Ninth Circuit to federal land trespassers: Fuggedaboutit

Posted on February 2, 2016 by Theodore Garrett

Tensions ran high in eastern Oregon in early January 2016 as an armed group seized the headquarters of a national wildlife refuge. The occupation began as a protest of the sentencing of ranchers who were convicted of arson on federal lands in Oregon. The occupation subsequently became a rally for opening federal public lands to all. Entering the fray, albeit indirectly, the Ninth Circuit in its January 15, 2016 decision in United States v. Hage, held that defendants’ unauthorized grazing of cattle on federal lands in Nevada was unlawful. Contrary to the views of the Oregon occupiers that they are defending the Constitution, the Ninth Circuit held that grazing cattle without a grazing permit violated federal statutes as well as the state law of trespass, noting that a grazing permit is “a revocable privilege” and is not a “property right.” The Ninth Circuit rejected the district court’s ruling that the government cannot claim trespass if the cattle stayed within a reasonable distance of a source to which defendants had water rights. Concluding that the district judge “harbored animus toward the federal agencies,” the Ninth Circuit requested the Chief Judge of the Northern District of Nevada to assign the case to a different judge on remand. Meanwhile, back in Oregon, several of the protesters have been arrested. One was killed. 

A Tenuous Truce In Oregon’s Water Wars

Posted on April 11, 2014 by Martha Pagel

A year ago, this blog contribution described the latest battle in a nearly 40-year old water war in Oregon’s Klamath Basin. Now, there is a tenuous peace agreement in place – but it may be short-lived.  With substantial leadership from Senator Ron Wyden and Governor John Kitzhaber, a “Proposed Upper Klamath Basin Comprehensive Agreement” was negotiated among the Klamath Tribes, State of Oregon, and a large group of independent farmers and ranchers who hold water rights to surface waters in the Klamath Basin, above Upper Klamath Lake.  The underlying war has to do with who gets how much water in an on-going “general stream adjudication” of water diversions that began in the late 1800s to early 1900s, along with quantification of federally reserved water rights. 

In March, 2013, the Oregon Water Resources Department (“OWRD”) issued its “Findings of Fact and Final Order of Determination” (“FFOD”), which approved the federally reserved claims of the Klamath Tribes for substantial instream flows in the Klamath River and tributaries above Upper Klamath Lake, and for specified lake levels.  The Tribal water rights were granted a priority date of “time immemorial.”  When the FFOD took effect last year, the Tribes were legally entitled to make a “call” for water – requiring the OWRD to take immediate action to curtail water use by junior appropriators until the Tribes’ instream flow allocations were satisfied.  As a result, thousands of acres of irrigated farm and pasture lands were dry.  

The impact of the call was economically, socially and politically devastating, leading Senator Wyden and Governor Kitzhaber to convene a fast-moving settlement process that began late last fall and resulted in conceptual agreement before the end of 2013.  Further work in early 2014 resulted in a comprehensive agreement for the Upper Basin -- but the deal is fragile.  Implementation of key settlement terms depends on securing substantial federal funding and state agency support, with no guarantees of either. 

The settlement includes two key components:  a Water Use Plan and a Riparian Program.  Under the Water Use Plan, irrigators will voluntarily retire or reduce historic diversions by up to 30,000 acre-feet.  Under the Riparian Program, landowners will commit to voluntary habitat restoration actions.  The two components are to be implemented over a five year period, subject to the availability of federal funding.  An additional $40 million of federal funding is to be provided for Tribal economic development. 

This settlement agreement complements another agreement, reached several years ago, among the Tribes, state and federal agencies, and lower basin irrigators who receive water from Upper Klamath Lake under contracts with the U. S. Bureau of Reclamation.  That agreement also requires substantial federal funding that has not yet been committed, due at least in part to political pressures stemming from the fact that it addressed only half of the basin – leaving upper basin irrigators to bear the brunt of a Tribal call.  With the upper basin interests now addressed through this second settlement agreement, the basin is now fully covered with strategies to help recover instream flows to meet Tribal water needs while maintaining a sustainable level of economic use for farmers and ranchers. 

