Tuesday, January 5, 2016

Felice Pace: Why the Klamath Deals failed and what ought to happen now


Below KlamBlog presents the views of its editor, Felice Pace. on why the Klamath Dam and Water Deals failed to secure the endorsement of Congress. Felice argues that understanding why Klamath legislation failed in Congress is essential to crafting a successful path to dam removal and restoration of the Klamath River, its salmon and aquatic ecosystems. Read on to find out why the longest serving Klamath River activist believes legislation is not needed to get the dams out and restore the River. 

Why the Klamath Deals failed and what ought to happen now
Felice Pace

For those who would craft a successful way forward toward dam removal and restoration of the Klamath River and Klamath Salmon understanding why the Klamath Dam and Water Deals failed is essential information. This article presents actual and unreported reasons the deals failed to be endorsed and funded by Congress in 2015, additional congressional hurdles legislation to authorize and fund the deals faced, and why the tribes which supported the deals (the Yurok, Karuk and Klamath Tribes) have apparently decided not to continue hoping for a better result in a future Congress. Finally, this article suggests a way forward toward dam removal, water balance and river restoration that I believe offers the best chance of success and the least vulnerability to legal challenges.

Why Klamath Legislation failed in the 114th Congress

There can be no doubt that the #1 reason legislation to authorize and fund the Klamath Dam and Water Agreements failed to become law was opposition by Republican members of the US House of Representatives to removal of PacifiCorp's Klamath River Dams. While that opposition has an ideological component, opposition to both the KHSA Dam Deal and the KBRA Water Deal by Klamath County Commissioners in Oregon and opposition by Siskiyou County California Supervisors to the KHSA Dam Deal is what convinced Oregon Congressman Walden and California Congressman La Malfa to oppose any legislation that would have resulted in removal of any Klamath River dam.

Opposition to the Dam and Water Deals convinced House Republicans to oppose S 133 

However, opposition to dam removal in the US House does not explain why a bill supported by both senators from Oregon and both Senators from California not only failed to pass the Senate but even failed to get a hearing in the committee which had to pass the bill before it could get a vote by the full Senate. So why did S 133, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, fail to get a hearing in the Senate Committee on Energy and Natural Resources? The answer is Alaska Senator Lisa Murkowski.

Tuesday, December 15, 2015

Native activist calls for an end to the Klamath Agreements

This morning KlamBlog received a press release from Kayla Godowa-Tufti. The press release is presented below followed by an afterword by KlamBlog.

Godowa-Tufti is a member of the Confederated Tribes of Warm Springs of Oregon and a descendant of the Klamath, Modoc, Yahooskin peoples of the Upper Klamath Basin. She is an Indigenous rights/water advocate and freelance journalist who has been active in opposing the Klamath Agreements. Godowa-Tufti currently resides in Kalapuya Territory, Oregon. Kalapuya Territory is also known today as the Willamette Valley. The photos in this post were provided by Kayla Godowa-Tufti.


FOR IMMEDIATE RELEASE--

Stop the Klamath Agreements, Save our Wild Salmon
 
Will Senator Greg Walden attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement?

December 15th 2015 (Upper Klamath Basin, Oregon) 

The infamous Klamath water Agreements appear to be on their final days. Rumor has it that Tuesday December 15th Senator Greg Walden will attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement. But there’s a catch. The bill as it stands today will no longer include the language for dam removal, which has been a primary bargained for benefit to signatory tribes to improve historic Klamath River wild salmon runs that have been irreversibly damaged by settler occupancy.

Rate payers have been charged a fee on their monthly bills from PacifiCorp for a number of years for dam removal. But if legislators have no intention of removing the dams, where did all of the fees rate payers have been charged go?

California’s Hoopa Valley Tribe was part of initial Klamath Agreement talks but refused to support the accord on the grounds that it didn’t guarantee sufficient flows for struggling Coho and Chinook salmon populations. 
 
     A young member of the Hoopa Tribe protests while standing in salmon-killing algae.

The Klamath River flows directly through the Hoopa Valley Reservation in Northern California and the Trinity River is a major tributary to the Klamath River. Trinity water flows secured by the Hoopa Valley Tribe have contributed significantly to saving wild salmon populations in the Klamath River when Klamath water levels were not secured by enforcement of Klamath Tribes senior water right.

