Water in the Court

As the Klamath Basin faces water shortages, the battle over who can use how much water goes to court.

Story by Olivia Palmer

June 12, 2021

A trip to the Klamath Basin 100 years ago would reveal abundant lakes and marshlands straddling the Oregon-California border. Venture into the basin today, however, and you’ll find relics of what was, reshaped by over a century of development. Farmland now smothers the areas where marshes once flourished, lakes have long been drained and no one can seem to get their hands on enough water.

Amid an ongoing drought emergency, irrigators and Klamath Tribal members have taken to court to fight for their water rights. The process is shining a spotlight on Upper Klamath Lake, which feeds into the Klamath Project, an irrigation system supplying water to over 80,000 hectares of farmland. The lake also provides habitat for the Klamath Tribes’ treaty resources, including endangered C’waam and Koptu fish. For the tribes, a court decision could mean a slash to the already scarce water available. On the other hand, the verdict could reduce and delay water availability for farmers and irrigators, threatening agricultural livelihoods.

In 1864, the Klamath Tribes signed a treaty ensuring rights to resources for hunting, fishing and gathering while ceding 90% of their traditional lands. Federal court cases in the 1970s and 80s maintained the tribes’ treaty-given water rights.

“When we reserved those lands, we intended to reserve enough land that we could hunt, fish, trap, gather, live our lives in a cultural way,” said Don Gentry, Klamath Tribes chairman. “All those things are important to our holistic wellbeing.”

The process of adjudication helps assess water needs by determining how much water each group in the basin can use and when they’re allowed to start using it. In 2013, the Oregon Water Resources Department made an initial decision regarding these water rights, which satisfied neither farmers nor the tribes.

The Klamath Tribes have filed exceptions to the initial decision, and irrigators and others have filed hundreds more, said Joe Tenorio, staff attorney for the Native American Rights Fund.

A recent ruling found the tribes’ water rights must be able to support a healthy and productive habitat for treaty resources, Tenorio said. The approval of a new motion could potentially reduce these water rights — but only if doing so would still maintain that habitat.

“We developed claims around a healthy ecosystem — flows to maintain the health of the streams, but also to provide for the habitat for the fish and habitat for the plants that are associated with the areas,” Gentry said. “Our position is: ‘This is what’s needed.’”

Gentry said water is important to the tribes because it maintains ecosystems that provide healthy traditional foods. It also connects to cultural practices like return of C’waam ceremonies, where tribal members thank their Creator for the fish and pray for their continued accessibility.

C’waam, also known as Lost River suckers, can grow to just under a meter long. Koptu, or shortnose suckers, are related to C’waam and are about two-thirds as big. Suckers call Upper Klamath Lake home, but over time that home has become less and less hospitable.

In summer, these dark, silvery fish find themselves in cloudy waters filled with bacteria and pathogens. Cows grazing too close to river banks send phosphorus-rich sediment into the water, causing toxic algae blooms that kill the fish.

Since at least 2001, the fish have seen a sharp population decline. According to Alex Gonyaw, senior fish biologist for the Klamath Tribes, both C’waam and Koptu have lost up to 82% of their populations in just the past five years. Most of the fish are old, with few younger fish surviving to maturity.

Gonyaw said the fish are historically a keystone species, providing food for birds and otters; a decrease in suckers affects the entire ecosystem.

“Everything here and everything in the world evolved in concert, and the sudden removal of one of these cogs in the machinery causes the machine to run less efficiently,” Gonyaw said.

In the areas surrounding Upper Klamath Lake, roughly 70% of wetlands and lakes have been diked, drained or significantly altered, according to a 2019 species status assessment from the Klamath Falls regional Fish and Wildlife Office. Exposed lake beds have been used for farming. Gonyaw said the once-abundant wetlands provided food, habitat and hiding places for the suckers, and their removal is one reason for the fish’s decline.

The Klamath Tribes and U.S. Fish and Wildlife Service are raising wild-hatched sucker larvae in artificial ponds for future release. To catch the larvae, Gonyaw wades through groves of reed canary grass along the banks of the Williamson River in spring, sweeping the water with an aquarium dip net in search of the nickel-sized hatchlings.

Despite these efforts, only so much can be done without sufficient water. This year, the adult fish will be getting the bare minimum amount of water they need to stay alive, and only 12% of the wetland habitats the larvae typically use will be covered with water, Gonyaw said.

