Klamath Basin Update II: US v. Adair

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1 Klamath Basin Update II: US v. Adair ARTICLE Mar 15, 2002 Key Contributors Greg D. Corbin Related Industries Forest Products Related Practices Environmental Compliance Water Rights & Supplies Issue #290 of the Oregon Insider included an "Update" by your author concerning the issues surrounding the effects of the federal Endangered Species Act in the Klamath Basin. That Update described a recent draft biological assessment (BA) on the United States Bureau of Reclamation's (Reclamation's) proposed operation of the Klamath Project. It also described a recent Interim Report from the National Academy of Sciences National Research Council (NRC) concerning the scientific basis for the United States Fish and Wildlife Service and the National Marine Fisheries Service 2001 biological opinions. Since the Update, Reclamation has finalized its BA. The BA discusses the findings of the NRC Interim Report and adjusts its proposed action to track the NRC findings. In all other respects the final BA resembles the draft BA. In another development, President Bush has appointed a cabinet-level task force to study the water allocation issues in the Klamath Basin. These developments may be eclipsed by a recent opinion in the almost three-decade-old case of U.S. v. Adair, the subject of this article. Background The Klamath Tribes have lived in and subsisted on the resources of the Klamath Basin for over one thousand years. In 1864, the Tribes and the United States signed a treaty (the "Treaty") in which the Tribes relinquished their claim to approximately 12 million acres of the Klamath Basin, but reserved a portion of their aboriginal land, the Klamath Reservation ("Reservation"). The Treaty also confirmed the Tribes' right to use the resources of the Reservation. Those rights survived Congress' decision in 1954 to terminate the Reservation. Much of the lands of the former Reservation became a wildlife refuge (the Klamath Marsh) or were added to the Winema National Forest. In 1975, the United States filed suit in federal district court for a declaration of water rights within the boundaries of the former Reservation. The Tribes intervened as plaintiffs. Together they

2 claimed that the Tribes had reserved in the 1864 Treaty the right to enough water to support their traditional way of life on the Reservation. Central to that way of life was the right to hunt, trap, fish, and gather edible plants. Adair I Judge Solomon of the United States District Court for the District of Oregon held that the Tribes were "entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights," with a priority date of time immemorial. U.S. v. Adair, 478 F. Supp. 336, 345 (D. Or. 1979) (Adair I). In Article I of the Treaty, the Tribes reserved their traditional right to hunt, fish, trap, and gather edible plants on the Reservation, id. at 339, which Judge Solomon found was one of the primary purposes of the Reservation. Id. at 345. He also held that under the Winters doctrine of federal reserved water rights, when the United States reserved land to create the Reservation, it also reserved enough unappropriated water to fulfill the purpose of the Reservation. Id. Adair II The Ninth Circuit affirmed and expanded on Judge Solomon's analysis. U.S. v. Adair, 723 F. 2d 1394 (9th Cir. 1983) cert den sub nom Oregon v. United States, 467 U.S (1984) (Adair II). The court noted that the federal water right reserved by the Treaty is a nonconsumptive use that entitles the Tribes to "prevent other appropriators from depleting the streams waters below a protected level in any area where the non-consumptive right applies." Id. at That aspect of the water right was not lost on the other parties, who argued that the effect of the right would be to create a "wilderness servitude" in favor of the Tribes. Id. at The court disagreed with that assessment in a passage that seemed to limit the scope of the right, and forms the basis for much of the contemporary dispute in the case. The court interpreted Adair I as confirming "to the Tribe the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of the Tribe members, not as these rights once were exercised by the Tribe in 1864." Id. (emphasis added). Borrowing from other tribal treaty case law, the court explained that the Tribes are entitled to enough of the resource to maintain a "moderate living." Id. at 1415 (citing Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), which cites Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963)). However, the court left open, as did the district court, how much water would satisfy the Tribes' right. Quantifying that amount of water is one of the tasks Oregon now faces in the Klamath Basin Adjudication (Adjudication). Klamath Basin Adjudication The Oregon Water Resources Department (WRD) is responsible for

3 determining initially the relative rights to the use of water in the Klamath Basin. The Tribes and the Bureau of Indian Affairs (BIA) have filed identical claims in the Adjudication for instream flows and minimum lake and marsh levels to support the Tribes' Treaty rights. They claim water to support harvestable amounts of the fish, wildlife, and plants that the Tribes traditionally had used. In 1999, WRD sought legal advice from the Oregon Department of Justice (the "State") on how to evaluate these claims in light of Adair II. In a memorandum WRD, the State concluded that Adair II did not secure to the Tribes a right to water for edible plants. It noted that Adair I and Adair II repeatedly referred to the Tribes' right as a "hunting and fishing" right without reference to gathering, and although the opinions referred to "gathering" in a number of passages, on balance the opinions recognized a water right related only to hunting and fishing. The State concluded that "the Adair decision is not a model of clarity" for determining how to quantify the Tribes' water right. In the State's view, Adair II blended two incompatible theories for quantifying the Tribes' water right. On one hand, the court cited to Fishing Vessel, which introduced the moderate living limitation on a tribe's treaty fishing right. On the other hand, Fishing Vessel relies on Arizona, in which the Court announced that the tribe in that case has reserved enough water to irrigate all "practicably irrigable acreage on the reservation." Arizona, 373 U.S. at The practicably irrigable acreage standard is unrelated to a tribe's standard of living. After analyzing Adair II, with its reference to "moderate living" and "as currently exercised," the State concluded that the court had intended to limit the Tribes' water right. The BIA took issue with the "as currently exercised" notion, and argued that the Tribes are entitled to an amount of water necessary to maintain harvestable levels of the resources without regard to how the rights were exercised in The state acknowledged that the BIA's reading of Adair II was plausible, but concluded that, "on balance, the more persuasive interpretation is that Adair II confirmed to the Tribes an amount of water sufficient to protect the Tribes hunting and fishing rights as they were exercised at the time of the decision." It also concluded that the Tribes had the burden of demonstrating that the amounts they claimed in the Adjudication are the minimum necessary to protect the Tribes' hunting and fishing right. WRD adopted the State's reasoning in evaluating the Tribes' and BIA's claims. As a result, WRD issued preliminary evaluations denying many of their claims. That prompted the United States to return to federal court. Adair III In 2001, the United States and the Tribes sought to reopen Adair to

