Klamath Basin Alternative Dispute Resolution Meeting Summary

May 11, 1999

Mike Golden opened the meeting. Martha Pagel was unable to attend. There were no noted changes to the meeting summary.

Mike introduced Ron Nelson, Water Resources Commissioner and Manager of Central Oregon Irrigation District (COID) who was visiting for the day. Ron stressed that he wants to participate in today's ADR meeting as a representative of COID, not as a commissioner, and share his experience in the Deschutes Basin. He recently participated in the Warm Springs negotiations. While the issues may have been different, the experience and lessons learned can be applied in the Klamath Basin. Ron emphasized that it paid-off to work cooperatively with each other and offered that patience, trust and commitment were the best assets to reaching resolution on some very tough issues and making the respective processes a success. He stated that WRD is very committed to the ADR and is an asset to everyone. He encouraged folks to continue participating and wished us success.

Hydrology Subcommittee Report (HSC) - Jonathon LaMarche and Bob Main

Data from Rick Cooper should be available next month. Rick will present the data at the June ADR meeting. The HSC realized that they needed to build a model that is much simpler than originally contemplated. Jon presented an outline of the simplified model that will be used in negotiations. Instead of estimating the flows in 205 subbasins, the model will use gage data. Users will be grouped by subbasins and points of diversion. The new model will still be able to generate reports by region of who will get water and how upstream and down stream irrigators, lake levels and instream needs interact. The model will soon be able to include the lower lake. It is recognized that certain assumptions must be made to create the new model and they will be discussed at the next meeting. The HSC wanted to get started on building the model immediately and not when data was available from Rick, because of time constraints.

Bob reiterated that the HSC wants to get a simplified model in place that puts uses of water in big categories and separates out water demands of the different categories so the model can look at over-arching questions. For example, how do Upper Klamath Lake level claims affect claimants above the lake.

Today's HSC meeting was lively and brought up some good issues. Jim Bryant said the HSC provides a good forum to talk about issues openly. He pointed out that some information may not be in Jon's knowledge base, but after some good discussion, he thinks the HSC will produce good results. He emphasized that the assumptions used for the model be stated up-front so that everyone is aware and has an opportunity to ask questions and discuss them.

Ed Bartell pointed out his concern, that because of the lack of real data, the model could lead people to believe there is water available for settlement negotiations when it is not. He cited the example of the different irrigation needs of a river valley field versus a field on a hillside.

Bob answered that the model will answer big questions such as, will a group of users have water in a given year. The model is not going to say how much water is available, but is a tool. Next month we can begin to answer some of these questions and look at results of the model.

Roger Nicholson requested clarification from Jonathan about whether them early part of the century was characterized as wet or dry. The answer depends on the specific time period referred to as "early part of the century." Jonathan stated that generally the period prior to about 1916-1917 is classified as wet. Long-term climatological data is available on the state's climatologist's home page.

Addendum to operating principles regarding use of hydrology information

Reed passed out an amendment to the operating principles for consideration by the group. It clarifies whether information presented to Jonathan LaMarche is admissible in the adjudication. Information should be able to be shared freely with Jon without concern that it will be used in the adjudication. This amendment would clarify what the Administrative Subcommittee believes the operating principles intended. There should be a free exchange of information with all oral and written communication protected. This amendment does not intend to modify the part of the operating principles that give the participant the option, with consent, to provide technical information to the Adjudication staff for inclusion in the Adjudication record. [Operating Principles 7.3.3(3).]

Reed asked the group if they wanted an opportunity to review the amendment or adopt by consensus today. The group decided to adopt. Roger Nicholson noted for the record that he was not in favor of adopting the amendment. There was no other discussion. The amendment will be retroactive to the adoption date of the operating principles.

Federal Tribal Trust Relationship and Tribal History

At the last ADR meeting, there were a series of questions people had about the history of the tribal trust relationship and the reservation. Barbara Scott-Brier, Bob Anderson and Bud Ullman gave presentations to address those specific questions.

Barbara Scott-Brier showed a video on the tribal trust relationship that was produced for federal employees by the Department of the Interior. It reviewed the history of the tribal trust relationship and the responsibility of federal agencies to adhere to the trust responsibility and respect sovereign rights when contemplating treaties, statutes and legislation, etc.

This trust relationship establishes the typical trustee/beneficiary fiduciary relationship. The trustee is the Unites States Government and all US agencies and their employees. The beneficiary is the Tribes. The Secretary of the Interior has special responsibilities and has delegated authority to the Bureau of Indian Affairs to file claims and protect and defend tribal interests in the Klamath Adjudication. Other federal agencies have filed their own claims.

Regarding the 1979 Adair decision, Ninth Circuit Court of Appeals ruled that the Klamath Tribes retained a reserved water right, with a time immemorial priority date, to support their treaty rights to hunt, fish and gather.

