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Klamath Basin Agreement proponents have lost not only their grip on reality, but also their traditional American common sense neighborly values

White House as Originator and Promoter of Klamath Basin Agreements


By —— Bio and Archives--September 8, 2016

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Klamath Basin groups claiming to represent the majority of Klamath Basin residents, such as the Klamath Water Users Association (“KWUA”)1 and the Family Farm Alliance (“FFA”),2 have long perpetuated the lie that the Klamath Basin Agreements will benefit ALL Basin residents.  The first two of these agreements had been initially proposed during the Bush administration3 in an effort assist Klamath irrigators resolve longstanding science and water delivery disputes with environmentalists and tribal communities.  Now, these and several additional new agreements are being non-transparently driven by the Obama administration,4 which secures non-disclosure agreements from “secret meetings”5 participants to ensure they remain silent about the preferences the agreements contain in favor of Native American Tribes and the environmental community.6 The evidence clearly shows that these groups will stop at nothing to keep their false and deceptive narrative alive.

The Klamath Basin Agreements include:

  1. 1) the now-defunct Klamath Basin Restoration Agreement (“KBRA”),7 originally executed by these and other parties in 2010, but which expired on January 1, 2016 because Congress refused to ratify it;
  2. 2) the Klamath Hydroelectric Settlement Agreement (“KHSA”),8 also originally executed by these and other parties in 2010, but which they renegotiated and subsequently amended9 pursuant to secret meetings on April 6, 2016 after Congress refused to ratify it by January 1, 2016;
  3. 3) the Upper Klamath Basin Comprehensive Agreement (“UKBCA”),10 originally executed by the tribes in 2014, which the parties are currently renegotiating; and
  4. 4) the new Klamath Power and Facilities Agreement (“KPFA”),11 executed by the parties pursuant to secret non-disclosure agreement-based meetings on April 6, 2016 in an effort to resurrect portions of the now-defunct KBRA.

Given the KBRA’s expiration, its proponents within and outside of federal, state and local government have since endeavored to reinsert portions of the agreement into transitional “placeholder” Congressional legislation until additional agreements can be executed.  A prime example of this effort is the Wyden-Merkley Amendment (Senate Amendment (S.A.) 3288),12 which is a proposed amendment to S.A. 2953,13 proposed to S. 2012, the massive U.S. Senate Energy bill.14  As Article II of the KPFA reveals, S.A.3288 was first introduced into Congress on February 4, 2016, and was in the process of being evaluated by a U.S. House-Senate Conference Committee when Congress recessed in early August.  The Wyden-Merkley Amendment would add new Section 4 “Power and Water Management” to the Klamath Basin Water Supply Enhancement Act of 2000.15 

If passed and enacted into law as part of the massive Senate energy bill, S.A. 3288 would appropriate congressional monies to support certain favored activities in which local irrigators would engage to fulfill the objectives of these agreements, as well as, specially designated irrigation-related monies (federal subsidies) to financially reward those supporting farmers.  It is believed by political insiders that, if the Wyden-Merkley Amendment or S.2012 is defeated in committee, S.A.3288 will somehow find its way undetected into the 1,000 page-plus omnibus federal government spending bill that Congress will likely pass sometime during its brief lame-duck session this coming fall.

 

The Myth of Wyden-Merkley

The KWUA’s Executive Director discussed the Wyden-Merkley Amendment’s mythical benefits in the July 7 issue 16 of the Capital Press (“CP”).  There, he addressed Klamath Basin farmers as if they were children, waxing poetically about the benefits that S.A. 3288 would provide them if only they would continue to “believe.”17  KWUA and some FFA members have long shamelessly misrepresented that the passage of S.A.3288 would bring all things good18 to Klamath Basin farmers, including community respect and untold government welfare benefits.  Many will recall how charlatan tailors had similarly persuaded the Emperor in Hans Christian Andersen’s The Emperor’s New Clothes19 to walk naked through his kingdom convinced he had been wearing the most magnificent invisible clothing money could buy that would earn him the respect and adulation of his loyal subjects. 

