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Our Klamath Basin Water Crisis
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May be an image of 1 person and standingPhoto is Dr Thomas Hardy

"...Bureau of Indian Affairs (hired) Dr. Thomas Hardy to develop evidence to support the Yurok water rights claim in the Klamath Adjudication." Hardy was paid $millions

*** This flawed science is still being used to create high Klamath Lake levels and Klamath River flows, stealing our stored irrigation water

Compiled by Klamath Irrigation District Manager, Gene Souza and included in KID February 2023 Newsletter:
 

Related Litigation & Legislation History
Hypothetical question for our readership:
If the State and a Tribe have a memorandum of understanding that the State will not uphold its legal obligations unless ordered to do so in a court of law, how do you want your paid representatives to defend your rights under the law?
On the road to conflict...
OWRD initiated the process for a general stream adjudication of the Klamath River Basin (Basin) in 1975 by issuing notices that it would begin an investigation for a proper determination of claims to water rights within the Basin.
On 27 October 1986, Congress passed the Klamath River Basin Act, Public Law 99-552, introduced to the House by California Representative Douglas H. Bosco, for the purpose of authorizing a 20-year long federal state cooperative on the mid and lower Klamath River. This act contained numerous provisions and expenditures to the portion of the Klamath River confined downstream of Iron Gate Dam. From this Act, the Klamath River Basin Task Force was established. Bob Rohde (Karuk Department of Natural Resources) and Mike Belchik (Yurok Fisheries) were the chairs of the Congressionally directed Task Force's Technical Work Group to create a flow study plan to fulfill the Task Force directive.
On 11 May 1990, Interior's Regional solicitor in Portland with the Department of the Interior rendered an opinion that, "there is nothing in the Fisheries Restoration Act to prevent the Task Force from extending the Act's influence onto the lands and waters of the Upper Klamath River Basin." This was supported by Congressman Bob Smith's amendment to the Klamath Act. Read the discussion here...
In 1992, the Upper Klamath Basin experienced severe drought conditions similar to the dry conditions recorded in the years between 1918 and 1937 often referenced as the dust bowl.
In 1992, the courts also determined that the United States Government, the Klamath Tribes, and any other sovereign was subject to the McCarren Amendment in the Klamath River Adjudication. The Klamath Tribes, Reclamation, and USFWS all submitted claims in the Klamath River Adjudication.
Francis S. Landrum, a registered engineer in Klamath County, asked Oregon Water Resources Department "To review, with intent to extinguish, the overt action of a U.S. Department of the Interior regional solicitor acting in a scheme designed to enforce a single-purpose river usage management plan onto an extensive geographic region where a multi-use Interstate Compact has been in successful operation for 35 years. This [individual] did without rationality, denying representation to upstream water-user interests, and with blatant disregard of the obvious intent of Congress."
On 11 August 1992, Klamath County Commissioners became alarmed when they became aware the Fisheries Task Force had released a draft of a long-term management plan for the Upper Klamath Basin. Klamath County did not have any representation in the task force prior to this date. On 14 December 1992, Klamath County Commissioners further expressed alarm of the pending conflict, "This Board does not recognize any action which has been taken by the Task Force of the Fisheries Restoration Act to expand into the Upper Klamath River Basin...This Board urges you to redouble your efforts to erase the Task Force's ill advised (and probably illegal) action in entering the Upper Klamath River Basin, clearly adverse to the intent of Congress, and to the provisions of the Klamath River Basin Compact, an interstate compact." Read the Commissioners Letter here...
In 1996, Robert Anderson directed the Bureau of Indian Affairs to hire Dr. Thomas Hardy to develop evidence to support the Yurok water rights claim in the Klamath Adjudication. The deadline to submit claims in the Klamath Adjudication was 30 April 1997. Hardy attended and facilitated a meeting with the Congressionally mandated Klamath River Basin Fisheries Task Force beginning with correspondence to the Task Force plan provided to Hardy in 1996. Hardy received at least $50,000 of tax payer money for his efforts in 1997 from the Task Force, and an additional $1.6 Million of tax-payer funds between 1996 and 2001 for his work on Yurok water-rights.
"Non-Indian users were often aided by federal programs operated by the Bureau of Reclamation to develop large irrigation projects int he derogation of tribal rights...[tribal] parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on-reservation water resources and state authority outside of Indian country...On remand to the state court system for quantification, there were years of litigation regarding the state system's merit under the McCarran Amendment, culminating in a decision permitting the Oregon courts to proceed with the adjudication of the Klamath River Basin." - Dr. Robert Anderson
