Chapter 1C 2022 Klamath Tribes Water Rights Update

• Jurisdiction: United States

Water Law Institute (Fdn. For Nat. Res. & Energy L. 2022)
Chapter 1C 2022 Klamath Tribes Water Rights Update

Joe M. Tenorio Native American Rights Fund Boulder, CO

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JOE M. TENORIO is a staff attorney at the Native American Rights Fund in Boulder, Colorado, where he focuses on tribal water rights. Joe joined NARF in August of 2017. Currently, Joe represents the Klamath Tribes in the Klamath Basin Adjudication, a general stream adjudication of the Klamath River located in southern Oregon. From 2002-2017, Joe served as an attorney for Chestnut Law Offices in Albuquerque, NM and primarily represented various New Mexico tribes, and their tribally owned agencies and businesses, in all facets of federal Indian Law. Joe received his J.D. from the Arizona State University College of Law in 2001 and his B.A. from Princeton University in 1998. In 2007, Joe received his M.B.A. from the University of New Mexico's Anderson Graduate School of Management. Joe is admitted to practice law in New Mexico, Tenth Circuit Court of Appeals, and the Pueblos of Acoma, Nambe, San Felipe, Santa Clara, and Ohkay Owingeh. Joe is an enrolled member of the Pueblo of Santo Domingo.

Introduction

The journey to adjudicate and quantify the Klamath Tribes' water rights is in its 47th year. When the complaint in Adair was first filed in 1975, no one really knew how long that journey would be. At times, many likely have wondered whether there would be an end in sight. With many twists and turns in the litigation process, some likely had doubts as to its progress. While it remains uncertain how long the litigation will last, this paper explores some of the latest rulings that have been made in the Klamath County Circuit Court with respect to the Tribes' water rights.

As a necessary historical backdrop to those rulings, the first part of this paper provides a very brief history of the Klamath Tribes, including their connection to the waters, and its importance to their way of life. That part explains why the Tribes, in their Treaty of 1864, reserved to themselves a homeland for the continuation of their hunting and fishing lifestyle. The paper then transitions into the second part where the legal context for the Tribes' water rights is addressed. Here, the paper explores the Winters Doctrine, as the cornerstone for the Tribes' water rights, and describes how the Adair cases have applied the Winters Doctrine in defining the existence, scope, and priority of the Tribes' water rights. Also in that part is Adair's decision to permit the State of Oregon to quantify the Tribes' water rights through the Klamath Basin Adjudication (KBA).¹ Parts three through six contain a summary of some of the latest rulings from the Klamath County Circuit Court. Those parts address the applicability of the Adair decisions in state court (part three), the two-step standard for quantifying Tribal water rights, including application of the moderate living standard (part four), Tribal water rights to waters bordering the Tribes' former Reservation (part five), and Tribal water rights to purely off-Reservation waters (part six).

I. A Very Brief History of the Klamath Tribes

The peoples comprising the Klamath Tribes—the Klamaths, Modocs, and Yahooskin Band of Snake (Paiute) Indians—have lived in and relied upon the natural resources of the Klamath Basin for thousands of years. The KBA Adjudicator, in the Amended and Corrected

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Findings of Fact and Order of Determination (ACFFOD),² found that the Tribes' culture, cosmology, and way of life are based upon hunting, fishing, gathering, and trapping in the Tribes' aboriginal homeland.³ Treaty resources provided food, clothing, and tools for tribal families, and remain central to the Tribes' religious and cultural practices, and subsistence needs.⁴ These resources include the animals, fish, plants, and birds which provide essential food and material cultural resources.⁵ At the time of the United States' expansion to the Klamath Basin, the United States knew that the Tribes had been self-sufficient on these natural resources.⁶

