Column: State has ability to fairly resolve water dispute

The subject of our litigation was a simple case of the Oregon Water Resources Department using bad data, ignoring common sense, and not following the prior appropriation doctrine.

By Randall Kizer

For the Capital Press

Published on April 9, 2018 3:28PM


On March 21, the Capital Press and the Herald and News reported “OWRD on track to overspend litigation budget.” In the article, Tom Byler, director of Oregon Water Resources Department, said: “Since the lawsuits are generally initiated against OWRD, the agency doesn’t have control over the costs.”

Mr. Byler’s comments deserve a response because, in fact, OWRD has control over whether it follows the law or not in regulating water users in the Klamath Basin. And irrigators in the Upper Klamath Basin are tired of the agency not carrying out its regulatory responsibilities.

I am a board member of Fort Klamath Critical Habitat Landowners, an organization of irrigators in the Wood River Valley, a tributary to Upper Klamath Lake. Early in the 2017 irrigation season, OWRD regulated off all irrigation and stock water in the entire Upper Basin to satisfy the instream water rights OWRD provisionally granted to the U.S. Bureau of Indian Affairs, in trust for the Klamath Tribes, in the Klamath Basin Adjudication.


How it began


On May 16, 2017, I met with Mr. Byler and assistant director Tom Paul. During the meeting I explained that with a 140 percent-plus snowpack and Annie Creek and Wood River running at flood stage, it was impossible that the instream flow level of 323 cubic feet per second on Wood River was not being met. We requested they allow irrigators with the next senior rights to irrigate, consistent with the prior appropriation doctrine.

They refused, assuring me that OWRD’s gauge was “regularly verified” and that OWRD considered its measurements “accurate enough” to regulate off all users except the Klamath Tribe.

I left the meeting feeling disenfranchised. After meeting with other board members, we decided it was time to gather our own data. During a short afternoon float of the lower reach of Wood River, we found copious amounts of water unaccounted for by OWRD that was flowing around the gauge site.

We then hired a professional water measurement firm to confirm our suspicions. They measured more than 400 cfs at the same time that OWRD’s gauge downstream measured just 265 cfs.


Lawsuit filed


On May 26, 2017, we filed suit against OWRD for prohibiting irrigation based on bad data. By state statute, the filing of the lawsuit automatically stayed the effect of OWRD’s shut-off orders, providing irrigators with the next-senior water rights the ability to irrigate.

During the stay we continued to measure and monitor the flows and at no time during the stay did the flow in Wood River drop below the senior tribal instream flow level.

However, contrary to Mr. Byler’s comments in the Capital Press, the stay did not undermine the prior appropriation doctrine. It is OWRD’s actions that undermine the prior appropriation doctrine. The prior appropriation doctrine means that the senior water rights holders get their full allotment before anyone else. However, if there is sufficient water left in the stream, the next senior users are legally entitled to their full allotment and on down the line in time.

So, when OWRD prohibits water users based on bad data, the agency deprives irrigators of the use of their water rights in violation of the prior appropriation doctrine. Keep in mind, as well, that OWRD issues the shut-off orders without conducting a hearing or affording irrigators any due process to contest the agency’s findings or data prior to being shut off.


Shutoff stayed


It’s no wonder the Legislature decided that OWRD’s shut-off orders should be stayed when they are challenged. People’s use of their property rights are at stake.

Fortunately, after filing the lawsuit, we negotiated an informal settlement in which OWRD committed to listening and getting out in the field to really try and figure out how much water is in the river and work to protect the rights of all water users consistent with the prior appropriation doctrine. OWRD has since hired a new watermaster, and her willingness to work with us is greatly appreciated.

Given this progress, it was disappointing to read about Mr. Byler’s complaints about litigation rather than taking responsibility for the agency’s shortcomings. Mr. Byler, litigation is the only recourse for irrigators when OWRD does not follow the rules and listen to reason. You and OWRD should take a long look in the mirror when complaining about litigation costs. The subject of our litigation was a simple case of OWRD using bad data, ignoring common sense, and not following the very prior appropriation doctrine you reference.

In addition, there is a plethora of other litigation in the Klamath Basin as the result of OWRD’s Klamath Adjudication that, in the absence of meaningful state leadership, may go on for years and cost the local community, irrigators and taxpayers millions of dollars.


Director’s duty


Only OWRD, through its director, has the statutory ability to unilaterally act to resolve this conflict. The Klamath Basin Adjudication was decided by an administrative law judge with no prior water knowledge or experience. Rather than consider a balanced view of all the science presented during the adjudication, the ALJ relied exclusively on experts directed by the U.S. Department of Justice to award instream flows at such high levels that they effectively preclude any irrigation except in water years of biblical proportions.

Mr. Byler, rather than complain about litigation costs, you and OWRD should take the leadership opportunity afforded by your position to request a remand of the tribal claims so that OWRD can quantify the instream claims at realistic levels, supported by a balanced view of the best available science.

So what is it going to be? Leadership to achieve a balanced outcome? Or shirk behind half-truths about the prior appropriation doctrine and complain about litigation?

Randall Kizer is a board member of Fort Klamath Critical Habitat Landowners, an organization of irrigators in the Wood River Valley, tributary to Upper Klamath Lake in Oregon.



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