Conflict Comes to Roost! the Bureau of Reclamation and the Federal Indian Trust Responsibility
Shepherd, Harold, Environmental Law
A recent federal district court decision rejecting irrigators' pleas to keep water flowing to fields in the Klamath Basin of Southwestern Oregon (1) filled the front pages in newspapers statewide. Irrigators asked the court to stop the Bureau of Reclamation (Reclamation) from prohibiting water deliveries to nearly 200,000 acres of farmland as part of the federal Klamath Project. (2) The agency's decision was based on the requirement, under section 7(b)(3) of the federal Endangered Species Act (ESA), (3) to implement "reasonable and prudent alternatives" to minimize impacts to endangered sucker fish and threatened coho salmon. The farmers sought declaratory and injunctive relief, including a request that the court order Reclamation to deliver water to the affected irrigators during the 2001 irrigation season. (4) They claimed that the Reclamation's actions breached federal water service contracts with the irrigators and violated the ESA, the Reclamation Act of 1902, (5) the National Environmental Policy Act (NEPA), (6) and the Administrative Procedure Act (APA). (7) Although the lack of water affected approximately 6000 water users during the summer of 2001, the court ultimately determined that the farmers' needs did not preempt the ESA's requirement to avoid jeopardy to species or the federal government's trust duty to the Klamath Tribes. (8)
This situation has resulted in an outcry against the ESA and tribal interests that have not been seen since the battles over tribal fishing rights that took place over thirty years ago in the Pacific Northwest (9) and the northern spotted owl in the early 1990s. (10) Conservative lawmakers and commentators are embracing the plight of Klamath farmers as the best example to date of the need to dramatically revise the ESA. They recently asked the Interior Secretary to convene the Endangered Species Committee--informally known as the "God Squad"--to reverse the consequences of the court's decision.
Controversy is also nothing new to tribes that have attempted to protect their water rights as necessary for the continued pursuit of traditional practices and develop reservation economic uses. During the last two decades of the twentieth century, over fifty major Indian water rights law suits and settlement agreements transpired in state and federal courts, at administrative hearings, and at negotiating tables across the United States. (11) The majority of these suits and administrative proceedings remain unresolved to this date, and may take two decades or more to reach their conclusion (12)--at major expense to the parties involved. For example, litigation regarding the use of Colorado river water, which began in 1952, for example, continues to this day, and involves seven states and five Indian reservations and their water rights. (13) In addition, settlement agreements between tribes and western states have been known to cost taxpayers. $25 million or more (14) and can take years before results are realized. (15)
These circumstances are amplified by the fact that the judicial climate is not particularly responsive to those attempting to protect treaty rights. Tribes are becoming more reluctant to seek enforcement of what might otherwise be ironclad treaty-reserved water rights because they fear that a court challenge could result in the permanent loss of those rights. (16)
The controversy over water rights partially stems from the practices of Reclamation operating under the Reclamation Act of 1902, which authorizes the agency to use federal funds for the purpose of constructing and maintaining large irrigation projects in western states. (17) In its effort to develop the West for irrigation purposes, the agency often failed to consider, or outright ignored, Indian water rights reserved by treaty, statutes, and executive orders and water flows needed for fish. (18) Not only were these rights repeatedly upheld by federal court decisions of the late nineteenth and early twentieth centuries, (19) they are also the very rights that the federal government, through its trust responsibility, is obligated to protect. …