Guest Opinion: PacificCorp must accept responsibility for removing its dams

Mail Tribune

by Bruce Shoemaker

We don’t expect Warren Buffett to keep tabs on the inner workings of all the companies he owns. But he needs to know what is going on right now with one of them: Portland-based PacifiCorp. That’s because Buffett and PacifiCorp have an opportunity to simultaneously do something extraordinary for one of the great rivers of the West while making a very prudent financial decision for ratepayers and shareholders.

After decades of controversy and campaigning by area tribes, fishing and environmental groups, what is likely the largest dam removal project to date worldwide is poised to commence on the Klamath River in far-Northern California and Southern Oregon. Four aging hydropower dams are on the brink of being removed, reconnecting hundreds of miles of habitat for salmon and other species blocked for more than a century by dams built without fish passage. In addition, the improvements to water quality and fisheries that will result from dam removal help reduce regulatory burdens on area farmers and ranchers.

But it isn’t only fish and tribes that will benefit from freeing the river. Removing the antiquated dams is in the financial interest of Buffet and his shareholders. That is because the state of California has written a check for $250 million to underwrite more than half the cost. PacifiCorp pledged $200 million, which has already been collected from its customers through a special surcharge. But the agreement that set the terms for dam removal included the idea that PacifiCorp could make its financial contribution to the project and then walk away with no liability. Two dozen parties — including numerous conservation organizations, tribes, federal agencies and two states — agreed to that demand in a settlement deal with PacifiCorp. Many conservation leaders had to swallow hard at giving a wealthy corporation such a sweet deal, but decided it was worth it just to get the dams down as fast as possible.

But the multiparty pact requires the approval of the Federal Energy Regulatory Commission (FERC), which in July signaled approval for the approach in general, but with a twist — PacifiCorp does not get to walk away completely from the project before the dams are removed. The public interest is not served by allowing a utility to make a fortune off an environmentally damaging project without seeing it through to the end, when these dams are removed.

So now PacifiCorp is balking. They want to study the issue. That is code language for delay, and crashing salmon runs don’t have time for corporate dithering.

What’s to study? The issue is crystal-clear.

The options are: 1) Accept a $250 million gift, enjoy layers of liability insurance paid for by the state of California and ratepayers, and restore salmon runs hovering on the brink of extinction, or 2) Walk away from a quarter billion dollars of public money, build new fish ladders and invest in other environmental fixes with costs likely to exceed $500 million, invite lawsuits and additional agency regulations related to endangered species and water quality violations, and perpetuate an injustice on native peoples whose livelihoods and cultures are being decimated by the dams. Talk about liability. And it would all be on PacifiCorp, their customers and their shareholders.

The clock is ticking. FERC wants an answer. California and Oregon want an answer. Tribes want an answer. The conservation community wants an answer. Every delay further endangers critically important salmon runs. PacifiCorp has to either accept the conditions laid down by FERC, or face the scrutiny of an America that is increasingly interested in justice for indigenous communities and other marginalized groups.

Warren Buffett and PacifiCorp, we need your decisive leadership. Please make the decision now that will get this done. This is the very definition of a win-win.

Bruce Shoemaker is a researcher on hydropower and rivers and lead editor of the 2018 book about the World Bank and hydropower, “Dead in the Water” (University of Wisconsin Press). Since 2019, through an affiliation with International Rivers, he has been focusing on dam removal in the Klamath Basin, where he lives.

Source: https://mailtribune.com/opinion/guest-opinions/pacificcorp-must-accept-responsibility-for-removing-its-dams

KLAMATH IRRIGATION DISTRICT WINS IN WATER RIGHTS LAWSUIT

Posted: Aug 2, 2020 10:21 AM
KDRV-TV

KLAMATH COUNTY, Ore.– A Marion County Circuit Court Judge has ruled in favor of Klamath Irrigation District (KID) in a lawsuit about water stored in Upper Klamath Lake for irrigation.

Link River Dam impounds water in Upper Klamath Lake. In its 2013 order in the Klamath Basin water rights adjudication, the Oregon Water Resources Department (OWRD) ruled that only irrigation users have water rights to the stored water. The Bureau of Reclamation releases water from storage to artificially increase Klamath River flows without a water right.

Earlier this year, KID went to court and got an order for OWRD to take exclusive charge of Upper Klamath Falls Lake Reservoir (UKL) and deliver the water to the people, under their water rights.

