Thursday, January 26, 2006

Administrative law judge ruling a positive step in preserving and protecting fisheries for the Klamath Tribes:

NARF represents the Klamath Tribes in the Klamath Basin Adjudication (KBA). The KBA is a general stream adjudication commenced by the State of Oregon to quantify all water rights in the Klamath River system in Southern Oregon. The Klamath Tribes, various federal agencies and hundreds of private water users, and numerous irrigation districts filed claims. Adjudication of their claims in several hundred separate contest proceedings has been underway for the past several years.

One of the largest, most complex contests is Case 003, which involves the water and storage claims for the enormous Klamath Irrigation Project operated by the U.S. Bureau of Reclamation (BOR). The Project stores water in Upper Klamath Lake to irrigate about 200,000 acres in Oregon and California that are served by approximately 16 irrigation districts, including two important National Wildlife Refuges. The Klamath Tribes have an interest in the operations of this vast Project, because Upper Klamath Lake is also home to an important treaty fishery which includes several endangered species of fish. The Tribes want to be sure that the Project continues to operate after the adjudication in accordance with the Federal Government's legal obligations under the Endangered Species Act (ESA) and its Indian trust obligations, both of which are needed to provide adequate legal protection for the endangered treaty fishery.

In Case 003, the irrigation districts filed water and storage claims for the Project that conflict with BOR's claims, asserting that private water users own all of the water and storage rights for the Project, and BOR owns nothing at all. This position, if successful, would reduce federal involvement in Project operations and therefore restrict, if not eliminate, the need to comply with existing federal ESA and tribal trust duties that are currently imposed upon BOR's Project operations. To prevent the striping away of existing legal protections for its fishery, the Tribes took the position in Case 003 that BOR, not the private water users, owns the Project water and storage rights.

Following a month-long trial, thousands of exhibits and hundreds of pages in post-trial briefs, the Administrative Law Judge (ALJ) upheld the Tribes' position that BOR is the proper holder of Project water and storage rights, and that the private water users own no water rights at all. Accordingly, their claims were denied. The opinion states that the water users hold only contract rights to the use of Project water and nothing more. Given the vast amount of litigation resources poured into Case 003 by the coalition of irrigation districts, it is likely they will ask the ALJ to reconsider the decision or otherwise appeal the decision at the appropriate time.