Nearly a half-century after its formal start, Oregon’s Klamath Basin Adjudication (KBA) is lurching toward a significant milestone: a judgment in the trial court.
Oregon’s water rights adjudication law establishes a two-stage process to determine water rights claims. First, in the administrative stage, the Oregon Water Resources Department evaluates claims and issues an administrative order approving or denying the claims, in whole or in part. In the KBA, that process concluded in 2013. Second, in the judicial stage, a circuit court adjudicates exceptions to the determined claims. In the KBA, that process is ongoing. Once completed, the Klamath County Circuit Court will issue its judgment/decree, affirming or modifying the administrative order.
In the first ten years of the judicial stage, the court resolved numerous legal issues that are common to many of the parties’ exceptions or that are necessary to adjudicate multiple exceptions. These include the standard of review of the administrative order and whether, and under what circumstances, parties are allowed to present new evidence in the judicial stage that is not part of the administrative record.
Functionally, the great majority of claims are now resolved, but there will be a single judgment that covers them all, some years in the future.
The most important pending issue is the judicial quantification of instream tribal claims for the Klamath Tribes in Upper Klamath Lake and its tributaries, which are the most senior rights in the basin. There will also be judicial review (without the taking of new evidence) of agency determinations for non-tribal federal reserved rights, rights of water users served by the Klamath Irrigation Project, and others.
When will there finally be a court decree? This is a decades-old question, and after a lengthy explanation (that should take less than a decade to read), we provide our prediction below.
Purpose and Authority
The KBA is a proceeding to determine water right claims in the Klamath Basin within the State of Oregon that are either federal reserved claims (based on Winters v. United States, 207 U.S. 564 (1908)) or pre-1909 appropriative claims (initiated before the enactment of Oregon’s Water Rights Code, akin to pre-1914 water right claims in California) whose scope and extent have yet to be adjudicated by a tribunal. Until such claims are determined, it is not possible for the Oregon Water Resources Department (OWRD), pursuant to its statutory duties under Oregon Revised Statutes (ORS) title 45, to administer these water rights.
ORS chapter 539 governs water rights adjudications and their procedures, directing OWRD to initially preside over the proceedings and enter a determination before a circuit court reviews the agency’s determination.
Administrative Stage
On December 23, 1975, OWRD issued a “Notice to Water Users, Klamath River and Its Tributaries,” thereby officially commencing the KBA and requesting that water users file notices of intent to file claims. OWRD then spent years conducting a series of examinations on streams and the works diverting water therefrom. Although OWRD performed some work during this time, the KBA was largely paused due to separate litigation in federal court regarding tribal federal reserved rights. This litigation culminated in United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), a seminal case for the holding that tribal water rights can carry a priority date of “time immemorial” when the tribe’s treaty with the United States reserves aboriginal uses of water to support a hunting and fishing lifestyle.
The KBA is Oregon’s first water rights adjudication to include federal reserved claims, which implicates the federal government. In September 1990, when OWRD issued a “Notice to File Claim” to all persons within the basin, the United States filed suit in federal court to test whether Oregon’s two-stage adjudication process satisfies the requirements of the McCarran Amendment, 43 U.S.C. section 666, to waive the United States’ sovereign immunity and join it as a party to a water rights adjudication. The Ninth Circuit Court of Appeals ruled in the affirmative. United States v. Oregon, 44 F.3d 758 (9th Cir. 1994).
Over 730 water right claims were filed with OWRD by April 1997. In October 1999, OWRD issued a “Preliminary Evaluation” on each claim, rendering initial conclusions on whether each claim should be approved or denied. Parties then had the opportunity to contest a Preliminary Evaluation and/or the underlying claim—a total of 5,656 contests were filed by May 2000. OWRD’s Preliminary Evaluations triggered yet another round of federal court litigation, with the United States and Klamath Tribes (Tribes) objecting to the State of Oregon’s quantification standard for tribal claims. The Ninth Circuit essentially ruled that it would abstain from deciding the matter until the KBA is completed. United States v. Braren, 338 F.3d 971 (9th Cir. 2003).
In another first, the KBA is the first to involve adjudicatory procedures conducted by administrative law judges (ALJs). OWRD referred contested claims to Oregon’s Office of Administrative Hearings (OAH), whose ALJs conducted evidentiary hearings and issued Proposed Orders on the claims until April 2012. OWRD then reviewed the Proposed Orders, as well as any exceptions thereto filed by the parties, and entered a Partial Order of Determination (POD) for each claim. Each POD, determining 734 different claims, is contained within the Amended and Corrected Findings of Fact and Order of Determination (ACFFOD) that OWRD entered on February 28, 2014.
OWRD is authorized to administer the water rights determined in the ACFFOD (i.e., regulate water rights based on priority) pending the court’s review thereof unless stayed. ORS §§ 539.170, 539.180.
