Indigenous Peoples and Human Rights

December 15, 2015

Stop the Klamath Agreements, Save our Wild Salmon

Stop the Klamath Agreements, Save our Wild Salmon

Will Senator Greg Walden attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement?

By Kayla Godowa Tufti
Censored News

December 152015 (Upper Klamath Basin, Oregon)
The infamous Klamath water Agreements appear to be on their final days. Rumor has it that Tuesday December 15th Senator Greg Walden will attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement. But there's a catch. The bill as it stands today will no longer include the language for dam removal, which has been a primary bargained for benefit to signatory tribes to improve historic Klamath River wild salmon runs that have been irreversibly damaged by settler occupancy.

Rate payers have been charged a fee on their monthly bills from PacifiCorp for a number of years for dam removal. But if legislators have no intention of removing the dams, where did all of the fees rate payers have been charged go?

California's Hoopa Valley Tribe was part of initial Klamath Agreement talks but refused to support the accord on the grounds that it didn't guarantee sufficient flows for struggling Coho and Chinook salmon populations.

The Klamath River flows directly through the Hoopa Valley Reservation in Northern California and the Trinity River is a major tributary to the Klamath River. Trinity water flows secured by the Hoopa Valley Tribe have contributed significantly to saving wild salmon populations in the Klamath River when Klamath water levels were not secured by enforcement of Klamath Tribes senior water right.

As of September 2015, The Yurok Tribe of California has been rumored to have withdrawn from the agreements.

If that is true, then the only two remaining signatory tribes are the Karuk Tribe of California and the Klamath Tribes of Oregon.

According to an article published December 11th 2015 by Western Livestock Journal, Andrew Malcolm, Communication Director for Senator Greg Walden states, "The way the agreements work is that the tribes that have senior water rights would lock in river flows, and the tribes would allow water to flow to agriculture in the project. … The way the process works is, in the first few years, it's a temporary exchange in terms of the tribes allow for these flows to happen, but then as certain benchmarks are met throughout the agreement, then that water becomes permanent."

Malcolm agreed that the issue is largely a semantic one; while the Klamath Tribes are not waiving their senior water rights, they're waiving a portion of the water their senior water rights grant them, assuming the agreements hold.

"The fact is we felt the need to remind people that we're trying to protect the taxpayers here and that for the tribes to get land, they are giving up some of their senior water. [Gentry, Chairman of the Klamath Tribes] doesn't like the word 'waive,' but in reality, once the agreements become permanent, that's what they're doing."

In an article published by Dylan Darling in the Herald and News October 15th 2003, the at time Tribal Chairman Allen Foreman in a message to members of the Tribes on Sept. 27 2003, stated "The Klamath Tribes are not interested in surrendering their claim for senior water rights in exchange for regaining portions of their former reservation, tribal officials said Tuesday.

A press release issued by the tribes said media reports indicating they were considering a trade of water rights for land now held by the U.S. Forest Service were incorrect.

Carl "Bud" Ullman, attorney for the Tribes, said the Indians have two objectives: gaining water rights in order to restore fish populations, and regaining about 690,000 acres of former reservation land now in public ownership.

Though both objectives are being discussed with federal officials, the Tribes aren't planning on turning over their senior water rights," Ullman said.

Two paragraphs later Ullman states, the Tribes are considering foregoing some of their water rights in exchange for a restored sucker fishery, which has been closed since 1986. Under such an arrangement, the Tribes would hold their water rights but not seek enforcement of them if the federal government works to restore sucker populations.

According to Ullman, there had been progress in the last year and that an agreement could be reached by the end of that year, though it could then take another year to get approval from Congress.

That was 12 years ago. The current Klamath Tribes chairman Don Gentry and past chairman Allen Foreman have been operating on the same manipulative, double talk agenda.

And as it now stands only 4 days remain until the Klamath Agreements sunset in Congress.

The "Historic dam Removal" campaign is set up to generate Republican push back against the Federal Energy Regulatory Commission (FERC) dam removal re-licensing process.  Signatory tribes and front groups have used those scare tactics to garner support and protect wealthy PacifiCorp shareholders from paying for dam removal.

