(CN) — Farmers won’t get paid for river water they lost out on during a drought in southern Oregon, because Native American tribes have water rights that rank above those of irrigators, stretching back to “time immemorial” — a ruling the U.S. Supreme Court refused to disturb on Monday.
It was a ruling that Klamath Tribal Chairman Don Gentry said benefits everyone, whether they are tribal members or not — despite the hardship faced by farmers who don’t have enough water to irrigate their crops.
“Tribes aren’t alone in this,” Gentry said over the phone. “The health of the environment should be important to all of our community citizens in the region.”
During a 2001 drought, the Bureau of Reclamation withheld water from the Klamath River Basin reclamation project to farmers with water rights junior to those held by the Klamath Tribes and the Yurok Tribe. The agency withheld the water in order to keep enough in the river to ensure survival of fish listed under the Endangered Species Act and to meet obligations of the tribal treaties that paved the way for the United States to exist.
Farmers sued that fall, claiming the interruption of their water rights was an illegal taking under the Fifth Amendment and demanding nearly $30 million in compensation. The complaint filed in the Court of Federal Claims accused the government of breaching its water delivery contracts with the farmers.
Multiple rulings during the case’s 18-year procedural history and appeals from tribes and environmental groups sent the case back and forth between the Federal Claims Court and the U.S. Federal Circuit Court. In 2017, the Federal Claims Court issued the ruling that would finally stand — finding that treaty rights guaranteeing the Klamath Tribes enough water to sustain the fish they depend on supersede farmers’ water rights in the Klamath River and Upper Klamath Lake.
The Klamath Tribes and Yurok Tribe have been working for years to recover two species of sucker fish listed on the Endangered Species Act that are central to tribal subsistence and culture. In 1864, the tribes agreed to give up millions of acres of what would become southern Oregon and Northern California. In exchange, the U.S. government guaranteed tribes’ right to make a “reasonable livelihood” from traditional foods, like the threatened Coho salmon that swam the Klamath River until dams blocked their passage, and by fishing for endangered C’waam, or Lost River sucker, and endangered Kopto, or short-nosed sucker.
The tribes haven’t harvested those sucker fish since 1986, when they voluntarily shut down their own subsistence fisheries out of concern for dwindling numbers. Two years later, the fish were added to the Endangered Species List.
Unique to the Klamath River Basin, the fish occur nowhere else. The tribes are working with U.S. Fish & Wildlife Service to increase the survival of their young, holding them in ponds until they are big enough to avoid predators. Even though the older adults produce millions of fish larvae each year, none of the young survive long enough to reproduce on their own, instead falling prey to ravenous non-native fish that now live in Klamath Lake, like yellow perch and fathead minnows.
“If they’re gone from here, they’re gone forever,” Klamath Chairman Gentry said. “And it’s more than subsistence — it’s culture.Not having those fish, it’s almost like we can’t be the people our creator intended us to be.”
Multiple courts have found that those treaty rights require the government to prevent the extinction of species tribes are guaranteed under treaties to be able to hunt and fish. U.S. District Judge Marian Blank Horn issued a similar finding in 2017, writing that the Klamath and Yurok “hold a non-consumptive water right, which entitles them to prevent other appropriators from depleting the flows of the Klamath River below levels required to support the fish they take in exercise of their treaty rights.”
“[The tribes’] non-consumptive water rights must, therefore, entitle them, at a minimum, to prevent junior appropriators from withdrawing water from Klamath River and its tributaries in amounts that would cause the endangerment and extinction of their tribal trust resource,” Blank wrote.
The farmers appealed, claiming the water the government withheld from their irrigation allotments was not subject to tribal treaty rights and that tribes don’t have water rights in Upper Klamath Lake, which holds the headwaters of the Klamath River.
But the Federal Circuit Court batted those arguments away, ruling this past November that the tribes’ senior water rights date back to “time immemorial,” and absolutely do include the Upper Klamath Lake. The court cited precedent from the Ninth Circuit, finding that the 1864 treaty did not create tribes’ water rights, but rather confirmed the continued existence of tribal water rights that extend over thousands of years.
The farmers again appealed, this time to the U.S. Supreme Court, which declined on Monday to hear the case. Gentry applauded the high court’s decision.
“We ceded nearly 23 million acres to keep the peace,” Gentry said. “And despite the tragic history and loss of those lands, the courts continue to affirm our rights to water, fish and other important resources.”
Nancie Marzulla, attorney for the farmers, did not return requests for comment.
“There has been so much litigation over the years to deny the fact that we have these rights,” Gentry said. But they have survived. I’m just so glad the Supreme Court continued to support that decision and continues to support our standing based on the treaty.”Follow @@karinapdx
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