By TODD KEPPLE
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
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
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
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
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
“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 email@example.com.