by MATEUSZ PERKOWSKI, Capital Press 9/4/09

Water controversies in the Klamath Basin are pitting farmer against farmer, with new litigation challenging an agreement intended to resolve disputes between irrigators and Indian tribes.

Growers within the Klamath Irrigation Project negotiated a conditional deal with Klamath tribes in 2008 which would settle contested claims over water rights between the groups.

However, irrigators from outside the project -- the upper basin contestants -- claim the agreement undermines their ability to defend their own water rights, and have asked an administrative judge to set aside the settlement.

The upper basin contestants oppose provisions in the agreement which acknowledge the tribe's claims to all water in the Upper Klamath Lake, the Klamath River and its tributaries, said Roger Nicholson, president of the Resource Conservancy, which represents the contestants.

The upper basin contestants also oppose provisions in the Klamath Basin Restoration Agreement which call for 30,000 acre-feet of water to be bought from upstream irrigators without actually providing them with assurances of water allocation in dry years, he said.

"It obviously prejudices our case," said Nicholson. "We can't equitably litigate now because there's already an outcome predetermined that potentially the Klamath tribe could own all the water and that has already been accepted as a legally sufficient solution."

A previous legal order in the water adjudication between irrigators and tribes requires the Klamath tribes to prove they own the water rights in court, he said.

If the settlement parties are allowed to circumvent that order, it essentially allows them to make decisions about the upper basin contestants' water without including them in negotiations, Nicholson said.

"Two parties can't, without a decision by a judge, arbitrarily write something into existence," he said. "They need to go back and try the case."

Groups involved in the settlement dispute that rationale.

Jeff Mitchell, council member and negotiator for the Klamath Tribes, denied that the agreement infringes on the upper basin contestants' rights.

"They still have their opportunity if they want their day in court," he said. "There hasn't been made a determination of whose the water is."

Mitchell said the contestants stayed out of the settlement negotiations of their own volition, and characterized the group's motion to vacate the agreement as an unnecessary complication.

"I think they're trying to destroy a lot of good work that was done by other parties," he said. "I think they're unfortunately trying to take us backwards and keep us all in litigation."

Bill Kennedy, a rancher from Klamath Falls who is part of a group representing irrigators in the adjudication, said the settlement is primarily oriented toward the removal of four dams on the Klamath River.

The agreement is separate from the legal proceedings over water rights, he said. Kennedy said he could not comment on the upper contestants' motion to vacate the settlement.

"Our legal staff is still reviewing what they filed," he said. "We don't have an official response to that."

The Klamath Water Users Association, one of the parties to the settlement, issued a statement describing the motion as a "random act of litigation."

By entering into a settlement, on-project irrigators simply removed themselves from the litigation with the Klamath tribes, which does not take away the upper basin contestants' right to due process, the statement said.

Staff writer Mateusz Perkowski is based in Salem, Ore. E-mail: mperkowski@capitalpress.com.