Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
Our Klamath Basin
Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
|
"...Bureau
of Indian Affairs (hired) Dr. Thomas Hardy to develop
evidence to support the Yurok water rights claim in the
Klamath Adjudication." Hardy
was paid $millions
***
This flawed science is still being used to
create high Klamath Lake levels and Klamath River flows,
stealing our stored irrigation water.
Related Litigation & Legislation
History
Hypothetical question for our
readership:
If the State and a Tribe have a memorandum
of understanding that the
State will not uphold its legal obligations unless ordered
to do so in a court of law, how do you want your paid
representatives to defend your rights under the law?
On the road to conflict...
OWRD initiated the process for a general stream adjudication
of the Klamath River Basin (Basin) in 1975 by issuing
notices that it would begin an investigation for a proper
determination of claims to water rights within the Basin.
On 27 October 1986, Congress passed the Klamath River Basin
Act, Public
Law 99-552, introduced to the House by California
Representative Douglas H. Bosco, for the purpose of
authorizing a 20-year long federal state cooperative on the
mid and lower Klamath River. This act contained numerous
provisions and expenditures to the portion of the Klamath
River confined downstream of Iron Gate Dam. From this Act,
the Klamath River Basin Task Force was established. Bob
Rohde (Karuk Department of Natural Resources) and Mike
Belchik (Yurok Fisheries) were the chairs of the
Congressionally directed Task Force's Technical Work Group
to create a flow study plan to fulfill the Task Force
directive.
On 11 May 1990, Interior's
Regional solicitor in Portland with the Department of the
Interior rendered an opinion that, "there is
nothing in the Fisheries Restoration Act to prevent the Task
Force from extending the Act's influence onto the lands and
waters of the Upper Klamath River Basin." This was supported
by Congressman Bob Smith's amendment to the Klamath Act. Read
the discussion here...
In 1992, the Upper Klamath Basin experienced severe drought
conditions similar to the dry conditions recorded in the
years between 1918 and 1937 often referenced as the dust
bowl.
In 1992, the courts also determined that the United States
Government, the Klamath Tribes, and any other sovereign was
subject to the McCarren Amendment in the Klamath River
Adjudication. The Klamath Tribes, Reclamation, and USFWS all
submitted claims in the Klamath River Adjudication.
Francis S. Landrum, a registered engineer in Klamath County,
asked Oregon Water Resources Department "To review, with
intent to extinguish, the overt action of a U.S. Department
of the Interior regional solicitor acting in a scheme
designed to enforce a single-purpose river usage management
plan onto an extensive geographic region where a multi-use
Interstate Compact has been in successful operation for 35
years. This [individual] did without rationality, denying
representation to upstream water-user interests, and with
blatant disregard of the obvious intent of Congress."
On 11 August 1992, Klamath County Commissioners became
alarmed when they became aware the Fisheries Task Force had
released a draft of a long-term management plan for the
Upper Klamath Basin. Klamath County did not have any
representation in the task force prior to this date. On 14
December 1992, Klamath County Commissioners further
expressed alarm of the pending conflict, "This Board does
not recognize any action which has been taken by the Task
Force of the Fisheries Restoration Act to expand into the
Upper Klamath River Basin...This Board urges you to redouble
your efforts to erase the Task Force's ill advised (and
probably illegal) action in entering the Upper Klamath River
Basin, clearly adverse to the intent of Congress, and to the
provisions of the Klamath River Basin Compact, an interstate
compact." Read
the Commissioners Letter here...
In 1996, Robert Anderson directed the Bureau of Indian
Affairs to hire Dr. Thomas Hardy to develop evidence to
support the Yurok water rights claim in the Klamath
Adjudication. The
deadline to submit claims in the Klamath Adjudication was 30
April 1997. Hardy attended and facilitated a
meeting with the Congressionally mandated Klamath River
Basin Fisheries Task Force beginning with correspondence to
the Task Force plan provided to Hardy in 1996. Hardy
received at least $50,000 of tax payer money for his efforts
in 1997 from the Task Force, and an additional $1.6 Million
of tax-payer funds between 1996 and 2001 for his work on
Yurok water-rights.
Robert (Bob) Anderson,
Solicitor with the Department of the Interior, Professor
of Law and Director at the Native American Law Center opined
the following in a Stanford Environmental Law Journal:
"Non-Indian users were
often aided by federal programs operated by the Bureau of
Reclamation to develop large irrigation projects int he
derogation of tribal rights...[tribal] parties would be best
off to default to the usual presumptions recognizing
inherent tribal authority over on-reservation water
resources and state authority outside of Indian country...On
remand to the state court system for quantification, there
were years of litigation regarding the state system's merit
under the McCarran Amendment, culminating in a decision
permitting the Oregon courts to proceed with the
adjudication of the Klamath River Basin." - Dr. Robert
Anderson
On 29 September 1997, Hardy participated in a Task Force
Technical Work Group (TWG) facilitated by the Yurok
Fisheries lead in which he opened his introduction with "My
time is paid for by the U.S. Department of Justice, but that
I am "leaving that hat at the door." Both
Hardy and the TWG chair failed to tell the TWG Dr. Hardy was
being paid to support claims for Yurok water-rights claims.
