Klamath Upper Basin Proposed Settlement

By Erika Bentsen
March 20, 2014
Western Ag Reporter
Billings, MT
westernagreporter.com
W.C. 2,400+

            On March 4, 2014 the Proposed Upper Klamath Basin Comprehensive Agreement was finally revealed to the public after six months of closed door meetings with the settlement negotiators kept under strict gag orders.  Enthusiastic press releases abounded throughout Oregon, giving the illusion that the document had already been approved.  In reality, landowners still face the grim task of deciphering 94 pages of legalese (not counting Appendixes, charts, referenced material, and pages of complicated equations).  A series of meetings are being held in the Upper Klamath Basin (also known as the Off-Project Area) to discuss the document with landowners.  While landowners are encouraged to read the Agreement for themselves, the difficulty lies in finding the verbal assurances spelled out in writing. 

            While the document is supposed to give the ag community some safeguards for the upcoming irrigation well shutoffs and massive surface water reductions because of newly established tribal claims to the water, the assurances that are spelled out by the negotiators in meetings are not clearly stated in the Agreement, if they are found at all.  The intent might be there, but the wording is such that nothing promised to the ranchers is concrete.  Relief to agriculture is thin and vague.  The State, U.S., and Klamath tribes are the only clear winners.

$45 million guaranteed to tribes, plus more

            Tribal representatives must also get approval from their members.  Section 2.5 admits this Agreement will only fix a few issues for the tribes, but with generous awards of money and increased control over the privately owned land in the area, it isn't anticipated to be a hard sell.  For starters, $45 million dollars will go to the Klamath tribes to help them be "self-sufficient."  There are provisions included for taxpayers (who were not included in these private meetings) to purchase timberland for the tribes to replace the reservation they sold.  In addition, there is a jobs program (Section 2.6) exclusively for the tribes "related to implementing this Agreement in the Off-Project Area," which can be interpreted to read that tribal members might be paid to monitor or enforce regulation on the privately owned land in the valley.  The Agreement reps say no, but the Agreement doesn't exactly exclude that practice.  There is also a stipulation that ten to twenty tribal ranch managers must be trained.  Speculation was widespread why that was included.  There are no jobs programs for ranchers who will no longer be self-sufficient after these water restrictions are in place.

            More tribal access points to the rivers must also be bought by taxpayers to be developed by the Oregon Parks and Recreation Department for tribal use, although the public, technically, is also allowed access. (6.1)  This is intended to increase the tribe's ability to exercise their fishing and gathering rights, but many ranchers suspect it will also be used for closer monitoring for any infractions on their private property.

            With the caveat in 2.5.5 that no tribal claims will be relinquished until they are paid in full ($45 million) and have their other demands met in this Agreement and in the Klamath Basin Restoration Agreement (KBRA), it is a win-win for the tribes.  If the funding doesn't come through, the deal is off and the tribes still get all the water--- above and below ground.  Congressional approval is not guaranteed.  This Agreement is designed to be funded through the KBRA, which was already rejected for being too expensive and unfair.

And for the ranchers?

            The assurances to the ranchers are harder to define.  Promises to reduce federal government harassment over endangered species sounds tempting, but sections 9, 10, and 12 are rife with clauses stating assessments still have to be made, the State and U.S. have still to undertake environmental reviews "before commitment to any program, plan, policy, or implementing action provided for under this Agreement."  (12.2.3.5)

            Ground water wells are now under attack by Oregon Water Resources Department (OWRD).  Using computer models with no actual pump tests to back up their claim, OWRD has decided all wells within 1 mile of rivers, springs and streams are interfering with the surface water levels.  Since the tribes now have a time-immemorial water right for essentially all the water in the river system, ground water wells have been accused of denying water to the river.  Even though OWRD admitted recently to the Oregon Legislature that actual interference cannot be measured or proven, they are going ahead with halting ground water irrigation in the upper Basin.

