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PAUL S. SIMMONS is an attorney with Somach Simmons and Dunn. For 25 years, he worked as special counsel on water and environmental for Klamath Water Users Association, a nonprofit corporation whose members are irrigation district contractors of the Klamath Project, which straddles the Oregon-California border. He also served as lead counsel for essentially those same districts in the Klamath River general stream adjudication that is in progress in Oregon. He was deeply involved in negotiation of the Klamath Basin Restoration Agreement, which is no longer in effect, and the Klamath Hydroelectric Settlement Agreement, which concerns the removal of four dams on the Klamath River. For the last three years, he has worked as the Executive Director and Counsel for Klamath Water Users Association, although is still employed by the law firm. Damn is he busy and tired these days.
The Klamath Basin has been described as "ground zero" for threatened and endangered species conflicts, "America's aquatic Jerusalem," and any number of labels that evoke conflict and distress. The Endangered Species Act of 19731 issues co-exist with other sources of conflict in this bi-state basin that is home to irrigation development, four federally recognized tribes with powerful fishing interests, prized wildlife refuges, hydropower development, and two significant projects that export water to other basins. For all its recent history of conflict, the basin is a magnificent place, in no small part because of its diverse communities and the interests they all value.
The primary focus of this paper2 is the current, rudderless approach to federal implementation of the ESA and other federal responsibilities as related to the Klamath Irrigation Project (Project). There is cause to fear that, so long as there is a lack of any discernible regulatory framework for Project operations, the basin will face only the continuation of the chaotic condition that prevails today.
The discussion below describes the Klamath Basin and Klamath Project, tribal interests relevant to this paper, applicable mechanics of the ESA, the history of implementation of the ESA in the Project, and efforts to bring legal clarity to that process, involving both old and new issues. In addition, the paper offers a perspective on the prospects for future stability, drawing on past and recent developments.
I. The Klamath Basin and Klamath Project
A. Basic Geography
The Klamath River basin occupies about 10,000,000 acres in southern Oregon and northern California.3 Various streams, springs, and other tributaries flow into Upper Klamath Lake. Near the city of Klamath Falls, the lake's outlet is Link River, which becomes the Klamath River. Joined by numerous tributaries in California, the Klamath River discharges into the Pacific Ocean at a point about 220 miles from Klamath Falls.
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B. Klamath Project and its Water Rights
The Project provides water for approximately 200,000 irrigated acres. Of this, the great majority is served by diversions from Upper Klamath Lake and points just below on the Klamath River. Its irrigated lands straddle the Oregon-California border. Remaining Project land is supplied exclusively by the Lost River system. This paper focuses on the "Klamath" or "west" side of the Project.
Irrigated agriculture in the area that is now the Klamath Project began in the nineteenth century. Various private concerns initiated appropriations of water for irrigation under the customs and procedures followed at that time. The 1902 Reclamation Act4 provided for federal financing of irrigation works, with construction costs to be repaid over time by Project water users. The federal project overlaid and hastened the private development that was in motion by the beginning of the twentieth century.
Water rights for reclamation projects must be acquired in accordance with state law.5 The involved states enacted statutes to encourage the development of federal reclamation projects generally and the Klamath Project specifically. In 1905, Oregon enacted 1905 Or. Laws ch. 228, providing that whenever the United States files notice of intent to utilize certain waters in a reclamation project, the water so described is not subject to further appropriation.
With respect to the Klamath Project specifically, both Oregon and California ceded then-submerged land to the federal government for the purpose of having the land drained and reclaimed for irrigation use by homesteaders.6 The Oregon Legislature also authorized the raising and lowering of Upper Klamath Lake in connection with the Project, and allowed the use of the bed of Upper Klamath Lake for storage of water for irrigation.7
Beginning in 1904, the Reclamation Service—predecessor of the U.S. Bureau of Reclamation (Reclamation)—gave notices of appropriation of water for the Project in accordance with then-existing practices. In May of 1905, the Secretary of the Interior authorized the development of the Project pursuant to the 1902 Act.8 Also in May of 1905, Reclamation filed notices of appropriation of waters of the Klamath River and its tributaries for use in the Project under chapter 228.9 In addition to the filing for Klamath water in 1905 under chapter 228, Reclamation also acquired, by purchase from private parties, water rights with earlier priorities for the benefit of the Project.
