Published by Yes! Magazine May 27, 2010

How the tribes of the Klamath River stood up for the salmon—and won.

by Alice Outwater

It was a dramatic scene in a classic Western water war: Thousands of dead fish, washed up on the shores of the Klamath River. A move meant to help farmers—using Klamath water to irrigate crops—triggered a loss for Indian tribes and the salmon.

That was five years ago, when a detente in the battle was nowhere in sight.

As with many Western rivers, irrigators own nearly all of the water in the Klamath. The river, which straddles the border between Oregon and California, irrigates fields and generates electricity, but it also serves as fish habitat.

The Klamath River was once the third largest salmon fishery on the West Coast, producing roughly a million salmon a year. The upper reaches of the Klamath were originally enormous wetlands and lakes that served as a stopover for millions of waterfowl migrating along the Pacific Flyway, a nursery for tens of millions of fish, and home to two unique species of suckers.

The conflict between Klamath-area farmers and fishermen has lasted for decades, complete with lawsuits and public relations campaigns, a disastrous political intervention, and a thrilling finale. But this year, after 15 years of meetings, an agreement was forged to allow the parties to share water; a related agreement calls for removing four dams. The linchpin? The Yurok and Klamath tribes.

Indian treaties from the 19th century give the Yurok and Klamath the right to speak for the salmon. Through these treaties, the tribes established the salmon’s right to water and required that the river be managed with the health of migrating salmon in mind. Since Indian treaty rights predate the farmers’ rights, salmon have priority over crops.

In 1994, the Yurok formed a fisheries program to develop the legal, political, and biological expertise to restore the Klamath Basin. “We’re salmon people,” says Yurok tribal member Troy Fletcher. “The existence of the Yurok people depends on the health of the Klamath and its fisheries. This is something the creator provided the tribe, and it is the responsibility of the tribe to have healthy fisheries.”

But first, a deal had to be made.

How the Water Was Won

Water is scarce in most Western states, and the laws governing its use date all the way back to the mining days of the 1800s, when mine owners diverted the high mountain streams to power mills that crushed ore; open-pit miners also used water to separate gold from gravel. But rather than allow one person to divert the entire stream, individual mining camps divided the flow into water rights based on the location of the diversion, the amount of water taken, and the date the right was established. Water courts, set up shortly after Western territories became states, enforced these rules. A water right keeps its original date no matter how many times it’s bought and sold; earlier rights have priority.

When ranchers and farmers moved in, salable water rights worked as a way to cope with low rainfall. Farmers without a stream running through their property, for example, could buy rights to use water from a neighbor’s stream. Ranchers and farmers own between

75 percent and 95 percent of the surface flow in Western states, while government-funded dams have helped provide water for holders of more recent water rights—cities. By the 1960s, most Western rivers were dammed, and irrigators with frontier-era water rights drained many rivers. Since then, fish populations have crashed, and rivers have become battlegrounds for fishermen, farmers, ranchers, tribes, utilities, businesses, environmentalists, and recreationists.

With modern irrigation systems, farmers can cultivate the same acreage using much less water. But according to mining-era laws, you lose rights to water you don’t use. So across the West, farmers grow wet-weather crops on arid land with inefficient irrigation methods in order to avoid losing their water rights. Meanwhile, cities run dry. In a reasonable world, some of a river’s flow would be diverted for agriculture, and some of the flow would remain in the river to nurture the fish. But when water is privately owned, those management decisions are more difficult. Take the Klamath Basin, where farmers own 93 percent of the surface water.

Starting in 1905, the federal government began draining much of the Klamath Basin wetlands and lakes for farmland. Today, farmers there cultivate about 500,000 acres of irrigated cropland adjacent to six national wildlife refuges, which serve as a stopover for migratory birds and shelter the largest wintering population of bald eagles in the contiguous United States. The Bureau of Reclamation built two dams on the Klamath and dammed many of its tributaries, while utilities built three others downstream. Upstream farmers divert most of the water to irrigate crops, and manure and fertilizers contaminate the river’s reduced flow. Dams slow the flow, the water heats up, and pollutants breed algae that color the river a bright pea green every summer. The river is so badly damaged that the Klamath’s coho salmon face extinction.

Enter the 1973 Endangered Species Act (ESA) and Native American treaty rights. The ESA protects the habitat that endangered plants and animals need to survive. The Lost River sucker and the shortnose sucker, two species of formerly plentiful lake fish in the Klamath Basin, were listed as endangered in 1988; the Klamath coho salmon was listed in 1997. According to the ESA, these fish have the right to survive and need water for habitat. And by treaty, the Yurok and Klamath tribes have the right to catch them. When the Yurok treaty was ratified in 1855, the tribe retained its right to fish for salmon. In 1864, the Klamath tribe was granted a federally reserved fishing right. Since water rights are based on prior appropriation, the Indian treaty rights to fish trump the farmers’ rights to irrigate.

During the drought of 1992, the U.S. Fish and Wildlife Service shut off the irrigation water from Clear Lake to protect endangered suckers and was sued by a group of farmers and ranchers from the Langell Valley. More lawsuits followed.

In 1995, U.S. Sen. Mark Hatfield, R-Ore., assembled the Klamath Basin stakeholders and asked them to resolve the water impasse. Local businesses, farmers, ranchers, utilities, conservation groups, the commercial fishing industry, and the tribes were represented in the working group, and Hatfield promised that if they came up with a solution, he’d make it happen. He retired two years later, but the meetings continued.

In 2001, the Klamath Basin received half its normal rainfall, and a group of environmentalists and the fisheries industry sued the Bureau of Reclamation to limit water deliveries to farmers. Scientists at the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service concurred, and the Bureau of Reclamation cut off water to the 1,200 farmers in the Klamath’s upper basin. The farmers lost their crops, for which the government compensated them $36 million.

The next year was dry as well but the farmers had no intention of losing their water a second time. The Klamath Bucket Brigade, a grassroots organization of farmers, had a message for Washington, D.C., from rural America: They claimed that the Endangered Species Act threatens the nation’s economic health, and rural property rights were being abused. Their plight struck a chord with the Bush administration, and the irrigators got their full measure of water in 2002. Interior Secretary Gale Norton flew in to open the ditch gates herself. By the end of the summer, low water and high temperatures triggered a bacterial infection that left at least 34,000 dead salmon rotting in the Klamath River.

The waste of those tens of thousands of chinook salmon—some of the last Klamath salmon on Earth—shocked all the parties involved into recognizing that even though farmers held rights, what was happening was wrong.

Everyone was “totally frustrated,” said Fletcher, who helped negotiate the agreement for the Yurok. “They were broke, and beat up by Congress and the administration. All of the parties tried litigation. All tried political routes. And in the end, it turns out that the communities in the basin are the ones who know best how to solve the problems they’re faced with.”

On Feb. 18, 2010, all 28 parties signed an agreement to restore the Klamath Basin. “The Klamath River, which for years was synonymous with controversy, is now a stunning example of how cooperation and partnership can resolve difficult conflicts,” Interior Secretary Ken Salazar said in announcing the agreement. The 369-page plan includes habitat restoration and flow management. Water is provided for agriculture, but the levees around the lakes will be breached, wetlands restored, and, according to the companion agreement, four dams removed to allow salmon access to hundreds of miles of spawning streams while improving water quality.

The plans amount to a compromise; no interest group got all it wanted. And federal money still must be set aside.

It’s a daunting task, Fletcher said. “Now we have to make it happen.”

This article is licensed under a Creative Commons License

Alice Outwater wrote this article for Water Solutions, the Summer 2010 issue of YES! Magazine. Alice is a writer based in Durango, Colo. She is the author of Water: A Natural History and co-author of The Cartoon Guide to the Environment.

Interested?

A summary of the Klamath Basin Restoration Agreement is available from the Yurok Tribe: www.yuroktribe.org/documents/summaryofproposedKlamathBasinRestorationAgreement.pdf