On 6 May 1998, Cynthia Barry with the U.S. Fish and Wildlife
Service wrote to Dr. Hardy stating, "I
am very concerned that all work on instream flow in the
Klamath basin needs to be adequately coordinated...I only
learned of your work with the Klamath Federal negotiating
team through Mr. Anderson's recent memorandum."
On 15 October 1998, Dr. Hardy and Robert Anderson confirm
that Dr.
Hardy was previously and concurrently under contract with
the Department of Justice to support Yurok Water rights. And
that Robert Anderson was wanting to reach a settlement
outside of the legal process and Klamath River
Adjudication. Read
the contracts and associated documents here.
Hardy completed Phase I of his report which directly
resulted in the 2001 water crisis and the beginning of an
18-year court case known as "Bailey". Hardy's work was
heavily criticized...but nonetheless he published Phase II a
few years later. Despite the heavy criticism, clear
outcome-oriented models and reports, and scientific evidence
opposing assumptions in the Hardy flow models, the Federal
Government and Yurok still look to Hardy's flow models as
the best available science. This results in biased
biological opinions which overestimate the amount of water
required to facilitate coho habitat.
The Klamath Adjudication (mentioned above) issued its
initial finding of fact with water-rights claims on 7 March
2013 providing adjudicated water-rights to the Klamath
Tribes, Klamath Project irrigators and a number of others.
However, no
claims were presented to the Klamath Adjudication by the
Yurok tribe as required under the McCarren Amendment.
By 17 June 2013, Richard Whitman, (appointed by Oregon
Governor Kitzhaber) had drafted a dispute resolution with
the Yurok Tribe which acknowledges Oregon
Water Resources Department does not recognize flows
downstream in the Klamath River is required by Reclamation. However,
Whitman signs a document, on behalf of the Oregon Governor,
that states OWRD
will not interfere with releases of water to the Klamath
River by Reclamation unless directed otherwise by order of a
court with proper jurisdiction.
Since learning of this action by
Richard Whitman, Klamath Irrigation District has attempted
to get a court to issue OWRD an order to this effect. OWRD
resisted all efforts by K.I.D. to insist OWRD perform its
legal duties. The District was successful in 2021 in having
the Oregon court direct OWRD to perform its lawful duty in
accordance with Oregon law. The District was hopeful this
would break the Whitman / Yurok agreement. In 2021, OWRD
issued a letter to Reclamation that it had released stored
water from Upper Klamath Lake without a water-right to do
so. However, the Oregon Supreme Court overturned this
decision based upon an administrative action which claims
the trial judge precluded Reclamation from being a party to
the case.
Concurrently, in 2019, the Yurok filed suit against
Reclamation for its 2019 Proposed Action and Operations Plan
claiming Reclamation used the wrong information which was
provided by and confirmed by Dr. Hardy. Dr.
Hardy found this mistake while working for the Yurok tribe. This
case was stayed with the agreement irrigators would get
24,000 acre feet less water EVERY YEAR and more water would
be taken out of Upper Klamath Lake for river flows EVERY
YEAR regardless of hydrology.
In 2022, the Federal government then asked to lift the stay
in the Yurok case to bring suit against OWRD to negate
Oregon State exercising its authority and obligations under
Section 8 of the Relamation act. In case this approach did
not work, the Federal Government filed a sister suit in
Oregon with the same claims. This is the Federal
Government's way of court shopping. The Oregon case is
currently stayed pending the outcome of the Yurok case.
Klamath Irrigation District decided to intervened in the
Yurok v. Reclamation case in 2022 to defend OWRD's order and
the water rights in the Klamath Adjudication. As argued, the
case was more representative for title of Yurok Tribes and
the Federal Government v. Oregon, KWUA, and K.I.D with
Klamath Tribes defending their claims in the Klamath
Adjudication.
Prior to a decision being issued, the Yurok submitted an
additional motion to the court. Read
the motion here...this additional motion further
attacks the Klamath Adjudication.
Judge Orrick issued his decision in the case on 6 February
2023. Read
it here...
Opinion of the District Manager, Gene Souza: Dr.
Thomas Hardy's Phase I and Phase II flow models are not the
best available science; these models are biased
and were developed with outcome-oriented towards Yurok water
rights claims. Judge Orrick's decision appears to eliminate
Section 8 of the Reclamation Act and nullifies the findings
of fact in the Klamath Adjudication.
As this case is still pending the motion by the Yurok, a
possible Phase II round of hearings, and potential appeal
actions. Further conjecture or opinions are limited to
facts.
ESA Preempts Oregon Water Rule
in U.S. District Court...
On February 6, the U.S. District Court for the Northern District of California sided with the Bureau of Reclamation (Reclamation) and plaintiffs Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations, and the... Read more www.jdsupra.com For more information on Dr. Hardy: http://klamathbasincrisis.org/science/hardy.htm
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Page Updated: Tuesday August 22, 2023 02:41 AM Pacific
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