The major water storage facility on the Project is Link River Dam on Upper Klamath Lake. The active storage capacity of Upper Klamath Lake is roughly 500,000 acre-feet. Project water users have repaid their share of the costs of construction of the Project. They continue to pay operation and maintenance costs for the works still operated by Reclamation. In the overall
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development of the Klamath Project, Reclamation constructed substantial works, but also numerous contractors of Project water were obliged to construct their own delivery systems and in some cases the diversion works to either take water from Project conveyance facilities or from the Klamath River. In addition, responsibility for operation and maintenance of a number of federally constructed Project works has been transferred to irrigation districts, particularly Klamath Irrigation District and Tulelake Irrigation District.
Water becomes available to national wildlife refuges through the operation of Klamath Project facilities. Substantial national wildlife refuge acreage in Tule Lake and Lower Klamath National Wildlife Refuges is leased for agricultural production, consistent with a unique development and legal history specific to those lands. These "lease lands" are part of the Klamath Project. Other national wildlife refuge land receives water through the operation of Project facilities, but has inferior rights to water and there are no specific commitments to deliver water to those lands through Project facilities. In recent drought years, water has only been delivered to the refuges through acts of innovative engineering by irrigation district managers.
In the Klamath Basin Adjudication (KBA), water rights claims associated with Project lands were filed by Reclamation, the U.S. Fish and Wildlife Service (USFWS), and Project contractors (including irrigation districts and similar entities, on behalf of their patrons). In general, the KBA findings of fact and order of determination (FFOD), replaced in 2014 by the amended and corrected findings of fact and order of determination (ACFFOD), recognizes water rights with priority of 1905 (and in some cases earlier priorities) for land in the Project. The rights include rights to live flow and stored water. The ACFFOD finds that Reclamation owns the storage right, but districts and water users have legal and equitable interests in the use rights.10
C. Tribal Fishing and Water Rights and Claims
There is overlap between ESA-listed species and rights and claims of tribes in the basin. In turn, the tribes' interests in these resources results in increased intensity and complexity of the ESA issues. The interest or claims of two tribes in particular are a basis for their attempts to have irrigation water users' new litigation dismissed.
The area upstream of Upper Klamath Lake is associated with the Klamath Tribes. In 1864, the Klamath Tribes (Modoc, Klamath, and Yahooskin Band of Snake Indians, now as a recognized tribe called the "Klamath Tribes") entered a treaty with the United States which established a reservation and, among other things, preserved to the Tribes rights to hunt and fish on that reservation. While the reservation itself no longer exists (the former reservation land is owned by private individuals and in national forests), the Tribes still have federally-protected rights to hunt and fish on the former reservation. Also, in the notable Adair case, the Ninth Circuit Court of Appeals held that the Tribes hold water rights, with priority of time immemorial, to support fisheries.11 In the ongoing KBA, the Oregon Water Resources Department (OWRD) has determined that the United States, as trustee for the Klamath Tribes, holds substantial rights to instream flows in tributaries of Upper Klamath Lake for the benefit of tribal fisheries. The
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ACFFOD also recognizes a right to elevations in Upper Klamath Lake, based on that water body bordering the former reservation. However, until exceptions to the ACFFOD have been adjudicated and the Klamath County Circuit Court issues a final judgment, the approved claim for Upper Klamath Lake water levels cannot be a basis for regulation of water rights, such as the Klamath Project, having a priority before August 9, 1908.12
On the lower river, the Yurok Tribe and the Hoopa Valley Tribe have reservations, established by executive order in the nineteenth century and formally...
