Oregon’s Upper Klamath Basin has long supported wildlife, as well as the livelihoods of ranchers, farmers, and other landowners. Some water rights belong to the Indian tribes by treaty, with the U.S. Bureau of Indian Affairs (BIA) charged with exercising these rights consistent with the best interests of the Indian tribes, as well as the general public. But in 2013, the BIA handed over control of Upper Klamath Lake tributaries to the Klamath Tribes, resulting in widespread irrigation shutoffs that wipe out wildlife and agriculture. As a private party not expressly authorized by Congress to make water rights decisions, the tribes have no legal authority to assume BIA’s management responsibilities. More than two dozen ranchers and other water users have asked a federal court to decide just who should be calling the shots over their water rights.
The rich pastures and flowing waterways that make up Oregon’s Upper Klamath Basin have long supported the livelihoods of ranchers, farmers, and other landowners, along with a vast array of wildlife.
But in 2013, a federal agency handed control of Upper Klamath Lake tributaries to the Klamath Tribes—a non-federal entity—as part of a protocol agreement. The tribes routinely take all the water they can through calls for their “instream” rights (meaning the right to keep water in a stream, as opposed to taking it out for domestic or agricultural purposes). As a result, ranchers in the basin suffer widespread irrigation shutoffs that damage local wildlife and choke agricultural output by turning green pastures into dusty wastelands.
In Oregon, water rights are not self-enforcing. That is, water rights-holders must proactively make a call for the fulfillment of their rights. As trustee of the Klamath Tribes’ instream water rights, the United States has the power to make, or not make, the call for tribal water rights enforcement.
Congress delegated this power to the U.S. Department of the Interior, which in turn charged the U.S. Bureau of Indian Affairs (BIA) with tribal water authority. Then, in a so-called protocol agreement in 2013, BIA subdelegated its own crucial water rights authority to the Klamath Tribes.
Because of the protocol, BIA has effectively abandoned any ability to override or veto tribal decisions. Nor are proper, federally mandated environmental impact analyses taking place to inform each decision resulting in basin-wide water cutoffs. This means people and habitats that depend on responsible water allocation are at the mercy of unaccountable, non-government actors who have repeatedly called for water shutoffs that impact irrigation, well water, and municipal supplies.
The bigger problem, however, goes beyond water use. By delegating its lawful authority over water rights to the tribes—a non-federal party not expressly authorized by Congress—and abdicating its final reviewing authority, BIA overstepped its constitutional boundaries, as well as federal statutes that are supposed to inform and guide discretionary agency decision-making.
Represented by PLF free of charge, the Wood and Sprague River Landowners, a group of more than two dozen water users and ranchers, are challenging the validity of the protocol agreement in federal court.
What’s At Stake?
- When Congress gives a federal agency authority to make a decision, it can’t turn around and delegate that responsibility to private parties.
- The federal government has the obligation to manage Indian trust property to benefit tribes while not unnecessarily injuring the general public welfare.
