Klamath Falls, Tough Decisions at the Headgates

by Sean Finnegan
On the eve of the meeting of irrigators of the Klamath Basin rumors and speculation were abounding. The press on the heels of certain activists were pressing for blood while behind the scenes organizers were continuing with their battle to get local and federal government officials to support the farmers and ranchers who have been saddled with a decision which is choking them. The question of the day was a matter of short-term gain versus long term solution.

District Attorney Ed Caleb and Sheriff Evinger met with farmers, ranchers and activists at the headgates to present their position on the following day and for the future of this beleaguered town. Evinger said that he had been in contact with an official “high in the Bush administration” and that he was told that a long term solution was pending and that if anyone went in to the headgates that it could damage the chances of this person having an impact on the region. It’s rumored that this person was instrumental in the latest release of 75,000 acre feet of water. Which was found to be above the ESA imposed level of cutoff.

Caleb supported Evinger in his position that city commissioners would have a better chance to effect a long term solution if no one entered the gates but admitted that if people decided to cross the line that in all likelihood they would be allowed to occupy the area provided they didn’t try to execute an unlawful release of water.

The date of the U.S. Bureau of Reclamation (BOR) review of the next year’s allocation of water happens to occur in October which coincides with the estimate of Evinger of when his contact in Washington, D.C. would be able to provide for the farmers and ranchers a solution for next year. Local efforts to bring forth science to refute the opinion, which started the shutoff, would be instrumental in the decision of the BOR in its plan for next year’s irrigation plan. And if the BOR could push through the science then the farmers could see a guarantee of allocation that they have not had this year.

Meanwhile in the Tule Lake Irrigation District environmentalists have been applying pressure to the district to provide water for the refuge there which would normally come from the ‘A’ canal which is, as of now, cutoff from providing water. Not to mention headgates which exist on the Lost River which is a part of the canal system and which is the same river which is overflowing it’s banks in some portions.

And all the while the canal feeding the turbines at Pacific Power at the Link River Dam are spinning with water from the Klamath Lake and reportedly without meters to measure the flow and providing power for what some argue is the California power crisis. A visit to the canal showed the PP&L canal was as high as the river and the feed pipe was still spouting water from a decrepit redwood section that has never been fixed.

On hand for today’s meeting were various farmers, ranchers, organizers, and activists who have been on hand since the beginning of this crisis. One of which was Stan Thompson who was served a federal restraining order after he stated that he would enter the gates and chain himself to them. He offered the solution to the problem of jurisdiction of the federal government by providing the opportunity to address just that claim at his “Show Cause” hearing on September 4th. It is his contention that he could prove the federal government has no jurisdiction during the court proceedings and that the proof could be applicable to all the downstream irrigators.

Also on hand was former Sheriff Richard Mack who fought the Brady Bill in Arizona and took his case all the way to the Supreme Court and won. He was on hand to offer support and advise to Sheriff Evinger and to tell the story of his standoff with the Feds where he faced them down and they backed off.

He had many interesting things to say the least of which was that if he was in Evinger’s position that he would have already gone over to the Feds and demanded they leave with the assistance of deputized townspeople behind him.

As the meeting took place water continued to flow from a 12″ makeshift bypass pipe installed on site which is currently breaking federal law by diverting water from the Klamath Basin in to ‘A’ canal, although at a diminished rate. Which begs the obvious question. If the Feds are allowing one pipe, why not more? How much water can be run around the gates before they would react? We may never know.

Several scenarios and options were discussed with the sheriff as he listened to claims of proof of ownership of the headgates. The proof provided was in the form of an opinion of the Coalition for Local Sovereignty of documents provided which refer to the Irrigation Act of 1902 and specifically US Code Title 43, Section 498 which reads in full, that:

“When the payments required by this Act are made for the major portions of the lands irrigated from the waters of any of the works herein provided for, then the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense under such form and organization and under such rules and regulations as may be acceptable to the Secretary of Interior: Provided, that the title to and the management and operation the reservoirs and the works necessary for the protection and operation shall remain in the Government until otherwise provided by Congress.”

The opinion goes on to claim that the wording of the statute that “operation… shall pass to the owners of the lands” is automatic and self-executing. Once the works are paid off the project automatically reverts to the local water users association, without any further action on the part of Congress, or the Bureau. In addition the opinion cites that the BOR has a list online of all the reservoirs it maintains. The Klamath Project has never been listed as a reservoir, and it is clearly not a reservoir. Klamath Lake is a natural lake, and does not fit the description of a reservoir.

The opinion goes on to support that management of the basin does not imply or convey ownership and that the project was paid off years ago. Also it addresses the issue of whether the National Environmental Policy Act would restrict transfer and maintains that the NEPA was law years after the project reverted to the users.

Sheriff Evinger listened to and entertained several options to solve the current conflict the least of which would be deputizing irrigators and asking them to protect the headgates from unlawful releases, and asking the ranchers and farmers to stand down and let the federal agents on the scene leave after a few weeks of calm. However, he said he could not support a showdown with the Feds and that he had already made formal requests for their departure only to be told that they would stay.

In the end not much was resolved and tomorrow will bring irrigators and supporters to the tent at the headgates to listen to various positions and make decisions on their own whether taking the headgates will force the federal government to react with a release of “found” water, again, as it did before or whether it will hurt the chances of commissioners, the sheriff, the DA, and other organizers to gain a long term solution to the problem of a small town in Oregon without water.

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