At that time about 40% of the juvenile salmon tested were found to be diseased. That alarmed scientists because "normal" fish disease rates in Pacific Salmon Rivers rarely exceed 10%. The scientists knew higher spring flows would lower the River's water temperature and flush disease organisms from river gravels; that in turn would lower the rate of infection in Klamath Salmon.

Gill Rot or "Ich" is a natural fish disease that has become epidemic among juvenile

salmon migrating down the Klamath River. Up to 100% are infected. Telemetry studies 

indicate 92% of the juvenile salmon succumb to disease before they can reach the ocean. 

Higher spring flows in the Klamath River meant that Upper Klamath Lake, source of the Klamath River and of irrigation water for most Klamath Project water users, would fill more slowly. Because filling Upper Klamath Lake as early in the year as possible maximizes subsequent irrigation water delivery, the Klamath Basin's Irrigation Elite did not like the idea. Using the Klamath County Chamber of Commerce as their tool, those irrigators orchestrated an intense campaign to "convince" the US Bureau of Reclamation to (as the campaign's popular bumper sticker insisted) "Fill The Lake First".  

Reclamation quickly caved, acceding to the Irrigation Elite's demands. Not only did the agency not provide higher spring flows in 2011, Reclamation has not provided them since, even as salmon disease infection rates in the Klamath River continue to rise. As previously reported by KlamBlog, during 2014 and 2015 up to 100% of juvenile salmon migrating down the Klamath River were found to be infected with one, and in many cases two, salmon diseases. In 2014 only 8% of juvenile salmon outfitted with radio transmitters below Iron Gate Dam made it to the estuary and the Pacific Ocean. Those facts confirm that the salmon disease epidemic is killing most wild and hatchery salmon produced in the Klamath River and its tributaries before those young salmon can make it to the ocean. 

Having successfully undermined the KBRA's collaborative water management "bargained for benefit" the Irrigation Elite turned next to removing teeth from the Endangered Species Act. The result was the 2012 joint Biological Opinion (Bi-Op) for Coho Salmon and two sucker species (Kuptu and Tsuam or Lost River and Shortnose Suckers).

The new Bi-Op prioritized filling Upper Klamath Lake early in the year over providing higher spring flows for salmon. That decision was justified by claiming high spring lake levels are needed by Kuptu and Tsuam. It ignored findings of independent scientists empaneled by the National Research Council. Those scientists found "no scientific evidence" indicating that higher lake levels would benefit the two native sucker species.

As reported by KlamBlog, the joint Biological Opinion was a charade intended to remove the "burden" of the Endangered Species Act from the Irrigation Elite while claiming it was being done to benefit endangered species. Irrigation interests rewarded the federal officials who orchestrated the charade: one has since retired and now sits on the Klamath Water Users Association (KWUA) Board of Directors, the second was showered with praise at KWUA's subsequent annual dinner.

It is unknown whether Yurok leaders consider the higher spring river flows needed to control the Klamath River's salmon disease epidemic to be one of the "bargained for benefits" promised by the KBRA but never delivered. But that is irrelevant. Yurok leaders should insist not only on being in the back room when Reclamation plans yearly operations but also that the corrupt 2012 Biological Opinion must be redone. Furthermore, those leaders, as well as leaders of the Karuk Tribe, should stand firm that any "resolution" to the current "dispute" must guarantee the higher spring flows scientists tell us are needed to control the salmon disease epidemic currently killing most of the juvenile salmon migrating down the Klamath River.

Ongoing KBRA "dispute resolution" negotiations are a true test of Yurok and Karuk tribal leadership: Will these leaders be satisfied with admission to the back room where Reclamation makes decisions about Klamath water management, or will they insist that federal water managers provide the Klamath River flows salmon need to survive and thrive? KlamBlog will be watching and will let the public know whether the leaders prioritize the needs of fish or simply want access to the back room where Reclamation and the Irrigation Elite continue to call the shots. 

Have the lessons been learned?