Optimists are hopeful the region will now be able to move forward with a united front to seek needed support from Congress.  Pessimists say the deal will crumble beneath the political weight and budget pressures of Washington DC.  One thing is for sure – the Klamath Basin water wars will not be ended soon.  Stay tuned for next year’s update.

New Water Wars in Oregon’s Klamath Basin

Posted on July 9, 2013 by Martha Pagel

These are sad times in Oregon’s Klamath Basin.  The state is making national headlines again over water wars pitting farmers and ranchers irrigating lands above Upper Klamath Lake against the Klamath Indian Tribes.

The Klamath area first made front page national news in 2001, when farmers and ranchers protested the removal of water from irrigation in order to protect threatened sucker fish under the federal Endangered Species Act (ESA).  This time, the headlines stem from an unprecedented “call” for water to serve a time immemorial water right granted to the Klamath Tribes.  Under principles of the prior appropriation doctrine in place in Oregon and most western states, seniority matters, and time immemorial is the ultimate priority date. 

The current problem was a long time in the making. After more than 38 years of administrative proceedings, the Klamath Basin General Stream Adjudication finally reached a critical legal juncture in March, 2013 that allowed historic water use claims to be enforced for the first time.  At that time, the Oregon Water Resources Department (OWRD) issued its long-awaited “Findings of Fact and Final Order of Determination” (FFOD) summarizing the state’s proposed disposition of more than 730 claims.

The FFOD included the state’s quantification of treaty-based reserved water rights for the Klamath Tribes to ‎support fishing and gathering activities in Upper Klamath Lake and its tributaries.  Although the instream flow and lake level amounts claimed by the ‎Tribes and approved by OWRD are still subject to further judicial review, the state is obligated ‎to respond to the Tribes’ call unless and until a court stays the action. ‎

As a result of the call, OWRD has already begun the process of shutting off water diversions for all other upper basin water right holders to the extent needed to fully satisfy the Tribes’ approved claims.  This means a loss of water for thousands of acres of irrigated farmland and other junior uses including domestic water for homes, stock water, and even the lodge at Crater Lake National Park.  The regulation system is based strictly on priority dates; however, OWRD has taken emergency action to allow continued water deliveries for human consumption and stock water.

At this point, a coalition of upper basin water users has petitioned for a judicial stay of the FFOD’s enforcement.  A hearing was held on July 3, and a decision is expected soon.  If the stay is not approved, the upper basin lands will remain dry and the economic losses will be substantial.  With nearly 40 years to prepare, it is sad that the affected interests were not able to reach some level of negotiated agreement before the battle lines were drawn.  Although both Tribal and non-Tribal water users have expressed interest in a negotiated solution, ‎there is no settlement process currently underway, and the war rages on.‎

THROWING WESTERN WATER LAW ON ITS EAR?

Posted on December 5, 2012 by Martha Pagel

How far can affected stakeholders go in fashioning local, “place-based” solutions to water management problems?  In other words, is it OK to throw western water law out on its ear – a little bit -- if no one complains?

The policy question arises in Oregon in connection with recent efforts to balance the need for increased water supply to support the potential for substantial agricultural-based economic growth in the Umatilla Basin – a major Oregon tributary to the Columbia River system – with competing water demands to comply with the Endangered Species Act by restoring and protecting instream flow for listed salmon.  The balancing act also seeks to support treaty-based instream water rights for the Confederated Tribes of the Umatilla Reservation (CTUIR) and restore severely depleted ground water supplies (See CRUSTaskforce). The desire of stakeholders to explore new ideas that go beyond the boundaries established by existing water law is a foreseeable consequence of Oregon’s long-standing commitment to locally-based collaborative efforts to resolve complex natural resource issues  (See Oregon Solutions and http://www.oregon.gov/owrd/LAW/docs/i_Chapter_4_Final.pdf). Just how far should state bureaucrats be willing to go in bending or changing traditional programs and policies to make way for customized, place-based solutions?