OWRD continued to allow the Bureau of Reclamation to use stored water in UKL for artificial enhancement of stream flows. For this, KID took OWRD back to court. In its ruling last week, the court found that “OWRD’s failure is a deprivation of a precious resource” and “an infringement of property rights of established users.” Upon such basis, the Court has indicated that it will enter an injunction to compel OWRD to stop the release of stored water from UKL without a water right.

Further legal proceedings must occur before any such injunction is entered.

District leadership says the impact of the ruling on 2020 water availability is currently unknown. Farmers should not change plans or assume they will receive more water this year, because of the ruling.

Source: https://www.kdrv.com/content/news/Klamath-Irrigation-Diatrict-wins-in-water-rights-lawsuit-571986521.html

Guest Opinion: Dam removal is a win-win for river and irrigation

Mail Tribune

by Dave Strahan and David Moryc

A dam removal project in the Rogue River watershed this summer is proving that it’s possible to find solutions that benefit both salmon and farms.

The Lower Bridgepoint Dam on Williams Creek, a tributary to the Applegate River, provides water for irrigation, but restricts habitat for Chinook and coho salmon, as well as steelhead and lamprey. Now, thanks to the collaboration of the Applegate Partnership and Watershed Council and with support from the Bureau of Land Management and private landowners, the dam is coming down and the habitat will be restored.

This dam removal adds to the ongoing restoration efforts in the mighty Rogue River watershed, renowned for its world-class sport fishing. These projects help Rogue River salmon sustain recreational and commercial fishing, despite recent droughts that have devastated fish in other rivers in the state.

One of the keys to this success has been creative thinking around water infrastructure solutions. Two farms that currently rely on the dam for their water — Whistling Duck Farms and Blue Fox Farms — will benefit from a more modern, efficient water supply system. A headgate will be installed to divert water into a new irrigation pipeline, while water in Williams Creek flows unimpeded.

These are the types of win-win projects we need right now, as our region faces multiple interconnected challenges. Healthy rivers are the source of all life, yet they’ve been dammed and degraded for decades, and salmon runs are struggling. The economic downturn is creating new strains for individuals and businesses, while climate change is creating growing threats to water supplies, river health and local food security.

We can strengthen our communities and build resilience in the face of these threats by restoring river health and investing in water infrastructure. American Rivers recently released a report, “Rivers as Economic Engines: Investing in clean water, communities and our future” which details the jobs and economic benefits of clean water and river restoration (read the report at AmericanRivers.org/InvestInRivers)

For example, a 2010 study from the University of Oregon found that every $1 million invested in watershed restoration creates 16 new or sustained jobs on average. Healthy rivers also spur tourism and recreation, which many rural communities rely on for their livelihoods. The Outdoor Industry Association’s National Recreation Economy Report found that Americans participating in water sports and fishing spend over $174 billion on gear and trip-related expenses. And, the outdoor water sports and fishing economy supports over 1.5 million jobs nationwide and 1 out of every 20 in Oregon.

The dam removal project on Williams Creek is a great example of the type of project we need to see more of, here in Oregon and across our region. It’s why American Rivers, the Northwest Sportfishing Industry Association and local communities are calling on Congress to invest $500 billion over 10 years in rivers and water infrastructure. This kind of investment will pay off in a stronger economy and healthier communities for generations to come.

U.S. Rep. Peter DeFazio has been a staunch supporter of clean water and smart infrastructure investments, including most recently to support critical wildlife migration as a part of a package of legislation that he sponsored and ushered out of the House Transportation and Infrastructure Committee, which he chairs. We applaud his leadership and urge him to continue support collaborative and creative solutions for healthy rivers and communities.

When Lower Bridgepoint Dam comes down this summer, the story won’t be about what’s being taken away. The story won’t be about losing a dam. It will be about gaining something new — a healthier river, a more efficient water supply and stronger connections between people and nature. It will be about building a better future.

Dave Strahan of Grants Pass is a board member of the Northwest Sportfishing Industry Association. David Moryc is senior director of American Rivers.

Source: https://mailtribune.com/opinion/guest-opinions/dam-removal-is-a-win-win-for-river-and-irrigation

California governor seeks dam demolitions near Oregon border

by Robert Jablon, Associated Press

LOS ANGELES (AP) — Gov. Gavin Newsom has appealed directly to investor Warren Buffett to support demolishing four hydroelectric dams on a river along the Oregon-California border to save salmon populations that have dwindled to almost nothing.