Whatever results from current "dispute resolution" negotiations, there are lessons to be learned from what has unfolded since the KBRA was signed in 2010. One lesson is that the much heralded KBRA "harmony", in which tribes and irrigators look out for each others interests, was a sham from the start. The "return to the old Oregon-California/Upper Klamath-Lower Klamath division of the Klamath River system" noted in last weeks notice from the Yurok Tribe did not begin with the recent signing of the Upper Basin Comprehensive Agreement (UBCA). It began in 2010 soon after the KBRA was signed.  

The durability of the Upper Basin-Lower Basin "division" was also indicated in March of 2013 when the State of Oregon, a KBRA signing "party", issued its Final Order of Determination in Oregon's Klamath Adjudication . That order affirmed "time immemorial" rights of the Klamath Tribes to flows in streams that discharge into Upper Klamath Lake. The State, however, denied the Tribes' claim to flows for fish in the Klamath River below Upper Klamath Lake. In other words, Oregon affirmed those tribal water rights which are compatible with the interest of the Irrigation Elite (maximum inflow to Upper Klamath Lake) and denied tribal water rights which would benefit the Klamath River and Klamath Salmon.

As part of the next and final phase of Oregon's Klamath Adjudication, the Klamath Tribes' Government has filed court papers challenging Oregon's denial of their claim to water flows for fish in the Klamath River below Upper Klamath Lake. By signing the recent Upper Basin Comprehensive Agreement (UBCA), however, the Tribes agreed to withdraw its pending court challenge of that denial. Klamath Tribal leaders are willing to abandon their claim to the Klamath River flows fish need if Congress passes legislation by Senator Wyden that would return to the Tribes a portion of the illegally terminated reservation (now national forest land) and provide economic development funds so that the Tribes can build a lumber mill and get into the wood products business. 

As KlamBlog has noted from the beginning, at its heart the KBRA is about buying off tribal interests so that the water salmon, Kuptu and Tsuam need remains with federal irrigators. And it is about removing the "burden" of the Endangered Species Act from the shoulders of the Irrigation Elite. The KBRA is anything but balanced as Yurok and Karuk leaders are, hopefully, finally realizing. And that is why the KBRA as well as the more recent Upper Basin Comprehensive Agreement should be relegated to the dustbin of history. There are good deals and there are bad deals; from the standpoint of the River and Klamath Salmon the KBRA and UBCA are bad deals that no amount of "dispute resolution" can fix.

There is also a deeper and more profound lesson KlamBlog hopes all those who care about the health of our Klamath River and Klamath Salmon will take from what has transpired since the KBRA was signed in 2010: The real power of a tribe to secure durable benefits for rivers, salmon and tribal members depends on the water rights that tribe has asserted. The failure of the Yurok Tribe to assert its inherent reserved right to Klamath River flows in Oregon's Klamath Adjudication was and remains a colossal mistake. Until Yurok leaders recognize that mistake and take decisive action to secure those inherent water rights, the Tribe will remain in a weak position to negotiate for the River, Klamath Salmon and the related interests of its members.

Securing the Yurok Tribe's reserved right to Klamath River restoration flows may take a generation. But that is a short time in the life of a River. Let's hope Yurok leaders take the long view.

More ESA "protection" for the Klamath Basin's Irrigation Elite

The Klamath Falls Herald and News got the headline just right: House passes Walden’s plan to help protect Klamath Project water users (emphasis added). The article goes on to report that "the proposal would confer applicant status on those irrigators, ensuring that they are included in Endangered Species Act consultations that could affect operations of the water project they rely upon." Republican Congressman Greg Walden was able to add the provision to the "Western Water and American Food Security Act" which passed the House with "bipartisan support". The legislation now goes to the U.S. Senate.

Walden's effort to "protect" federal irrigators from the Endangered Species Act implements one of the main objectives of the KBRA Water Deal: to provide "relief" to Klamath Project Irrigators from requirements of the federal Endangered Species Act. That relief will also come in the form of wink-and-nod approval of Habitat Conservation Plans that KlamBlog predicts will remove ESA constraints on irrigation within the sprawling federal irrigation project. KlamBlog has previously written in depth about what we call the KBRA's "wink-and-nod" approach to implementing the ESA. The newer Upper Basin Comprehensive Agreement extends the same ESA "relief" to irrigation interests above Upper Klamath Lake.   