The Klamath water Agreement issue is not about dam removal. The dams are out of compliance and will come down regardless. The Klamath Agreement issue is who's paying for dam removal?
An article published September 21st 2015 by Adam Spencer in The Triplicate states, "The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of Appeals challenging that the federal dam regulatory agency has violated the Clean Water Act in its approach to the relicensing — or lack of it — of the Klamath River dams.

The hydropower license needed for PacifiCorp to operate its hydroelectric dams on the Klamath expired in 2006, but the Warren Buffett-owned power company has delayed the relicensing of the dams since then using a legal-gray-area strategy outlined in one of the Klamath Agreements. All in hopes that Congress would pass legislation implementing the Klamath Agreements. But that hasn't happened after three years of sitting in Congress with little traction."

The Hoopa Valley Tribe's tactic of forcing the hand of the Federal Energy Regulatory Commission to get PacifiCorp to proceed with relicensing of the dams seems to have better odds of removing the deteriorating dams that have decimated wild salmon runs in the Klamath Basin than the glorified Klamath water Agreements.

To relicense the dams in compliance with the Clean Water Act, PacifiCorp needs to apply for Water Quality Certification from regulatory agencies in both California and Oregon, where the dams are located.

"Plainly the operation of the hydro project violates the water quality rules," Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams' previous 1956 license pre-dates environmental law.

According to Spencer of the Triplicate, "even if water quality certifications were completed and a new license issued, it would require PacifiCorp to install ladders to provide for passage of migratory fish through the dams, an action already mandated by National Marine Fisheries Service.

Fish ladders would exceed the cost of dam removal and the dams would produce less energy and be less profitable, making dam removal the most economical option for shareholders and ratepayers."

Both California and Oregon's public utilities commissions have determined that dam removal is the best option for ratepayers.

The Klamath Hydroelectric Settlement Agreement (KHSA), the agreement focused specifically on dam removal, states "PacifiCorp shall withdraw and re-file its applications for Section 401 (water quality) certifications as necessary to avoid the certifications being deemed waived under the (Clean Water Act) during the Interim Period."

According to the Clean Water Act, if a state fails or refuses to act on a water quality certification "within a reasonable period of time (which shall not exceed one year)" than the certification is considered "waived."

Case law cited in Hoopa Valley Tribe court documents states, the purpose of the waiver provision is "to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification."

A waiver would lead to the relicensing process outside of the Klamath Hydroelectric Settlement Agreement (KHSA), the less desirable option for Buffet's grossly rich PacifiCorp.

Spencer of the Triplicate reported, "PacifiCorp has withdrawn and re-filed its water quality certification application in both California and Oregon eight times to keep the application active without having certification considered waived by the state agencies. Withdrawing and re-filing the application is done with a single email."

"Their theory is that the letter gives the water board another full year to do nothing," Schlosser said. "We kept saying 'no, this is a violation of the Clean Water Act and you can't get around it by this letter writing campaign.'"

FERC denied the Hoopa Valley Tribe's request for a hearing on the issue in October 2014. Though the agency released a statement that they do agree that PacifiCorp and state regulators are "clearly violating the spirit of the Clean Water Act" and possibly acting "contrary to the public interest by delaying the issuance of new licenses that better meet current-day conditions than those issued many decades ago."

In the end, the FERC's discussion concluded that while PacifiCorp may violate the spirit of the law "we do not conclude that they have violated the letter of that statute."

"They are essentially saying that this little routine that PacifiCorp is using violates the spirit of the Clean Water Act but they are going to go ahead and approve it," Schlosser said."They are deciding to do nothing for a settlement agreement they never approved or reviewed. I'm optimistic that court of appeals will say FERC has fallen down on the job and they ought to dismiss the application for licensing."

Without these corporate Klamath deals the Interior Secretary can make a finding on dam removal, to ultimately dismantle the dams.

Its past time to revise the Klamath agreements and address problems in a sequential cost effective fashion, that won't drive wild salmon stocks to extinction.

The KHSA minimizes PacifiCorp's required operational changes until at least 2021, strips Federal Energy Regulatory Commission (FERC) of jurisdiction while the agreement remains in place, and also protects the utility from compliance with any other measures to improve water quality. (Sec. 6.1.1 and 6.3.4.A.)

