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Tribes’ water claims verified

The impact of adjudication on irrigators

By SARA HOTTMAN H&N Staff Reporter December 4, 2011

Tom Mallams, a rancher whose irrigation water comes from the Sycan River, has a 1979 water right.

Once Oregon Water Resources Department finishes the Klamath Basin adjudication process, started in 1975 as a mechanism to regulate water, “my water will be turned off in many, many, many years.

“A 1979 water right has no value. … A 1990 water right is not worth the paper to start your fire with,” he said. “I'm one of those who is going to have to pay a price. But that was a business decision I made. We're all held accountable for our own business decisions.”

Steve Kandra, a Klamath Reclamation Project irrigator, under adjudication has the Project's 1905 water right. But that doesn't mean success in adjudication.

“With just straight adjudication there are winners and losers,” he said. “It means irrigators who have received or taken water will not be able to do so. Folks need to be looking at where they're at in the pecking order.”

The process

Those with senior water rights can “call” their water allocation under their right; the most senior water rights get water first and so on down the line. In a limited water year, junior water rights could go without.

In an important proposed order delivered Friday — still subject to years of likely appeals — an administrative court judge granted the Klamath Tribes their full claims on six bodies of water. With a time immemorial right, that could have major implications for Klamath Basin irrigators who use surface water.

“This was a victory for fish and tribal treaty rights,” said Jeff Mitchell, Klamath Tribes council member. “Now we need to turn our attention to finding a balance between competing interests.

“The Klamath Basin Restoration Agreement demonstrated we can find a balance between fishing and farming and ranching communities. We need to continue to work with parties, including those who contested our claims, and see if we can find a way to keep this community whole.”

Kandra said the KBRA gives parties an incentive to compromise within adjudication.

“It's a better way to solve problems, rather than a court making a decision with winners and losers,” he said. “We would like to get everybody in a place where there are no uncompensated calls on water.”

Mallams said the real impact of this proposed order won't be evident until contestants examine the confirmed claims, but he said adjudication gave Upper Basin irrigators a better result than signing onto the KBRA would have.

“(The confirmed amount) is less than what would have been granted if we didn't contest,” he said. “There will be those who will say I should've negotiated. Well, during negotiations (the Tribes) were only willing to drop instream claims by a bit.

“Going the KBRA route … irrigators would have gotten less. We're much better off than if we had gone with KBRA.”

If the KBRA is implemented, which will require Congressional approval of dam removal and funding, Basin irrigators with senior rights will benefit from the Klamath Tribes' concession to only call water from 1908 and younger rather than their time immemorial right.

That won't help junior water rights.

Mallams, who says he knew how poor his water right was when he bought his land, in 2002 drilled a well to accommodate for what will inevitably be many years without surface water.

“There are going to be winners and losers in adjudication,” he said. “That's just the way it is.”
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TOM MALLAMS SENT THIS ADDITION TO KBC NEWS: "There are going to be winners and losers in the adjudication, That's just the way it is. In the KBRA, however there would be a couple of major winners, tribes, environmental groups and the government agencies, and ALL THE REST OF US, irrigators taxpayers ratepayers and the entire Klamath river Basin environment, are all major losers. Tom"