DOI secretary makes rare appearance at Klamath Project

The DOI oversees agencies such as Bureau of Reclamation and U.S. Fish and Wildlife Service—both big players in the Klamath Project conflict. The last time an interior secretary came to the Klamath Basin was 2002, the year following Reclamation’s infamous water shut-off for project farmers.

On Thursday’s visit, Bernhardt and Burman met with local agency officials in the morning, followed by a meeting with the local Native American tribes; a meeting with irrigators; and finally a “walk and talk” event held in a dusty field, fallowed due to Reclamation’s handling of Klamath Project water this year.

In the background were parked tractors and rows of white crosses, planted there in May by protestors to symbolize the loss of farming families in the area. At the event were farmers, supporters of the Klamath National Wildlife Refuge (which also depends on delivery of water through the project), and several local, state and federal elected officials.

After visiting with several local farmers about their experiences, Bernhardt took a mic to address the crowd of around 50.

“This whole day has been devoted to learning more about the issues,” Bernhardt said. “Every decision we make has to be grounded in the facts and the law. And I think we’re walking away today with some ideas of how we might look at this differently.”

Although Bernhardt and Burman shied away from making specific promises of future actions, they repeatedly stated the department would be “following the law” and getting measurable results. Bernhardt also made reference to “quite a bit [of new information]” regarding the Klamath Project, “new data points” which called for eminent decisions by DOI.

“The president, at the end of the day, he’s all about outcomes,” Bernhardt said. “We don’t like to waste our time, so we wouldn’t be here if we didn’t think we could begin to move the ball.”

History

The Klamath Project was built by the U.S. Bureau of Reclamation in the early 1900s for the sole purpose of irrigating farmland. It consists of a complex series of canals, supplied by water dammed in the Upper Klamath Lake. All told, the project covers 230,000 farm acres in both Oregon and Northern California, supporting a farm economy of around $1.3 billion, according to the USDA.

However, farmers dependent on Klamath Project water have faced grave water shortages each year since 2001, when the federal government declared three fish species took precedence over farmers’ use of the water that year. Ever since then, Reclamation has allowed farmers only a portion of their water rights each year, citing its authorities under the Endangered Species Act (ESA) and its obligation to provide local tribes water for fish. This shift in water allocation from farmers to fish, which changes each year according to agency discretion, has created crippling uncertainty for farmers.

“New information”

While Bernhardt did not delve into specifics about the “new information” he now holds, recent legal developments may be causing DOI to take a second look at its position. These new developments hinge on the fact that, after a 40-year process, the state of Oregon finally issued a water adjudication for the Klamath Basin in 2013. This adjudication determined that farmers own 100 percent of the water being dammed in the Upper Klamath Lake. Those senior water rights date back to 1905.

Since that final adjudication was issued, project farmers have won several legal challenges in the Oregon circuit court. WLJ spoke to Nathan Rietmann, attorney for the Klamath Irrigation District—the largest project irrigation district in Oregon and the first one in line to receive water stored in the Upper Klamath Lake. During Bernhardt and Burman’s Thursday visit, Rietmann was able to speak directly to them about the current legal climate.

Rietmann said the Klamath Irrigation District has filed multiple legal challenges in both federal and Oregon circuit courts since the 2013 adjudication. While the federal case is pending, two Oregon circuit court orders have directed the state of Oregon to “take charge of the [Upper Klamath Lake] reservoir…for the purpose of deciding whether Reclamation may use stored water…without a water right.” One of those orders was issued in 2018, and a second was issued in May of this year.

However, the state has failed to enforce court orders to rein in the federal government, and Reclamation has continued to proceed as though it owns and controls the Klamath Project water. Thus, Klamath Irrigation District has gone back to court yet again, asking for an injunction against the state that would prevent Reclamation from using water for environmental purposes without a water right.

Flawed assumptions by Reclamation?

Rietmann pinpointed two “fundamental flaws” about Reclamation’s behavior.

“First, the U.S. government thinks it owns all the water when it doesn’t. Second, it’s been acting like the ESA empowers them to use water for environmental purposes without a water right. But the U.S. Supreme Court and a lot of case law over the past 10 years has knocked that assumption down.”

He also argued against the validity of the government’s proclaimed “tribal trust obligation” to provide tribes with water from the project.

“The Hoopa and Yurok tribes never made a claim to a water right in the Klamath adjudication,” he said. “Under law, if you don’t make a claim, you don’t have a right.”

Indeed, a briefing filed by the state of Oregon in 2018 made the same point, stating “[t]he Yurok and Hoopa Tribes have no rights to the waters of Upper Klamath Lake.”

“As for the Klamath tribe,” Rietmann added, “they were effectively granted a 1908 water right, which is junior to the farmers’ 1905 water right and can’t curtail that senior right.”

DOI to “reassess” legal authorities

While it’s impossible to speculate over what actions Bernhardt and Burman will take in light of their meetings with the tribes, farmers, and other stakeholders, Bernhardt did promise a fresh look at the problem.

“I do think there are some specific things that the department maybe hasn’t looked at for a number of years that we can go back and reassess,” he said. “So that specifically, you know, is in terms of our legal perspective and our legal authorities.”

He also made sure farmers knew his boss’s position.

“What I think it’s important to know is that you have a president who fundamentally believes that we need to address and fix problems,” Bernhardt told farmers. “And obviously he’s a strong believer in rural America—that’s one of the reasons I came to work for him. He has so much faith in what you do every day in terms of producing for the American people and the world.” — Theodora Johnson, WLJ correspondent