ADAIR IV
 

by Doug Whitsett, Klamath Falls,  for Water for Life Magazine
submitted to KBC 7/30/03

Klamath Basin irrigators won a huge hard fought victory when the Ninth Circuit Court of Appeals (Court) overturned Federal District Court Judge Owen Panner’s ruling that had, in effect, allocated all of the surface water in the Klamath Basin to the Klamath and Modoc Indian Tribes (Tribes) in order to sustain their reserved rights to hunt, fish and gather. Ruling on only one narrow point of law, the Court ruled that "this dispute is not ripe for federal judicial determination" because the facts of the case have not been fully developed and because the Oregon Water Resources Department (OWRD) has taken no final action in the adjudication. The Court VACATED Judge Panner’s district court ruling and did "REMAND this case to the district court to enter an order staying all federal proceedings pending completion of the Oregon Adjudication and related appellate review".

The Court did not deliberate, or rule, on the merits of the other issues of the case because they first ruled that Judge Owen Panner incorrectly usurped authority to hear and decide the case. What the Court did do was erase Judge Panner’s decision. It ordered him to prevent all federal court action until the Oregon Adjudication process is completed. It ordered him to prevent all federal intervention until all contests, Oregon court action, and Oregon appeals processes are completed. It further stated that "after the Oregon appellate remedies are exhausted, the parties may seek review by the United States Supreme Court on petition for certori".

In 1864 the Tribes entered into a treaty in which they agreed to transfer their aboriginal claims to about 12 million acres to the United States government in exchange for a reservation of about 800,000 acres in the Upper Klamath Basin. After the General Allotment Act of 1887 about 25% of that reserved land was transferred to individual tribal members. Over subsequent decades much of this land owned by individual tribal members was sold to non-tribal members. Between 1954 and 1975 the federal government purchased, and now holds title to, all of the remaining tribal lands amounting to about 70% of the original reservation.

In the original Adair (1) case, the federal government sued the state of Oregon to establish federal water rights on the Upper Klamath Marsh Wildlife Refuge that it had purchased from the tribes in 1958. The federal government claimed that this flooding of the marshes would also act as irrigation storage for adjacent private land owners. Because the private land owners believed that flooding the marshes would only evaporate much needed water, they contested the claim. The land owners beliefs were well founded. Currently, the tens of thousands of acres of flooded marshes have been determined to evaporate and evapotransporated more than three acre feet of water from each acre of their surfaces annually.

The Klamath tribes claimed that their aboriginal rights to water use necessary to support hunting, fishing, and gathering had not transferred to the federal government with the government purchase of the marsh land, and also contested the claim. Their contest claimed reserved instream flows and UKL levels with a priority date of "time immemorial".

In Adair I a federal district court ruled that a water right was an inherent part of those retained rights, that those retained rights had not transferred to the government with their land purchase, and that the retained water right had an 1864 treaty established priority date of "time immemorial". The federal district court recognized its lack of jurisdiction and left to the state of Oregon the job of quantifying or adjudicating those retained rights.

On appeal (Adair II), the Ninth Circuit Court of Appeals agreed with the district court ruling. It further clarified the intent and the extent of those water rights by stating that these aboriginal rights to water did not create a "wilderness servitude" upon the lands within the Klamath River system. Rather, those rights were limited to no more water than was required to provide the tribes with a "moderate living" as measured by the Tribes practices at the time of the sale of their reserved lands to the federal government.

In the interim, the OWRD has pursued an extensive adjudication of Klamath Basin water claims. The Tribes filed claims to more water than physically exists in the Upper Klamath Basin during this water right adjudication process. These filed claims include Upper Klamath Lake (UKL) at full reservoir, as well as most of UKL’s tributaries to their effective historic high water marks. For instance, Klamath Adjudication claim #622 filed on behalf of the Tribes by the United States Bureau of Indian Affairs claims water in UKL to the level at 4143 feet of elevation until June 30, then at 4142 feet until July 31, then at 4141 feet through October 31. Elevation 4143 feet is approximately at the full reservoir capacity of UKL. If granted, this claim would reduce the usable storage capacity of UKL for irrigation diversion by more than 100,000 acre feet under restraints of the current Biological Opinion. In the event that the current Biological Opinion was rescinded, the claim would reduce this usable storage capacity by about as much as twice that amount.

At the request of the Bureau of Indian Affairs and the Klamath Tribes, Federal District Court Judge Owen Panner reopened "for clarification" the Adair cases. Panner agreed to revisit the decades old litigation in spite of the fact that the original Adair court ruling had been upheld on appeal to the Ninth Circuit Court, and in spite of the strong and well reasoned objections by the State of Oregon regarding the jurisdiction of his court and the ripeness of the case for judicial decision. Panner’s subsequent "clarification" in Adair III was devastating to all irrigators in the Klamath Basin and set an untenable precedent for all Western irrigators.

Panner’s ruling in Adair III essentially pre-empted the Oregon adjudication process. He ruled that the "moderate living" limitation to the tribal aboriginal rights did not apply. He granted the Tribes an amount of water necessary to maintain productive habitat. His measure of productive habitat is found in the language of the 1864 treaty that states "the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seed and berries within its limits, is hereby secured to the Indians aforesaid". The Tribes asserted that in order for plant species to successfully propagate they require flooding and heavy runoff events. In order to insure that these events occur, the Tribes filed claims for this very high flow every month of the year. Panner ordered "In no event shall the adjudicator quantify or reduce the Tribal water right to a level below that which is necessary to support productive habitat" whether the Tribes have ever used, or ever intend to use, that habitat resource.

Virtually all United States treaties establishing tribal reservation contain similar or identical language to the 1864 Treaty. Left unchallenged, "Panner’s Doctrine" would have established precedent that could have conferred virtually unlimited water rights, with a priority date of time immemorial, to Native American tribes throughout the United States. Ultimately, we believe that these water rights, transferred to the tribes by judicial fiat, would have been held in trust by the Bureau of Indian Affairs (BIA). The BIA is a part of the same Department of Interior that also includes the Bureau of Reclamation, the Bureau of Land Management, the United States Fish and Wildlife Service, the United States Park Service.

The Adair "clarification" is a prime example of what to expect in today’s environment when an activist judge is afforded the opportunity to create law by judicial fiat. His judicial slight of hand represents the epitome of uncompensated takings. Hundreds of thousand dollars have been expended in legal action to correct this travesty.

A coalition of private citizens formed Resource Conservancy Inc. (501 c3) and invested more than $200,000 in private funds for litigation expenses in an unsuccessful attempt prevent the egregious Adair III decision.

The cost for the successful appeal to the Ninth Circuit Court was at least $150,000.The Resource Conservancy Inc. continued to lead the opposition with funding and legal counsel. In support of the Adair appeal, Water for Life, Inc. collected more than $40,000 from member and non-member private donations and distributed every dollar donated for Adair to the appellants. The Klamath County Commissioners supported the appeal with $50,000 in Klamath County funds. The Red Bluff Bull Sale Committee provided the appellants with $10,000. The Klamath County Cattlemen’s Association, as well as too many other organizations and individuals to mention here, generously donated money and created fund raising events in support of the appeal.

We consider the taking of citizens’ private property without compensation by governments of other countries to be a human rights violation. Using even more of our tax dollars, the Department of Interior’s BIA may choose to appeal the Ninth Circuit Court of Appeals’ decision to the United States Supreme Court on behalf of the Tribes. In that event, as much as an additional $250,000 in private funds may be needed to protect western agricultural interests against the actions of our own government.