Newsom on Wednesday sent a letter to Buffett urging him to back the Klamath River project, which would be the largest dam removal in U.S. history.

The dams are owned by PacificCorp, an Oregon-based utility that is part of Buffett’s Berkshire Hathaway Inc. conglomerate.

The $450 million project would reshape California’s second-largest river and empty giant reservoirs. It could also revive plummeting salmon populations by reopening hundreds of miles of potential habitat that has been blocked for more than a century.

That could bring relief to a half-dozen Native American tribes that rely on salmon fishing and are spread across hundreds of miles in southern Oregon and northern California.

“The river is sick, and the Klamath Basin tribes are suffering,” Newsom wrote, calling the removal project “a shining example of what we can accomplish when we act according to our values.”

The letter was sent to Buffett, Berkshire Hathaway’s chairman and PacifiCorp’s president.

Efforts to remove the dams and restore the basin have been in the works for a dozen years. Newsom supports a 2016 agreement under which PacifiCorp would transfer its federal hydroelectric licenses for the dams to a nonprofit coalition, the Klamath River Renewal Corp., that was formed to oversee the demolition.

PacifiCorp ratepayers in Oregon and California are contributing $200 million for the project but the plan allows the utility to avoid liability for additional costs. Another $250 million would come from a 2014 voter-approved California water bond.

But two weeks ago, the Federal Energy Regulatory Commission made a decision that could threaten the deal. The agency approved the license transfer on condition that PacifiCorp remain a co-licensee with the Klamath River Renewal Corp.

The agency said it believes the nonprofit is capable of carrying out the project, and it is concerned that the corporation “has limited finances and no experience with hydropower dam operation or dam removal.”

“Costs could escalate beyond the level anticipated and unexpected technical issues could arise. Were the Renewal Corp. to be the sole licensee, it might ultimately be faced with matters that it is not equipped to handle,” the agency said.

The decision creates “significant” challenges but the corporation is confident it can work with stakeholders in the project to “once again craft a balanced solution,” said a letter to Newsom Thursday signed by Stefan A. Bird, president and chief executive officer of Pacific Power, which is owned by PacifiCorp.

“We share your concerns about social and environmental progress and remain committed to solving these deeply rooted cultural and community impacts,” the letter said.

Several tribes as well as fishing and conservation groups issued a joint statement urging Buffett’s support.

“Walking away from the agreement will put PacifiCorp ratepayers on the hook for all the risks and liabilities associated with fish kills, toxic algae blooms, lawsuits, and violations of tribal rights,” the statement said. “We urge Warren Buffett and PacifiCorp to end the delays and move the dam removal process forward immediately.”

The dams are the southernmost of six built in southern Oregon and California’s far north beginning in 1918 to provide electrical power. They are also part of an irrigation system serving vast farming areas.

The four dams to be demolished lack concrete chutes called fish ladders through which fish can pass to reach upstream spawning areas. Renewing the licenses would require hundreds of millions of dollars in federally mandated modifications, including adding fish ladders.

Coho salmon from the Klamath River are listed as threatened under federal and California law, and their population in the river has fallen anywhere from 52% to 95%. Spring chinook, once the Klamath Basin’s largest run, has dwindled by 98%.

Fall chinook, the last to persist in any significant numbers, have been so meager in the past few years that the Yurok canceled fishing for the first time in the tribe’s memory.

More than 1,700 aging dams have been dismantled around the U.S. since 2012, according to the nonprofit group American Rivers. The Klamath River project would be the largest by far if it proceeds.

Source: https://mailtribune.com/news/happening-now/california-governor-seeks-dam-demolitions-near-oregon-border

Supreme Court won’t consider Western farmers’ water fight

June 22, 2020

Jeremy P. Jacobs, E&E News

The Supreme Court today declined to consider whether federal regulators violated farmers’ constitutional rights when they cut off irrigation water to save fish in the Pacific Northwest.

Facing drought in 2001, the George W. Bush administration shut off water deliveries from the Bureau of Reclamation’s Klamath River project to farms in south-central Oregon and Northern California. The goal was to provide water to threatened salmon species downriver.

The farmers revolted. They stormed irrigation canals, and one group took a blowtorch to a diversion head gate.

Their efforts were successful. The following year, Reclamation restored irrigation water deliveries to roughly 200,000 acres of cropland. It led to salmon die-off; according to some estimates, up to 70,000 fish washed up on the river’s shores.

