Court Reaffirms Oregon Tribes' Water Rights

A federal judge's ruling has bolstered the Klamath Tribes' claim to Upper Klamath Basin water, but it does not clarify how their rights would affect the battle over water for fish and farms.

U.S. District Judge Owen Panner in Portland ruled that the water rights of Klamath Tribes stretch back to time immemorial, and he backed their right to claim water to support food-gathering.

The decision means the tribes' claim for water supersedes all other claims for water, including those held by irrigators.

The Klamath Tribes' reservation was terminated in 1954, but they retained the right to hunt, fish and gather food on former reservation lands. Their right was legally secured in a ruling known as the Adair case in 1979.

Panner's ruling was a supplemental order in the Adair case.

At issue was how the state of Oregon should quantify the Indians' water rights as it continues adjudicating water rights in the Upper Klamath Basin.

Tribal attorney Carl Ullman said the new ruling will help prevent streams and rivers in the basin from being drawn down to a point that harms fish.

"It reconfirms that the right is to prevent withdrawals of water from lakes and rivers when that water is needed for habitat for resources protected for the tribes under the treaty of 1864," Ullman said. "It reaffirms matters that had been decided in the federal courts but questioned in the context of the adjudication."

The latest ruling is yet another legal development in a complicated water-right adjudication that the state began in 1975. After many delays, Oregon accepted hundreds of claims for water rights in 1997.

Claims filed by the Klamath Tribes seek to establish a minimum water level for Upper Klamath Lake and minimum river flows for three rivers and their tributaries. Reed Marbut, intergovernmental coordinator for the Oregon Water Resources Department, said the state was faced with weighing the tribes' claims against those filed by other water users such as farmers and ranchers.

The state proposed that baseline data be used from 1979, the year the Adair case was decided. The Water Resources Department by then had collected several decades' worth of stream-flow data and irrigation records.

The tribes objected to the state's plan, saying it would in effect create a priority date of 1979 for the tribes' water rights.

Marbut acknowledged that Panner's ruling last week reinforced the tribes' ancient claims to water but said there was still a difference of opinion on how to establish the amount of water necessary to protect tribal fishery resources.

"We've got to figure out how much water has to be in the stream for the suckers, or the redband trout, or whatever species we're talking about," Marbut said. "What this ruling says is, it takes whatever biology demands. Well, how much is that?"


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