            While the settlement is designed to offer some aid in ground water use, OWRD openly denies any agreement with the Parties in this document regarding wells.  Only if the Agreement is ratified will OWRD set up guidelines to define timely and substantial interference from irrigation wells.  These guidelines still have to be approved by a separate Water Commission.  Even then OWRD refuses to agree, but will allow the Agreement Parties to support the Commission's adoption. (3.11.8)  That's as close as they ever come to endorsing these regulations.  If the Commission doesn't support the new guidelines, the groundwater regulations would be in accordance with 2013 rules.

            It is assumed that other calls from downstream Project farmers will not be an added threat because of the 30,000 acre feet water retirement, but because the Projects declined to join the Upper Basin settlement talks, what is assumed may be different from actuality.

            The Agreement lists minimum guidelines, not maximum, other than the tribes can't claim more water than what they've been awarded already.  Since their claim is for all the water in the river system, and has essentially gained control over groundwater, that concession rings hollow to ranchers.

Who is holding the reins?

            Ranchers are repeatedly assured they still have a voice in what will be done to them on their land, but a simple head count in the new leadership committees makes it look more like a stacked deck.  Ranchers will have their own Landowner Entity (LE) to enforce these new regulations on private land.  Section 8.1 requires that members of the LE must be "holders of an irrigation or livestock water right in the Off-Project Area."  Government lands and water rights are excluded, and any land or water right the tribe owns in trust.  The LE Board of Directors will have one representative from each Region, and one Allottee (a tribal member with irrigated land).  Allottees are also dried up by these irrigation restrictions, but most have strong allegiance to the tribes.  Elections, presumably, will be based on acreage, but fears are that as more ranchers are forced out by increasing regulations, if the tribe gets more individual members buying up the land they will be in position to take over the LE.

            A Joint Management Entity will be the making decisions for private lands.  The JME will have 4 voting members, and several non-voting members to give recommendations.  There will be a vote from the Tribes, the State, the U.S., and the LE.  Major decisions must have unanimous consent.  However, 3 of the 4 voting groups are required to include tribal representatives (the Tribes themselves, the Allottee rep in the LE, and the BIA rep in the U.S.).  The only vote without a direct tribal interest is the State, which has given testimony before the Oregon legislature that they are have a duty to protect the senior water rights holders:  the tribes.  This Joint Management group has a broad clause that they may "Develop, maintain, and amend the WUP Guidelines as may be necessary."  (7.2.9, and elsewhere)  Regardless of what is signed here it might be changed later.  This might be good for ag, or it might be really, really bad.

Is it about water or control?

            To make this agreement stick, Sufficient Participation is required.  Roughly 77% to 80% of the length of all applicable rivers and streams and springs must have private landowners in compliance within 5 years.  Corridors, called "Riparian Management Areas" and "Transitional Management Areas" range from at least 30 feet to 130 feet on each side of the surface water.  Within these boundaries, the management of vegetation (which can include grazing), plus riparian fencing, alternate water sources for livestock, and irrigation practices will be enforced by the Landowner Entity, but must be designed collaboratively by the LE, the Klamath Tribes and the U.S. (4.5.12)

            Not all water retirements will count toward the required amounts, namely, if they were developed after 2001.  (3.19)  Landowner decisions to reduce irrigation through this agreement has to be approved first by the Landowner Entity and the Klamath tribes. (3.22)  Not everyone along the corridor will be reimbursed for retiring water, it is dependent on it's value to the program. (3.11.10)

            Non-irrigated lands within the riparian corridors won't count toward Sufficient Participation, but will have management measures to limit adverse impacts to the riparian area.  (4.3.3)  Additionally, a blank check in 4.5.11 admits management may involve activities outside the Riparian Management Area.

            Water rights retired or changed outside the area that result in increased flows into Klamath Lake will not be counted. (3.4)  Wording like this makes many ranchers feel targeted specifically, individually, and personally.  The way they read it, an increase of stream-flows is not the desired result, an increase in regulation and control is.

