By Tim Hearden
FORT KLAMATH, Ore. -- Roger Nicholson was a little perplexed as he looked out upon what appeared to be a swelling Wood River on a rainy afternoon here earlier this month.
The rancher has not been able to irrigate his pastures since July 5, as the Klamath Tribes' call on their senior water rights has led to a series of water shutoffs to large swaths of ranch land in the Upper Klamath Basin this summer.
Nicholson and others who rely on water from the Williamson, Sprague and Wood rivers may take just enough water to fill their stock ponds, but no more.
"Cattle numbers are down, and the country's drying up," he said. "My family's been there since the 1890s, and this is the first year we've been shut off. This isn't about drought. It's about politics.
"It's been estimated that with the diminished value of lands, the economic hit will be up to $500 million from this," said Nicholson, adding he spoke to one implement dealer in Klamath Falls whose seen his sales cut in half. "It's just the same as shutting down several big factories."
Nicholson and some 200 other cattle ranchers and hay farmers are caught up in the latest in a seemingly endless string of water crises that have bedeviled the Klamath Basin, where American Indians, farmers, salmon fishermen and environmentalists have been fighting in courts and legislative bodies over a limited water supply for decades.
New battle lines
The latest battle lines were drawn in March when the Oregon's Water Resources Department delivered what it called "an historic document" to the Klamath County Circuit Court, marking a milestone in a nearly 40-year process to determine senior water rights in the basin. The most senior determined claims in the adjudication were those held by the federal government in trust for the Klamath Tribes, a federation which includes the Klamath, Modoc and Yahooskin tribes, which carry a priority date of "time immemorial."
The tribal claims were recognized for certain reaches of the major tributaries to Upper Klamath Lake and for the lake itself. Other tribal claims were denied for streams outside the boundaries of the former Klamath Indian Reservation, including the tribes' claim for portions of the Klamath River, the agency explained.
In June, the tribes and the federal government made calls on their water rights, forcing tens of thousands of acres in the drought-stricken Upper Basin to go without irrigation this summer. The tribes are maintaining river flows for fish, while the U.S. Bureau of Reclamation is using its water for the 225,000-acre Klamath Reclamation Project along the Oregon-California state line south of Klamath Falls.
In July, Klamath County Circuit Court Judge Cameron Wogan denied a request from about 40 Upper Basin ranchers and farmers to stay the state's order until a process for disputing the adjudication could be completed in court.
The latest crisis marks a role reversal of sorts from the summer of 2001, when biological opinions for two imperiled fish led to shutoffs for project irrigators while Upper Basin landowners still received water. This time it was the off-project irrigators who staged a "bucket brigade" rally in downtown Klamath Falls on July 1 to protest their plight.
Since then, many ranchers have had to ship out thousands of cattle that typically summer in the basin because of a lack of feed. In early August, Linda Long and her husband, Pete Bourdet, had to send 1,100 head of cattle off the family's 1,000-acre ranch on Modoc Point to greener pastures.
'A considerable loss'
The family was running the cattle "on the gain," which means they're paid for the weight the cattle gain while grazing on their land. Typically the cattle ship out in early October, but their early departure cost the family payment for about 120 pounds per head, Long said.
"So it got to be a considerable loss," she said. "We usually bring in around 500 yearlings after the steers leave, but we won't be doing that this year. It's a big hit for us."
Long is board chairwoman for the Modoc Point Irrigation District, whose 60 customers run about 3,000 head of cattle on 4,300 acres.
Recently the district used federal funding to replace an old dam on the Williamson River with fish screens and a state-of-the-art pump house. Since June 26, a yellow shutoff notice from the state Water Resources Department has been attached to a locked gate at the pump house.
Long said one of her neighbors had to let his cows graze on ground he'd intended as a hay field, which will eliminate his hay crop this year.
"They've been there since 1959, and it's the first year they haven't had water," she said.
The yellow shutoff notices are ubiquitous on bridges that overlook rivers and streams in the Upper Basin, promising fines and prison for those who violate the order. So far, no one has, said Scott White, the state's District 17 watermaster in charge of enforcing the shutoff notices.
"Generally speaking ... folks are pretty understanding of Oregon water law," White said. "People had a lot of questions. They were upset at the call that was made, but they're not necessarily aiming their frustrations at me or my staff. We've been driving around doing follow-up and checking, and we've had overwhelming compliance with folks. It's actually been rather welcome to see that."
Affected landowners have done plenty of complaining, however. Some voice frustration that rivers appear to be full, although White said they're measuring at less-than-average capacity even with no one irrigating. Some residents, including Nicholson, insist the tribes are taking more water than they need.
Among those who hold that view is Nathan Jackson, a Cow Creek Indian who manages his family's ranch near Bonanza in Klamath County. Jackson said during a farmers' meeting recently the Klamath Tribes have "asked for an unreasonable amount of water to support their hunting and fishing rights." He said the quantity of the tribes' water call is "decimating the entire industry in the Klamath Basin."
However, determining the level of the tribes' water needs "was a long process" that involved consultants, scientists and specialists who measured not only what was needed for fish but for "the maintenance and function of the streams," said Don Gentry, the Klamath Tribes' chairman. Other factors that were considered included the needs of plant life and wildlife, he said.
