Stay denied – Klamath Basin Water shutoffs to continue

The Klamath Tribes and Klamath Project irrigators made the first calls for water Monday. Senior water right holders — those with water rights dating back the farthest — can call for junior water right holders — those with more recently issued water rights — to be shut off to keep the senior water rights whole. The tribes have the oldest water rights, going back to time immemorial.

Adjudication, or enforcement of these water rights, became a reality this year with the final order of determination released March 7.

Wogan entertained two hearings Friday: first, the request for a temporary restraining order from the group listed as the Upper Basin Contestants — a collection of ranchers in the Upper Klamath Basin; second, from the Mathis Family Trust, which requested a temporary stay before the hearings on the stay of enforcement in coming weeks.

The hearings lasted nearly five hours. Ranchers, families and Klamath tribal representatives filled the courtroom. They filled the gallery, brought in extra chairs and then sat in the jury box.

After a 15-minute recess, Wogan gave his ruling denying the temporary orders. But he said the decision will not affect later decisions he may make in the cases.

He told the full courtroom long-term decisions will be made later.

“If this were a football game we have not even flipped the coin yet to start,” he said.

He said anyone in the room, if given a magic wand, could decide on their own way to divvy up water rights in a time of scarcity. But neither citizens nor Wogan had the right to do that.

“I can’t just shoot from the hip,” he said. “I’ve got to follow the law.”

He said the attorneys making the case for the temporary stay and temporary restraining order did not make the case to meet the letter of the law.

“Nothing more, nothing less,” he said.

Wogan set a conference for Wednesday to monitor the status of the case and determine the next steps in the process.

stipler@heraldandnews.com; @TiplerHN

Arguments for stopping the water shutoff

Along with citing case law, Elizabeth Howard, with Dunn Carney Allen Higgins &Tongue, a Portland law firm, spoke about how water shutoffs will affect the families and ranchers she represented. Howard made arguments for the Upper Basin Contestants in asking for a temporary restraining order which sought to stop water shutoffs for junior water right holders.Howard said the people she represented — many of them filling the seats in the courtroom gallery — went home Thursday night to find notices on their doors telling them to shut down their water use.

Ranchers use water to irrigate fields to feed livestock.

“Grass will not grow without water,” she said. “They will not have the ability to feed their cows.”

If they cannot feed their livestock, ranchers will be forced to sell. Normally ranchers spend the summer fattening up cattle to sell in the fall. Having to sell early would mean selling at a reduced price, Howard said.

“It will be fire sale prices,” she said. “They won’t have an alternative place to put them because of the drought and the fires last year. There is no place to send their cows now.”

She said ranchers won’t be able to make the money needed to pay their mortgages or pay for equipment. They risk losing their livelihood.

She also argued a stay on the implementation of adjudication is needed until Wogan makes the decision to affirm or modify the final order of determination. A hearing for that conclusion is set for March 3, 2014.

“Not until you make the final decision is there a decree, is there an adjudication of the water rights,” Howard argued.

Arguments to keep adjudication enforcement in place

Attorneys for the Klamath Tribes and the U.S. government’s Bureau of Indian Affairs said the troubles ranchers face are no different than the challenges faced by any other junior water right holder in the West.Bud Ullman, attorney for the Klamath Tribes, called it a “consequence of being a junior water user.”

A dry winter and spring has led to less water to go around, leading to drought declarations for the Basin. Ullman said there are consequences of a dry year that aren’t comprehensible of irreparable harm, which is what Howard was arguing ranchers faced.

“The (Upper Basin Contestants) did nothing to prepare for what they knew would be coming,” Ullman said. “Junior water right holders experience consequences of being junior water right holders in Oregon.”

David Harder, attorney for the BIA, argued those asking for the stay on the implementation of adjudication had plenty of time since March 7, the date of the final order determining water rights, to make a motion. Instead they waited until midway through this week to file in court.

“This was not a surprise to anyone,” Harder said.

He said ranchers knew it had been a dry winter and the state had declared a drought. They also knew from the final order the tribes had senior water rights.

Ullman said if the court were to grant a stay, it would essentially put junior water rights ahead of senior ones, which would “turn water law on its head.”

Ullman said the tribal rights to water were not awarded by the state of Oregon but confirmed by it. The tribal rights to water date back before Oregon and before the U.S., to time immemorial.