February 25, 2020
Paul Simmons, KWUA Executive Director
New Court Ruling Could Prevent Curtailments of Irrigation in Upper Klamath Lake Tributaries
On February 24, the Klamath County Circuit Court issued significant rulings in the Klamath Basin water rights adjudication. The ruling will affect quantification and enforcement of instream water rights of the Klamath Tribes.
The ruling by Judge Cameron Wogan upheld many decisions made by the Oregon Water Resources Department (OWRD) related to tribal rights, but also states that OWRD’s quantification of tribal rights will be vacated and re-considered. The court is expected to issue a formal order this spring to implement the ruling.
The Klamath water rights adjudication involves two phases. In the first phase – the administrative phase – OWRD issued its decisions regarding the existence and scope of federal rights including tribal water rights, as well as others. The administrative decision is under review by the state circuit court, but in the meantime, OWRD’s decision is enforceable against all water users in the basin.
OWRD’s administrative decision approved substantial tribal water rights claims in tributaries of Upper Klamath Lake, all with a priority of “time immemorial.” Based on the administratively-recognized rights, the United States and Klamath Tribes have made water right calls that have resulted in curtailments of irrigation in the Upper Klamath Lake watershed.
The court’s ruling could change the current situation. Judge Wogan granted a motion by affected irrigators for an order vacating OWRD’s quantification of tribal rights and sending the issue back to OWRD for quantification under a modified legal standard. If the quantification is vacated pending further decisions, this may affect the ability to make the kind of water right calls that have resulted in the curtailments.
In other parts of the February 24 decision, Judge Wogan upheld OWRD’s rulings that tribal rights are limited to streams and lakes that are on the former Klamath Tribes’ reservation, or that border the reservation. As a result, the ultimate court judgment will recognize rights for the Klamath Tribes in Upper Klamath Lake but not the Klamath River or upstream of the former reservation.
The ruling has no immediate consequences for Klamath Project irrigators. Administratively-recognized water rights in Upper Klamath Lake cannot be asserted against the Klamath Project under an agreement made several years ago. Klamath Project irrigators have the right to contest the quantification of that right later in the court phase.
Judge Wogan has presided over the state court phase since 2013. He has informed the parties that he will step down, effective after the rulings on the tribal claims. A new circuit court judge has not yet been assigned.
The Klamath Basin water rights adjudication formally began in 1975. Due to delays caused by federal court litigation, the case did not advance significantly until 1997, which was the final deadline for parties to file claims asserting water rights. The administrative phase of the adjudication lasted until 2013. The court phase is expected to last several more years.