Reclamation’s 2001 decision remains controversial nearly 20 years later. A group of farmers contend that the curtailment of water deliveries amounted to a “taking” of their property without just compensation under the U.S. Constitution’s Fifth Amendment.

The farmers’ legal efforts have been less successful than their protests, however.

The U.S. Court of Appeals for the Federal Circuit ruled last November that the decision was not a taking because Native American tribes, including the Karuk, Yurok and Hoopa Valley tribes, hold rights to the water that are higher priority than the irrigation project’s claims.

Farmers’ “water rights are subordinate to the Tribes’ federal reserved water rights,” the court ruled. “We therefore see no error in the court’s holding that the Bureau of Reclamation’s action in temporarily halting deliveries of Klamath Project water in 2001 did not constitute a taking of appellants’ property” (Greenwire, Nov. 14, 2019).

The farmers enlisted a veteran Supreme Court water attorney and asked the Supreme Court to review the lower bench’s ruling (Greenwire, March 17).

Today, the justices declined the petition in a short order without explanation, as is customary. The court accepts only a tiny percentage of the petitions it receives.

Source: https://www.eenews.net/stories/1063434523

Calif. greenlights massive Klamath River dam removal

Jeremy P. Jacobs, E&E News reporter

The largest dam removal project in U.S. history came one step closer to fruition this week, as California issued permits for breaching the four dams on the Klamath River.

The State Water Resources Control Board issued a Clean Water Act certification and environmental assessment for the proposal to remove three dams in Northern California and one in southern Oregon.

“Decades in the making, this historic and comprehensive project will help restore native fish populations, and improve water quality in the Klamath Basin,” board Chairman E. Joaquin Esquivel said in a statement.

At issue are four dams on the Klamath River, which snakes from southern Oregon through a rugged and remote part of Northern California to the Pacific Ocean.

The river is the second largest in California, and it is home to multiple tribes that have relied on its salmon runs for millennia. Those runs have dwindled significantly due to a variety of factors including climate change and the river’s four downstream dams.

After years of lobbying and pressure, the four hydropower dams — Copco No. 1, Copco No. 2, J.C. Boyle and the largest, Iron Gate — are set to be removed after their operator, PacifiCorp, concluded the dams no longer made financial sense; they produce very little power, and relicensing them with the Federal Energy Regulatory Commission would likely be costly because fish mitigation would be required (Greenwire, March 13, 2017).

PacifiCorp is seeking to transfer the dams’ license to the nonprofit Klamath River Renewal Corp. It says breaching the dams could begin in 2022, and FERC could vote on the transfer as soon as this spring.

The local tribes on the river cheered this week’s announcement from the State Water Resources Control Board as the clearing of a key hurdle.

“This represents another milestone in our decades long effort to remove dams and restore our fishery,” said Frankie Myers, vice chairman of the Yurok Tribe, in a statement. “Working with PacifiCorp, we have found a way to remove dams, restore our river, and dramatically improve water quality.”

Nevertheless, the roughly $450 million dam removal project remains controversial in the region, one of the most conservative areas of California. In particular, landowners along the river and the reservoirs behind the dams say their property values will plummet (Climatewire, March 30).

Other supporters of dams in the West, including in Congress, have raised concerns about the precedent the project would set.

Source: https://www.eenews.net/stories/1062829919

Proposed dam removal on Oregon-California border stirs debate over coveted water

KLAMATH, Calif. — The second-largest river in California has sustained Native American tribes with plentiful salmon for millennia, provided upstream farmers with irrigation water for generations and served as a haven for retirees who built dream homes along its banks.

With so many competing demands, the Klamath River has come to symbolize a larger struggle over the increasingly precious water resources of the U.S. West, and who has the biggest claim to them.

Now, plans to demolish four hydroelectric dams on the river’s lower reaches to save salmon — the largest such demolition project in U.S. history — have placed those competing interests in stark relief. Each group with a stake — tribes, farmers, ranchers, homeowners and conservationists — sees its identity in the Klamath and ties its future to the dams in deeply personal terms.

“We are saving salmon country, and we’re doing it through reclaiming the West,” said Amy Cordalis, a Yurok tribal attorney fighting for dam removal. “We are bringing the salmon home.”

The project, estimated at nearly $450 million, would reshape the Klamath River and empty giant reservoirs. It could also revive plummeting salmon populations by reopening hundreds of miles of potential habitat that has been blocked for more than a century, bringing relief to a half-dozen tribes spread across hundreds of miles in southern Oregon and northern California.

