This West Is OUR West

Interior secretary nixes water agreement: Tribes, Upper Basin irrigators react

Tribes, Upper Basin irrigators react

By HOLLY DILLEMUTH H&N Staff Reporter

Jan 2, 2018

The first five people to sign the Upper Klamath Basin Comprehensive Agreement on April 18, 2014, at Collier Memorial State Park were (from left to right) Garret Roseberry, Roger Nicholson, Gov. John Kitzhaber, Don Gentry and Becky Hyde. The agreement was formally dissolved Dec. 28.  – H&N file photo

An agreement created in 2014 between the Klamath Tribes and Upper Basin landowners that was contingent on the former Klamath Basin Restoration Agreement has dissolved.

U.S. Secretary of the Interior Ryan Zinke issued a negative notice in the Federal Register, effective Dec. 28, for the Upper Klamath Basin Comprehensive Agreement (UKBCA), essentially the final step in terminating the comprehensive agreement between Upper Basin irrigators and land owners and the Klamath Tribes.

Zinke phoned Klamath Tribes Chairman Don Gentry on Dec. 21 to let him know of the pending action, an outcome the Tribes have been pursuing since a request was first made to the U.S. Department of Interior in January 2016. The Tribes reiterated the request in April and September 2017.

“The Tribes appreciate the Secretary’s work in reaching this decision, in particular the collaborative efforts of Interior’s Alan Mikkelsen meeting with the Klamath Tribes and other stakeholders in the Basin, and for hearing the Tribes’ concerns and ultimately issuing the Notice,” said Gentry, in a news release.

The UKBCA addressed the needs of water users in the Klamath Basin outside of the Klamath Project, according to the negative notice. The agreement also included a commitment by the Tribes to limit enforcement of their water rights so long as other parties met certain “milestones,” which went unmet in 2017 and were enforced by Oregon Water Resources, according to the negative notice.

“No legislation was passed by Congress before Dec. 31, 2015, and the KBRA expired on its own terms,” Zinke said in the statement of findings of the notice.

“This fact alone means I will not be able to issue an affirmative notice, and warrants issue of a negative notice.”

No legislation was passed by Congress that would have enacted provisions for water usage or riparian protection programs under the UKBCA, the statement read.

“I am not aware of any pending legislation that would do so in the foreseeable future,” Zinke said in the findings.

In addition, the negative notice outlines other unmet conditions in the UKBCA, including a required appropriation of federal funds to provide an economic development fund for the Tribes, as well as funding to enable the Joint Management Entity and Landowner Entity to carry out their responsibilities under the UKBCA.

“Those funds have not been appropriated and I am not aware of any plans to provide this funding in the forseeable future,” Zinke wrote in the findings.

Tribes ‘thankful’ of outcome

Gentry expressed thankfulness at the outcome of a process that has spanned nearly two years, that included failed mediated talks with landowners to seek a solution.

“We’ve gone through the process of meet and confer and mediation, and nothing resulted from that that would keep the agreement in place,” Gentry said.

“We believe that it was just a formality that needed to be done to terminate the agreement. It was never intended to be a stand-alone agreement,” Gentry added. “The Upper Basin agreement couldn’t be implemented without successful legislation – the KBRA – because we know the Upper Basin agreement was built out of that.”

Gentry plans to meet with members of the Tribal community and the Tribal Council to find direction going forward.

“We’re not sure what the next steps are,” Gentry said. “We’ll be communicating with our members in the very near future, and discussing the current situation with the agreements we made.

“Obviously our goal is to restore our treaty fisheries that have been lost to agriculture – the salmon, steelhead, suckers,” Gentry said. “And to provide for other treaty resource needs.

“That’s a focus of what our water rights are for and the focus of our tribal goals so that hasn’t changed,” Gentry added.

When asked about the possibility of returning to negotiations with irrigators, Gentry said Tribal members will discuss the matter.

“I’m really not sure what opportunities are there,” Gentry said. “I think it’s pretty clear our members don’t want to do what we did the last time, expend so much time and resources only to end up with an agreement, and legislation that didn’t move. Our members would really want to be assured that there were some opportunities and that it would be worthwhile to engage. At this point, I’m not sure what our tribal members’ interest is. Those are the things that we want to be talking to (tribal) members about.”

Landowners look ahead

Landowners in the Upper Klamath Basin are looking at the action as a way to move forward, and hope the outcome is an opportunity to return to the negotiating table with the Tribes toward a settlement of some kind.

“The landowners in the Upper Klamath Basin are disappointed that an agreement did not move forward, but we acknowledge the termination and hope that it clears a path for renewed conversations with the Klamath Tribes,” according to a statement issued by Randall Kizer, president of the Landowners Entity in the Upper Basin.

“We look forward to finding a long-term solution that creates economic stability for everyone in the Klamath Basin.”

“This is the step that we needed to take to get something going again,” Kizer said later Tuesday afternoon.

“We hope that this paves the way for more talks and helping everybody get what they want out of this so we get the Upper Basin back to running again,” Kizer added.

Kizer expressed the need for more time before he made additional comments regarding the notice.

Federal Register: Department of the Interior

Press Release: Klamath Tribes of Oregon