Ruling bolsters tribes’ water claim


Herald and News

A ruling issued by a federal judge in Portland last week bolstered the claim Indians have over water in the Upper Klamath Basin, but left unclear how the Indians’ claim might affect other water users.

The opinion filed Thursday by District Judge Owen Panner reaffirmed that the Klamath Indian Tribes hold a water right with a priority date of “time immemorial” in the Upper Klamath Basin.

The priority date means the tribes’ claim for water supercedes all other claims for water, including those held by irrigators.

Attorneys in the case were notified of the ruling Friday.

Although the Klamath Tribes’ Indian reservation was terminated in 1954, the tribes retained the right to hunt, fish and gather food on former reservation lands. Their right was legally secured in a ruling known as the Adair case in 1979.

Friday’s ruling was a supplemental order in the Adair case. At issue was how the state of Oregon should quantify the Indians’ water rights as it continues the process of adjudicating water rights in the Upper Klamath Basin.

Carl “Bud” Ullman, water attorney for the Klamath Tribes, said Friday’s ruling will help prevent streams and rivers in the Upper Klamath Basin from being drawn down to a point that harms fish.

“The case reconfirms that the tribes have the most senior water right in the Basin with a time immemorial priority date, and it reconfirms that the right is to prevent withdrawals of water from lakes and rivers when that water is needed for habitat for resources protected for the tribes under the treaty of 1864,” Ullman said.

“It’s important for protection of the tribes’ right because it reaffirms matters that had been decided in the federal courts but questioned in the context of the adjudication,” he added.

Friday’s ruling is yet another legal development in a complicated water right adjudication which the state began in 1975. After many delays, the state accepted hundreds of claims for water rights in 1997.

A series of claims filed by the Klamath Tribes seeks to establish a minimum water level for Upper Klamath Lake, and minimum river flows for the Williamson, Sprague and Sycan rivers and several of their tributaries.

Reed Marbut, intergovernmental coordinator for the Oregon Water Resources Department, said the state was faced with the task of weighing the tribes’ claims against those filed by other water users, including farmers and ranchers.

To do that, Marbut said, the state proposed to use baseline data from 1979, the year the Adair case was decided. The Water Resources Department by then had collected several decades worth of stream flow data and irrigation records.

But the tribes objected to the state’s plan, saying it would in effect create a priority date of 1979 for the tribes’ water rights.

Marbut ackowledged that Panner’s ruling last week reinforced the tribes’ ancient claims to water, but said there were still differences of opinion on how to establish the quantity of water necessary to protect tribal fishery resources.

“The federal court has given additional guidance to the character of the tribal right, additional guidance that the first Adair case didn’t offer,” Marbut said Friday.

“We’ve got to figure out how much water has to be in the stream for the suckers, or the redband trout, or whatever species we’re talking about,” Marbut said. “What this ruling says is, it takes is whatever biology demands. Well, how much is that?”

Ullmann said the tribes will stick by their original claims filed in 1997. In the case of rivers and streams, those claims included a two-tier series of water levels described as “physical habitat maintenance” and “riparian habitat maintenance,” with the latter claim establishing streamflows well above the average actual streamflow on record.

Ullmann said the ruling confirms that the tribes have the right to water to support gathering, such as seeds from the wocus plant in basin marshes, as well as hunting and fishing.

The seeds of a marsh plant called wocus, which resembles a water lilly, were a food staple of the Klamath people. The wocus population has declined along with water quality and quantity as agriculture has taken the place of gathering in the basin.

City Editor Todd Kepple can be reached at (541) 885-4422, (800) 275-0982, or by e-mail at




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