In the news report Walden states that the provision he championed formalizes what is already the practice: the US Bureau of Reclamation  routinely involved organizations representing irrigators in consultations with the US Fish & Wildlife and National Matrine Fisheries Services. Those consultations focus on impacts the 200,000 acre irrigation project has on Kuptu, Tsuam and Achvuun (Shortnose and Lost River Suckers and Coho salmon).

Walden's move may be in response to an investigation being conducted by the Department of Interior.  A former employee has alleged that Reclamation misspent funds which were appropriated to benefit fish and wildlife in order to pay for private growers to pump groundwater for irrigation. Involving a private entity in agency-to-agency government consultations may violate rules designed to protect such consultations from private interest influence. That may be why Walden is pushing the provision now, that is, to legalize what is otherwise an illegal practice. Whether it is legal or not, commercial interests should not be part of ESA consultations which by law are supposed to be based on the best available science and the scientific opinions of expert agencies.

Of course Reclamation does not include all those to whom it supplies water in those ESA consultations. Instead, the Klamath Water Users Association (KWUA), which is controlled by a handful of large and powerful growers, is given a seat at the table while smaller irrigators are left outside.

Growers who dominate Klamath irrigation politics live in mansions like this one 

near Tule Lake. When they don't get their way they advertise their dissatisfaction.

And what about the tribes, fishermen and others who have a vital interest in how Klamath River water is managed? Why doesn't Mr. Walden want to give them a seat at the ESA consultation table too? With so many of us dependent on Klamath River water, why is just one interest singled out for special treatment with respect to those ESA consultations?

Undue influence and taxpayer support:

World Prayer and Peace Day comes to Southern Oregon

KlamBlog wishes to call to the attention of readers and followers an important event that is taking place June 18-21 in Southern Oregon just outside the Klamath River Basin.  World Peace and Prayer Day is a "cross-cultural celebration" in which people of "all nations" and "all faiths"  join together with "music, dance, traditional teachings and feasting" to promote "co-existence among all peoples and nations."

This year's 20th annual celebration is being organized by Red Earth Descendants. It takes place  at Howard Prairie Lake Resort, 3249 Hyatt Prairie Road on the outskirts of Ashland, Oregon. Local Indigenous Elder Agnes Baker Pilgrim will be one of the honored guests and presenters.

To learn more about this year's gathering see this link; to learn about founder Arvol Looking Horse and the origins of World Peace and Prayer Day go to this link.

Let's join together in person or in spirit on June 21st to celebrate the solstice and pray for unity in our river basin and world-wide.

Felice Pace talks about Klamath water management and salmon diseases on the Jefferson Exchange

On May 8th, KlamBlog editor and chief writer Felice Pace was interviewed on Jefferson Public Radio's Jefferson Exchange. The discussion included the US Bureau of Reclamation's decision to use taxpayer funds to pay for private irrigators to pump 45,000 acre feet of groundwater for irrigation this growing season. Felice questioned whether taxpayers should be footing the bill so that irrigators within the sprawling Klamath Irrigation Project can mine groundwater in order to fully irrigate during a drought. You can listen to the interview and leave a comment at this link.

Ever since Reclamation was forced to release water to the Klamath River to prevent "jeopardy" to ESA-listed Coho Salmon, the Klamath River Basin's Irrigation Elite  has been able to continue fully irrigating even in drought years by mining the Upper Basin's deep aquifer, extracting groundwater in an unsustainable manner.

Groundwater mining occurs when the amount of groundwater extracted over time exceeds the amount of groundwater recharge. As shown in the graph below, the deep water table in the Tulelake Area (the lower Lost River Basin) has dropped significantly since 1992 when Reclamation was forced to allow more water to flow down the Klamath River. The groundwater aquifer has failed to recover even during years of above average precipitation and snow pack.