Wyden-Merkley’s named authors and sponsors,20 Oregon’s largely invisible congressman who secretly undermines Oregon irrigators’ property rights21 and California’s misguided D.C. congressional liaison22 have continued telling stories to their constituents about how S.A. 3288 will deliver benefits beyond their wildest expectations.  These persons also have tried to extinguish my effort to shed some truth on the matter.  For example, they quickly dismissed as unnecessary the direct and express language changes to Wyden-Merkley23 I had previously recommended to ensure after-the-fact congressional review and ratification of the non-transparently developed Amended KHSA and new KPFA.  They reasoned that the bill’s “savings” clause (Para. 2, p. 3)24 would allegedly prevent the Secretary from “carry[ing] out activities that have not otherwise been authorized.” Yet, readers, by now, should realize, following Congress’ rejection of the KBRA this past January, that each of these agreements was carefully crafted with the intent of being executed without congressional review and ratification!25

Wyden-Merkley Doesn’t Deliver

 

As I had explained in the June 23rd issue of the CP, the Wyden-Merkley Amendment is the proverbial ‘Dog that ‘Don’t Hunt.’26 First, the Wyden-Merkley paragraph (Para. 1, p. 2)27 immediately preceding the paragraph containing the Amendment’s savings clause will operate upon passage to authorize the congressional appropriations needed to implement the policy objectives of the UKBCA and the defunct KBRA, the latter of which has since been inserted, in part, into both the Amended KHSA and the new KPFA.  Such authorization, in turn, will potentially funnel financial benefits through the Bureau of Reclamation (“BOR”) to at least some supportive Klamath Basin farmers.

Second, the Amendment text elsewhere shows how its authors knew very well how to require Congress’ authorization of Interior Secretary actions when it wanted to do so.  For example, on the same page (p. 3),28 the Amendment’s text clearly shows that its authors and sponsors had required express congressional authorization before the Interior Secretary could proceed to undertake other designated actions. To wit, “Nothing in subparagraph (A) or (B) of paragraph (1) authorizes the Secretary to (A) to develop or construct new facilities for the Klamath Project without appropriate approval from Congress under Section 9 of the Reclamation Projects Act of 1939 (43 U.S.c. 485h)[.]” Clearly, Wyden-Merkley’s authors knew how, but chose not, to require congressional review and ratification following the execution of the Amended KHSA and new KPFA, and they continue to anguish over the disclosure of this fact.

Continued below...

Wyden-Merkley’s Fabled Benefits

My June 23 CP article, moreover, strongly suggested that the congressionally appropriated funding the Wyden-Merkley Amendment would ensure for all supportive Klamath Basin farmers and ranchers won’t fully materialize because there simply is not enough guaranteed money to go round. Indeed, Klamath Basin Agreement proponents should immediately stop counting their promised government “gold” lest the Department of Interior (“DOI”), itself, may steal it away29 for other budgetary uses when they aren’t looking!

In fact, most of the DOI monies budgeted for the Klamath Basin during FYs 2012-2017 30 have been allocated to DOI’s BOR, Bureau of Indian Affairs (“BIA”) and Fish & Wildlife Service (“FWS”) for purposes of funding Klamath Basin [wildlife] restoration and tribal settlement activities (vis-à-vis the Basin Agreements), rather than for productive Klamath Project irrigation-related activities.31  Surely, reasonable persons must realize that the welfare benefits (write-offs of Reclamation debt) the BOR would seek on Klamath Project irrigators’ behalf to build DOI’s desired fish entrainment facilities will severely curtail water flows into the Project, impair farmers’ and ranchers’ right to economic freedom32 and actually harm rather than benefit their economic interests!

My June 23rd CP article also described how Wyden-Merkley’s passage and enactment into law as part of the Senate Energy bill would provide substantially subsidized federal infrastructure funding exclusively to the Tulelake Irrigation District (“TID”) as compensation for TID, KWUA and FFA patron support.  Such funding would materialize aside from the federal funding that would be made available to TID thru Paragraph H of the Amended KHSA’s Appendix E,33 in amount equal to 10% of net wildlife refuge lease revenues.  In addition, my article identified how other federal government monies (personal financial benefits) would be lavished upon only those few remaining Klamath Basin farmers who Interior Department mandarins34 (including key BOR lawyers35 and contractors36) deem as having exceptionally supported these agreements. 