4 clarify whether the Tribes were entitled to water for a "gathering" right and how to quantify the Tribes' water right. The district court exercised its continuing jurisdiction (retained in its 1980 declaratory judgment) to resolve (1) whether the Tribes have a water right to support a gathering right; and (2) how to apply the "moderate living" standard in quantifying the Tribes' water right. The district court issued its Opinion & Order February 28, With respect to the gathering rights, the court disagreed with the State's reading of Adair II and held that the Tribes "have reserved gathering rights, along with supporting water," with a priority date of time immemorial. U.S. v. Adair, slip op at 4. The court's 1980 Declaratory Judgment provides: "In creating the Reservation by treaty in 1864 the Government reserved land from the public domain to preserve the Tribe's hunting, fishing, trapping and gathering rights and to encourage agriculture. The treaty granted the Tribe an implied right to as much water on the Reservation as was necessary to fulfill these purposes." It also provides: "The priority date of the Tribe's hunting, fishing, trapping and gathering rights, and their water rights necessary to preserve these hunting, fishing, trapping and gathering rights is time immemorial." In the court's view, the 1980 Declaratory Judgment "could not have been more clear in articulating its holding that gathering rights, and supporting water rights, are reserved to the Tribe." The Ninth Circuit's subsequent references to the Tribes' right as a "hunting and fishing" right was nothing more than a "short hand" for the Tribes' full right. The court next turned to how to quantify the Tribes' water right. It began by setting a floor below which the Tribes' water right cannot drop, that is, an amount of water necessary to support "productive habitat." Any lesser amount "would result in abrogating the Tribes' treaty right to hunt, fish, gather, and trap on the reservation lands." Slip Op at 5. The amount reserved is that amount necessary to fulfill the purposes of the reservation: "Quantifying the reserved water right so that productive habitat can be supported is the only meaningful way to measure the water requirements to meet the goal of fulfilling the purposes of the reservation." Slip Op at 8. The standard is not the minimum amount necessary to protect the Tribes' water rights, as the State had asserted; it is "whatever water is necessary to achieve" supporting productive habitat. Id. Only after WRD has made this initial determination may it consider the "moderate living" standard. But the court admonished WRD to tread carefully here, because the Tribes' water right does not easily lend itself to a moderate living reduction. Fishing Vessel allowed for a reduction in the harvest of the resource-fish-not the water necessary to support the resource. Here the water and the resource are tied together and the water right must be sufficient to support productive habitat for the resource.

5 As for the burden of proof, the court held that the Tribes carry the initial burden to come forward in the Adjudication with evidence to support their claim. After that showing, the party seeking to limit that right based on the moderate living standard has the burden to present "sufficient persuasive evidence" that the right should be limited. Finally, the court rejected the argument that the phrase "as currently exercised" used in Adair II limits the Tribes' water right to that amount necessary to support the Tribes' hunting and fishing rights as exercised in Neither Fishing Vessel nor Arizona, relied on by Adair II, recognized such a limitation. In addition, that argument has the effect of assigning a 1979 priority date to the Tribes' water right, a result that cannot be reconciled with the holding in Adair I, and affirmed in Adair II, that the Tribes' priority date is "time immemorial." Slip Op at 13. Rather, "as currently exercised" "refers only to the moderate living standard which recognizes that changing circumstances can affect the measure of a reserved right." Id. Ramifications It is unclear how Adair III will play out in the Adjudication. The Tribes and the BIA have claimed rights to water levels in Upper Klamath Lake and above that could impact downstream users, especially in dry years. Adair III appears to remove a number of limiting implications of Adair II, but without necessarily asserting the "wilderness servitude" from which Adair II seemed to flinch. But Adair III does not require WRD to award all the water claimed by the Tribes and the BIA. The burden still is on the Tribes and the BIA to produce evidence to support their claims, and it will be up to WRD to determine how much water is necessary to support "productive habitat." Whether the Ninth Circuit will have an opportunity to review this interpretation remains to be seen All Rights Reserved. Stoel Rives LLP. Disclaimer & Privacy Policy