As Yogi Berra famously said, it’s deja vu all over again. Case in point: the Klamath Basin of southern Oregon and northern California, where there’s not enough water to go around. Wildlife refuges won’t get the water they need. Farmers in the federal Klamath Reclamation Project won’t get anything at all. Salmon have died. Anti-government activists have showed up with threats to open the irrigation headgates and save the farmers.
We’ve seen all this before. And — since no one has resolved the enduring, underlying conflicts — we shouldn’t be surprised to see it again.
For millennia, local tribes knew a Klamath Basin of vast wetlands. You can stand on Mt. Scott in Crater Lake National Park and get a sense of how much land would have been underwater. Upper Klamath Lake, Oregon’s largest, sits in the vast, largely level bottom of a bowl. Salmon swam up the Klamath River, the largest between the Sacramento and the Columbia, to the lake. Two species of suckers, historically vital to the Klamath Tribes, lived in the lake and its tributaries. Birds congregated in the basin by the millions, and so the first European Americans found tribal leaders dressed in feather cloaks.
But wetlands were worthless to an agricultural economy. In the very early 1900s, the federal government drained the swamp. The Klamath Reclamatioin Project was one of the new Bureau of Reclamation’s (actually, its predecessor’s) first triumphs. First the feds drained wetlands. Then they irrigated the dry land that could — with added water — be farmed..
By now, the wetlands are a small fraction of what they once were. But some water and wetlands remain near Upper Klamath Lake and, south of the California border, Lower Klamath and Tule lakes. Birds still come to the basin’s six wildlife refuges, which are crucial stops for species migrating along the Pacific Flyway. (One refuge is located at Tule Lake, near where the federal government built an internment camp for Japanese-Americans during World War II.)
Salmon still come back to the Klamath River, although four power dams built from 1918 to 1962 keep them from getting close to the lake, and water withdrawals from California tributaries have reduced their habitat there. Suckers still inhabit the big lake and its tributaries. But the lake’s two species of suckers have been listed as endangered since 1988, and the river’s coho and chinook salmon have been listed as threatened. On June 17, the California Fish and Game Commission added Upper Klamath Trinity Spring Chinook to the state endangered species list.
The refuges don’t have water rights, Oregon Wild conservation director, Steve Pedery points out, but farming is allowed in the refuges, and the farms do have rights. Irrigation water winds up in the refuges but, Pedery says, it’s really just agricultural wastewater. The lake has become seasonally covered by huge blooms of algae, which die, sink, and in the process of decay take oxygen from the water. (This is the same “eutophication” process that contaminated Lake Washington before Metro started piping treated sewage away — to Puget Sound — instead of letting it flow into the lake.)
Twenty years ago, in 2001, in order to save the suckers from extinction and to protect tribal treaty rights to the water — they have rights to the fish, and since fish gotta swim, they implicitly have rights to enough water in the lake and streams for the fish to be harvestable — the federal government temporarily closed the gates that let lake water flow into the irrigation project. Locals chainsawed the chains and locks from the headgate to let water flow. The sheriff stood by. An estimated 12,000 people from all over the west descended in a “Bucket Brigade” on Klamath Falls to protest the water cutoff. Federal marshals quickly secured the headgate, but protesters camped conspicuously near the gate for weeks. In July, after the press largely stopped paying attention, a lot of water flowed into the irrigation project after all.
The useful political symbolism of all that wasn’t lost on Bush administration strategist Karl Rove. The next spring, Bush’s secretaries of Agriculture and the Interior showed up in Klamath Falls to conspicuously open the headgate and let the irrigation water flow. Later that summer, chinook salmon returning to the Klamath River to spawn were stalled in the river mouth by low water. They massed there, waiting for the water to rise. The water in which they waited was warm. The conditions were crowded. Pathogens spread like wildfire. More than 30,000 mature chinook salmon died.
That got people’s attention.
The plight of salmon helped to doom the Klamath River dams, which came up for relicensing in 2006. When the dams’ owner, PacifiCorp. started the relicensing proceedure in the 1990s, NOAA Fisheries and the U.S. Fish and Wildlife Service insisted that in order to get new licenses, the company had to install fish ladders. The Federal Energy Regulatory Commission, which would have to grant the licenses, the California Energy Commission, the Interior Department, and FERC calculated that if fish ladders were the price of relicensing, PacifiCorp and its customers would save money if the utility just took the dams down. On June 13, FERC approved PacifiCorp’s transfer of the dams’ license to the states of Oregon and California and the new single-purpose nonprofit Klamath River Renewal Corporation, which will take down the dams.
In 2005, states and federal agencies, tribes, environmental and sportsmen’s groups, the states of Oregon and California — all started negotiating a Klamath Basin Restoration Agreement (KBRA) that would cover both the Klamath River dams and the water problems in the Klamath Basin. The big problem: environmental groups were split. Those that focused primarily on the river and the salmon favored the proposed agreement. Those focused on the water conflicts did not. The latter group argued that inadequate as it was, the resolution of those conflicts wasn’t likely to happen,since it required Congress to appropriate nearly $1 billion. Congress wasn’t likely to do that. And Congress hasn’t done it. A Congressional deadline to act by the end of 2015 came and went. The broader agreement is dead. Dam removal looked dead for a while, too, but the parties came up with a new agreement on dam removal. An amended version was signed last year.