The KPFA Actually Diminishes Project Irrigator Water and Land Rights

DOI’s recently executed Klamath Power and Facilities Agreement (“KPFA”) has little to nothing to do with electrical power. Yet the lofty language contained in its recitals37 reveals misrepresentations similar to those contained in the Wyden-Merkley Amendment discussed above.  The DOI has employed such language to cover up the impossibility of protecting Klamath Project irrigator water and land rights against the onslaught of Endangered Species Act (“ESA”) regulatory impositions the new agreement anticipates, as well as, the unanticipated tribal water right challenges that have since come to light. 

In particular, KPFA Section II.B.1 warns of the potentially severe and costly regulatory restrictions that will be imposed on Klamath Project irrigators as the result of the planned “introduction or reintroduction of species not currently present in the Upper Klamath Basin,” and substantial related “habitat restoration activities or programs.”  The net effect of these impositions will be the diminishment, if not, the total elimination of many irrigators’ “ability to divert or use or dispose of water or the ability to utilize land productively.”  Fortunately, KPFA Section II.B.2.c largely spares TID patrons from this horrible fate!

KPFA Section II.B.2.a pretends to assure non-TID Project water users and land owners that the DOI’s FWS and Department of Commerce (“DOC”)‘s National Marine Fisheries Service (“NMFS”) and corresponding state agencies have made a binding commitment “to take every reasonable and legally permissible step to avoid or minimize any adverse impact” arising from regulations or other legal or funding obligations associated with the “introduction or reintroduction of” such species (KPFA Section II.B.2.b). In furtherance of this end, the KPFA makes a half-hearted attempt to secure some financial relief for Project irrigators. It does so by requiring all non-Federal Parties to support Interior Department requests for congressional appropriations that the BOR could then use to extend non-reimbursable loans to irrigation districts and their contractors for purposes of evaluating, designing, constructing, replacing, enlarging and maintaining entrainment reduction facilities at specified Klamath Project diversion points (KPFA Section II.B.2.b.i). Since there is no guarantee that these monies can ever be secured, the KPFA declines to discuss the ratio of non-reimbursable to overall funding, and holds the Interior Department harmless if it is unable to obtain such appropriations (KPFA Section IV.A.3).

The KPFA imposes multiple conditions that Klamath Basin irrigators must satisfy to obtain these putative pecuniary benefits.  KPFA Section II.C requires allegiance to and support for the Wyden-Merkley Amendment or any comparable legislation containing similar authorizations and activities for implementation.  KPFA Section III.C requires Klamath Basin farmers and ranchers to commit “to engage in good faith efforts to develop and enter into a subsequent agreement or agreements pertaining to other water, fisheries, land, agriculture, refuge and economic sustainability issues in the Klamath Basin with the goal to complete such agreement or agreements within the next year” (emphasis added).  Furthermore, KPFA Section IV.A.2 requires Klamath Basin farmers to pledge their allegiance to the Amended Klamath Hydroelectric Settlement Agreement (“KHSA”) the primary purpose of which is to facilitate Klamath River dam removal (Amended KHSA, 11th recital paragraph). 

The Amended KHSA Actually Diminishes Project Irrigator Water and Land Rights

Amended KHSA Section 6.2.2 reserves to DOI’s FWS and DOC’s NMFS the right to reassess, until dam decommissioning (anticipated to take place by year-end 2016),38 PacifiCorp’s “Interim Conservation Plan measures” for protecting the coho salmon and sucker species identified in Amended KHSA Appendix C. This reassessment can take place incident to these Agency Services voluntarily “reinitiating consultation [under ESA Section 7] on any final biological opinion pursuant to applicable implementing regulations.”  Yet, it remains more than possible that third parties can compel FWS and NMFS to reinitiate such ESA interagency consultation.  This could occur if third parties forcefully allege that the 2013 joint Biological Opinion39 governing Upper Klamath Lake and Klamath River levels and flows, or the agencies’ implementation of it, has harmed such parties’ interests. Depending on the circumstances, therefore, the text of the Amended KHSA can reasonably be understood as rendering these federal agencies unwilling and/or unable to protect Klamath Project irrigator water and land rights.