As of September 2015, The Yurok Tribe of California has been rumored to have withdrawn from the agreements.

If that is true, then the only two remaining signatory tribes are the Karuk Tribe of California and the Klamath Tribes of Oregon.

According to an article published December 11th 2015 by Western Livestock Journal, Andrew Malcolm, Communication Director for Senator Greg Walden states, “The way the agreements work is that the tribes that have senior water rights would lock in river flows, and the tribes would allow water to flow to agriculture in the project. … The way the process works is, in the first few years, it’s a temporary exchange in terms of the tribes allow for these flows to happen, but then as certain benchmarks are met throughout the agreement, then that water becomes permanent.”

Malcolm agreed that the issue is largely a semantic one; while the Klamath Tribes are not waiving their senior water rights, they’re waiving a portion of the water their senior water rights grant them, assuming the agreements hold.

“The fact is we felt the need to remind people that we’re trying to protect the taxpayers here and that for the tribes to get land, they are giving up some of their senior water. [Gentry, Chairman of the Klamath Tribes] doesn’t like the word ‘waive,’ but in reality, once the agreements become permanent, that’s what they’re doing.”

In an article published by Dylan Darling in the Herald and News October 15th 2003, the at time Tribal Chairman Allen Foreman in a message to members of the Tribes on Sept. 27 2003, stated “The Klamath Tribes are not interested in surrendering their claim for senior water rights in exchange for regaining portions of their former reservation, tribal officials said Tuesday.

A press release issued by the tribes said media reports indicating they were considering a trade of water rights for land now held by the U.S. Forest Service were incorrect.

Carl "Bud" Ullman, attorney for the Tribes, said the Indians have two objectives: gaining water rights in order to restore fish populations, and regaining about 690,000 acres of former reservation land now in public ownership.

Though both objectives are being discussed with federal officials, the Tribes aren't planning on turning over their senior water rights,” Ullman said.

Two paragraphs later Ullman states, the Tribes are considering foregoing some of their water rights in exchange for a restored sucker fishery, which has been closed since 1986. Under such an arrangement, the Tribes would hold their water rights but not seek enforcement of them if the federal government works to restore sucker populations.

According to Ullman, there had been progress in the last year and that an agreement could be reached by the end of that year, though it could then take another year to get approval from Congress.

That was 12 years ago. The current Klamath Tribes chairman Don Gentry and past chairman Allen Foreman have been operating on the same manipulative, double talk agenda.

And as it now stands only 4 days remain until the Klamath Agreements sunset in Congress.

The "Historic dam Removal" campaign is set up to generate Republican push back against the Federal Energy Regulatory Commission (FERC) dam removal re-licensing process.  Signatory tribes and front groups have used those scare tactics to garner support and protect wealthy PacifiCorp shareholders from paying for dam removal.

The Klamath water Agreement issue is not about dam removal. The dams are out of compliance and will come down regardless. The Klamath Agreement issue is who's paying for dam removal?
An article published September 21st 2015 by Adam Spencer in The Triplicate states, “The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of Appeals challenging that the federal dam regulatory agency has violated the Clean Water Act in its approach to the relicensing — or lack of it — of the Klamath River dams.

The hydropower license needed for PacifiCorp to operate its hydroelectric dams on the Klamath expired in 2006, but the Warren Buffett-owned power company has delayed the relicensing of the dams since then using a legal-gray-area strategy outlined in one of the Klamath Agreements. All in hopes that Congress would pass legislation implementing the Klamath Agreements. But that hasn’t happened after three years of sitting in Congress with little traction.”

The Hoopa Valley Tribe’s tactic of forcing the hand of the Federal Energy Regulatory Commission to get PacifiCorp to proceed with relicensing of the dams seems to have better odds of removing the deteriorating dams that have decimated wild salmon runs in the Klamath Basin than the glorified Klamath water Agreements.

To relicense the dams in compliance with the Clean Water Act, PacifiCorp needs to apply for Water Quality Certification from regulatory agencies in both California and Oregon, where the dams are located.

