Provisions in the controversial KBRA / Klamath Basin Restoration Agreement for giving land to the Klamath Tribes could hamper completion of improvements on the dangerous Highway 97; ODOT (and the public) was not included in the negotiations.

Oregon Senator Doug Whitsett's Newsletter 11/12/14

It is the intent of the Oregon Department of Transportation (ODOT) to eventually construct a four-lane divided Highway 97 through Klamath County. However, the agency estimates the current cost of completing the highway construction project to be at least $10 billion.

The reality of that oppressive price tag has caused ODOT to approach the construction incrementally. To that end, the agency has completed more than two dozen Highway 97 modernization projects in the County during the past ten years, including a number of lengthy four-lane divided passing areas.

ODOT has purchased most of the land required for the right-of-way to complete the future highway construction. However, the agency has not been able to acquire the necessary right-of-way through the 92,000-acre Mazama Forest.

The Mazama Forest tract extends for about 27 miles along both sides of Highway 97 between the Highway138-Diamond Lake Junction (mile post 213) and Kirk Road (mile post 240). According to ODOT representatives, the estimated 907 acres required to complete the right-of-way is located on both the east and west sides of the Highway for much of the 27 miles.

As late as mid-October 2014, the forest tract was owned by Cascade Timberlands. According to written ODOT communications, the agency had been in negotiation with representatives of the property owners between 2008 and 2011 on a proposal to acquire the land. The agency provided the owners with a fair market appraisal of the acreage necessary for completion of the right-of-way.  

ODOT negotiators were subsequently informed that the land owners were choosing to work exclusively with the Klamath Tribes. Prior to that disclosure, the agency apparently never discussed the possibility that the Klamath Tribes might be part of the right-of-way acquisition deal.

This abrupt change in right-of way acquisition negotiation occurred near the time that the Klamath Basin Restoration Agreement (KBRA) was signed in 2010. The KBRA states at 33.2.1:

“The Non-Federal Parties shall support the authorization and appropriation of, or otherwise timely provision to, the Klamath Tribes of $21,000,000 toward the acquisition of the Mazama Forest Project in Klamath County, Oregon.”

Further, the Upper Klamath Basin Comprehensive Agreement (UKBCA) signed in 2014 states at 2.2:

“The Non-Federal Parties support the acquisition of the Mazama Forest by the Tribes, and its placement into trust by the United States for the benefit of the Klamath Tribes for economic development and other purposes.”

Both Agreements require the acquisition of the 92,000-acre Mazama Forest. They require the Tract to be purchased by the American taxpayer in order to be given to the Klamath Tribes.

It appears that the Mazama Forest would be first held in fee simple title by the Tribes. However, both Agreements require all signatories, including the State of Oregon, to support the transfer of the forest tract ownership into federal trust as sovereign Tribal land. The clear intent is to establish a Klamath Tribal sovereign land base.

ODOT strives to purchase necessary highway right-of-way through appraisal, negotiation and willing seller participation in a purchase contract. Assuming that the land is given to the Tribes, such a willing seller negotiation may still be possible while the Tribes hold the land in fee simple title, because the procedures to place land in federal trust for the Tribes often requires several years.

Oregon can also use its powers of eminent domain (ORS 456.145) to force the sale of land for fair market value. This process allows the state to acquire property without the owners’ consent, in order to serve the greater public good.

However, once property is placed in federal Trust, it becomes the sovereign property of the Tribes. According to the Oregon Department of Justice, state laws pertaining to eminent domain no longer apply when the land is held in federal trust for the Tribes. ODOT will be prohibited from condemning for the land because of the Tribes’ sovereign immunity.

This entire scenario begs a number of unanswered questions.

What is the purpose of the Tribes’ apparently successful negotiation to obtain what is essentially a first right of refusal to purchase the land that ODOT must have for the future Highway 97 right of way?

Why did the state of Oregon negotiate and sign agreements that require the land needed for future Highway 97 right of way to be transferred into Tribal trust sovereign ownership?

Is there any reason why ODOT was apparently not made a part of that critical negotiation?

Why have the Tribes identified that particular tract of forest to establish a sovereign land base? Although the 92,000 acres is a part of the former Klamath Tribal Reservation, it is generally considered by many foresters to be marginal value timberland.

We may never know the answers to these and other questions because both the KBRA and UKBCA were negotiated under strict confidentiality agreements in meetings that excluded the public, news media and most elected officials. Any records of those meetings also appear to continue to be considered confidential and not subject to public disclosure.

Finally, the 2011 Legislative Assembly enacted Senate Bill 412, which provides authorized tribal police officers with a limited ability to exercise the powers, authority and protections provided to law enforcement officers under the laws of this state. I opposed the bill for a number of reasons, not least because the Tribal officers are employed by a different sovereign government.

Specifically, the law provides Tribal police with the authority to detain people who commit a crime in the presence of the officer and to continue active pursuit of a person alleged to have committed a crime on sovereign Tribal land. The manner in which this law might be applied to law enforcement on Highway 97, and on land adjacent to the highway following the acquisition of the Mazama Forest by the Tribes, remains to be determined.

The provisions of SB 412 will “sunset” on July 1, 2015.  I have little doubt that the “sunset” clause will be removed during the 2015 Legislative session, given the outcome of the recent election.

Please remember--If we do not stand up for rural Oregon, no one will.

Best Regards,
 
Doug

Senate District 28

Email: Sen.DougWhitsett@state.or.us I Phone: