Wednesday, September 18, 2013

Lessons from the Klamath Basin

Michael Gale, a perennial opponent of the Flathead Reservation water compact, fires off another salvo in a recent Missoulian. This time he opines that events in Oregon’s Klamath Basin illustrate the danger of the entire compact enterprise. But he's got it all wrong.

Part of the problem is that Gale doesn’t really appear to know what happened on the Klamath. He says that the Bureau of Reclamation decided this year that in-stream flow for fisheries is “more important” than “meat and potatoes” and has shut off all junior water users, “no matter paper agreements to the contrary.”

But what actually happened is that the state of Oregon determined that the Klamath Tribes have a “time immemorial” right to in-stream flows on Klamath tributaries, and that right entitles them to make a call on irrigators using water from those streams.* And in this very low water year, that’s what they did.  When a senior water user shuts down a junior, there is no implication that the senior’s use of water is “more important” than the junior’s.  All it means is the senior was there first. It may not lead to the best use of water, but that’s the way Western water law works.

It’s also important to note that the Klamath irrigators who were cut off this summer were not protected by any “paper agreements.” In fact, they declined to participate in the Klamath Basin Restoration Agreement, which  seeks to assure that there is enough water, equitably shared, for both fish and agriculture. Other irrigators with rights junior to those of the Tribes, who did enter into the agreement, have not had their water cut off.

Like the Klamath Tribes, the Salish and Kootenai Tribes almost certainly have a valid claim to extensive time immemorial in-stream water rights. These rights are a matter of law and not a creation of the compact. On the contrary, under the compact, the Tribes have agreed to exercise their rights in a way that protects existing junior users, including irrigators. The Klamath experience demonstrates the value of this kind of negotiated settlement, and the perils of rejecting it, and that's something opponents of the compact need to understand.

* There have been numerous press reports regarding developments on the Klamath. Google them. I found this article from the July 6 Oregonian helpful.