"It was based on the science and the facts that support our claims," Gentry said. "The fact is there's been unregulated use of water all this time, and the state didn't have a way of enforcing all the water rights ... So when that came out of the court, it was now enforceable because now it has been quantified."
Gentry described the tribes' use of water as an "inherent property right" that was affirmed in their treaty with the U.S. government and has been upheld by courts even after they sold their reservation in the 1950s. He said tribal members stopped harvesting coho salmon and suckers from the lake even before the two species were given Endangered Species Act protections.
"It is important to the subsistence and culture of our people," Gentry said of the right to fish, hunt and gather. "It is important even in the modern age. A number of tribal members rely heavily on the fish that were there ... It certainly supplies the food, so there's an economy to it. It's part of our culture and history ... The way we look at it, it is part of who Creator intended us to be.
"I learned so much about who we are and about my place in the community, my value to the community, by catching those fish and taking them to the elders," he said. "I really feel a sense of loss, especially since I realize my grandchildren will never be able to catch and eat those fish."
Gentry said some tribal members have had to endure stares and "verbal confrontations" with other community members who are upset about the water call. However, the situation is part of an ongoing conflict over water that has existed in the basin for more than a century.
The conflict began in the early 1900s, when the federal government started drawing water from lakes and rivers in the Upper Basin to irrigate crops on dry uplands. Veterans of World War I homesteaded the Klamath Reclamation Project, where potatoes, alfalfa, horseradish and cattle are still grown.
After the U.S. Bureau of Reclamation's abrupt shutoff of water to hundreds of farms gained national attention in 2001, the Bush administration restored water to the farms, although environmentalists blamed warm water and low levels in the Klamath River for the die-off of tens of thousands of Chinook salmon the following year.
Talks lead to pacts
Mediation in the aftermath of the 2001 crisis and PacifiCorp's application to renew their federal operating license for four dams on the Klamath River led to a five-year negotiation that culminated in 2010 with the unveiling of a water-sharing pact known as the Klamath Basin Restoration Agreement and a companion proposal to remove the dams. While some restoration work has begun, funding for dam-removal has languished in Congress.
Now the latest crisis has generated new talks. A task force set up by Oregon Gov. John Kitzhaber and U.S. Sen. Ron Wyden has been meeting this summer to discuss a trio of issues -- water scarcity in the Upper Basin, curbing the cost of irrigation electricity and cutting the cost of the dam-removal and restoration pacts, which was originally set at $1.1 billion and later tabbed at $800 million.
The group headed by Richard Whitman, Kitzhaber's natural resources advisor, has been meeting every few weeks and is due to make recommendations by Sept. 10. Subcommittees have been working on various issues.
Greg Corbin, a Portland attorney who represents the Upper Klamath Water Users Association, has spent entire days on conference calls discussing Klamath issues, he said.
"My clients are very much hopeful that they can come to a resolution ... with the Klamath Tribes on water rights issues that will allow for some stability and certainty when it comes to the allocation of water between fish and tribal rights ... as well as irrigation," said Corbin, a partner with Stoel Rives LLP Attorneys at Law.
However, plenty of thorny points remain. Gentry raised some eyebrows in June when he told a U.S. Senate committee that ranchers facing water shutoffs would have to agree to provisions of the KBRA to negotiate more water from the tribes. The KBRA still faces much opposition in the basin, where voters have supported its opponents in campaigns for local office by as much as 85 percent, newly elected Klamath County Commissioner Tom Mallams told the committee.
Mallams, a Beatty, Ore., hay producer who would be affected by the latest shutoffs were it not for wells on his property, said this summer's water calls should give the KBRA's supporters pause.
"It should scare everyone to death, especially the project irrigators," he said. "If this isn't a wakeup call, I don't know what would be a wakeup call."
Gentry said the tribes simply wanted to be sure that resources would be preserved into the future. He said the tribes would be willing to give up some water in exchange for conservation and environmental restoration efforts in the Upper Basin, which would also preserve fisheries.
Such an agreement would prove a level of trust on the part of the tribes, which would be giving up water now for the promise of restoration funding in the future, he said.
"Certainly it was a difficult thing for the tribes to make this call knowing there would be impacts on the community," Gentry said. "Our hope is we can come to the place where there is a more appropriate balance of water use, sustainable fisheries and sustainable agriculture. There's just too much demand and not enough water for a proper balance."
Both ranchers Nicholson and Long are on the task force subcommittee negotiating with the tribes. Both have opposed the KBRA, though Nicholson said he'd like a settlement that is "parallel" to the existing agreements.
Even if a pact is reached by September, it would be too late for this season, Nicholson said. But unless something changes by next spring, some 100,000 head of cattle could be displaced next year, which would affect the livestock industry throughout the West, he said.
"None of the farmers and ranchers in the Upper Basin are corporate farmers with big subsidies. They're just families who love what they do and work hard at it," Long said. "You'd like to leave it to your children, but when they see their parents struggle and suffer, they don't really see a place for them in the future."