The KHSA halts State water quality certification proceedings, which now are the only remaining step before FERC would force dam removal. (Sec. 6.5.)
Dam removal cannot be forced with the Klamath water Agreements in place. The Klamath Agreements will cost tax payers $750 million over a 15-year period.

The federal Indian policy questions raised by Senate bill (S.133) prompted more than 50 federally recognized Indian tribes to object when the Klamath Agreements were considered by Senator Lisa Murkowski's Committee in the 113th Congress.

Among their criticisms was that the legislation would reverse longstanding federal Indian affairs policies of tribal self-determination, self-governance, and respect for property rights held in trust for Indian tribes.

The objecting tribes stated specifically that section 5(f) of the bill would authorize approval of settlement terms that would require the United States to abandon its trust relationship and subordinate tribal fishing and water rights to others unilaterally, without tribal consent.

They also maintained that the settlement terms required by the bill are associated with discredited tribal trust termination policies that were in effect in the 1950s.

Chairman Murkowski, on November 14, 2014 spoke about the Klamath settlement in the 113th Congress stating that: "There is another issue, and that is the estimated $500 million in needed funds over the next ten years called for under the agreement would come from. I can tell you from my perspective as an appropriator; we don't exactly have an extra $50 million per year lying around under the seat cushions in my office."

Many groups reached the same conclusion about the unavailability of funding and walked away from the Klamath Agreements.

The Hoopa Valley Tribe received over 50 letters of support from federally recognized Indigenous tribes from all across the United States in their efforts to oppose the Klamath water Agreements.

Warren Buffet is the richest man in the world because he has a manipulative mind for business. People like him don't get disgustingly wealthy by playing nice. He has found tenacious individuals to lobby for PacifiCorp dam removal, tribes and front groups alike. All for California and Oregon tax payers to foot the bill, leaving Buffet's corporation exempt of financial responsibility.

Members of the Hoopa Valley Tribe and Klamath Tribes refuse to endorse the fatally flawed Klamath agreements because they unilaterally terminate tribal water rights. Rights that are intended to be enforced to protect the environment.

"The ancestors pray for our fish. And our fish always pray with us because we take care of them and they take care of us." Says Oni Rose Orcutt, 7 year old Hoopa, Yurok and Karuk descendant.

"We are asking you to not support Walden's bill. Because this bill is killing our salmon and terminating our water rights. Ts'ediyah. Thank You. " Stated 10 year old Presley Orcutt (sister to Oni Rose), also a Hoopa, Yurok and Karuk descendant.

Please help support our friends in the Hoopa Valley community and relatives of the Klamath Tribes in efforts to protect their salmon babies by not endorsing the following-- Senate Bill 133: Klamath Basin Water Recovery and Economic Restoration Act of 2015, The Klamath Basin Restoration Agreement (KBRA), Klamath Basin Hydroelectric Settlement Agreement (KHSA), Upper Klamath Basin Comprehensive Agreement (UKBCA)

Please help support an effort that will truly "Undam the Klamath and bring the salmon home."

Happy belated birthday to Oni Rose and Presley, the girls of Hoopa Valley whose hearts are forever with our salmon and waters. This is dedicated to you and all our future generations to come. May all your hopes and dreams come true.

In collaboration with and in honor of our friends at the Hoopa Valley Tribe and our Klamath, Modoc, Yahooskin relatives at Honor the Treaty of 1864.

Naat ciiwapk diceew'a "We help each other; We will live good."

Kayla Godowa-Tufti is a member of the Confederated Tribes of Warm Springs of Oregon and a descendant of the Klamath, Modoc, Yahooskin peoples of the Upper Klamath Basin. An Indigenous rights/water advocate and freelance journalist residing in Kalapuya Territory, Oregon.

Oni Rose Orcutt stands in the algae contaminated Trinity River, where her ancestors have fished since time immemorial
(Photo contributed by Oni's mother)

Presley and Oni Rose Orcutt at a protest in Fresno, CA 
(Photo used with approval by Presley and Oni's mother)

​Presley Orcutt with a salmon from the Trinity River where her ancestors have fished since time immemorial
(Photo contributed by Presley's mother)

​Salmon pit fire in Hoopa Valley 
(Photo contributed by Presley and Oni's mother)

Traditional Hoopa dug out canoes on the Trinity River​ 
(Photo contributed by Presley and Oni's mother)

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