“Plainly the operation of the hydro project violates the water quality rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’ previous 1956 license pre-dates environmental law.

According to Spencer of the Triplicate, “even if water quality certifications were completed and a new license issued, it would require PacifiCorp to install ladders to provide for passage of migratory fish through the dams, an action already mandated by National Marine Fisheries Service.

Fish ladders would exceed the cost of dam removal and the dams would produce less energy and be less profitable, making dam removal the most economical option for shareholders and ratepayers.”

Both California and Oregon’s public utilities commissions have determined that dam removal is the best option for ratepayers.

The Klamath Hydroelectric Settlement Agreement (KHSA), the agreement focused specifically on dam removal, states “PacifiCorp shall withdraw and re-file its applications for Section 401 (water quality) certifications as necessary to avoid the certifications being deemed waived under the (Clean Water Act) during the Interim Period.”

According to the Clean Water Act, if a state fails or refuses to act on a water quality certification “within a reasonable period of time (which shall not exceed one year)” than the certification is considered “waived.”

Case law cited in Hoopa Valley Tribe court documents states, the purpose of the waiver provision is “to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification.”

A waiver would lead to the relicensing process outside of the Klamath Hydroelectric Settlement Agreement (KHSA), the less desirable option for Buffet’s grossly rich PacifiCorp.

Spencer of the Triplicate reported, “PacifiCorp has withdrawn and re-filed its water quality certification application in both California and Oregon eight times to keep the application active without having certification considered waived by the state agencies. Withdrawing and re-filing the application is done with a single email.”

“Their theory is that the letter gives the water board another full year to do nothing,” Schlosser said. “We kept saying ‘no, this is a violation of the Clean Water Act and you can't get around it by this letter writing campaign.’”

FERC denied the Hoopa Valley Tribe’s request for a hearing on the issue in October 2014. Though the agency released a statement that they do agree that PacifiCorp and state regulators are “clearly violating the spirit of the Clean Water Act” and possibly acting “contrary to the public interest by delaying the issuance of new licenses that better meet current-day conditions than those issued many decades ago.”

In the end, the FERC’s discussion concluded that while PacifiCorp may violate the spirit of the law “we do not conclude that they have violated the letter of that statute.”

“They are essentially saying that this little routine that PacifiCorp is using violates the spirit of the Clean Water Act but they are going to go ahead and approve it,” Schlosser said.“They are deciding to do nothing for a settlement agreement they never approved or reviewed. I’m optimistic that court of appeals will say FERC has fallen down on the job and they ought to dismiss the application for licensing.”

Without these corporate Klamath deals the Interior Secretary can make a finding on dam removal, to ultimately dismantle the dams.

Its past time to revise the Klamath agreements and address problems in a sequential cost effective fashion, that won’t drive wild salmon stocks to extinction.

The KHSA minimizes PacifiCorp’s required operational changes until at least 2021, strips Federal Energy Regulatory Commission (FERC) of jurisdiction while the agreement remains in place, and also protects the utility from compliance with any other measures to improve water quality. (Sec. 6.1.1 and 6.3.4.A.)

The KHSA halts State water quality certification proceedings, which now are the only remaining step before FERC would force dam removal. (Sec. 6.5.)
Dam removal cannot be forced with the Klamath water Agreements in place. The Klamath Agreements will cost tax payers $750 million over a 15-year period.

The federal Indian policy questions raised by Senate bill (S.133) prompted more than 50 federally recognized Indian tribes to object when the Klamath Agreements were considered by Senator Lisa Murkowski’s Committee in the 113th Congress.

Among their criticisms was that the legislation would reverse longstanding federal Indian affairs policies of tribal self-determination, self-governance, and respect for property rights held in trust for Indian tribes.

The objecting tribes stated specifically that section 5(f) of the bill would authorize approval of settlement terms that would require the United States to abandon its trust relationship and subordinate tribal fishing and water rights to others unilaterally, without tribal consent.

They also maintained that the settlement terms required by the bill are associated with discredited tribal trust termination policies that were in effect in the 1950s.