In Barbara's reading of the Adair decision, the water right claim is not limited to historical use. Adair was trying to figure out if the tribes were allowed water and if there should be a limit regarding quantity, future and present needs. It was concluded that no more water is needed than what will maintain the Tribe's livelihood. There is the recognition that Tribes no longer enjoy the exclusive water use they historically have had and now they have to share with other users. The practicable irrigable acreage standard was developed to determine how much water the tribal members need to irrigate.

Roger Nicholson asked if the federal government is going to intervene on settlements between the Tribes and other user groups, if the government felt the settlement was not in the best interest of the Tribes. Barbara responded that they hope to be coordinated enough with the Tribes so that it wouldn't happen.

Wally Watkins wanted to know where the Tribes are going to practice agriculture since there is no existing reservation. Barbara responded the Klamath Tribes have a small reservation. Further the Adair Court upheld the claims where there was no reservation. In the case of the Klamath Tribes, the majority of the claims are for instream flows or water levels.

Roger asked about lands acquired by the Tribes to add to their trust. Could water rights be expanded onto the new land and would that water right have a new priority date or a priority date of time immemorial?

Barbara responded that the answer would be site specific, but more likely would be a new priority date or date of the Reservation.

Someone asked a question about how flow needs for the Tribes are determined without a quantification of the claim; there is concern that the claim will be for all of the water. Barbara responded that the claim does support limits and is only to provide productive habitat to support fish, riparian areas and channel structure.

Bob Anderson responded to some of the questions brought up at the last meeting, specifically regarding settlement negotiations.

The Tribes are conducting their own negotiations with irrigators and other agencies and are taking the lead in developing settlement concepts. Because of the tribal trust responsibility, the Tribes meet regularly with the federal negotiating team to ensure they are consistent with other settlement proposals and government programs, such as the endangered species act and are cost-effective. In fact, the federal negotiating team met with the Tribes today. The goal of the federal government is to work together with the Tribes to ensure that settlement proposals are supported and coordinated. The federal government could oppose a settlement proposal if it violated the Endangered Species Act and the USFWS didn't sign-off on the proposal. ESA issues will be dealt with in the basin regardless of the adjudication and ADR. The tribal trust relationship does not override other federal responsibilities. The federal government will not come in the back door in regards to ESA issues.

The Water Resources Department, while not a claimant, is party to the settlement agreement and is kept informed of the negotiations.

A question was asked if the federal agencies can sign off on ESA issues before negotiations go farther so there is assurance that ESA issues won't come up later and disrupt a negotiated settlement proposal. Bob responded that is not an option. There is the possibility that the Tribes may not recognize the ESA. This has been tested in court and we don't want to test it again. Any settlement will probably need federal legislation and the state will have to sign-off on the proposals. The federal government and the Tribes would also have to sign-off on a settlement agreement.

Bud Ullman continued the presentation on tribal trust responsibility and gave out some materials on the Klamath Tribes' termination and related matters.

He gave a brief history of the Klamath Indian Reservation. The original size of the tribal lands were reduced when the reservation was surveyed, but was adjacent to lands with hunting, fishing and gathering rights.

In the post-war years, the U.S. was interested in ending the trustee relationship they had with Tribes and in 1954 the Termination Act was passed. A few Tribes, including the Klamath were chosen for pilot termination projects. The Klamath were chosen because of their independence and ability to manage their own affairs. They were a economically independent tribal community.

One of the purposes of the treaty was to keep Tribes independent and self-sufficient. Termination divested the Tribes of their tribal land, taking away the resources that allowed independence. Termination was a unilateral decision and was opposed by tribe. There was some tribal support for eliminating some of the government oversight, but not with doing away with tribal land.

Members were compensated for land, but there was confusion about what it meant to opt out or remain a member. Land management issues arose and clearly all of the issues surrounding the sale of land were not considered with the best interest of the Tribes and government at hand.

This part of the history of the Tribes brings up two important issues that affect negotiations with the Tribes today.

1. The termination was ill advised. The Klamath were chosen because they were self-sufficient, however, termination took the very resources that allowed Tribes to be independent, successful and self-sufficient. While the intention of congress may have been to help them be more independent, it had the opposite effect. It is a goal of the Tribes to recover their ability to obtain a sustainable livelihood.

2. Termination was premised on Congress' idea that it was appropriate for force assimilation on the Tribes. However, at termination, 59% of tribal members that got bought out were determined by the Government to help managing their money and needed a trustee. The results were costly to the Tribes and the community. Services that the Tribes once provided for themselves or through the Government now had to be provided by the local community.

How did hunting, fishing and gathering rights survive?

Prior to 1954 Tribes could hunt free of state authority. After termination, the State treated tribal members like everyone else and insisted that they abide by state laws. Tribal members were frequently convicted for violating state laws. A subsequent federal court case confirmed, however, that tribal rights to hunt, fish and gather free of state regulation, did survive termination since the Tribes were not compensated for these rights.