“There is no set number of acre-feet [of water] that these fish need,” Gonyaw said. “They need a system that functions the way it did when they were evolving in it. We shouldn’t really expect them to thrive when they’re in a situation or subject to environmental conditions that are unnatural.”

While the Klamath Tribes address a decline in their traditional fish species, members of the agricultural community also face the consequences of water scarcity.

Roughly 85 kilometers downstream from Upper Klamath Lake, Ben DuVal works a 240-hectare farm in Tulelake, California. In the distance, Mount Shasta towers over swaths of flat fields that were once at the bottom of Tule Lake. This year brings another sight to DuVal’s farm: Billows of dust blowing across barren ground.

Most years, DuVal said he would plant a cover crop to keep the fields’ soil in place, but this year has been so dry that most of his first plantings didn’t sprout. He anticipates more dust storms on windy days this parched summer.

“Soil is very precious to us,” DuVal said. “It’s all we’ve got, and that soil provides for me and my family. It’s important to maintain. . . so I just hate to see it blowing like that.”

Klamath Basin farmers have dealt with water scarcity before. In 2001, the Klamath Basin experienced a severe drought and, for the first time, the water allocated for irrigation was drastically reduced.

“It’s horrific,” said Paul Simmons, executive director of the Klamath Water Users Association. “I always refer to it as like waking up on the bottom of the ocean, in terms of how foreign, how bizarre, how terrifying that experience was.”

DuVal felt similarly.

“It was very sad to see the way the fields and the communities just dried up,” DuVal said. “There was the unemployment, the stores closing, restaurants closing. Tulelake really, really started to deteriorate about that time, economically.”

The Klamath Project anticipates another dry summer and farmers must work with a similarly low water allocation. This year, farms were initially allocated about 44 million cubic meters of water, just 8% of what they normally need. That number has since dropped to zero.

DuVal said uncertain water availability is especially taxing on those with contract crops, like potatoes for Frito Lay.

“[Companies have] spent years working with the growers to develop those relationships in those markets, and especially for the contract crops, having reliability is paramount,” DuVal said. “We need to have some consistency in this project.”

As the Klamath Basin moves into another drought summer, court battles over water rights take center stage. Final rulings on initial tribal claims, which Tenorio anticipates within the next few months, will have real impacts on the water available for tribes and farmers, but those rulings won’t be the end of the legal story. The combination of continuing legal discussion and the potential for appeals puts a solution out of immediate sight.

Court decisions will be the icing on a precariously tall, multilayered cake. Beyond the courtroom lie questions not only about who should get water and when, but what it would take to shift the current paradigm.

As water vanishes, parties take different approaches to finding solutions. For farmers, finding innovative ways to save water has been key. Simmons said the Klamath Project’s reuse of water contributes to its efficiency.

DuVal has a similar focus on his farm.

“We’ve done everything we can to make our systems as efficient as possible so that we know we can stretch every drop of water,” DuVal said. “I’m proud of some of the improvements we’ve made on our farm, and I think that should be recognized.”

For Gentry, an emphasis on ecosystem health is a precursor for ensuring water availability in the agricultural community. Gentry sees returning to an environment closer to pre-development conditions and a reduction of irrigated agriculture as a solution.

“If we provide what’s necessary for the fish and wildlife and healthy ecosystems and they’re all healthy and functioning, there can be water available for irrigation,” Gentry said. “It’s not like we intend harm to anybody, whether that’s a farmer or a rancher, but we have to stick up for those fish and stick up for the health of the system.”

More than 100 years after the establishment of the Klamath Project, stakeholders’ efforts to secure water are a reminder of the complexity and change that has become woven into the fabric of the basin. But the Klamath Basin isn’t the only area facing this reality.

According to the United States Drought Monitor, all areas of Oregon are currently experiencing at least abnormally dry conditions or moderate drought. These same conditions extend through much of the American West, where, according to a 2020 report, 170 Indigenous reservations had unresolved water claims last year.

Water management and scarcity pose challenges in the Klamath Basin and beyond. And yet, between the layers of complexity, DuVal ultimately sees a solution not in legal arguments, but in connection and communication.

“There’s nothing in a courtroom that’s going to help my farm; there’s nothing that’s going to happen in the courtroom that’s going to help a single fish,” DuVal said. “It’s going to be parties that can work together, that can come up with a solution and ideas that work for everyone.”

Olivia Palmer is a second-year journalism student in Western’s honors program. She enjoys learning more about her communities through storytelling.