Chairman Murkowski, on November 14, 2014 spoke about the Klamath settlement in the 113th Congress stating that: “There is another issue, and that is the estimated $500 million in needed funds over the next ten years called for under the agreement would come from. I can tell you from my perspective as an appropriator; we don’t exactly have an extra $50 million per year lying around under the seat cushions in my office.”

Many groups reached the same conclusion about the unavailability of funding and walked away from the Klamath Agreements.

The Hoopa Valley Tribe received over 50 letters of support from federally recognized Indigenous tribes from all across the United States in their efforts to oppose the Klamath water Agreements.

Warren Buffet is the richest man in the world because he has a manipulative mind for business. People like him don’t get disgustingly wealthy by playing nice. He has found tenacious individuals to lobby for PacifiCorp dam removal, tribes and front groups alike. All for California and Oregon tax payers to foot the bill, leaving Buffet’s corporation exempt of financial responsibility.

Members of the Hoopa Valley Tribe and Klamath Tribes refuse to endorse the fatally flawed Klamath agreements because they unilaterally terminate tribal water rights. Rights that are intended to be enforced to protect the environment.

“The ancestors pray for our fish. And our fish always pray with us because we take care of them and they take care of us.” Says Oni Rose Orcutt, 7 year old Hoopa, Yurok and Karuk descendant.

“We are asking you to not support Walden’s bill. Because this bill is killing our salmon and terminating our water rights. Ts’ediyah. Thank You. ” Stated 10 year old Presley Orcutt (sister to Oni Rose), also a Hoopa, Yurok and Karuk descendant.

Please help support our friends in the Hoopa Valley community and relatives of the Klamath Tribes in efforts to protect their salmon babies by not endorsing the following-- Senate Bill 133: Klamath Basin Water Recovery and Economic Restoration Act of 2015, The Klamath Basin Restoration Agreement (KBRA), Klamath Basin Hydroelectric Settlement Agreement (KHSA), Upper Klamath Basin Comprehensive Agreement (UKBCA)

Please help support an effort that will truly “Undam the Klamath and bring the salmon home.”

Happy belated birthday to Oni Rose and Presley, the girls of Hoopa Valley whose hearts are forever with our salmon and waters. This is dedicated to you and all our future generations to come. May all your hopes and dreams come true.

In collaboration with and in honor of our friends at the Hoopa Valley Tribe and our Klamath, Modoc, Yahooskin relatives at Honor the Treaty of 1864.

 Naat ciiwapk diceew'a “We help each other; We will live good.”

                                  Traditional Hoopa canoes on the Trinity River
 
<<<<<<<<<<>>>>>>>>>>

Afterword by KlamBlog:

Oregon's Klamath River Basin Water Rights Adjudication recognized some but not all water rights claims made by the Klamath Tribes, one tribal government comprised of three distinct Indigenous Peoples: the Klamath, Modoc and Yahoskin. In its Final Order of Determination the State of Oregon recognized the Klamath Tribes' claims to flows for  fish in streams discharging into Upper Klamath Lake but denied the Tribe's claims to flows in the Klamath River below Upper Klamath Lake. According to the State of Oregon's Press Release which accompanied the Final Order of Determination:
          The most senior determined claims in the Klamath River Basin Adjudication are claims held by the United States in trust for the Klamath Tribes.  These claims carry a priority date of “time immemorial.” The tribal claims were recognized for certain reaches of the major tributaries to Upper Klamath Lake, and for Upper Klamath Lake itself.  Other tribal claims were denied for streams outside the boundaries of the former Klamath Indian Reservation.  For example, the Klamath Tribes’ claim for portions of the Klamath River was denied.  

There has been confusion over the Klamath Tribes Water Rights because the media reported only that Oregon had accepted the Klamath Tribes' claims. For example, the headline in the Eureka Times Standard's report on the Final Order read "Oregon backs Klamath Tribes water rights; effect on Lower Klamath Basin unclear". The article failed to mention that Oregon denied the Tribes' claims to Klamath River flows.