 Groundwater elevation in the Tule lake area over time (source: USGS)

The irresponsible lowering of the groundwater table in order to fully irrigate during drought years has caused nearby towns (Tulelake in California, Merrill and Malin in Oregon) to drill deeper for drinking water. Even so, Oregon Department of Environmental Quality (DEQ) testing indicates that drinking water wells in the Oregon portion of the Lower Lost River Basin are polluted with nitrates, pesticides and other toxic agricultural residues.

Oregon DEQ has been reported as calculating that 15,000 acre feet of water could be safely extracted from groundwater in the Tule Lake Area (lower Lost River Basin) this year. Reclamation is using taxpayer funds to facilitate the removal of 3 times that amount!

Another silent Klamath Salmon disaster

Meanwhile fish disease levels in the Klamath River below Iron Gate Dam continue to rise. During what should be the height of salmon out migration, few juvenile salmon are showing up in mid-Klamath River monitoring traps operated by the Karuk Tribe.

Members of the Klamath Tribes question their leaders' deal making

From KlamBlog's editor: Below you will find a recent Press Release from the group Honor the Treaty of 1864, comprised of members of the Klamath Tribes. You can contact the group via e-mail to Kayla Godowa-Tufti: godowatufti27@gmail.com. Here's how the group describes itself:           "Honor The Treaty of 1864 is a group of like minded individuals who want to honor our ancestors and our 7th generation by protecting our resources and our rights. While these ideas are not new and many people before us stood for the same things we do, our group was officially formed in 2014. We welcome all people who support our cause."  And here's a quote from the Press Release:           "The KBRA does nothing to heal historical and spiritual damages for Klamath, Modoc, Yahooskin people. By securing water primarily for agricultural purposes, the KBRA and associated documents perpetuate these damages and continue to inflict pain, trauma and division amongst our people." Kientpoos Prayer Pole at Captain Jack's Stronghold  The Modoc are now one of three tribal peoples comprising the federal Klamath Tribes  The Press Release follows upon a new proposal to transfer a portion of the Winema National Forest to the Klamath Tribes in exchange for their agreement to the KBRA and the more recent Upper Basin Agreement. Among other concessions, the Klamath Tribes would relinquish their claim to flows in the Klamath River below Klamath Falls.  The Klamath Tribes' claim to Klamath River flows to support tribal trust species is the last best hope for Klamath Salmon. The current minimal flows, which are very close to Klamath flows negotiated in the KBRA, would be locked in if Senator Wyden's Klamath legislation becomes law. While the Endangered Species Act can prevent "jeopardy" to listed salmon, the Act can not provide the water needed to restore salmon to abundance. Tribal in-stream flows for salmon, where they exist, can provide restoration flows. Wishing to keep western water with current, mostly-white irrigation interests, the federal government is working hard to convince tribes  throughout the West that funding for restoration is a substitute for the water fish need. The new group of Klamath dissidents is not buying it.   With the current minimal Klamath River flows up to 100% of the young salmon migrating down the Klamath River become infected with at least one and often two fish diseases. Only 8% of radio tagged juveniles survive to reach the ocean. As a result, most of the adult salmon returning to the Klamath River Basin in some years are Trinity River fish and many of them originate in the Trinity River Fish Hatchery. Salmon populations dominated by hatchery fish have much lower genetic diversity as compared to runs where wild salmon predominate.  The US Bureau of Reclamation refuses to provide the flushing spring flows which scientists tell us are needed to reduce the Klamath River juvenile fish disease epidemic. Keeping spring inflows in Upper Klamath Lake allows Reclamation to maximize irrigation water deliveries.  Yurok and Karuk tribal government leaders thought they had negotiated for higher spring flows in the KBRA; they have discovered, however, that Reclamation will not provide them. This bad situation would be locked in if the Wyden legislation becomes law.  Gill rot is one of several fish diseases epidemic in the Klamath River. Low levels of disease  are normal in Pacific Salmon Rivers but Klamath disease levels are unprecedented. The three tribes which signed the Klamath Water Deals now sit on a "Flow Account Scheduling Technical Advisory Team" or "FASTA". KBRA tribes have gained access to the back rooms where decisions are made; but Reclamation continues to decide who does and does not get water; when the US Bureau of Reclamation is in charge irrigation is always t he top priority; fish and wildlife get mostly lip service. Tribal member who are part of Honor the Treaty of 1864 question whether trading away the in-stream flows fish need in order to get into the timber business is truly in the interest of the Klamath, Modoc and Yahoskin Peoples. Here is their press release:

Members question Klamath Tribes' vote to approve the Klamath Water Deals

The United Nations Declaration on the Rights of Indigenous Peoples   states that before the rights of an Indigenous People can be terminated, the individuals whose rights are affected must provide their free, prior informed consent to the termination. The US Government says it abides by the Declaration. When it comes to water rights deals like the KBRA or the more recent Upper Klamath Basin Comprehensive Agreement (UKBA), however, the feds don't require that tribal governments honor the Declaration. 

Of course, free, prior and informed consent is up for interpretation: How much information must a tribe provide its members and how much time must that tribe allow its members to study and debate the proposed deal trading away water rights or the ability to exercise those rights in order to comply with the UN Declaration?

KlamBlog's editor and chief writer, Felice Pace, has suggested that, within the context of a deal in which a tribe gives up water rights or agrees not to exercise those rights or relinquishes the right to have the federal government trustee protect those rights, "informed consent" requires that a cost-benefit analysis to determine the Net Present Value (NPV) of both the benefits a tribe would receive in a water deal and the cost of what that tribe would give up in the deal must be calculated. 

Felice further asserts that the cost-benefit accounting must be provided to tribal members well before any vote on the deal is conducted. Others have suggested that a cultural cost-benefit analysis should be completed by a tribe and provided to its members if and when the tribe is considering relinquishing water rights or the ability to exercise those rights.

Felice has also suggested that, when it comes to water deals in the American West, the feds have not honored their duty as trustee for the tribes but rather have worked during negotiations to keep the water with (mostly white) irrigators and especially with federal irrigation interests. That, in his view, is a fundamental abrogation of the federal government's duty as trustee to look out for and advance the interest of federal tribes. If that interpretation of the federal trustee duty is correct, tribes may have recourse in the future to reverse some of the western water deals in the federal Court of Claims.  

Over 30 western water deals involving tribes have already been approved by Congress and many more, including the KBRA and UKBA, are in the pipeline. Several tribes, including the Nez Perce and Klamath Tribes have approved water deals which trade away or agree not to exercise in-stream water rights which have been granted to sustain salmon fisheries. To date, however, few have questioned the morality of trading the water salmon need for funding and other benefits tribal governments want for their people and their reservations. Should federal tribes have the legal right to trade away water the salmon need? Even if they have that legal right, is a tribal government trading away the water fish need morally correct? As far as KlamBlog can see, these questions have not been raised, much less debated, by the leaders and members of the West's salmon tribes.     

There appear to be a number of members of the Klamath Tribes who agree with Felice's analysis of the Klamath Water Deals. Those members have banded together in the group "Honor The Treaty of 1864" which recently published a press release appearing on the Last Real Indians website. You can read the press release at this link. The Honor the Treaty of 1864 group's press release is also reprinted in full below.  

 Kientpoos Prayer Pole, Captain Jack's Stronghold, Lava Beds National Monument

Trinity Victory not a solution for Klamath Salmon

There was good news in January for those who value and depend on Klamath River Salmon. Lawyers for the Department of Interior released a legal opinion finding that Humboldt County's right to 50,000 acre feet of the water stored behind Trinity Dam is distinct from water designated when the dam was built to sustain Trinity River fisheries. The US Bureau of Reclamation, part of the Interior Department, had claimed the opposite. That allowed them to divert more water from the Trinity and ship that water to corporate farms far to the south in the San Joaquin Valley.

North Coast Congressman Jared Huffman, who had pushed for release of the legal opinion, hailed its release in a special press release: 
          Humboldt County’s annual right to 50,000 acre feet of water from Trinity Lake is not a close call – it was explicitly guaranteed by statute and in a federal contract six decades ago, but these commitments have been ignored by the federal government....I’m gratified that the Solicitor thoroughly examined this issue and that the Interior Department heeded my requests to publicly release the solicitor’s findings.  The disclosure of the Solicitor’s legal opinion confirms the position I have argued for the past two years and is an important step toward honoring the promise Congress made 60 years ago.