In 1864, the Tribes entered into a Treaty with the United States, ceding "all their right, title and claim to all the country claimed by them," except for a small tract of land that they agreed to have set apart for them as a homeland, to be "held and regarded as an Indian reservation."⁷ In Article I of the Treaty, the Tribes reserved "the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits."⁸ The Tribes conveyed the importance of these activities during the Treaty negotiations, and Reservation lands were chosen in part based on the Tribes' request to reserve specific areas for hunting, fishing, trapping, and gathering purposes.⁹ In Article II of the Treaty, the United States agreed to pay consideration for the territory ceded by the Tribes, to be expended "by the superintendent or agent having charge of the tribes" to promote their well-being and "advance them in civilization, and especially agriculture."¹⁰ Because the parties negotiating the Treaty knew that hunting, fishing, trapping, and gathering were vital to the survival of the Tribal members,¹¹ it was no surprise, then, that when the Tribes ceded roughly 20 million acres to the United States in order to pave the way for non-Indian settlement of southern Oregon and northern California, that the Tribes would reserve to themselves the Klamath Indian Reservation (Reservation) as a permanent homeland together with the right to continue to hunt, fish, trap, and gather on the Reservation to provide their material support.¹²

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Thus, the 1864 Treaty guaranteed "continuity of the Indians' hunting and gathering lifestyle,"¹³ and in furtherance of the Treaty, "one of the 'very purposes' of establishing the Klamath Reservation was to secure to the Tribe a continuation of its traditional hunting and fishing lifestyle."¹⁴ In establishing the Reservation, "the Government and the Tribe intended to reserve a quantity of the water flowing through the reservation not only for the purpose of supporting Klamath agriculture, but also for the purpose of maintaining the Tribe's [sic] treaty right to hunt and fish on reservation lands."¹⁵

In 1954, Congress passed the Klamath Termination Act, providing for the termination of federal supervision of the Klamath Tribes and for the disposition of reservation lands.¹⁶ The Klamath Termination Act did not, however, extinguish the tribal treaty right to hunt, fish, trap, or gather within the former Reservation, nor did it abrogate the Tribes' water rights; instead, the Act expressly recognized the continued existence of these tribal treaty rights.¹⁷

After the Klamath Termination Act, the United States continued to hold title to approximately 70% of the former Reservation lands, which it managed mainly for national forest and wildlife refuge purposes.¹⁸ In 1986, Congress restored the Klamath Tribes to federal recognition, extending to the Tribes all federal laws and regulations generally applicable to Indian Tribes and any other rights and privileges under any federal treaty, executive order, agreement, statute, or other federal authority which may have been lost under the Klamath Termination Act.¹⁹

II. The Adjudication and Quantification of the Klamath Tribes' Water Rights

A. Winters Doctrine

Pursuant to Winters,²⁰ and subsequent case law applying it (the "Winters Doctrine"), the establishment of an Indian reservation implicitly reserves sufficient water to accomplish the

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purposes of the reservation.²¹ The purposes of an Indian reservation have been interpreted broadly as enabling the establishment of a permanent homeland and self-sustaining Indian community, and the Winters Doctrine entitles the reservation to as much then-unappropriated water as necessary to fulfill those purposes.²² The Winters Doctrine applies equally to reserved rights to instream flows, termed "nonconsumptive" rights, where necessary to support reservation purposes.²³

Winters rights are unique in that they are governed by federal law, not state law, and "are not dependent upon state law or state procedures."²⁴ When deciding issues related to federal Indian reserved water rights in state water adjudications, "state courts . . . have a solemn obligation to follow federal law."²⁵

The chief characteristics of Indian reserved water rights differ significantly from those of state-based water rights in states that follow the "prior appropriation doctrine," as Oregon does. First, reserved rights are not measured by the quantity of water used at the time of reservation; rather, they are measured by the amount of water necessary to fulfill the purposes—including the current and future needs—of the reservation.²⁶ Second, rather than vesting upon the date of diversion and first beneficial use, as is the case for most state-based rights in the West, reserved rights either have a "time immemorial" priority date (for uses pre-dating treaties or agreements

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with the United States) or vest on the date of the reservation (for future uses contemplated by the relevant treaty or other document, but for which water may not yet have been put to use at the date of reservation).²⁷ Third, unlike state-based rights, Winters rights cannot be lost through nonuse.²⁸

B. The Adair cases - The Adjudication of the Klamath Tribes' water rights in federal court

In 1975, prior to the initiation of the KBA, the United States brought the first Adair case in federal court to resolve certain water conflicts in the Klamath Basin, primarily involving the water rights of the U.S. Fish & Wildlife and the U.S. Forest Service in the Upper Williamson Basin within the former Klamath Reservation.²⁹ In that litigation the United States claimed the Klamath Tribes' aboriginal water rights for its own to serve newly created national forests and refuges.³⁰ The Tribes intervened as a party...