Oregon's action in the Klamath Adjudication with respect to the Klamath Tribes' water rights claims is properly understood as recognizing those claims which, in effect, maximize irrigation water delivery to federal irrigators and denying those claims which could provide more water for salmon in the Klamath River. Upper Klamath Lake is the main source of federal irrigation water. Maximizing inflows to Upper Klamath Lake via the Klamath Tribes' water claims also maximizes the amount of water available each year for federal irrigation. Oregon's denial of the Klamath Tribes' claim to Klamath River flows sacrifices Klamath River Salmon in an attempt to insulate federal irrigators from tribal water rights claims that could reduce the amount of water available for federal irrigation.

     This map of the Upper Klamath River Basin shows the Klamath River flowing out of 
         Upper Klamath Lake and the sprawling Klamath Irrigation Project in orange

Under the earlier KBRA Water Deal neither the Klamath Tribes nor any other tribe relinquished water rights, Under the more recent Upper Basin Agreement, the Klamath Tribes agree not to challenge in court denial of their claim to flows in the Klamath River; but only if Congress restores a portion of the Tribes' former reservation, which is now the Winema National Forest, and provides funding for a tribal lumber mill and wood products business.

KlamBlog does not believe it is morally right to force the leaders of the Klamath Tribes to choose between water for salmon and restoration of their reservation which was illegally terminated in the 1960s. As KlamBlog editor Felice Pace has written elsewhere, the federal government is forcing tribes across the West to choose between the funds they need to provide basic services to their people and their rights to water.

As they have in the Klamath River Basin, the feds are doing all they can to keep water to which tribes have a right with mostly white irrigation interests and in particular with federal  irrigation projects administered by the US Bureau of Reclamation. In favoring white irrigators over tribal water rights, the federal government is abrogating its responsibility as trustee to act in the best interest of federally-recognized tribal peoples.


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Sunday, December 6, 2015

Klamath Politics Tests KBRA Friendship Bonds

Those who pay attention to Klamath River Basin issues are by now very familiar with claims that former Klamath adversaries - Farmers, Tribes, Fishermen and Environmentalists - have overcome former conflicts, forged friendships and now support each other. Five years after the KBRA Water Deal was signed, those claims are still being made, not just by the "parties" that signed the Deal but by politicians, newspaper editors and a host of fellow travelers. A recent announcement by the Yurok Tribe, one of the KBRA's main architects, stating that it was withdrawing from the Deal because it was no longer possible to obtain the benefits for the Klamath River it had negotiated, has not stemmed the rhetorical claims that harmony now reigns among the Basin's tribes and irrigators.

That will not be surprising to those who have studied over 30 western water deals involving federal tribes which have been ratified and funded by Congress since the late 1980s.  Every one of those deals has been heralded as "historic"; both the deals and those making them have received lavish praise from federal irrigators, governors, newspaper editors, the media generally and by the federal officials who funded the negotiations and helped craft the deals. 

Local, state and federal establishments heap praise on these deals not because they end conflict over water which, contrary to the claims, they never accomplish for very long, but because, in the face of tribal water rights that could reallocate a good part of the West's water to tribal and instream uses, the deals keep most of the water with white irrigators in general and with federal irrigators in particular.

The KBRA is no different in that respect from any of the other hundred or so tribal water deals which have either been endorsed by Congress, are awaiting Congressional action or are currently being negotiated.

Friendship tested

Numerous testimonials over the five years since the KBRA was signed, as well as two films, dwell on the respect and friendship which grew up among tribal and agricultural leaders who negotiated the KBRA Water Deal. Ag and tribal leaders have claimed again and again that, as good neighbors should, they now look out for each others interests. Until recently, however, those assertions have been untested.

Now comes, in quick succession, a call by Oregon Governor Kate Brown to jettison Klamath dam removal (a key "benefit" of the KBRA for signatory or "party" tribes) and draft legislation by Oregon Representative Greg Walden which does just what Governor Brown called for. Brown's letter is straightforward: she wants the water supply "certainty" and the many other benefits the KBRA delivers to federal irrigators and she is ready to jettison dam removal to get what the irrigators want. 

 Iron Gate, lowest of PacifiCorp's five Klamath River Dams. For the 
three federal "party" tribes, removal of four of the dams is a key part of  the 
Klamath Deals. The fifth dam, Keno, would be transfered to federal ownership

Greg Walden's draft Klamath Bill not only jettisons dam removal but would turn over 200,000 acres of national forest land to Siskiyou and Klamath County Governments which want to bring back the good-old days of unlimited clearcutting.  Democrats consider the public land giveaway a "poison pill" which they can not support; in their press release, the Karuk Tribe also railed against Walden's draft legislation.