Demolishing Dams

The proposal fits into a trend toward dam demolition in the U.S. that’s been accelerating as these infrastructure projects age and become less economically viable. The removals are also popular with environmentalists who are fighting for the return of native fish species to rivers long blocked by concrete.

More than 1,700 dams have been dismantled around the U.S. since 2012, according to American Rivers, and the Klamath River project would be the largest by far if it proceeds.

Backers of the dam removal say the Federal Energy Regulatory Commission could vote this spring on whether to transfer the dams’ hydroelectric licenses from the current operator, PacifiCorp, to a nonprofit formed to oversee the demolition. Drawdown of the reservoirs behind the dams could begin as early as 2022, according the nonprofit, the Klamath River Renewal Corp.

Opponents, including a group of residents who live around a meandering lake formed by the oldest dam, have vowed to fight the project. Without the dam to create the reservoir, they say, their bucolic waterfront properties will become mudflats. Many say their homes have already lost half their value.

“If we get halfway through and they blow a hole in the dam just to let the water out — to say, ‘Yeah, we done this’ — they can walk away from it. And we have no recourse whatsoever,” said Herman Spannus, whose great-grandfather first ran a ranch in the area in 1856.

The structures at the center of the debate are the four southernmost dams in a string of six constructed in southern Oregon and far northern California beginning in 1918.

They were built solely for power generation. They are not used for irrigation, they are not managed for flood control, and none has “fish ladders,” concrete chutes fish can pass through.

Two dams to the north are not targeted for demolition. Those dams have fish passage and are part of a massive irrigation system that straddles the Oregon-California border and provides water to more than 300 square miles of alfalfa, potatoes, barley and other crops.

Those farmers won’t be directly affected by the demolition but worry it will set a precedent that could eventually endanger the dams they rely on. An earlier, more comprehensive agreement would have given farmers a guaranteed annual minimum of water in exchange for the lower dams’ removal, but it fell apart in Congress. That leaves irrigators on the sidelines now during the most critical water-management decision for the larger Klamath River system in generations.

Farmer Ben DuVal said he’s optimistic the demolition will help restore salmon but also has “some real concerns.”

“Dam removal on this scale is kind of unprecedented,” said DuVal, who inherited his 300-acre farm from his grandfather, a World War II veteran who won the land in a lottery in 1949. “I don’t want to be the one who ends up giving up my livelihood in order to fix a problem down there that was caused by a big experiment.”

The demolition plan is good business for PacifiCorp, which holds the dams’ hydroelectric license. The dams make up less than 2% of its overall power portfolio and are no longer an important part of the regional power picture due to new energy sources such as wind and solar and other factors, it says. In addition, the hydroelectric licenses have expired, and renewing them would require more than $400 million in federally mandated modifications.

Under the plan awaiting federal officials’ approval, $200 million for the demolition and river restoration will come from California and Oregon ratepayers, and $250 million will come from a voter-approved California water bond, with no liability for PacifiCorp and a guaranteed cap on its costs.

For the region’s tribes, however, the push to remove the dams is much more than financial calculus.

Salmon were once plentiful in the Klamath River, and the people who have lived alongside it for thousands of years have a powerful connection to the fish. Even now, with numbers of coho salmon and spring and fall chinook in free fall, tribal members name their children after the river and its fish, tattoo their bodies with elaborate images of fish hawks clutching salmon, and return to fishing holes that have been passed down through generations.

“I actually credit a lot of our men and women’s depression to the fact that they fish for days and days and days and days and don’t catch anything,” said Georgiana Gensaw, who is Yurok and lives on the reservation.

“We want to bring salmon home. We want to show off in front of our kids,” she said. “We want to show them how to do it and how to pass that on. And you can’t do that if there’s nothing in your net.”

Coho salmon from the Klamath River are listed as threatened under federal and California law, and their population in the river has fallen anywhere from 52% to 95%. Spring chinook, once the Klamath Basin’s largest run, has dwindled by 98%.

Fall chinook, the last to persist in any significant numbers, have been so meager in the past few years that the Yurok canceled fishing for the first time in the tribe’s memory. In 2017, they bought fish at a grocery store for their annual salmon festival.

Tribal members see a rejection of their entire way of life in the opposition to dam removal.