A close examination of the Amended KHSA’s 10th recital paragraph reveals the latter scenario.  It reaffirms the Obama administration’s view that the primary purpose of facilitating the Klamath dam removals partially fulfills the agreement’s secondary purpose of facilitating a tribal settlement that “advances the trust obligation of the United States to protect Basin Tribes’ federally reserved fishing and water rights in the Klamath and Trinity River Basins” (emphasis added). 

The Tribal & Environmentalist Threat to Project Irrigator Water and Land Rights

Indeed, during the past several months, three California-based federally recognized tribes (the Hoopa Valley Tribe40 (5-17-16), the Yurok Tribe41 and the Karuk Tribe42 (6-24-16)) filed with BOR and NMFS 60-day notices of intent-to-sue under the citizen suit provisions of the ESA.  These notices, which challenge the BOR’s implementation of the 2013 joint FWS-NMFS BiOps and invoke ESA Sections 7, 9 and 11, allege that greater than anticipated numbers of coho salmon are dying from C Shasta bacteria triggered by lower than required water levels in the Klamath River.  Their ultimate aim is to amend the BiOps to curtail water diversions from Upper Klamath Lake to the Klamath Project.  Environmental activist group Earthjustice43 has since (7-20-16) filed another 60-day notice of intent-to-sue alleging similar ESA violations on behalf of three California-based fisherman conservation organizations.

In addition to asserting violations of these ESA provisions, the Hoopa Valley and Yurok notices also allege that the U.S. government has failed to uphold its federal trust obligation to protect the tribes’ off-reservation fishing rights and their allegedly related water right to instream flows sufficient to support those fish.  The off-reservation fishing and water rights these two federally recognized tribes have asserted are significant primarily because their reservations44 are located at least 240 miles southwest of Upper Klamath Lake.45

Their significance also resides in their similarity to the June and July 2015 water claims the Confederated Salish and Kootenai Tribes (“CSKT”) of the Flathead Reservation46 in northwestern Montana had filed with the Montana Water Court following the April 2015 enactment of the highly controversial CSKT Water Compact47 into Montana State law.  Viewed most positively, the CSKT’s July 2015 claims reflect a Tribal off-reservation federal reserved water right comprising approximately one-fifth (20%) of Montana’s instream flows!48 Viewed most negatively, the CSKT’s July 2015 claims reflect a potentially far greater Tribal off-reservation federal reserved water right comprising approximately two-thirds (66%) of Montana’s instream flows!!49 Clearly, the Tribes’ more extensive June 2015 claims are intended to intimidate Montana irrigators, landowners and business owners into ending their opposition to the CSKT Water Compact.

As I very recently explained in a detailed legal memorandum50 and accompanying transmittal letters dated September 6, 2016 addressed to Montana U.S. Senator Jon Tester51 and twelve other Congressional members, including House and Senate Committee and Subcommittee Chairs,52  the July 2015 CSKT claims are generally consistent with the off-reservation federal reserved instream water rights recognized in S.3013 - The Salish and Kootenai Water Rights Settlement Act of 2016.  S.3013 is a bill recently introduced in Congress to ensure congressional ratification and Presidential enactment of the CSKT Water Compact into federal law.53 CSKT water rights are then effectively extended by the tribal forestry management provisions contained within several forestry bills working their way through Congress (S.3014—The Tribal Forestry Participation and Protection Act of 2016; H.R. 2647—The Resilient Federal Forests Act of 2015; and S.3085 - The Emergency Wildfire and Forest Management Act of 2016.). 

These three tribal forestry bills would similarly confer upon the Hoopa Valley, Yurok and Karuk Tribes the legal authority to treat “Federal forest land” as “Indian forest land” for purposes of planning and conducting management activities.  Management authority and effective regulatory control would be granted to these tribes over forest lands and appurtenant water resources, “if the Federal forest land is located within, or mostly within, a geographical area that presents a feature or involves circumstances principally relevant to that Indian tribe.”54 The federally recognized but reservation-less Klamath Tribes would likely be eligible to manage forests lands ceded to them by treaty, located within the boundaries of their former reservation and/or adjudicated as part of their tribal homeland, while the non-federally recognized Karuk Tribe need only show an adjudication holding that specified forest lands comprise part of their tribal homeland.55 Were HR.2647 and S.3085 to pass Congress and be enacted into law, these tribes would potentially be able to assume management and regulatory control over the Winema National Forest, the Klamath National Forest and the Shasta-Trinity National Forest,56 with other area tribes assuming management and regulatory control of other national forests located within the Basin.