While press releases for and against Walden's Klamath legislation have been flying, the Klamath Water Users Association (KWUA), which represents the Basin's federal Irrigation Elite, and the closely allied Family Farm Alliance have so far been silent on Walden's draft. That is unusual. Both organizations have well paid staffs who are highly skilled in the art of the press release. Typically these two organizations are among the first to get their spin on Klamath developments delivered to media outlets.

 Now Executive Director of the Family Farm Alliance, Dan Keppen was a  major 
architect of the KBRA Water Deal while he served as Executive Director of KWUA. 

What explains the unusual silence of the Irrigation Elite in the face of Walden's draft legislation?

Walden's legislation presents a dilemma for the Klamath's federal irrigators and their organizational instruments - KWUA and the Family Farm Alliance. It gives the irrigators what they most want: the certainty that tribal water rights will not impact their ability to irrigate 200,000 acres of reclaimed lake bottoms and semi-dessert; but it throws the deal they made with their new friends in the Karuk and Yurok Tribes under the bus.

Does the Irrigation Elite's silence indicates that they have given Walden's draft the green light in order to get what they want? Are federal irrigation interests willing to abandon the relationships they have spoken about so often and passionately and which two films, countless news features and an impressive stream of editorials from the New York Times down to the tiniest newspapers have heralded as a model for how to deal with contentious water issues in the increasingly water-challenged American West?

The true test of  any relationship is what those in it do when the going gets tough. Clearly, the Yurok and Karuk Tribe's believe they are deeply wronged by Governor Kate Brown and Congressman Greg Walden. Will the federal irrigators who pledged unshakable bonds of friendship stand with them publicly? Or, as KlamBlog suspected from the start, was all the talk about good will and unshakable friendship just a sham show for the media?

KlamBlog challenges the Klamath Water Users Association and the Family Farm Alliance to take a public position on Walden 's draft legislation. We challenge those reporting on Klamath issues to put the question directly to the two organizations: Do they support Walden's draft legislation or do they stand with the tribes in opposition?

Friday, October 30, 2015

Another salmon disaster in the Klamath River Basin


There is another salmon disaster taking place right now in the Klamath River Basin but, like much that is newsworthy concerning the plight of salmon in this river basin, it is not being reported. 

By late October most of the fall run of Chinook salmon should have already spawned in tributaries that flow into the Scott River Valley. Those streams, including Shakleford, Kidder, Etna, French, Sugar and the South Fork Scott rise in the Trinity, Russian Peak and Marble Mountain Wilderness areas. As a result they have cold water and clean gravel perfect for salmon spawning. 

But at 6.5 cfs (cubic feet per second) flows in the Scott River are so low that a reportedly large run of Chinook salmon is stuck in the lower reaches of the River and can not reach the majority of spawning grounds which are located about 20 river miles upriver from the Scott's confluence with the Klamath River. 

 Salmon mass near the river's mouth waiting for enough water to make their spawning run

Unless sustained heavy rains come soon, most Chinook salmon production from the Scott River Basin will be lost this year and Coho spawning will be curtailed, continuing a trend toward extirpation of Scott River Salmon from the basin. The lack of access to spawning grounds in and above the Scott River Valley is not particular to this drought year but rather occurs with increasing regularity (see, for example, the 2012 KlamBlog at this link). Sometimes the rains and flows come in time for the Chinook and sometimes not. Because their spawning run occurs in November and December, Coho spawning is less often affected.

Losses of wild salmon production like those that are likely this year in Scott River, along with an epidemic of salmon diseases, are decimating the Klamath's wild salmon populations. As a result native, ocean commercial and sport fishermen and related economies are more and more dependent on salmon raised in hatcheries below Iron Gate and Trinity Dams. Dwindling wild salmon production  ultimately threatens the entire salmon run because over-reliance on hatcheries destroys the genetic diversity which allows salmon to survive in changing landscapes. 

Politically motivated reporting: