"This is the first of a series on the Klamath Calamity."
By Land And Water USA Editorial Staff © 2014
U.S. Senators Ron Wyden (D-Ore.) and Diane Feinstein (D-Calif.) and Governors Jerry Brown (D-Calif.) and John Kitzhaber (D-Ore.) are swiftly moving forward to settle the Klamath water rights controversy that has been raging in Oregon and Northern California for years. But some of the purported beneficiaries of the “settlement” are objecting to the lucrative deal.
Though the Karuk Tribe, the Yurok Tribe, and the Klamath Riverkeepers, as well as allied environmental groups, including counter-cultural icon the Black Bear Commune, rumored to have been co-founded by Weather Underground radical Bernadine Dohrn, are praising the proposed pact with the U.S. Interior Department, and other government agencies, other native American groups, the so called “lower Klamath” tribes, are vocally coming out against the deal. These smaller tribes are claiming they were never consulted by the government, and that their historic water rights, guaranteed by treaty with the U.S. in the 19th century, will be violated if the U.S. Congress approves the planned settlement.
“We were excluded from participating in the settlement talks leading to the KHSA (Klamath Hydroelectric Settlement Agreement) and the KBRA (Klamath Basin Restoration Agreement),” a statement from the Resighini tribe states. Other tribes that have been voicing similar concerns regarding the proposed settlements reportedly include the Hoopa tribes, and the Siskiyou County tribe.
Government officials, however, on the federal and state levels, support the deal and want to swiftly see it through Congress, which must approve the settlements, as they are with sovereign native tribes and involve federal questions. “This agreement is nothing short of historic,” said Governor Kitzhaber. “On one of the more complex issues facing the state, people committed their time, energy, and expertise to come up with solutions that support a stable agricultural economy and healthy fisheries and riparian areas.”
Added Sen. Wyden: “I look forward to final ratification by the parties and to working with the Governor, and my colleagues in Congress to pass legislation that makes this agreement a reality.”
The Karuk tribe and the environmental group the Riverkeepers support the deal – but that tribe and that activist group, which has ties to Robert F. Kennedy Jr. , the son of the slain former Democratic candidate for President of the U.S., and Senator from New York, initiated litigation to get a deal on the Klamath River and related projects years ago in U.S. District Court.
Court case, allegations over Endangered Species Act
An examination of the court document – the public record – is illustrative in understanding this ongoing dispute. The Karuk and the Klamath Riverkeepers litigated Case No. 2:12-cv-01330-AC and Case No. 2:12-cv-02095-AC, later consolidated, in the U.S. District Court for the Eastern District of California, before the Hon. Judge Allison Claire, making claims under the federal Endangered Species Act (16 U.S.C. §§ 1539, 1540) about the state of the Klamath River, which runs southwest through Oregon and northern California, cutting through the Cascade Range to empty into the Pacific Ocean. The river runs 263 miles, starting at Upper Klamath Lake, and stretches through several native American tribal territories.
Considered the most important coastal river south of the Columbia River for fish migration, the Klamath is home to salmon, steelhead and rainbow trout, which were the primary sources of food for native Americans, said to have inhabited the River Basin for nearly 7,000 years. European fur trappers came to the Klamath River with the Hudson Bay Company in the 1820s, and created the Siskiyou Trail, following the Klamath and Trinity Rivers into the Sacramento Valley.
On December 20, 2013, more than a year after filing suit in August 2012, and after reaching an out of court settlement, the Karuk and Klamath Riverkeepers, by their counsel, entered a stipulated agreement into court records settling the litigation. The defendant there, the Montague Water Conservation District, was a government body which has jurisdiction over the Dwinnell Dam and Lake Shastina, which impact the Klamath. The Karuk and Klamath alleged that the water conservation district’s policies resulted in the illegal “take” of Southern Oregon/Northern California Coast Coho salmon, a species unit listed under the Endangered Species Act. With the settlement order, signed by Judge Claire, that case is now dismissed.
“The Plaintiffs’ claims alleged in the complaints filed in these consolidated cases are dismissed with prejudice,” the order reads, adding. “The Court shall retain jurisdiction to enforce the terms of the Settlement Agreement and resolve any disputes concerning adherence to the Settlement Agreement that may arise between the Settling Parties from December 19, 2013 through December 18, 2023.”
The settlement talks were then passed on to a working group composed of federal and state officials. According to Gov. Kitzhaber’s office, the parties, including the The Klamath Tribes, the U.S. Department of the Interior, and upper basin irrigators, have agreed on the following terms:
* A Water Use Program that will increase stream flows in the tributaries above Upper Klamath Lake – adding at least 30,000 acre feet annually to inflows to the lake, while creating a stable, predictable setting for agriculture to continue in the Upper Klamath Basin;
* A Riparian Program that will improve and protect riparian conditions in order to help restore fisheries;
* And an Economic Development Program for the Klamath Tribes.
Financing for the restoration projects in the agreement will come largely through the Klamath Basin Restoration Agreement (KBRA), signed in 2010. The overall cost of the Upper Basin settlement agreement and the Klamath Agreements of 2010 is approximately $545 million, a reduction from the original expected cost of the Klamath Agreements, which was estimated to cost $1 billion, according to the governor’s office.
“People have been fighting over water in the Klamath Basin for decades, but this historic agreement is a vision for sharing water in a manner that benefits everyone,” said Senator Jeff Merkley (D-Ore), the junior Senator from Oregon.
What is more, the new agreement also resolves water right disputes that were not addressed in the KBRA, some of which stretch back 150 years.
According to the governor’s office, the “most senior water rights” above Upper Klamath Lake are held by the Klamath Tribes. Full exercise of those rights would preclude irrigation in many years. “Under the proposed agreement, the Klamath Tribes conditionally agree to share in times of shortages, limiting regulation to specified in-stream flows, and allowing some water for water rights holders with rights junior to the Klamath Tribes. In exchange, the Tribes will receive active landowner involvement in riparian restoration, resolution of ongoing water litigation, and economic development funding to create employment opportunities and aid in the exercise of tribal cultural rights,” the Oregon governor’s office said.
Accumulating Controversies Could Derail Deal
But with the smaller tribes shut out of the talks, the future of the settlement is in doubt, and it could wind up back in federal court once again. What is more, accumulating controversies swirling around apparently shady characters at the tribes and their agents have the potential to derail Congressional approval of the proposed settlements. These scandals involving senior tribal officials are raising questions about the integrity of the negotiated deal, and the efficacy with which it may be carried out.
Domestic Violence
Back in 2007, the Siskiyou County Sheriff's Department arrested Karuk Tribe Vice Chairman Leaf Grant Hillman. On Friday, Aug. 17, the Siskiyou County District Attorney's office filed a felony domestic violence charge against Hillman. Siskiyou County D.A. Kirk Andrus said Hillman, who lives in Orleans, is charged with one count corporal injury on a spouse or cohabitant, and with two special allegations: inflicting great bodily injury and using a deadly weapon. Hillman's bail was set at $50,000.
The charges arose from an incident in which Hillman allegedly was involved on July 28, 2007 at Nordheimer Flat on the Salmon River, a tributary to the Klamath, where a group had assembled for the Jamming for the Salmon Music Festival. The arrest led to calls for Hillman’s removal from leadership positions with the tribe – calls which continue to be resisted.
Methamphetamine Arrest
But the controversy does not stop there. Hillman, a key leader in tribal politics, was later arrested on drug charges. According to a Medford police report, On January 24, 2009 at around 5:30 a.m. Hillman was going through security at the Rogue Valley International Medford Airport when a Transportation Security Administration officer noticed a razor in the backpack Hillman was carrying. The Transportation Security Administration (TSA) officer noticed some suspicious items with what appeared to be a white powder in them, according to Medford Police Lieutenant Tim Doney. The federal agent called the Medford Police Department who responded to the airport within minutes. "Our officer observed several items being pulled from Mr. Hillman's backpack," Doney said. "The backpack contained drug paraphernalia including a razor blade and several small baggies or packages. The baggies contained a white powder that later was tested and confirmed to be methamphetamine." Hillman contended he was innocent of the charges.
Embezzlement, Fraud at Yurok Tribe
As if those legal problems plaguing the leadership of the tribe settling this ongoing controversy weren’t scandalous enough, other, federal offenses have been alleged to have been committed by leadership of the Yurok tribe.
