Judges say no to Tribes' petition

At issue is water claims

http://www.heraldandnews.com/articles/2003/12/26/news/community_news/city02.txt

By DYLAN DARLING
published Dec. 25, 2003

The Klamath Tribes have been denied a petition for re-hearing of a legal ruling on water issues before the 9th U.S. Circuit Court of Appeals.

On Dec. 9 the appellate court denied the Tribes' petition in a case that would clarify their claim to water rights in the Upper Klamath Basin.

The case originated in the U.S. District Court for Oregon, where Judge Owen Panner ruled in February 2002 that the Tribes hold a water right with a priority date of "time immemorial" in the Basin. That priority date would put the Tribes at the head of the line for water, with rights superseding all other claims for water, including those held by irrigators.

Ed Bartel, president of the Sprague River Water Users Association, said Panner's ruling was negative for irrigators because nothing could stop the Tribes from asking for huge amounts of water.

"It made it such that the sky was kind of the limit to how much water could be claimed, " he said.

The water users, along with the Resource Conservancy, Water for Life and Klamath County helped fund an appeal of Panner's ruling brought by a group of individual Upper Basin irrigators, Bartel said.

The state of Oregon also got involved, claiming Panner's ruling was premature because the Tribes are subject to a state-administered adjudication of water rights. The appeals went to the 9th Circuit Court.

A three-judge panel on the appellate court overturned Panner's decision.

The tribes then petitioned for an "en banc" review by all the 9th Circuit justices. It was that review that resulted in the denial issued Dec. 9.

The Tribes have the option of appealing to the U.S. Supreme Court. Tribal officials could not be reached for comment this morning.

At issue in the case is what priority date the Tribes should have in the ongoing adjudication, or divvying up of water inthe Basin by the state.

When the federal government terminated the Tribes' reservation in 1954 the Tribes kept their rights to hunt, fish and gather food on the former reservation land. Those rights were established in a 1979 ruling in what was known as the Adair case.

Issues arising since 1979 include how much water is needed to protect fishery and wildlife resources on former reservation lands.

Panner's ruling last year came as a supplement order of the Adair case.

Denial of the petition by the 9th Circuit came as good news to those opposed to reopening the Adair case, said Brad Harper, executive director of Water for Life in a press release.

"This is further vindication of what we have been saying since the Tribes attempted to reopen Adair," he said. "Determination of tribal water claims is a state's rights issue and should be resolved through the state adjudication process."

Bartel said the denial puts sideboards onto how much water the Tribes can put in claims for, making it possible for irrigators to get more out of adjudication.

"It's a huge victory for irrigated agriculture," he said.