“It ain’t about how much they love those dams. It ain’t about that. It’s about Indians having any say or having any power or having anything kind of go our way (that) is a danger to American ideals. We’re supposed to be gone. We’re not supposed to be here,” said Chook-Chook Hillman, a Karuk Indian whose 10-year-old son wrote a rap song about damage to tribal traditions titled “Dry Your Eyes.”

But homeowners around the biggest reservoir, Copco Lake, say it’s not so simple — and they, too, feel a strong sense of place in the homes they built decades ago, with no idea the dams could ever come down and drain the man-made lake. Their property values have plunged.

“The real estate people are not anxious to take listings here because it’s the rumors there all the time,” said Tom Rickard, who had to take the retirement home he and his wife built 20 years ago off the market last summer when it didn’t sell.

“You hear people from Los Angeles, the Bay Area, all over the place, and they keep asking, ‘Well, what’s going to happen to the dams?’”

Other residents say removing the dams will mean losing an easily accessible water source for fighting wildfires. Voters in three counties who would be affected by dam removal voted against it in a non-binding question that demolition advocates say was an “opinion poll.”

“Does it really fix the fish equation just by removing the dams? I haven’t seen anything that tells me this is foolproof and we’re not going to have any problems,” said Siskiyou County Supervisor Michael Kobseff.

Even demolition advocates say dam removal, while critical, won’t be enough on its own to restore the salmon.

Salmon face deteriorating ocean conditions due to climate change, and the many tributaries that feed into the Klamath River — critical spawning habitat for returning salmon — are degraded. Some ranchers who graze cattle along those tributaries are working with environmentalists, but were stung when the earlier agreement among farmers, ranchers and tribes fell apart.

Dam removal “is such a small piece of the restoration of the entire basin,” said Becky Hyde, who runs a cattle ranch near Beatty, Oregon, with her husband.

“The pieces of what would bring stability to the entire basin and the agricultural community are gone — and we’re supposed to be cheerleading for dam removal,” she said. “This is not good enough.”

— The Associated Press

Source: https://www.oregonlive.com/environment/2020/03/proposed-dam-removal-on-oregon-california-border-stirs-debate-over-coveted-water.html

2001 water “takings” case filed with U.S. Supreme Court

by Holly Dillemuth

March 13, 2020

Agricultural producers in the Klamath Project have taken the water “takings” case to the highest court in the land.

Somach Simmons & Dunn from Sacramento, along with Timothy Bishop of the law firm Mayer Brown, filed a petition on the decision related to the class action case with the U.S. Supreme Court on Friday. Roger and Nancie Marzulla, of Marzulla Law, who both worked on the case for many years, have withdrawn as counsel on the case.

The case, titled Baley v. United States, was filed 19 years ago when the U.S. Bureau of Reclamation re-allocated irrigation water to threatened and endangered species. A favorable outcome would mean upwards of $30 million collectively in compensation for irrigators named in the case.

Bishop, a Supreme Court expert, has successfully pursued cases before the Supreme Court regarding Endangered Species Act and Clean Water Act on behalf of regulated businesses and agencies, according to a news release.

Simmons also serves as executive director of Klamath Water Users Association.

“Water Users really doesn’t have any standing in the case,” Simmons said. “It’s individual’s property rights.”

Simmons said the U.S. Supreme Court reviews a small percentage of cases that parties ask to have reviewed, said Simmons, legal counsel on the case with Somach Simmons & Dunn.

Simmons emphasizes that the case is of great national importance, especially for water users in the Western United States.

“They have to be convinced it’s important,” Simmons told Herald and News.

In essence, producers asked the United States Supreme Court to review decisions denying their claims that their water rights were illegally taken in 2001 under the ESA, according to a news release from Klamath Water Users Association on Friday afternoon.

“The Baley lawsuit relies on the fact that rights to use water are property rights owned by landowners,” said Klamath Falls attorney Nathan Ratliff, who has coordinated efforts for the plaintiffs in the case. “The Fifth Amendment to the U.S. Constitution requires that the government provide just compensation for any taking of private property.”

The petition to the Supreme Court argues that the lower federal courts have misunderstood and misapplied the basic principles of western water law, according to the news release.

“The Supreme Court is not required to hear the case at all, but we believe it should understand that these are issues of broad importance that it should address,” said Mike Byrne, a Modoc County rancher.

In April of 2001, Reclamation announced that there would be no irrigation water for water users who rely on water from Upper Klamath Lake and the Klamath River for crop production.