The U.S. Attorney in San Francisco on October 11, 2013 charged Ron LeValley of Eureka with conspiracy to commit embezzlement and theft from an Indian Tribal Organization,” the Yurok Tribe. LeValley, of Mad River Biologists, served as Co-Chair of the Science Advisory Team for the privately-funded Marine Life Protection Act (MLPA) Initiative to create protected areas on the north coast of California during much of the time that the alleged embezzlement occurred. Federal prosecutors charged LeValley with conspiring with Roland Raymond, former Yurok Tribe forestry director, to submit false invoices to the tribe for spotted owl surveys and other work that was never completed. The invoices totaled nearly $1 million, according to federal documents.
LeValley pled guilty to one count of conspiring to embezzle from a native American tribe. He was sentenced just a few weeks ago to 10 months in federal prison.
Critics say this latest controversy, in particular, and the earlier, repeat arrests of a key tribal leader, in general, call into question the legitimacy of the science policy done on behalf of the tribes in pursuit of the water agreements. Additionally, a raid on Yurok property in northern California by the Drug Enforcement Administration (DEA), Bureau of Land Management, California National Guard, and local police, just this week led to the service of 43 search warrants, and eyewitness accounts of cars with out of state plates fleeing the scene as police arrived to destroy the 100,000 marijuana plants growing “on and around” tribal property that contains streams that feed the Klamath River. This fuels criticism about how the “economic development” moneys to be given to the Yurok as part of the federal settlement for agricultural development may be spent, or misspent, though tribal leaders say they have no knowledge of how the cannabis cultivation started there on the upper reaches of the Yurok Indian Reservation. Or who benefits from the cultivation and sale of the cannabis crop.
The Yurok: A Brief History
The Yurok are a native American people who reside in Northern California near the Klamath River. The current population on the main reservation and smaller nearby ranches is estimated to be 5,000, a populace that is divided into seven federally recognized tribes. Anthropologists date some of the villages along the Klamath back to the 14th Century A.D. The Yurok historically have fished for salmon in the river, and also gathered ocean fish and shellfish for sustenance. Following the Klamath and Salmon River Indian War, the Lower Klamath River Indian Reservation was created by executive order of the President of the United States in 1855. The boundaries of the reservation are said to have included most of the Yurok villages, and no forcible resettlement was ordered. The Yurok Tribe is the largest group of native Americans in the state of California. The Yurok reservation in Del Norte and Humbolt counties, adjacent to the Redwood National Forest, consists of 63,035 acres, and has an 80% poverty rate and 70% of the inhabitants do not have telephone service or even electricity, but the tribe does have an active Web page and a Facebook account and some of the best and brightest liberal lawyers in California operating on their behalf. The tribe’s population, of 5,000, is estimated to be higher today than it was in 1770.
Klamath River Controversy: Key Facts
Cattle ranchers in Oregon and elsewhere are quite familiar with the Klamath River controversy. Last summer, in 2013, ranchers were ordered by the government to shut down irrigation pumps on their ranches in Oregon to protect the water rights of native Americans who live downstream, along the Klamath River, in Oregon and California. Water rights in the west of the U.S. are adjudicated by different standards than those in the east of the country. In the west, the person, or persons, with the longest, established use of the water gets to use it in priority over other users. This is called the prior appropriation doctrine, and, in seasons of drought, it pits those who live along the river and its tributaries against each other, from farmers to ranchers to native Americans to environmental activists. Back east, the riparian doctrine reigns. That is, if you live near the water, you can use it as you wish. Coloradans, Californians and Oregonians know all to well that he who controls the flow of water controls economic development, and prosperity. Over the years, there have been several settlements of the Klamath River controversy, but new variations on the theme, i.e. fights over endangered fish, or “excessive use” of water, flare up to keep the controversy going. That is the true Klamath calamity.
Endangered Species Act: Key Facts
Signed into law by President Richard Nixon on December 28, 1973, less than a year before he was driven from office by the Watergate scandal, the Endangered Species Act ( 7 U.S.C. § 136, 16 U.S.C. § 1531 et seq.) is designed to protect imperiled species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation." Interpretation of that mandate was expanded by the Supreme Court in 1978, which found that "the plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost." The ESA is often employed in litigation by activist groups, in conjunction with the Administrative Procedure Act (Pub.L. 79–404, 60 Stat. 237), which governs how federal regulations must be made, to change environmental policy in the courts or behind the scenes in federal agencies and pressure private landowners. Sen. Pat McCarran (D-Nevada) called the APA a “bill of rights” for persons whose land or actions are governed by federal regulations.