Further arguments loom in Klamath re-quantification ruling

In February, Klamath County Circuit Judge Cameron Wogan broadly upheld findings by state regulators that the Klamath Tribes had time immemorial water rights in the basin that hadn’t been abandoned or diminished.

These are the oldest water rights in the basin, which the tribes can enforce to cut off irrigation water to junior users when stream flows get too low.

The judge disagreed with the Oregon Water Resources Department on a potentially important legal point, though: Wogan said the agency hadn’t properly considered the Klamath Tribes’ “moderate living standard” in quantifying their water rights.

The opinion created an opening for farmers and ranchers in the Upper Klamath basin to argue that reduced stream flows could still satisfy tribal hunting and fishing treaty rights, thereby freeing more water for irrigation.

While Wogan has agreed to vacate the OWRD’s quantification of tribal water rights, he hasn’t yet issued an order that would make the opinion’s determinations binding.

Due to a “water call” from the Klamath Tribes, the agency has already begun issuing regulation orders to cease irrigation diversions from the Williamson and Sprague rivers in the Upper Klamath basin this month.

Until the court rules otherwise, OWRD said it must enforce tribal water rights according to its administrative findings from 2013. Those administrative findings are now being adjudicated in state court by Wogan.

The Klamath Tribes have asked the judge to clarify his opinion as to the quantification of water rights, arguing that his conclusion was inconsistent with other determinations in the ruling.

Specifically, the opinion found that tribal water claims were correctly quantified under the standard for ensuring “healthy and productive habitat” but not under the standard for “moderate living,” according to the tribes.

Nonetheless, the opinion vacated the water rights quantification under both of these standards, the tribes said.

The Upper Basin irrigators urged the judge to reject this motion for clarification, arguing it’s “really in substance nothing more than a motion for reconsideration.”

However, Wogan has canceled the previous deadlines for finalizing an order and has allowed the parties to file arguments over the motion for clarification until March 29.

Once the issue is resolved, OWRD can issue a proposed order to which the other parties can object at times that haven’t yet been specified.