Judicial Stage
The Klamath County Circuit Court (Court) has presided over the KBA since March 2013. In October 2014, parties had the opportunity to file exceptions to the ACFFOD and/or any POD within. The Court has since conducted the judicial proceedings in phases, beginning by deciding jurisdictional, procedural, and other threshold or cross-cutting issues. For example, in August 2017, the Court held that it would review findings of fact and questions of law in the ACFFOD de novo; it also held that it would only take non-record evidence for good cause shown, on a case-by-case basis.
Thus, through the end of 2023, the Court did not review individual PODs and resolve all exceptions thereto (although it did affirm those PODs that were not subject to exceptions). Rather, it ruled on broader issues, such as whether OWRD applied the correct legal standards when determining groups of claims. In May 2019 and July 2020, the Court modified the legal standards for certain federal reserved claims; in August 2022, the Court held that these modifications were not good cause for the parties to submit new, non-record evidence.
Current Events
In July 2023, the Court concluded Phase 3, Part 2 of the KBA judicial proceedings when it entered an order remanding the Tribes’ Claim 622—for a federal reserved right that requires that certain water levels in Upper Klamath Lake be maintained throughout the year, with a time immemorial priority date—to OWRD. A principal reason for the remand was the fact that, in 2009, when the claim was before the OAH, the Klamath Project Water Users (“KPWU,” a group of irrigation entities that use water from Upper Klamath Lake in connection with the Bureau of Reclamation’s Klamath Project, initiated in 1905) entered into a stipulation to conditionally withdraw their contest to the claim in hopes that a global settlement over the basin would be approved by Congress by December 1, 2017.
The stipulation provided that the Tribes would not place a “call” against claims senior to August 9, 1908 (thereby providing KPWU with safe harbor from such curtailment) during the pendency of the KBA, and that KPWU would have their “day in court” if the conditions subsequent (congressional acts) were not met. Further, to the extent that the conditions were not met, KPWU agreed to not challenge the time immemorial priority date aspect of the claim, but reserved the right to challenge the claim on all other grounds (e.g., present evidence that the water levels necessary to maintain a “healthy and productive habitat” for certain fish species—the legal standard for the claim—are much lower than those levels claimed by the Tribes).
The contested case proceedings before the OAH continued sans KPWU’s participation through 2012, when the presiding ALJ issued a Proposed Order recommending approval of Claim 622 in its entirety; OWRD then entered a POD for Claim 622 approving it as-claimed. The requisite congressional acts did not occur by December 2017, however, so the stipulation fell through and KPWU will now have their opportunity to present evidence and testimony in support of their contest in the first instance. The parties are presently awaiting a notice from the OAH, to whom OWRD again referred the remanded claim, regarding a hearing schedule. Once the remanded claim proceedings conclude, OWRD will presumably submit a new POD, with or without modifications, to the Court for its review.
Meanwhile, the Court commenced Phase 3, Part 3 of the KBA judicial proceedings in May 2024 to resolve exceptions to, and finally dispose of, individual PODs. In other words, the Court is now set to review each POD that is subject to exceptions to decide whether to affirm, modify, or reverse OWRD’s determinations on those claims. The Court is tackling groups of claims at a time, beginning with Walton and/or Klamath Termination Act (KTA) claims, a subset of the federal reserved claims, and ones for which the Court modified OWRD’s legal standards.
For a Walton/KTA claim to be approved under the Court’s legal standards, a non-Indian claimant must prove by a preponderance of the evidence that: its lands were formerly part of the former Klamath Indian Reservation; the lands were being irrigated (to the extent claimed) via diversion by an Indian owner or the first non-Indian successor; and all non-Indian successors have continued to use the claimed amount. If a claimant meets its burden of proof, it holds a water right with a priority date of 1864 (the year the Klamath Indian Reservation was created via treaty), which is superior to a state-issued license it may otherwise hold (i.e., the water user gets to increase the seniority of its right).
On August 7, 2024, the parties filed briefs with the Court in support of their exceptions to PODs approving Walton/KTA claims. They now await an order from the Court setting a briefing and hearing schedule, which will likely conclude in early 2025.
Once the parties conclude their Walton/KTA arguments, they will move to briefing their exceptions to other claims or groups of claims, such as non-tribal federal reserved claims or pre-1909 claims (exceptions to tribal federal reserved claims will likely be the last group to be briefed, given the remand of Claim 622 to OWRD).
Conclusion
While several more years will pass before the Court enters a judgment in the KBA, that milestone is within sight. The judgment will then be subject to appeal to the Oregon Supreme Court. Much work remains, but (relatively) soon there will be finality to the claims filed decades ago.
When? Rumor has it that Las Vegas has set the over/under at March 19, 2029, but it is best to hold onto your money.
For more information or with questions, please contact:
Somach Simmons & Dunn represents irrigation parties in the Klamath Basin Adjudication. This alert reflects the observations of the authors and is not intended to limit or otherwise describe the views of our clients.
Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
https://somachlaw.com/policy-alert/klamath-basin-adjudication-moves-forward-in-oregon-circuit-court/
