|Oregon State Bar Bulletin NOVEMBER 2008|
Paul Simmons is an OSB member and a shareholder in a California law firm with offices in three cities. He works out of an office in downtown Sacramento, a capital city of one-half million that was planned by the son of pioneer John Sutter.
Carl "Bud" Ullman is a contract attorney for the Klamath Tribes. He works out of the tribal office near Chiloquin, Ore., a town with only two major streets and fewer than 900 residents, which was named for an Indian chief.
What Simmons and Ullman have in common lies between their disparate workplaces: the vast basin of the Klamath River, whose decades-long fights over water prompted Simmons to call it "arguably America’s aquatic Jerusalem."
Who owns a state’s water? Who has the right to use it, to divert it, to be on the banks and beds of a river or lake?
This year, a coalition of former opponents in the Klamath Basin; the Oregon Supreme Court and a state agency all grappled with these questions, the answers to which will increasingly concern us all.
"The Klamath litigation may be an example (of the future)," says Denise Fjordbeck, attorney-in-charge of civil and administrative appeals at the Oregon Department of Justice, who has represented the state’s interest on water issues since 1990. "As the population goes up, there’s more competition for the same resource."
"The fundamental premise of appropriation (of water) is you take the water out of the river and use it," she continues. "But now we have in-stream users — fishermen, recreationists — who would prefer to see the water stay in the river."
And who file lawsuits to keep the water in the river.
"He who sues my client is my friend," says Fjordbeck, only half-kiddingly. "I see my job as secure."
First in Time, First in Right
Fjordbeck loves water law.
"I don’t know how you could have more interesting stuff to work on than what we do," she says.
Nonetheless, she acknowledges that the specialty is "arcane."
"It definitely takes a while to master it," she says. "The ORS has six chapters devoted to water law. It’s very statutorily, very rules-driven."
Fjordbeck says that she always starts with ORS 537.110, which says that "All water within the state from all sources…belongs to the public."
"Like everything else, there are exceptions: i.e., a spring that doesn’t flow off your property," says Fjordbeck. "Wells are exempt, and there are some private lakes. But generally, all water, from all sources, is the property of the state. It’s a public asset, for which the Water Resources Department has a trust responsibility. It’s the referee."
As referee, the state applies what is known as the "prior-appropriation doctrine": whoever diverts water first, for some beneficial use, has a prior right to it.
Fjordbeck, a self-described "history nut," says that having "some sense of the history of the (American) West" is helpful to understanding this doctrine.
In the West, the use of the prior-appropriation doctrine can be traced back to the 1848 discovery of gold at John Sutter’s mill (the same John Sutter whose son planned the city of Sacramento, where Paul Simmons now practices water law).
"After the days of the pan and shovel gave way to ditches and sluice boxes, questions of right to use the streams arose," Joseph Sax and his co-authors wrote in Legal Control of Water Resources.1 "When they did, the miners applied the same rules to water as they had to the land — first in time, first in right."
A later use of the prior-appropriation doctrine in California appears in Marc Reisner’s book Cadillac Desert, which Fjordbeck says is "in part about how Los Angeles stole the Central Valley’s water and similar tales of woe. It’s a good introduction to the uses and abuses of water law."
Did Los Angeles use the law to appropriate the valley’s water? "Yes and no," says Fjordbeck. "They sort of stole it and then, by having appropriated it, made it legal. Once you’ve put it into beneficial use, it’s yours."
Beneficial use, said Sax in Legal Control of Water Resources, is essential to the right to water under the appropriation doctrine.
"It (the water) was not to be wasted," he stressed.
The awareness that water is a scarce commodity "doesn’t come easily to people in Western Oregon," says Fjordbeck, who grew up in Klamath Falls, the heart of what Simmons called "America’s aquatic Jerusalem."
In the Klamath Basin, water was needed not to sluice gold but to turn non-arable land into farmland via irrigation.
The importance placed on irrigated agriculture in the American West in the last 150 years "cannot be overstated," the Oregon Supreme Court wrote in Fort Vannoy Irrigation District v. Water Resources Commission and Ken-Wal Farms, Inc., a water law case that it decided in July.
"‘From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico — an area greater than that of the original thirteen states — the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation,’" the court said, quoting from a 1935 U.S. Supreme Court decision.
Because the federal government found settlement and development of the West to be, as that U.S. Supreme Court opinion put it, "highly desirable," in 1902 Congress passed the federal Reclamation Act.
"Basically, it (the Reclamation Act) contained authority for the federal government to come in and finance irrigation work, including dams," says Simmons. "The federal government would enter into contracts with individuals, and later irrigation districts, for repayment of the costs. So the federal government was both the engineer and the banker."
"A succession of pioneers, early on, built these towns and everything else," says Simmons, who represents a California irrigation district and an association of irrigation districts located in a geographic subset of the Klamath Basin known as the "Klamath Project." "They’re now my clients."
Over the years, conflicts developed between these invitee farmers and ranchers, who used water diverted from the Klamath River and other sources for irrigation, and Indian tribes that had cultural and economic connections with the salmon, steelhead and other fish that migrate from the ocean into the river’s fresh waters to spawn.
There also were clashes with environmentalists, who were concerned about the fish and the migratory birds that travel through and sometimes winter-over in the basin; commercial and sports fishermen, and others.
These different constituencies also developed conflicts with each other, many of them built around the premise — which Simmons and his clients dispute — that there isn’t enough water in the basin to satisfy everyone’s needs. Lawsuits were filed, based, Simmons says, not so much on statutory water law (with the exception of the federal Endangered Species Act (ESA)) as on common-law principles, treaties and other sources of authority.
"How far back do the lawsuits go?" muses Ullman, who was attorney general for the Federated States of Micronesia before becoming director of the Klamath Tribes’ water adjudication project in 1988. "The first formal adjudication of water rights in the basin was in the early 20th century. Even then, there was evidence that water resources were stretched. It’s reached a more hectic pace in the last couple of decades, but water has been an issue around here at least since the late 1800s."
Crisis in the Klamath Basin
That "issue" has reached several crisis points.
One was in 2001, when the federal Reclamation Project denied water to irrigators to protect endangered sucker fish and Coho salmon.
"That was a real milestone," says Ullman. "It made everyone realize that change was upon us."
But it was in 2002, when at least 60,000 fish died from disease that some Klamath River advocates attributed to environmental conditions, including low river water flows, that Ullman’s Indian clients were most affected.
"All the tribes on the Klamath River have treaties or other commitments from the U.S. government reserving fisheries and the water to support them," says Ullman. And in 2002, it appeared that there were neither viable fisheries nor the water to support them.
"The very public events associated with these disasters are merely representative of what has been occurring, day in and day out, for years," Simmons wrote in a trade publication this March. "Litigation is a way of life."
Then, in late 2004, a remarkable thing happened: some of the Klamath Basin constituencies who had blamed their water problems on each other began to work together.
"It all revolved around the recognition that nobody was getting ahead (and that we were) beating each other up a lot," says Simmons. "Potentially, there were things that could be done together, and the pooled weight of those parties would be a substantial force."
"Our (the irrigators’) history was one of arguing against the fundamental premise that there is not sufficient water," Simmons says. "But my folks said, ‘Let’s stop arguing about how much water fish need. Let (the) other folks say what works for them and see if we can live with that.’"
In Ullman’s view, "People grudgingly were willing to work with one another. It was like agreeing to a child-custody arrangement in a divorce, with water — not children — being what you have to share."
The result of this work was a proposed multiparty Klamath Basin Restoration Agreement that was publicly released in January 2008.
The agreement will not end all of the ongoing litigation in the basin. Some of the organizations that have been concerned about Klamath Basin water for years, most notably some environmental groups, did not sign off on it, which may result in collateral attacks. In addition, PacifiCorp still needs to sign a separate agreement concerning four hydropower dams that it owns and operates on the Klamath River whose removal is considered to be essential to the success of the multiparty agreement.
"It’s a big water settlement," says Simmons. "It’s going to take legislation and lots of money. Like anything involved with water, it was hard and emotional for everybody. If the dam issue doesn’t work out, I don’t know where it will go. Hopefully, the goodwill generated will allow us to pick up the pieces."
If the Klamath Basin represents the broad sweep of water-resource issues, the Oregon Supreme Court’s decision in Fort Vannoy Irrigation District v. Water Resources Commission and Ken-Wal Farms, which was announced in July, focused on one narrow question: who has the right to divert water in an irrigation district?
In that case, Ken-Wal Farms, which was a member of the Fort Vannoy irrigation district near Grants Pass, wanted to change and consolidate the points at which it diverted irrigation water from the Rogue River and Vannoy Creek.
The state Water Resources Commission — while acknowledging that "the issue of ownership of a water right within an irrigation district is a recurring question" — authorized the change. The district appealed; the Oregon Court of Appeals reversed the commission’s order and the Oregon Supreme Court affirmed.
In reversing the commission’s order, the appellate courts ruled that even though the actual user of the water (in this case, Ken-Wal Farms) "holds" that use, it does so in the capacity of an agent of the irrigation district. The district’s consent to the change and consolidation of the points at which the water was diverted therefore was required.
Fjordbeck, who represented the Water Resources Commission, which lost the appeal, notes that "One of the interesting things about the case was that there was no (direct) injury to anyone. It (the change and consolidation) wouldn’t have reduced the flow of water to other users."
Ross Day, whose client Ken-Wal Farms was aligned with the commission, agrees.
"From a practical standpoint, the district’s objection to our application simply didn’t make any sense," says Day, who also is director of legal affairs for the land-use regulatory and private-property advocacy group Oregonians in Action.
Roseburg attorney Ronald Yockim, who represented the prevailing irrigation district, declined to comment. But Fjordbeck says that from her point of view, the irrigation district was trying to protect its financial base, just like a school district that opposes allowing students to use taxpayer-funded vouchers to opt out to non-district schools.
"Irrigation districts live by assessing their members for use," she explains." If a member is taking water directly from its source, he doesn’t have to pay the district. In the district’s defense, you have to have ‘x’ number of dollars to do the job, and if you whittle away the dollars, you can’t do the job."
Navigating the Rogue
A month before the Oregon Supreme Court ruling in Fort Vannoy, a different governmental body, the Department of State Lands, had decided yet another water-related issue.
The question was whether an 89-mile stretch of the Rogue River is "navigable."
If it is, then the State of Oregon — not the private or other parties who own the land along it — owns the land below the river and its beds and banks up to the line of "ordinary high water," holding them in trust for the general public.
The State Land Board had been asked to answer this question in 1997 by then-Josephine County district attorney Timothy Thompson.
"Law enforcement officers are continually asked to enforce laws relating to claims and asserted rights which are unclear at best through the entire middle and upper Rogue River," Thompson said in a letter to the board.
The test for whether an Oregon waterway is navigable for title purposes and therefore owned by the state is whether it was, or could have been, used for trade or travel when statehood was granted in 1859, using the modes of trade and travel of that era.
In June, the department concluded that this stretch of the Rogue is navigable, noting, among other evidence, that explorers had reported seeing Indians canoeing there in the 1840s.
The finding won’t have much impact on the general public’s access to the river’s beds and banks, according to DOJ natural resources attorney Mark Schumock, because it already was entitled to use them, up to the line of ordinary high water, for such activities as picnicking and fishing.2
However, it will affect the private parties who own the land adjacent to the river, according to Jennie Bricker, a natural resources lawyer with Stoel Rives who in August filed a lawsuit on their behalf challenging the department’s study.
"Some of the private landowners have deeds that say they own to both sides (of the river)," says Bricker. "Some have deeds that include its beds and banks. (But) the state is saying it has prior claim to land they thought they owned."
According to Schumock, "In terms of a landowner’s use, the relationship between the state and the landowner changes once the river has been declared navigable."
"You now have a situation where private docks and marinas are now occupying state-owned land, and the state can charge for that use," he says.
But Bricker says that charging for the river’s use is not the only issue for her clients.
"What people object to, 150 years after statehood, is the state coming in now," she says. "They say, ‘I thought it (this property) belonged to me.’ It may not be a taking under the law, but it feels like it."
This section of the Rogue is not the only Oregon waterway which has been determined to be navigable: others include parts of the Chetco, John Day, McKenzie and Sandy rivers.
"I’m still in touch with the Sandy River folks," says Bricker. "What happens is the conflicts remain. Just their parameters change."
"The root of the problem is more people seeking to use fewer resources," she continues. "There’s also been a historic change. Water previously was used to float logs. Now it’s kayaks. The increase in the use of the same resources causes people’s civility to fray at the edges. Landowners definitely feel strongly about it; they get their backs up where property is involved. It’s just like my brother and me and our masking tape down the back of the car seat. It’s human impulse, at least in this American culture."
Whether this culture will continue to attempt to adjudicate conflicts about water via litigation remains to be seen.
DOJ’s Fjordbeck, for one, thinks it will.
"It (water law) is an area with a fair amount of litigation," she says. "I do think there will be more disputes; so many people get into this adversarial thing."
In addition, she says, the West’s current system of deciding who has the right to use and divert water is set up to lead to court.
For example, she notes that the state of Oregon currently is adjudicating water rights in the Klamath Basin, a process that involves hundreds of claims and thousands of contests of those claims.
"The Klamath (water rights) adjudication is an example of how the system works," says Fjordbeck. "Adjudicating rights to a stream is an administrative process. An order is issued and filed with the court, which hears any protests. The way the system is built, there’s almost an assumption that you are going to go to litigation over water rights."
"Because it (water) is a limited resource, any time someone’s unhappy, they’re going to pursue it," Fjordbeck continues. "Then, because there are so many different stakeholders, it’s hard to reach an agreement, and hard to reach an agreement that people who were not at the table are happy with. You can certainly come up with a settlement that meets one side’s interest, but to meet everybody’s? And in the Klamath case, where you’re throwing in the Indian tribes? If they (proponents of the Klamath Basin Restoration Agreement) pull it the off, it will be amazing."
But the Klamath Tribes’ attorney, Ullman, says he believes that other non-litigated solutions like the agreement are possible.
Traditional water-rights litigation doesn’t offer much opportunity to address underlying problems, particularly fisheries and habitat degradation and repair," he says. "Traditional litigation only deals with who has the right to how much water: prior appropriation. But for fisheries, the issue often goes beyond water quantity and has to do with habitat."
"Traditional water rights litigation also creates winners and losers among people whose lives are organized around water," he goes on. "Telling one he’s the loser creates enormous social problems. Western water law is the absolute antithesis of sharing: ‘I get all my needs satisfied and you get nothing.’ The idea of sharing is very hard to bring to bear in litigation."
"Water is an issue throughout the West," Ullman concludes, noting that the 1922 federal Colorado River Compact, which governed the sharing of water among seven Southwest states, had to be "rejiggered" after rapidly growing California exceeded its allotment.
"There’s an effort in many places," says Ullman, "to not become the next Klamath."
Bricker, Day, Fjordbeck, Simmons, Schumock and Ullman all spoke at the 17th annual Oregon Water Law Conference in Portland in November 2007.
1. Legal Control of Water Resources,, 4th (American Casebook Series®) by Joseph L Sax, Barton H. Thompson, Jr., John D Leshy, Robert H. Abrams (West 2006).
2. Under the Doctrine of Public Use, as stated in a 2005 formal opinion of the Oregon attorney general.
ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.
© 2008 Janine Robben