Reclamation had received biological opinions from the National Marine Fisheries Service and the U.S. Fish and Wildlife Service that stated that all water in the system had to go to coho salmon and suckers protected by the federal ESA.

The controversial decision caused severe local hardship, and it received international attention. The lawsuit has a long history, including prior appeals and a request by federal courts that the Oregon Supreme Court clarify important issues of Oregon water law.

The Oregon Supreme Court held a hearing in Klamath Falls in 2009 and issued a ruling supporting the irrigators’ position that the original trial court had misinterpreted state law.

That ruling revived the case and returned it to the federal courts, according to the news release. Ultimately, after a two-week trial in 2017, which was attended and reported on by Herald and News, U.S. Court of Federal Claims Judge Marian Blank Horn concluded that un-adjudicated, senior tribal in-stream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations.

Therefore the water users did not have the right to the water under the western prior appropriation doctrine. Last fall, the U.S. Court of Appeals for the Federal Circuit affirmed the ruling.

“This ruling was a disappointment, to say the least,” said Luther Horsley, in a news release.

Horsley attended the 2017 trial and 2019 appeal argument.

“But we’ve been down before in this case and bounced back, and it’s too important to walk away now,” Horsley said.

In a 2017 interview with Klamath Tribes Chairman Don Gentry, he called the decision in the 2017 trial “another another positive step towards the healing and restoration of our tribal treaty fisheries.

“We certainly have confidence that the decision in both the district court and the D.C. Court of Appeals reached,” said Jay Weiner, special water counsel for the Klamath Tribes.

Weiner is based out of Rosette Law Firm in Sacramento.

“We’ve just received the petition and so we’re still reviewing it,” Weiner added.  “We don’t think there’s basis for overturning it.”

It is expected that the U.S. Supreme Court will decide in June whether to take the case, according to a news release.

Argument scheduled in water ‘Takings’ case

May 25, 2019 Klamath Water Users Association

A federal appeals court has set July 8, 2019 as the date for oral argument in a lawsuit of critical importance to Klamath Project irrigators that was filed 18 years ago.

“This hearing will provide local irrigators with an opportunity to explain why the federal government should be required to compensate Klamath Project farmers and ranchers when it reallocated irrigation water to threatened and endangered species in 2001,” said Nathan Ratliff, the attorney coordinating local efforts in the case .

The case, titled Baley, et al. v. United States, has had a long history since it was filed that year. It has been the subject of several rulings, including one in 2010 by the Oregon Supreme Court when it answered questions about state law upon request of the federal court. The actual trial in the case occurred in early 2017, and U.S. Court of Federal Claims judge Marian Blank Horn issued her ruling after trial in September of 2017. That decision denied the water users’ claims, and the decision was appealed to the U.S. Court of Appeals for Federal Circuit.

In April of 2001, the U.S. Bureau of Reclamation announced that there would be no irrigation water at all for water users who rely on water from Upper Klamath Lake and the Klamath River.

Reclamation had received biological opinions from the National Marine Fisheries Service and Fish and Wildlife Service that stated that all water in the system had to coho salmon and suckers protected by the federal Endangered Species Act (ESA). The controversial decision caused severe local hardship and it received international attention.

“The Baley lawsuit relies on the fact that rights to use water are property rights owned by landowners,” said Mr. Ratliff. “The Fifth Amendment to the U.S. Constitution requires that the government provide just compensation for any taking of private property.”

Judge Horn ruled that some landowners do not have compensable property interests due to particular language in some districts’ water delivery contracts. She also concluded that unadjudicated and senior tribal instream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations, and therefore the water users did not have the right to the water under the western prior appropriation doctrine.

“This ruling was a disappointment, to say the least,” said Lower Klamath farmer Lynn Long.

Mr. Long, who testified in the case, said that the damages in 2001 are less important now than the principle.

“We’re family farms; we want to farm and irrigate,’ he said. “But if the federal government decides to allocate irrigation water to another social purpose, the greater public should pay for what it is taking.”

The case is certified as a class action. Marzulla Law, LLC a Washington, D.C. law firm specializing in Fifth Amendment cases, represents the class. Ratliff said that the issues have generated interest from many other parties in the country.

“We’ve seen ‘friend of the court’ briefs filed by parties as diverse as the State of Oregon and the Middle Rio Grande Conservancy District in New Mexico,” said Mr. Ratliff. “That’s important in helping the appellate court understand western water law, adjudication, and water rights administration that we believe are critical.”

