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2 options: Settlement or legal process

Adjudication for water claims helped motivate Klamath negotiations

by Ty Beaver, Herald and News 1/6/10

Irrigators off the Klamath Reclamation Project face the following options: Rely on a government-run adjudication process established 100 years ago to define who gets how much water, or work with other claimants, primarily the Klamath Tribes, to reach a settlement.

Some off-Project irrigators and a state lawmaker say adjudication provides what is needed to resolve the region’s water conflicts. But other off-Project irrigators and the Klamath Tribes say they don’t want to leave such a decision to an administrative law judge.

With either strategy, the availability of water for irrigators to water crops and pastures and for the Tribes to sustain their native fisheries hangs in the balance. So does the value of hundreds of thousands of acres of farmland and the Klamath Basin’s economy.

State officials and those participating in the water adjudication, conducted by Oregon’s water resources department, have worked since 1979 to define how much water claimants receive based on their water rights. Irrigation districts, individual irrigators and the Tribes have spent millions of dollars since then to contest opposing claims and defend their own.

Adjudication was one of the motivating factors behind the Klamath Basin Restoration Agreement.

Pro: Settlement provides more flexibility

Some irrigators, on and off the Project, and the Klamath Tribes say the Klamath Restoration Agreement would guarantee everyone’s survival.

The agreement would allocate water among irrigators, fisheries, tribes and conservationists, among other things.

On-Project irrigators and the Klamath Tribes have already reached a settlement regarding Upper Klamath Lake, reducing how much water the Project typically receives, but establishing a guaranteed amount depending on the water year.

Greg Corbin, a Portland attorney representing the Upper Klamath Water Users Association, said while it’s not known yet how much water the Tribes could get, they have first priority. Even if the adjudication grants them only a quarter of what they claim, he said, the settlement could significantly limit how much water is available to irrigation off the Project.

As a result, settlement provides more flexibility than the adjudication process.

“The folks I’m working with think they have a greater chance to maintain their lifestyle to settle with the Tribes rather than leave it to a judge,” Corbin said.

Jeff Mitchell, Klamath Tribes council member, said the Tribes have always looked to settlements with irrigators and other water users rather than relying on adjudication and its uncertain outcome.

“I don’t know how they’d have to change their operation, but in other parts of the state they’ve had to do so,” he said of impacts in other water adjudications. “It’s difficult.”

At the same time, the Tribes are prepared to go to court to defend their claims, Mitchell said.

Con: Agreement would disrupt Oregon water law

State Sen. Doug Whitsett, R-Klamath Falls, said the proposed Klamath Basin Restoration Agreement and the settlement between the Tribes and on-Project irrigators would disrupt the adjudication process.

Whitsett, who irrigates 1,800 acres outside the Project, said the adjudication process already provides ample opportunity for people to settle disputes and claims.

“It’s always worked,” he said.

Rather, bypassing adjudication to resolve water conflicts through the restoration agreement could invite disaster, Whitsett said. He claimed the agreement violates private property rights of individual water rights holders and breaches federal law, which calls for the states to define claims.

The state’s involvement in the restoration agreement also creates problems, Whitsett said. Because the state’s water resources department is a signatory to the document, the state must uphold the document, which includes the Tribes’ water claims, he added.

“It seems to me they’ve painted themselves into a corner,” Whitsett said.

Tom Mallams, an off-Project irrigator, agreed with Whitsett. He said he’s not opposed to settlements, but he believes the restoration agreement would disrupt Oregon water law in its current form.

“It’s going to open up lawsuits all over the state,” he said.

But state officials and Gov. Ted Kulongoski’s office have repeatedly said the state’s involvement in the restoration agreement is appropriate and necessary. They also said there is a line between those working on the Klamath Basin Restoration Agreement and adjudication, and the adjudicator is not involved or briefed on what the restoration agreement lays out.

About the adjudication process

The Oregon Legislature established the water adjudication process about 100 years ago to acknowledge vested water rights, or water rights that existed before state water laws were established.

Adjudication impacts anyone who uses surface water. In the Klamath Basin, that primarily includes irrigators who use surface water for ranching and farming, the Klamath Tribes who want to preserve traditional fisheries and federal officials who need water to sustain wetlands and other lands.

The process consists of two phases: administrative and judicial.

The administrative phase involves the state’s water resources department , which collects documentation pertaining to water right claims, as well as any contests or challenges to those claims.

Through the state’s adjudicator, claims and challenges are settled and defined before an order is issued. The order determines how the water law is followed until the courts issue a final decree.

Nearly all the claims and challenges (were) are settled administratively. Those remaining — 56 claims and 201 challenges — involve the Klamath Tribes. An order is expected in 2012.

Once there is an order, it is turned over to the local circuit court for any legal challenges.

The regular appeals process applies, and the issue can potentially appear before the U.S. Supreme Court. An adjudication order can be sent back through any administrative portion if the courts deem that necessary.

It is not unheard of for water adjudication legal proceedings to continue for half a century or more.