Even eminent domain might be better

            Section 3.15 states: "Eminent domain will not be used to acquire water rights under the WUP (Water Use Program)."  Instead, it appears that peer pressure from compliant irrigators and the LE, (8.3.3, 10.4.2), government blackmail by baiting ranchers with endangered species takings permits (9.1) and well regulation changes exclusive to signers (3.11), and intimidation and coercion from tribal pressure (10.4.4) will be used instead.

            While ranchers aren't supposed to bear the full cost of the implementation, exactly who funds the programs isn't specified, or when/if the money would find its way to them.  Ranchers are concerned if extreme environmental groups start funding riparian restoration in the area it could be even more devastating for their business.  Questioning at the meeting did not lead to specific answers of who would be funding this if there were insufficient government resources.

Tribal involvement on the land
            The Landowner Entity must give notice to the JME and the Klamath Tribes if the landowner fails to cure a default within a given timeline.  This raises the question of why do both Parties need to be alerted if the tribes are part of the JME?  If the landowner is found at fault, he must pay their expenses, and there is specific wording allowing the tribes to go after the landowner themselves.  In many places, the tribes must be notified separately when infractions occur even though they are heavily represented in all the Management Entities.  When ranchers have to establish Conservation Plans for addressing ESA regulations on their private land, the tribes must be consulted, including but not limited to the Klamaths. (9.7)

Meetings---informative or propaganda?

            Water meetings are packed with ranchers trying to understand the document's content.  However, a clause in the back makes ranchers wonder what to believe.  The representatives are required by this document to make landowners want to sign on.  12.1.3 states the representatives of the ranching interests "will use their Best Efforts to obtain the signatures of their members."  It also states "each Party shall support and defend this Agreement in each applicable venue or forum" (12.2.2).  In other words, they, and anyone who signs on, are obligated to defend the document.  However, "The Parties acknowledge that their comments may conflict due to different good-faith interpretations of the applicable obligations under this Agreement."  (12.2.2.2)  This leaves the door open to spin it how they want to get the signatures they need.  Once the document is signed, landowners are stuck with what's written (or with what the JME amends later) because "no other document, representation, agreement, understanding or promise, constitutes any part of this Agreement." (12.15)

            When asked about losing property rights and freedom of speech, the response is ranchers have already lost all of their water.  By signing this Agreement they will get some of it back.  It is just good business sense.

A tough decision

            Recent rains aren't enough to ease tensions in drought-stricken Klamath county.  No matter what is or is not signed, it is doubtful that there will be enough water for anyone to irrigate this year.  What remains unclear in the future is if this agreement is only with the tribal claims from Klamath tribe alone or if the newly formed Modoc Nation will soon make its own separate demands.  How many other tribes might suddenly appear is also anyone's guess.  What is clear that regardless of what agreements are entered into with the tribes, the Project farmers down the river can still make their own water calls to halt irrigation in this area.  It makes no difference to the ranchers who flips off the switch to their irrigation pumps, but they must decide if this agreement is actually helpful in any way.  When faced with growing bureaucracy poised to take charge of their land, many are starting to wonder is it better to give up a few rights in order to be extinguished more slowly, or to stand for principle and be bankrupted quicker?

            Rancher reaction at the meetings is somber and skeptical.  Most doubt the success of getting Sufficient Participation in the valley.  Others doubt Congress will follow through with funding.  Many voiced concerns over giving up private property rights and losing their freedom of speech by signing on and having to remain silent on fundamental ideals with which they disagree.  Overwhelming concern is felt about increased tribal access to their land, regardless of promises to the contrary.  Ranchers feel they are being punished for doing nothing more than buying the land when the tribes sold it, and continued to irrigate it like the tribes were doing when they owned it.  Unfortunately, since the state and federal government have openly aligned themselves with a sovereign nation against its citizenship, the ranchers have no place to appeal regarding this injustice. 

            No one argues that the tribes were mistreated by the government in the past.  However, many strongly believe destroying this ranching community and devastating the economy of Klamath county will do nothing to soothe the wounds of the past.  When has destroying the future ever helped the past?

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