But with the initial KBRA defunct and Congressional funding for it a faded hope, conditions in 2021 aren’t all that different from conditions in 2001. There has even been another massive fish kill this spring, when a lot of juvenile salmon turned up dead. As with the chinook that died in 2002, the cause seemed to be disease jump-started by low water. “While historic drought is the primary cause of the lack of water,” argued a press release from the Yurok tribe, which has fishing rights to the salmon, “previous [Bureau of Reclamation] water allocation decisions led to the widespread fish kill, which could have been prevented with a flow increase. ‘Right now, the Klamath River is full of dead and dying fish on the Yurok Reservation,’ said Frankie Myers, the Yurok Tribe’s Vice Chairman. ‘This disease will kill most of the baby salmon in the Klamath, which will impact fish runs for many years to come.'”
The dams are supposed to start coming down in 2023. Removing them will be a big deal. It will dwarf the dam removal on the Elwha and will enable salmon, for the first time since World War I, to make it all the way up to the lake. (Steelhead may get there pretty quickly. Other species may take a lot longer and may need help.) It will get rid of the dam pools in which, as Pedery says, the less-than-pristine water that flows out of the lake has simply cooked. The water reaching fish in the lower river will be cooler. All good.
But removing the dams won’t solve the basin’s water allocation problems. There still won’t be enough water to go around. And the conflicts over water upstream have only been exacerbated by Western drought and the accelerating impact of climate change. Pedery says that “the drought this year is highlighting that nothing has really been done to address the underlying problems in the basin (over-promising of water, wetlands loss) since 2001. And with climate change, the situation is only getting worse.” A critic of the failed agreement at the time, Pedery says that in hindsight, “it’s almost like the KBRA was an effort to lock in the status quo.”
One thing that has changed, Klamath tribal chairman Don Gentry says, is a wider recognition of tribal treaty rights. Under Western water law, the first person who gets rights to a given water source can take every drop to which he or she is entitled before the next person in line gets a chance, and so on down the line. Some people argued that the farmers in the reclamation project had senior rights. After all, the project dates back to the beginning of the 20th century. The tribes begged to differ. Their rights were affirmed by treaties signed in 1864, and their actual use of the water dates back to “time immemorial.” A federal court recognized this in 1983, but did not make the tribal rights enforceable. In 2013, a nearly-40-year Oregon state adjudication of Klamath Basin water rights did make them enforceable. Which didn’t keep people from suing.
Other legal arguments over what the feds did in 2001 lingered in the courts for nearly two decades. Irrigators sued the federal government, claiming breach of contract and an unconstitutional “taking” of property without just compensation. The courts haven’t bought it. Two years ago, the U.S. Court of Appeals for the Federal Circuit ruled unequivocally against the irrigators. The water cutoff wasn’t an unconstitutional taking, and it wasn’t a breach of contract. Responding to the argument that the Klamath Tribes didn’t actually use suckers these days, the court observed, “[t]hat the Tribes do not use endangered species cannot be held against them.” Last year, the Supreme Court let that decision stand.
Arguably, there never was enough water to go around. But years ago it was easy to pretend otherwise: Virtually no one cared about the tribes’ rights or the survival of local critters. As Gentry points out, no one could imagine a time without lots of fish. Neither prolonged drought not climate change was on anyone’s radar.
By this time, of course, the ominous handwriting has been on the wall for decades. But Klamath Basin farmers have hardly been the only people who refused to read it. Sun belt migration to the Southwest hasn’t stopped. Three years ago, when the Census Bureau listed Seattle as the nation’s sixth-fastest-growing major city, the top five inclulded Phoenix, Los Angeles, and three cities in Texas. To state the obvious, no one is going to shut off the taps in Phoenix. But in Klamath Falls, it’s a different story.
A lot of people in the inland West are still reaping the benefits of an old, long-since-discarded national consensus that making the desert bloom and settling people on the land was a national mission. By now, the West has been won, as the National Water Commission observed back in 1973. (The late Jim Ellis, a member of the Water Commission, observed at the time that “we’ve jumped right into the pork barrel.”
There is plenty of irony in the Klamath controversy. The most strident voices come from people who hate what they consider the intrusive, over-reaching federal government not least because the government won’t keep delivering subsidized irrigation water.
Is the opposition to water cutoffs just posturing, as the 2001 protests turned out to be? Probably — but intransigent politics militancy change that calculation. In 2001, the Southern Poverty Law Center took the situation seriously enough to issue a report on that year’s protests. The center noted that “the Klamath Falls protests fed the flames of far-right, anti-government fervor. Militia activists, cursing the ‘U.S. Gestapo’ in e-mails, volunteered to ‘fire the first shot at the feds.'” Then on June 15, introducing a new National Strategy for Countering Domestic Terrorism, Attorney General Merrick Garland said that a March intelligence assessment “concluded that the militia violent extremist threat, which it describes as those who ‘take overt steps to violently resist or facilitate the overthrow of the United States Government in support of the belief that the United States Government is purportedly exceeding its Constitutional authority,’ also ‘increased last year and . . . will almost certainly continue to be elevated throughout 2021.’”
Many Klamath Basin irrigators have tried to distance themselves from the folks who threaten to force open the headgate. Still, Gentry says, farmers he talks to won’t even discuss accepting less water. “We can relate to the sense of loss and having things jerked away from you,” he says. But Gentry rejects calls for the tribes to simply accept less water. “That’s kind of a non-starter,” he says. “We can’t afford to even think about providing less water” for the fish. And, he says, “we’re being more vocal in the community. We’re tired of being marginalized and demonized.”
Is there a way out of this long war? At best, the problems won’t be solved without high-level leadership, Pedery argues. And leadership, he says, has been hard to find. It goes without saying that money will be needed, too. A lot of money. Which few, if any, politicians will work to provide unless the various interest groups can agree. With feelings rubbed raw over two decades of standoffs, how likely is that to happen?