25 year adjudication process nearing end Klamath 012312

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PROSPER water talks

35-year adjudication process nearing end

by SARA HOTTMAN, Herald and News 1/23/12

The saying goes, whiskey is for drinking, water is for fighting.

For more than 35 years water stakeholders in the Klamath Basin have been fighting for water in court as part of Klamath Basin Adjudication.

Tens of millions of dollars, 730 water claims, 5,600 contests to those claims, and 724 settlements later, the Basin is nearing a landmark: at the end of the year, a judge likely will give a final order of determination, establishing water rights for permit holders and for the first time giving the Oregon Water Resources Department the authority to regulate Basin water.

But that order won’t end the fighting, those involved predict.

“I’ve been involved in adjudication since I graduated from law school,” said Bill Ganong, attorney for the adjudication contestants on the Klamath Reclamation Project. “My father said adjudication would not be completed in his lifetime. He was right; he passed away in 2005.

“I’m confident adjudication will not be completed in my lifetime.”

Representatives from the Oregon Water Resources Department, the Klamath Tribes, Upper Klamath Water Users, and Klamath Reclamation Project contestants on Thursday gave their perspectives on the adjudication process.

The talk was the first of PROSPER’s Klamath Conversations speaker series. Upper Basin contestants who were affected by the most recent adjudication in December declined to offer a representative, organizers said.

Regardless of how a judge decides on individual claims, the Basin as a whole will change dramatically once it becomes an adjudicated basin.

“It’s quite a milestone we’re coming to at the end of 2012,” said Doug Woodcock, representative from the Oregon Water Resources Department. “Things are going to change in the Klamath Basin as far as how water is managed.

“Before (adjudication) we hadn’t really had anything to regulate for or against. After this decision, the Klamath Basin is going to be like the other basins, where water is regulated on a priority date.”

How adjudication could impact local irrigators

Doug Woodcock at one point was an assistant watermaster for the Oregon Water Resources Department in the Grants Pass area, which has long been adjudicated.

There, after certain weather conditions, he expected a call from the most senior water right holder. When he drove out to the site, people along the canal would see him and begin shutting off, he said.

“They’d been doing it for so many years, they knew where they stood in order of priority,” he said. “Everybody understands the rules, it’s easy.

“That’s in an adjudicated basin. In an unadjudicated basin … nobody knows. It’s going to take time to do this. It’s not an overnight process. It’s a steep learning curve.”

Local irrigators haven’t gone through the experience of having their water shut off so their neighbor can irrigate, but they expected it wouldn’t be pleasant, especially in the context of the Klamath Tribes, who have a beginning of time priority date.

So for decades irrigators have been in court.

Becky Hyde, a rancher near Beatty, said a fellow rancher with land on the Williamson River said he “could have bought and sold his land three times over based on the money he put into … litigation against the Tribes.”

The Tribes responded, claiming the water was assured to them in the Treaty of 1864, in which the federal government bought land from native tribes but did not formally take away hunting, fishing and gathering rights. Since then, courts have ruled tribes are entitled to those rights, as well as the water that supports them.

A “time immemorial” priority date makes the Tribes the most senior water right holders.

“It still matters in 2012 that native people were here first,” said Bud Ullman, attorney for the Tribes. “First in time, first in right.”

After the final orders, the Tribes will be able to make a call on the amount of water specified in adjudication for their land, mostly the former Klamath Reservation, but affecting other water bodies.

The Klamath Reclamation Project, with a 1905 priority date, also will be able to make calls on junior users upstream, said Bill Ganong, attorney for Project contestants.

“The Project has the last straw in the river. They’ve gotten what was left over year after year, and they have the (Endangered Species Act) on top of that,” Ganong said, referring to the protected status of two fish in the lake and river from which the Project irrigates.

“With adjudication, that’s going to turn around somewhat,” he said. “They’re not going to be the last straw in the river.”

How an adjudicated Basin would work

Western water law is based on a simple principle: first in time, first in right.

In practice, that principle is complicated and controversial, ultimately pitting neighbor against neighbor when a senior priority calls a water right that shuts off junior water rights upstream, said Upper Klamath rancher Becky Hyde.

Water adjudication to some may seem like an odd method to manage water — an adjudication judge decides a water permit holder’s priority date and the amount of water they’re assured, potentially at the expense of junior water right holders, who are last in line to get their water allotment.

But without it, proponents say, water — a public resource — is a free-for-all.

“The Klamath Basin not being adjudicated meant the most senior water right holders could not enforce their right,” said Tom Paul, deputy director of Oregon Water Resources Department. “They did not have the ability to call the watermaster and say ‘I’m out of water.’ ”

“This is all set up to protect the senior user,” added Doug Woodcock, a representative with the department.

Once a senior water right holder makes a call to the local watermaster, in this region Scott White, the watermaster:

1. Validates the call.

2. Develops a distribution list of people and water bodies, figuring out how to get junior water to the senior user.

3. Investigates for unauthorized diversions.

4. Assesses supply and demand — how short is the senior water right holder?

5. Finds the target priority date, determining which upstream dates are subject to shut off.

6. “Regulates off” — shuts off — junior water diversions.

7. Re-evaluates to turn on junior diversions when possible.

“This is new to you. You’re an unadjudicated basin about to become adjudicated,” Woodcock said. “Once the basin is adjudicated, water rights are sorted out and everybody has their piece of paper that says what their water right is … (a senior water right holder) will make a call to the watermaster that they’re out of water.”

The watermaster is to go through the process as quickly as possible, Paul said. “We need to be timely. If a senior water holder has a crop in the ground, we need to get that water to them.”

Since the Basin has been unadjudicated, White doesn’t yet have the staff to manage calls, especially in a poor water year when a mass of calls could occur.

Klamath County commissioners Al Switzer and Cheryl Hukill said the county’s financial contribution to support the watermaster won’t be cut. Other funding comes from the state.

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