Mr. Ratliff said there is no deadline for a decision by the appellate court after the oral argument occurs.

Press release provided from the Klamath Water Users Association.

Source: https://www.klamathfallsnews.org/news/argument-scheduled-in-water-takings-case

Trump administration withdraws support letter of Klamath Dam removal

Damon Arthur  May 22, 2019

Redding Record Searchlight

 

The U.S. Department of the Interior has withdrawn its support for a proposal to remove four dams on the Klamath River near the California-Oregon border.

Secretary of the Interior David Bernhardt wrote a letter last week to the secretary of the Federal Energy Regulatory Commission asking her to rescind a previous Interior secretary’s letter in support of the Klamath River project.

“Accordingly I hereby withdraw the 2016 letter as unnecessary to the current proceedings before FERC,” Bernhardt wrote.

The letter will have “zero” effect on the proposal to remove the dams on the Klamath River, said Matt Cox, a spokesman for the Klamath River Renewal Corp., the agency overseeing the dam removal.

“We continue to move forward,” Cox said.

The corporation has filed applications with the energy commission to “de-license” the dams so they can be removed, he said. He said the timeline for removing the dams is dependent on the commission’s approval.

Under the proposal submitted to the commission, the corporation plans to remove four dams: J.C. Boyle, Copco No. 1, Copco No. 2 and Iron Gate. Three of the dams are in Siskiyou County and one, the J.C. Boyle Dam, is in southern Oregon.

FERC and a separate independent board of consultants still has to approve the plans.

Alan Mikkelsen, an Interior Department spokesman, issued a statement saying the agency is neutral on the dam removal.

“We have consistently emphasized that Interior has no position, nor any decision point in regards to dam removal,” Mikkelsen said.

The corporation says removing the dams will improve water quality, revive fisheries in the river, create local jobs, boost tourism and recreation. Project supporters say the dams have devastated the salmon that once thrived in the river.

But not everyone is a fan of removing the dams.

U.S. Rep. Doug LaMalfa, R-Richvale, said he was glad to see Bernhardt withdraw support for the project.

LaMalfa said in a news release he told Bernhardt before he was confirmed as secretary by the Senate that he wanted him to retract the Interior Department’s support for the dam removal, which had been written during the Obama Administration.

“This course-reversal by Interior is a big victory for those fighting this misguided dam removal and a positive development for Northern California. We need to support new and existing water infrastructure projects, not tear them down,” LaMalfa said.

He also noted that local officials, including those in Siskiyou County and Klamath County, in Oregon, have both opposed removing the dams.

Support for removing the dams came from former Interior Secretary Sally Jewell, who wrote a letter in October 2016 to Kimberly D. Rose, secretary for the energy commission.

“This letter and enclosures are being filed in support of those applications, which I respectfully ask the commission to approve,” Jewell wrote.

“The recommendation and determination I am making today are not entered into lightly. Rather, I do so in reliance on the most comprehensive and robust analysis of dam removal ever undertaken,” she wrote.

The dam removal will cost just under $400 million, according to the corporation’s 2,300-page definite plan. The report is available online at www.klamathrenewal.org/definite-plan/

The plan outlines the process of drawing down the reservoirs, disassembling the dams and restoring and replanting with vegetation the former areas that were inundated by the dams.

However, Siskiyou County officials believe taking out the dams will harm the local economy and hurt the environment.

In a 2017 letter to the State Water Resources Control Board, Siskiyou supervisors said the effects of releasing 20 million to 30 million cubic yards of sediment from behind the dams has not been adequately evaluated.

“Other issues include the potential for catastrophic floods, either during dam removal activities, or thereafter; and property value loss in the areas around Iron Gate and Copco Dams, which Siskiyou County estimates would be several million dollars,” the letter says.

PacifiCorp, which owns the dams, has signed off on the plan to remove the dams.

Fall-run chinook salmon make their way up Battle Creek to spawn. Damon Arthur, Record Searchlight

Damon Arthur is the Record Searchlight’s resources and environment reporter. He is among the first on the scene at breaking news incidents, reporting real time on Twitter at @damonarthur_RS. Damon is part of a dedicated team of journalists who investigate wrongdoing and find the unheard voices to tell the stories of the North State. He welcomes story tips at 530-225-8226 and damon.arthur@redding.com.

source: https://www.redding.com/story/news/2019/05/22/trump-administration-withdraws-support-klamath-dam-removal/3768083002/