Before becoming an elected official, Congressman Huffman was an environmental lawyer at the NRDC where he specialized in water law. 

Ich (Gill Rot) Disease 

If followed by the US Bureau of Reclamation, the legal opinion should make more water available to prevent unnatural die-offs of Klamath-Trinity Salmon. But using Trinity water to mitigate for inadequate flows and terrible Klamath River water quality is not a solution. Trinity River water enters the Klamath low in the watershed at Weitchpec. Increased Trinity water releases can help prevent adult salmon die-offs in the Lower River but will not prevent juvenile salmon migrating through the mid and upper Klamath River from contracting fish diseases which are related to poor water quality and low river flows.

Scientists and government reports confirm what has been hidden from most citizens: In 2014 up to 100% of the juvenile Chinook salmon monitored while migrating down the Klamath River were found to be diseased. High disease rates occur in every dry year as flows are cut and always poor water quality gets even worse. Biologists tell us these fish may or may not die as juveniles but are significantly less likely than healthy salmon to survive long enough to return, as adults, to spawn in Klamath tributaries.

Algae clogs the River starved of flows to maximize irrigation water delivery

Why is it that the yearly tragedy of Klamath River juvenile salmon disease and mortality is not reported in the media? And why is it that the self-proclaimed defenders of Klamath Salmon - the Yurok and Karuk Tribal Governments - whose leaders have claimed that for their peoples "salmon is everything" are not bringing this information out and taking action to address the Klamath's salmon-killing flows and terrible water quality?

In essence, the Yurok and Karuk Tribal Governments have become docile in the face of ongoing Klamath outrages because they agreed in the 2010 KBRA Water Deal to support the Bureau of Reclamation's management of Klamath River water. Reclamation manages Klamath water to maximize diversion and delivery of irrigation water. Under the KBRA the Klamath River gets minimum flows barely sufficient to prevent ESA listed Coho salmon from going extinct and a promise of higher spring flows when and if there is water in excess of irrigation demand.

These tribes have also become increasingly dependent on funding from the US Bureau of Reclamation to run their fisheries and restoration departments and projects. If these tribal governments were to anger Reclamation managers that funding could and would be cut off. In essence, it is jobs and government funding which help make Karuk and Yurok leaders docile in the face of ongoing threats to salmon. 

To make matters worse, the Upper Basin's Klamath Tribes recently agreed to give up their claim to Klamath River flows for salmon below Upper Klamath Lake if the federal government comes up with money to buy land and for economic development projects. The Klamath Tribes' leaders want to get into the timber business and they are willing to give-up their right to Klamath salmon flows if the feds will finance their business plans.

Are the Yurok, Karuk and Klamath tribal governments selling out Klamath salmon? Each person must judge for herself. KlamBlog takes note, however. that humans are adept at rationalizing their decisions. It is thus likely that tribal government leaders truly believe they are acting in the best interest of the River and Klamath Salmon. Like many other tribal governments across the West, most restoration organizations and even some environmental groups, these leaders have bought the idea that funding for "restoration" can substitute for the river flows needed to restore salmon to abundance.  

Where they have water rights related to fisheries, federal tribes have a right to river and stream flows sufficient to restore fisheries to the point where they can provide a moderate living for the tribal folk who depend on them. Across the West, however, the right to restoration flows is being negotiated away by tribal government leaders in exchange for funding for tribal programs, infrastructure and "restoration".

Historians will look back at these water deals as the second great rip-off of the American West's Indigenous natives: first they took the land and tried to "exterminate" the people; now, with the acquiescence of tribal governments, they are taking the water for the modern equivalent of a fistful of beads. History will not look kindly upon tribal government leaders who made these Faustian water deals. 

History will also make clear that the idea we can substitute "restoration" for the water flows a river needs is hogwash. Unfortunately, by then it will likely be too late for Pacific Salmon.