Our Klamath Basin Water Crisis
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dispute should be decided in court
< by Klamath Irrigation District Executive Director Gene Souza, Herald and News 8/27/22
Laws and contracts help ensure dispute resolution and promotes the maintenance of domestic tranquility. As with all government activities, the Klamath Project should be operated in accordance with law, not illegal shut-off orders, illegal water diversions, nor thuggish federal extortion tactics.
The Klamath Tribes and Klamath Irrigation District (KID) both have water rights in Oregon’s Upper Klamath Lake. While the Klamath Tribes water rights are for protection of fish species, KID.’s water rights are for irrigation, and both rights are valid property rights entitled to legal and mutual respect. The Endangered Species Act also imposes requirements that must be legally understood and respected.
Instead of honoring the water rights of the Klamath Tribes and KID by faithfully complying with the Endangered Species Act, the federal government is disregarding those rights, illegally diverting water from Oregon’s Upper Klamath Lake to California with no water right at all, and baselessly asserting the Endangered Species Act authorizes its illegal behavior at our expense.
When situations like this arise, state and federal law both contemplate the conflict will be resolved by Oregon’s water regulators. However, we have both observed the Oregon agency responsible for protecting the water rights of the Klamath Tribes and KID is looking the other way – doing nothing to protect tribes interests, our needs, water resources of the people of Oregon, nor our ecosystems (including fish species) from the federal government’s illegal actions.
Now, Reclamation is trying to stand the situation on its head, distract the public, and drive a wedge between the neighbors of the Klamath Tribes and farmers. It is doing this by directing Oregon irrigation districts to illegally deny water to farmers and falsely claiming these districts are breaking the law if they fail to comply.
Understanding Reclamation’s directives to be illegal, irrigation districts have repeatedly asked Reclamation to provide legal justification for their water shut-off orders. KID has stated it would comply with a legitimate legal argument. Tellingly, Reclamation has refused.
Instead, Reclamation has thuggishly coerced compliance with its illegal directives by threatening financial harm to other farmers. Specifically, Reclamation has threatened that if KID does not follow its illegal shut-off orders, it will refuse to make financial payments it promised to other farmers in other irrigation districts in exchange for these farmers’ commitment not to use any irrigation water this year – a commitment these other farmers have honored to their own financial detriment and an act that was encouraged by our neighbors.
To avoid public accountability, Reclamation has seized upon the complexity of the situation to spin a false narrative. The narrative is that Oregon irrigation districts continuing to divert minimal quantities of water from Upper Klamath Lake in accordance with their water rights, contracts, and the Endangered Species Act will harm endangered species important to the Klamath Tribes.
But this narrative is false.
The irrigation diversions that have occurred are legal and do not violate the Endangered Species Act – Reclamation has not even asserted otherwise.
Furthermore, if any diversion from Oregon’s Upper Klamath Lake is causing harm to endangered species important to the Klamath Tribes, it is Reclamation’s own massive illegal diversions of water to California without a water right, in violation of water rights held by the Klamath Tribes and farmers.
Reclamation’s massive illegal diversions of water to California and illegal water shut-off orders to irrigators should be the story here and are the proper source of public concern.
But they aren’t.
That’s because Reclamation’s cynical strategy is working. Evidence of this came Thursday when the Klamath Tribes issued a news release incorrectly accusing the Klamath Irrigation District of making “illegal” diversions of water from Upper Klamath Lake in violation of lawful Reclamation orders. But as explained above, Reclamation’s orders are what is illegal, not KID’s lawful use of water in accordance with its water rights, its contracts, and the Endangered Species Act.
Furthermore, if there is any diversion of water the Klamath Tribes should be concerned with, it is Reclamation’s massive illegal diversions of water from Oregon to California without any water right whatsoever in violation of the Klamath Tribes own water rights, as well as those of Klamath farmers – issues the Klamath Tribes’ news release says nothing about.
It should be obvious to any reasonable person that getting mad, pointing fingers, spinning narratives, and threatening people is not the way to sort this situation out. We are cognizant of the activities which occurred in 2001 which hurt and divided our communities.
Instead, KID requests to peacefully go to court and have an unbiased decisionmaker resolve our dispute in accordance with law. Unless or until this occurs, it is impossible for the parties involved in the situation, let alone the public, to truly know what is lawful and what is not, who is right and who is wrong. In a nation of laws, going to court is how conflicts are peacefully sorted out. This is the role of the government to resolve disputes and ensure domestic tranquility.
Legal resolution is what the Klamath Irrigation District has been wanting, and asking for, in the days, weeks, months, and years leading up to the present conflict. The problem is the United States has made it nearly impossible for our complaints to be heard in court.
We have to get the United States’ own permission to litigate against them. Consequently, KID has repeatedly asked Reclamation to facilitate resolution of this conflict by filing a lawsuit against KID that will resolve the present and ongoing conflict.
To date, Reclamation has refused – resorting instead to the types of tactics described above, making it impossible for anyone to know who to believe and perpetuating the problem, rather than resolving it. This is in spite of the fact that there is a contract between Reclamation and KID that defines the parties relative rights and responsibilities concerning the operation of certain irrigation works, which Reclamation is readily capable of suing upon.
If there is one thing people of different viewpoints should be able to agree upon it is this: Reclamation needs to bring a lawsuit against KID so that their relative rights and responsibilities under their contract may be determined in accordance with law by an impartial court. Unless or until this occur, all anyone can reasonably expect is more of the same.
The Klamath Project should be operated in accordance with law, not illegal shut-off orders, illegal water diversions, and thuggish extortion tactics.
The federal government’s recent resort to extortion tactics and unwillingness to bring legal action against KID to resolve the present dispute benefits no one and only serves to confirm KID’s strong belief that the federal government is exceeding its authority and conducting itself in a manner that is highly illegal.
While KID is in receipt of a letter from Reclamation asserting it is presently in litigation against KID. concerning the matters at issue, it is not. This is merely another obfuscation.
Gene Souza is the executive director of the Klamath Irrigation District.
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