by KARL SCRONCE, MIKE BYRNE, JIM CARLETON, ROB UNRUH and STEVE KANDRA, guest writers, Herald and News 12/29/11

The adjudication is Oregon’s legal process to resolve “first in time, first in right” water rights claims. The Adair Case affirmed the Klamath Tribes water rights as time immemorial — or first in line — to support gathering, wildlife, and fisheries on the former reservation, based on the 1864 Treaty approved by the Tribes and Congress. The adjudication’s administrative law judge’s recent Proposed Order is the recommended quantification of the Tribal rights for waters tributary to Upper Klamath Lake.

Disputes or contests within the adjudication can be settled in two ways: by negotiated settlements between contestants; or by litigation in a series of legal venues. Negotiated settlements have proven to be better outcomes as contestants retain control over outcomes and costs.

With litigation, the courts and judges control outcomes resulting in “winners and losers” without compensation for loss. Many of the original “contests of claims” have come to a negotiated settlement conclusion: Project irrigators have entered settlements and some off-Project irrigators have entered settlements.

The Klamath Basin Restoration Agreement does not replace adjudication, but does provide incentives for contestants to negotiate settlements to be submitted to the adjudication process, especially with regard to the significant Tribal claims that some parties continue to resist. Participation in the KBRA is voluntary. Compliance with state regulation, i.e. curtailment of water use based on adjudication, is involuntary.

The Klamath Project has a negotiated settlement with the Klamath Tribes contingent on implementation of portions of the KBRA and the Klamath Hydroelectric Settlement Agreement. The Project and Tribe’s proposed settlement has prevailed over several legal challenges from outside the Project. There is provision in the KBRA for those outside of the Klamath Project to negotiate voluntary settlements with the Klamath Tribes. Many have chosen to negotiate with the Tribes within the KBRA framework.

We support negotiated settlements within the adjudication, encouraged by the KBRA, that resolve long standing water disputes, and provide a pathway to affordable energy and regulatory relief.