Baley v. United States (Klamath Water Rights)

Attorney: Sue Noe, Joe M. Tenorio

After the Bureau of Reclamation curtailed Klamath Project water deliveries in 2001 during a severe drought, irrigators in Oregon’s Klamath River Basin sued the government for nearly $30 million in compensation. NARF represented the Klamath Tribes, which have senior water rights in the region, as amicus curiae in the case.

Case Updates:

November 14, 2019
No Compensation for Klamath Project Irrigators Due to Senior Tribal Rights

On November 14, 2019, the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims decision in Baley v. United States, denying compensation to Klamath Project irrigators for a claimed 2001 taking of their water rights by the United States government. The decision hinged on recognition of the senior tribal water rights of the Klamath Tribes and other downriver Klamath Basin tribes. This is a tremendous victory for the Klamath Tribes, which NARF represented as amicus curiae in the case, as well as for the other Klamath Basin tribes, the United States, and environmental groups.

In this long-running case, Klamath Project irrigators sought nearly $30 million in compensation from the United States government for the Bureau of Reclamation’s curtailment of Project water deliveries during a severe drought in 2001. The water restrictions were made to meet Endangered Species Act requirements and fulfill tribal trust responsibilities. Among other things, the irrigators claimed that tribal water rights were not relevant to Reclamation’s water management decisions. In late 2017, the US Court of Claims confirmed that the Klamath Tribes and downriver Klamath Basin tribes have senior water rights over other water interests in the Klamath Basin. Thus, the Project irrigators, as junior water rights users under the western water law system of “first in time, first in right,” were not entitled to receive any Project water in 2001.

In appealing the case, the irrigators disputed whether the tribal water rights included all of the water Reclamation withheld from delivery in 2001. The irrigators also argued that the Klamath Tribes do not have water rights in Upper Klamath Lake, which is outside of and forms part of the boundary of the Klamath Tribes’ former reservation. With this week’s ruling, the US Court of Appeals declared, once again, that the Klamath Tribes’ water rights are the most senior in the region, with a priority date of time immemorial, and that the senior tribal water rights entitle the tribes, at the least, to the amount of water withheld by Reclamation to meet Endangered Species Act requirements. The court also affirmed that the Klamath Tribes’ water rights include waters in Upper Klamath Lake that secure the Tribes’ treaty fishing rights.

Klamath Tribes Chairman Don Gentry stated, “We are pleased that the court affirmed the lower court decision and once again recognized the seniority of the Klamath Tribes’ water rights. Most importantly, this decision again recognizes the significance of our treaty rights, which include protecting and sustaining the endangered C’wam and Koptu and our other treaty resources in Klamath Lake.”

NARF Staff Attorney Sue Noe was not surprised by the court’s ruling, “The courts continue to rule in favor of the Klamath Tribes’ water rights because it is the only interpretation that makes sense. The Tribes have lived in the Klamath Basin for millennia. In an 1864 treaty they relinquished millions of acres of their homeland to the United States in exchange for guarantees, including protections for the tribal right to harvest fish in their streams and lakes. There is no expiration date on those treaty promises, and they cement the Tribes’ top water rights in the region.”

September 29, 2017

On September 29, US Court of Claims Judge Marian Blank Horn resoundingly re-affirmed the superiority of the senior water rights of the Klamath Tribes and downriver Klamath Basin tribes over other water interests in the Klamath Basin.

In the case decided Friday, the Klamath Reclamation Project irrigators sought nearly $30 million in compensation from the United States government because of the Bureau of Reclamation’s curtailment of Project water deliveries during a severe drought in 2001. The irrigators argued that the government’s actions constituted a “taking” of their property under the Fifth Amendment to the United States’ Constitution, by depriving them of their alleged rights to use Klamath Project water. In accordance with briefs filed by the Native American Rights Fund (NARF) on behalf of the Klamath Tribes (download the Tribes’ briefs: dated April 24, 2017 and August 24, 2016), the court denied the irrigators’ claims, ruling the irrigators were not legally entitled to receive any Project water in 2001, because the water was needed to fulfill the senior water rights of the tribes.

Klamath Tribes Chairman Don Gentry stated, “We are pleased with the decision. This affirmation of the Tribes’ water rights should be another positive step towards the healing and restoration of our tribal treaty fisheries.” NARF Staff Attorney Sue Noe noted, “The Project irrigators took the position that the tribal water rights were irrelevant to their claims. Thankfully, the Court has made clear that the days of junior water users ignoring the senior tribal rights is over.”

Judge Horn’s decision confirmed yet again the seniority of the Klamath Tribes’ rights and their superiority under the Western water law doctrine of prior appropriation in which water users with junior rights are not entitled to receive any water until all senior rights have been fully satisfied—first in time, first in right. “A ruling for the junior Project irrigators would have turned Western water law on its head,” declared Noe.

Upper Klamath River. Photo credit: Bureau of Land Management

Case Background:

In 2001, a massive drought struck California and Oregon’s Klamath River Basin. During the drought, the United States government followed federal and Oregon law, which required that water levels be maintained to protect imperiled coho salmon in the Klamath River and two species of sucker fish in the Upper Klamath Lake. The sucker fish, known in the Klamath language as c’waam (Lost River suckers) and qapdo (shortnose suckers), are of enormous importance to the cultural, economic, and spiritual well-being of the Klamath Tribes. Salmon, historically an important treaty resource for the Klamath Tribes, have been blocked by dams from reaching the Upper Klamath Basin since the early 1900s.

The Klamath Tribes have resided in the Klamath Basin for millennia, sustaining themselves upon the Basin’s fish and other water-dependent resources. In an 1864 treaty with the United States, the Klamath Tribes relinquished millions of acres of their aboriginal homeland but retained, among other things, a guarantee of their right to take fish in the Klamath Indian Reservation’s streams and lakes. The Klamath Tribes’ water rights have been previously confirmed to hold a “time immemorial” priority date, which makes them senior to all other water rights in the Basin. The seniority of these tribal water rights has been repeatedly and consistently recognized by the courts and, more recently, this seniority was again recognized by the State of Oregon in its Klamath Basin Adjudication.