Water rights in Oregon are not a new issue—especially in the state’s Klamath Basin. Even within the Basin, conflicts arise between those in the upper and lower halves and each respective half’s water rights. Combine this with the Klamath Tribes’ water rights and government regulation, and you have the perfect breeding ground for a lawsuit.
And that’s exactly what happened when the state tried to shut off ranchers’ wells in the upper half of the Basin last spring, arguing the wells were pulling water from the river system.
On Jan. 31, Chief District Judge Beryl Howell ruled in favor of the plaintiffs’ case, ruling the Bureau of Indian Affairs unlawfully delegated federal power to the tribes and additionally violated the National Environmental Policy Act.
The state may decide to appeal the ruling, but a formal order had not been signed before WLJ press time.
A case years in the making
Last summer, more than 30 farmers and ranchers affected by the water well shutoffs filed suit against Secretary of the Interior David Bernhardt, U.S. Bureau of Indian Affairs Director Darryl LaCounte, Assistant Secretary of Indian Affairs Tara Katuk Mac Lean Sweeney, and Regional Director of U.S. Bureau of Indian Affairs Bryan Mercier.
The lawsuit challenged the implementation of an agreement with the Klamath Tribes made in 2013, which calls for state enforcement of tribal instream water rights. The Tribes have time immemorial rights to the surface water, and the state shut off wells along the Sprague River after claims of taking water from the river system.
“The state just said to shut the wells off and we never had a chance to prove our innocence.”
A new agreement was worked out between the state and Tribes in 2014, which lowered the water levels protected by the Tribes’ rights, and irrigation rights were restored. In December 2017, former Secretary of the Interior Ryan Zinke issued a negative notice in the Federal Register, which terminated the agreement after it had been left unfunded.
After the termination of the agreement, the Tribes’ water rights reverted back to the 2013 agreement, which again resulted in the shutoff of the wells.
Last year, the Oregon Water Resources Department proposed a temporary rule that would place a hold only on wells found within 500 feet of surface water sources. This cut the number of shutoff wells from 144 down to six.
Troy Brooks, a cow-calf operator in Bly, OR, owned one of the six wells. “They never gave us a chance,” he told WLJ. “We were guilty right off the bat. The state just said to shut the wells off and we never had a chance to prove our innocence.”
Brooks said the whole reason they bought their property more than 20 years ago was because it might have been the only one in the valley that had the groundwater to irrigate full production in case the surface water was taken away.
“We thought that might happen when we bought the place,” he said.
Brooks also said the state didn’t think wells were taking water away from the river until five or six years ago. And in order to strengthen their argument, he said the state divided the two halves of the Basin against each other.
“The state told the Lower Basin guys that if they shut all our wells off the north fork and south fork this river system, that they will get their water every year,” Brooks said. “They pitted us against the Lower Basin.”
Dominic Carollo, Brooks’ representing attorney, told WLJ, “The judge found that the department can regulate groundwater, but they can’t do it any way they want. They have to follow due process and prove the well owners are actually interfering with surface water.”
In terms of precedence, Carollo said this case is another example of the state skipping the legal process.
“The process is intended to use science and an adjudication process to determine if there is an impact and if so, what it is.”
“There is a recognition that groundwater is connected to surface water, and [the state is] increasingly taking the position that they need to regulate groundwater to protect surface water users or surface water stream flows—but they’ve been increasingly doing that in a manner that shortcuts the process,” Carollo said. “The process is intended to use science and an adjudication process to determine if there is an impact and if so, what it is.”
Carollo said there was a large increase in drilling for groundwater in the 1950s, because the state told people to drill a well because they couldn’t supply them with a surface water permit.
“It’s a huge policy change for the department to turn around to those same people and say ‘well actually, we are going to regulate you, and we are going to regulate you for the same reason we told you to drill a well: There’s not enough surface water.’ There’s an equity issue there.”
The state is currently in a rulemaking process to determine future groundwater rights that will likely go into effect at the end of next year. Brooks said he hopes this case helps change the state’s way of thinking.
“We just wanted to be able to prove ourselves one way or another—that’s all we wanted,” Brooks said. “If one of these wells is taken then we will have to shut it off, but they never gave us that chance [to prove ourselves].” — Anna Miller, WLJ editor