On 29 September 1997, Hardy participated in a Task Force Technical Work Group (TWG) facilitated by the Yurok Fisheries lead in which he opened his introduction with "My time is paid for by the U.S. Department of Justice, but that I am "leaving that hat at the door." Both Hardy and the TWG chair failed to tell the TWG Dr. Hardy was being paid to support claims for Yurok water-rights claims.
On 6 May 1998, Cynthia Barry with the U.S. Fish and Wildlife Service wrote to Dr. Hardy stating, "I am very concerned that all work on instream flow in the Klamath basin needs to be adequately coordinated...I only learned of your work with the Klamath Federal negotiating team through Mr. Anderson's recent memorandum."
On 15 October 1998, Dr. Hardy and Robert Anderson confirm that Dr. Hardy was previously and concurrently under contract with the Department of Justice to support Yurok Water rights. And that Robert Anderson was wanting to reach a settlement outside of the legal process and Klamath River Adjudication. Read the contracts and associated documents here.
Hardy completed Phase I of his report which directly resulted in the 2001 water crisis and the beginning of an 18-year court case known as "Bailey". Hardy's work was heavily criticized...but nonetheless he published Phase II a few years later. Despite the heavy criticism, clear outcome-oriented models and reports, and scientific evidence opposing assumptions in the Hardy flow models, the Federal Government and Yurok still look to Hardy's flow models as the best available science. This results in biased biological opinions which overestimate the amount of water required to facilitate coho habitat.
The Klamath Adjudication (mentioned above) issued its initial finding of fact with water-rights claims on 7 March 2013 providing adjudicated water-rights to the Klamath Tribes, Klamath Project irrigators and a number of others. However, no claims were presented to the Klamath Adjudication by the Yurok tribe as required under the McCarren Amendment.
By 17 June 2013, Richard Whitman, (appointed by Oregon Governor Kitzhaber) had drafted a dispute resolution with the Yurok Tribe which acknowledges Oregon Water Resources Department does not recognize flows downstream in the Klamath River is required by ReclamationHowever, Whitman signs a document, on behalf of the Oregon Governor, that states OWRD will not interfere with releases of water to the Klamath River by Reclamation unless directed otherwise by order of a court with proper jurisdiction.
Since learning of this action by Richard Whitman, Klamath Irrigation District has attempted to get a court to issue OWRD an order to this effect. OWRD resisted all efforts by K.I.D. to insist OWRD perform its legal duties. The District was successful in 2021 in having the Oregon court direct OWRD to perform its lawful duty in accordance with Oregon law. The District was hopeful this would break the Whitman / Yurok agreement. In 2021, OWRD issued a letter to Reclamation that it had released stored water from Upper Klamath Lake without a water-right to do so. However, the Oregon Supreme Court overturned this decision based upon an administrative action which claims the trial judge precluded Reclamation from being a party to the case.
Concurrently, in 2019, the Yurok filed suit against Reclamation for its 2019 Proposed Action and Operations Plan claiming Reclamation used the wrong information which was provided by and confirmed by Dr. Hardy. Dr. Hardy found this mistake while working for the Yurok tribe. This case was stayed with the agreement irrigators would get 24,000 acre feet less water EVERY YEAR and more water would be taken out of Upper Klamath Lake for river flows EVERY YEAR regardless of hydrology.
In 2022, the Federal government then asked to lift the stay in the Yurok case to bring suit against OWRD to negate Oregon State exercising its authority and obligations under Section 8 of the Relamation act. In case this approach did not work, the Federal Government filed a sister suit in Oregon with the same claims. This is the Federal Government's way of court shopping. The Oregon case is currently stayed pending the outcome of the Yurok case.
Klamath Irrigation District decided to intervened in the Yurok v. Reclamation case in 2022 to defend OWRD's order and the water rights in the Klamath Adjudication. As argued, the case was more representative for title of Yurok Tribes and the Federal Government v. Oregon, KWUA, and K.I.D with Klamath Tribes defending their claims in the Klamath Adjudication.
Prior to a decision being issued, the Yurok submitted an additional motion to the court. Read the motion here...this additional motion further attacks the Klamath Adjudication.
Judge Orrick issued his decision in the case on 6 February 2023. Read it here...
Opinion of the District Manager, Gene Souza: Dr. Thomas Hardy's Phase I and Phase II flow models are not the best available science; these models are biased and were developed with outcome-oriented towards Yurok water rights claims. Judge Orrick's decision appears to eliminate Section 8 of the Reclamation Act and nullifies the findings of fact in the Klamath Adjudication.
As this case is still pending the motion by the Yurok, a possible Phase II round of hearings, and potential appeal actions. Further conjecture or opinions are limited to facts.
 
ESA Preempts Oregon Water Rule in U.S. District Court...

On February 6, the U.S. District Court for the Northern District of California sided with the Bureau of Reclamation (Reclamation) and plaintiffs Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations, and the...

Read more
www.jdsupra.com

For more information on Dr. Hardy: http://klamathbasincrisis.org/science/hardy.htm

 

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