Relevant court cases include:

Kimball v. Callahan, 1974: 493 F2d 564

Kimball v. Callahan, 1979: 590 F2d 768

U.S. v. Adair, 1984: 723 F2d 1394

ODFW v. Klamath Tribes, 1985 473 F2d 753

Are there water rights associated with hunting rights?

Oregon contended that there were no water rights associated with hunting rights. However, the Adair case held that such water rights are part of the Tribes' treaty right directed the adjudication to quantify the water rights to support hunting and fishing rights.

What is the justification for filing a claim for more water than flows in the creek?

:

The claim may be for more water than flows in the streams at some times, but in general, the claims are based on actual flow measurements and calculations of what is actually in the streams.

What is relationship of water quantity and quality? In order for Tribes to accommodate the needs of junior users, water need to be of a certain quality. The better the quality, the less water will be needed to support their needs.

What archival information does the tribe have on Walton lands?

This is a difficult question to answer. Bud doesn't think they have anything, but stuff may show-up. He is not aware of anything useful in their records. Much of the material got dispersed.

There are gaps in transfers of ownership, names, etc. The Klamath Library has some historic information. A title company may also have information.

Bud went back to a question addressed by Bob Anderson regarding tribal settlements. He stressed that everyone who is part of the settlement has to agree. All parties should try to use the ADR to address ESA issues that can't be dealt with in the adjudication. The Tribes are using the ADR as an opportunity to identify ESA issues and their impacts so there are no surprises.

Updates:

• KPOP Update. There is more inflow than can be stored so flows are being bypassed below Iron Gate per the draft biological opinion. It is difficult to predict when flow impacts will occur since the system is governed by snowpack and weather. This also makes risk management difficult. There is a new biological opinion on Upper Klamath Lake which provides for operation at a slightly lower level. Inflow has come in at uniform rate so things are working smoothly. There are still problems regarding storage and risk.

In a typical year, how would the draft biological opinion for the lower river Coho impact project operations? KPOPSIM shows it would have significant impacts.

What is substance of draft opinion? The draft biological opinion suggests that there still is not enough water despite the high water year. Water levels at Iron Gate affect salmon and other water users, not just project users. Since water flows are only relevant at Iron Gate, that presents a problem.

• Tribal Elections: Elections took place in March. The General Council met last Saturday to seat 9 of the 10 people and elect a new Chairperson. Jeff Mitchell will be Chair until the June elections. Two members are hold-overs from last year.



• Adjudication Update: No change since the previous ADR meeting in the federal information which is still available for public inspection. Reed announced an information meeting on Walton Claims on May 18. Pre-1909 claims will have an information meeting in June. Questions regarding extensions to compile information will be addressed in a forthcoming letter. Open inspection is scheduled for early October. Copies of relevant statutes and rules were available.

In the situation where KID and the BOR filed claims on the same land, how do you process the information? The goal is to give the same information to everyone. The water right is appurtenant to the land so it really doesn't matter who's name is on the water right. The adjudicator will determine what name will go on the certificate.

• Williamson Group Report: There was a meeting April 8 with the upper basin water users. They decided to hold a negotiation discussion. This morning the group met to talk about how to proceed with the negotiations to prepare for a meeting with the Tribes 5/12.
• Water Quality Update: Steve Kirk. The Klamath Headwaters Local Advisory Committee met April 6, 1999 to finalize goals and objectives. Goals include education and public involvement, funding and improved water quality through pollution control, improved aquatic system health and fish populations, and water storage.

The TMDL group meets tomorrow on summer temperature data collection activities at 129 sites this summer. Remote sensing equipment will be mounted on a helicopter and flown over the Williamson, Sprague, Sycan and Wood Rivers.

• Other Business: Barbara Scott-Brier announced that the Annie Creek negotiating group will meet prior to the next ADR meeting at 9:00 a.m.

Reed reported that Martha wanted the Water for Life legislation to be discussed, so everyone was aware of the pending legislation. The bill would amend the adjudication statute to allow for a long inspection period and also would delay the regulation of water rights until after the circuit court has issued it decree. Under the statute, regulation begins when the adjudicator delivers the findings and order of determination to the Circuit Court.

Reed explained WRD is not in favor of the change to the statute regarding regulation, because if the statute is changed, the U.S. could have a legal basis to challenge the amended adjudication statute as not complying with the McCarran Amendment. This would be a tremendous waste of the resources expended so far. The Department understands the nature of the concern around the 15 day open inspection and they are doing what they can to address the issue within current statutes.

Reed suggested that there was interest for a rate and duty sub-group. He asked if one should be formed to discuss rate and duties in the basin. The rate and duty will be set in the decree based on what the historic use for the crop will be. The group could exchange information and ideas and develop questions, focusing primarily on agricultural uses. However, if people are interested, a group could be formed to look at rate and duty for the various areas of the basin. If people are interested, they should contact Reed.