Upper Klamath Water Users, Assoc. has been in negotiation with the Klamath Tribes to work toward an Off Project Water Settlement. We choose to negotiate over litigate because litigation is expensive, time consuming and uncertain. The off project has already spent at least a million dollars in litigation—and has little result to show for it.
If the tribes prevail on their claims or even receive half of their claimed amount it could be devastating for the off project. We believe a settlement needs to be created before the Final Order and Determination in the adjudication. We have a settlement time line of 18 months to two years to achieve settlement.
Here is a synthesis of many of the points made by UKWUA Attorney, Greg Corbin, Stoel Rives, LLP, during a fall 2009 meeting with Off-Project ranchers and farmers at the Favell Museum.
· Expensive. Litigation is expensive, and the Adjudication is no exception. Continuing to contest the Tribes water rights could cost $100,000 or more just to get from where they are today through the first level of court proceedings. After that there are two, possibly three appeals available, each of which will cost more money and could run into the hundreds of thousands of dollars more. It isn’t inconceivable that taking the fight all the way to the US Supreme Court will cost a million or more dollars in legal and other fees. UKWUA believes the money that has been and still needs to be spent on litigation in the Adjudication is better spent on seeking a settlement.
· Time Consuming. The Adjudication can be broken down into three major phases. First is the administrative process, including the hearings before the Administrative Law Judges, that is going on right now. That process ends when Adjudicator, an employee of the Oregon Water Resources Department (OWRD) issues a Final Order and Determination (Final Order), which is OWRD’s final word on who get what water rights. We don’t expect OWRD to issue a Final Order until sometime in 2011. The next phase is automatic. The Final Order goes to the Klamath County Circuit Court, where parties to the Adjudication may object and make additional arguments. The result of that process will be Decree that, like the Final Order, but possibly as modified by the Court, states the Court’s final word on who gets what water rights. This process could take a year or more. The final phase is up to the parties to the Adjudication. One or more may appeal, first to the Oregon Court of Appeals. If a party doesn’t like the outcome of the appeal to the Oregon Court of Appeals, they can petition the Oregon Supreme Court to review the case. The Oregon Supreme Court doesn’t have to take the case, but given the importance of the Adjudication it is likely the Court would hear the case. These two Oregon appeals would add more than a year, and quite likely many years, to reaching a final resolution. Then, still as part of the third phase, a part to the Adjudication that still was unhappy about the outcome of the cases could petition the United States Supreme Court to review the case. That review is far less likely, but if there are significant issues of federal law to decide it is possible the Court would hear the case. If they do, add another year or two. All of this assumes none of these courts decides to remand the Adjudication to OWRD or a lower court for further proceedings, which is possible. So, final resolution of the Adjudication is still many years away. UKWUA believes a settlement can be reached in far less time than it takes to resolve the Adjudication.
Uncertain. The outcome of the Adjudication is uncertain. What is certain is that the Tribes have a water right. This has already been decided by the federal courts. What is uncertain is how much water they will get. If the Tribes “win” all the water they have claimed, that amount would have a significant impact on agriculture in the Klamath Basin. But even if they “win” only half of the water they have claimed, that still will have a significant impact on agriculture. How much water the Tribes get will depend on the facts of the case, and the relative strengths of the parties to make their case. The decision about how much water the Tribes will get is currently left to judges and OWRD, and because the process is so time consuming, we won’t know the answer for many years. UKWUA believes the Upper Basin irrigators can agree to an allocation of water with the Tribes that will allow agriculture to continue, will be far more creative and durable than any Adjudication outcome, and will provide certainty in a far shorter period of time.
"The Tribes are working with the farmers, and I hope we can get it solved where everybody can live like it was when I was young. There wasn't bitterness between each other." Philip Jackson, Klamath Tribes