Klamath Tribes’ water rights confirmed in the Klamath Basin Water Rights Adjudication


After more than 35 years of litigation the Klamath Tribes’ time-immemorial water rights to support their treaty-reserved hunting, fishing, trapping, and gathering rights on the former Klamath Reservation have finally been quantified in the Klamath Basin Adjudication (KBA), for six of the Tribes’ eight claimed water sources – the Williamson River, the Sycan River, the Sprague River, the Wood River, the Klamath Marsh, and some 140 seeps and springs throughout the former Reservation. The journey began in 1975 with the filing of the Adair litigation, a federal court case which declared the existence of the Tribes’ water rights but deferred quantification of those rights to the State of Oregon’s processes in the KBA. On December 1, 2011, the Oregon Office of Administrative Hearings issued Proposed Orders in the six cases quantifying the Tribal water rights claims in the amounts claimed by the Tribes and the United States, Bureau of Indian Affairs, as trustee for the Tribes. The rulings were a resounding victory for the Tribal and federal Claimants, as they adopted, across-the-board, the flow amounts or water levels in each case sought by the Tribes, and confirmed, once again, that the Tribal water rights are the most senior in the Basin. Tribal Vice-chairman, Don Gentry stated, “This is a great day for the Klamath Tribes. It is a milestone in the Tribes’ struggle to protect their water, fishing, hunting and other Treaty rights.”

The Proposed Orders confirmed that the amounts of water claimed by the Tribes and the United States are the amounts necessary to establish and maintain a healthy and productive habitat for treaty species that will enable the Tribes to exercise their treaty protected hunting, fishing, trapping, and gathering rights. “The Proposed Orders give everyone in the Basin plenty to think about,” said Jeff Mitchell who leads the Klamath Tribes’ Negotiating Team. The Team has been working hard on settlement negotiations regarding Klamath Basin water and related resource issues, resulting in the recent introduction of legislation to enact the Klamath Basin Restoration Agreement. “These rulings highlight the role that the Klamath Basin Restoration Agreement can play in resolving Basin water issues. The Tribes will be evaluating the rulings and discussing them with others in the Basin to determine the best path from here on.”

Significantly, Administrative Law Judge Joe Allen ruled that the Tribal water right claims may extend to off-reservation water sources where necessary to support the Tribes’ on-reservation treaty harvest rights. Judge Allen reasoned that the Tribes’ off-reservation claims are necessary “to protect spawning and other critical habitat necessary for the exercise of [the Tribes’] treaty rights.”

“This is an important step in the Adjudication. The cases will move on to Klamath County Circuit Court where much work remains to be done. Meanwhile, it is a time for the Tribes to feel good about their commitment to protecting Treaty water rights and other resources,” said Tribal Attorney, Bud Ullman.
Along with Klamath Water Adjudication Project attorneys Bud Ullman and Sue Noe, the Native American Rights Fund has represented the Klamath Tribes throughout the Klamath Basin Adjudication process. “A lot of thanks needs to be shared with all those involved over the past three decades, including NARF attorneys Walter Echo-Hawk (ret.) and David Gover, our colleagues at the US Department of Justice and Bureau of Indian Affairs, and of course the leadership and members of the Klamath Tribes but with that said there is a lot of work yet to come” said, NARF Executive Director, John Echohawk.

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