The specific example in the Umatilla Basin relates to proposals for establishing a water bank and brokerage system.  (See http://orsolutions.org/beta/wp-content/uploads/2012/06/Oregon-Solutions-Presenation-6_18_2012-CRUST.pdf). A broad-based coalition of local interests including individual farmers, irrigation districts, the CTUIR, conservation interests, local governments and agri-businesses have jointly proposed an option for collaborative water management.  Under their concept, each year a water management plan would be filed with the state to describe how water would be used, and possibly redistributed under existing water rights.  The concept includes a bottom line requirement that the water management changes not result in injury to any water user not participating in the plan, and not diminish instream flows.  No harm, no foul.  However, in preliminary discussions, the Oregon Water Resources Department – the state agency in charge of allocating and administering water rights -- has balked at the plan because it could allow water users to ignore priority dates and “spread” water – concepts traditionally abhorred in Western water law.

So, the question is:  Should government get out of the way to let water users figure out their own strategies for managing water – even if it would throw certain principles of Western water law out on its ear? Why not, if it reflects a local consensus and no one complains?

OREGON TEMPERATURE WATER QUALITY STANDARDS UPHELD (SORT OF)

Posted on March 23, 2012 by Rick Glick

In a 50 page opinion issued February 28, Federal Magistrate Judge Acosta handed EPA and the Oregon Department of Environmental Quality (DEQ) a partial victory in Northwest Environmental Advocates v. EPA et al.  The decision upheld EPA’s approval under the federal Clean Water Act of the Oregon DEQ’s numeric temperature water quality standards, while rejecting certain narrative standards.  NWEA also challenged the biological opinions issued by the National Marine Fisheries Service and U. S. Fish and Wildlife Service under the Endangered Species Act.  The Services concluded that the Oregon temperature and intergravel dissolved oxygen standards would not jeopardize listed salmonid species, and those agencies did not fare as well in the case.

Oregon’s temperature standards were adopted in 1996 and promptly attacked.  In 2003 EPA Region 10 adopted its own Temperature Guidance, and Oregon’s temperature standards were reformulated.  NWEA again found the revised standards wanting and brought the case at issue.  The judge upheld DEQ’s numeric temperature standards, despite evidence that the standards were less than optimal for fish, deferring to the scientific expertise of the government. 

The judge found fault, however, with narrative standards that deal with “nonpoint sources” of heat.  A point source is a discrete, end-of-pipe discharge to a waterway, whereas nonpoint sources are diffuse, such as runoff from a field.  The Clean Water Act regulates point sources through a permit program, while nonpoint source control is mostly aspirational, although it does direct states to develop best management practices and measures for controlling nonpoint source pollution.  Under the Oregon narrative standards, a nonpoint source that adopts “best management practices” is deemed to be in compliance. 

The court found that this formulation undermines DEQ’s numeric standards as it provides a substitute for actual compliance.  The same reasoning was applied to the so-called Natural Conditions Criteria, which provide that compliance is excused if natural conditions exceed standards.  The court found that such an exemption supplants otherwise lawful standards.
 
The court’s objections to the narrative standards notwithstanding, neither the Clean Water Act nor state law authorize direct regulation of nonpoint sources.  The narrative standards were Oregon’s attempt to address pollution from nonpoint sources without adopting a new regulatory program.  It seems the court reacted to the blanket exemptions provided in the rules, and it further seems that Oregon can revise them and pass muster.  The deference shown the agencies on the science suggests that the court will allow some leeway on language used to deal with nonpoint sources and the effects of natural conditions.

No such deference was granted to the federal fisheries services.  On remand they will have to prepare a new biological opinion that accounts for Evolutionary Significant Units (i.e. sub-groups of salmonids), potential for recovery, baseline conditions and cumulative effects.  Further, the Fish and Wildlife Service was chastised for considering factors other than the best scientific data available in formulating its opinion.  That is, FWS seemingly bowed to pressure to support the EPA Temperature Guidance, even though it believed that temperatures for bull trout provided for in the Guidance were not what FWS considered to be optimal. 

The net result of the many years of litigation over Oregon’s temperature standards is that Oregon’s approach, and EPA’s approval under the Clean Water Act, were largely validated.  Problems with narrative standards should be correctable.  Whether on reanalysis the Services find that the standards are protective of listed species, as required under the Endangered Species Act, remains to be seen.