The three California-based tribes and the Oregon-based Klamath Tribes had previously employed water claim filing intimidation tactics similar to those used by the CSKT, though they bore much less dire consequences. They asserted extensive off-reservation federal and state water right claims that the Oregon Water Resources Department then approved and filed with the Klamath County Circuit Court,57 which have since been placed in a state of suspended animation without a Court stay ever having been issued.  The promoters of the Klamath Basin Agreements have worked during the past eight years to frighten Klamath Basin irrigators into submission—i.e., into believing that if they did not sign these Agreements so they could be implemented, the Court’s administration of these claims would proceed. The problem, all along, has been that the Basin Agreements’ implementation could be disrupted by nonparties such as the Hoopa Valley Tribe which, on July 29, 2016, filed its threatened lawsuit against BOR and NMFS.58

Interior Secretary Unwilling and Unable to Protect Project Irrigator Water and Land Rights

Finally, the Hoopa Valley and Yurok Tribe’s federal claims are significant because the Hoopa Valley Tribe has long been an articulate,59 outspoken60 and litigious61 nonparty critic of the Klamath Basin Agreements, while the Yurok Tribe, a party signatory, has never been precluded by Klamath Basin Restoration Agreement (“KBRA”) Section 15.3.662 from tying tribal water right claims to ESA violation claims.  Earthjustice, an adversarial and litigious environmental group, is also a nonparty to the agreements.  Unfortunately, the DOI is loath to publicly admit it is without leverage to protect Klamath Project irrigator water and land rights against these threats of litigation.

Considering the KPFA and Amended KHSA texts discussed above, it should now be quite clear that the promised benefits of these agreements are far less than have been advertised, and may never materialize at all.  Klamath Basin farmers and ranchers must, therefore, revisit their irrational fear of claims adjudication and dismiss the idea of an “easy” political settlement.  They must quickly wise up and legally defend their water and associated land rights against such tribal and environmental group aggression before it is too late.

Illegal and Bad Behaviors Compromise Traditional American Neighborly Values

Based on my brief experience in the Klamath Basin, there are not many small farmers and ranchers who could be characterized as having so exceptionally supported the Basin Agreements to qualify for the welfare benefits public officials have promised. Presumably, the “exceptional supporters” would include predominantly the larger basin farms and ranches that also benefited the most from the more than $38 million of federal payments improperly funneled through the now-defunct Klamath Water and Power Agency (“KWAPA”) from 2008-2015. 

As the local media reported, whistleblower information63 had prompted a federal investigation of KWAPA in late June 2015 by the U.S. Office of Special Counsel (“OSC”),64 an independent federal investigative and prosecutorial agency.65 OSC concluded that, “there is a substantial likelihood that information provided [by the Public Employees for Environmental Responsibility (“PEER”)] to OSC discloses a violation of law, rule, or regulation; gross mismanagement; and a gross waste of funds.” (emphasis added).66 Shortly thereafter, KWAPA’s former Executive Director was dismissed67 and reinstated.68 Following the completion of its KWAPA investigation, OSC turned the case over to the Interior Department’s Office of the Inspector General69 where it remains “parked.”70 In March 2016, KWAPA’s reinstated former Executive Director released “Final Financial Status and Progress Reports”71 covering the period spanning 2008-2015 that coincided with the tenures of two former Chairmen of the Board72 who were then also simultaneously sitting on the KID and KWUA Boards of Directors.  The report cited a number of Oregon law and/or ethics violations73 that could possibly have been addressed by the OSC investigation.

It is highly likely that those who had significantly influenced the operations of, and/or those who had benefited from the activities of, KWAPA74  are the same individual TID,75 KID,76 KWUA,77 and FFA78 leaders,79 patrons and/or contractors who have since successfully, divided local Klamath Basin communities and transformed a high level Basin Agreement public policy debate into a defamatory personal fight. With the apparent behind-the-scenes cooperation and assistance of the local and regional offices of the BOR and of blatantly biased local media reporting,80 former and current minority KID Board members and their supporting patrons have worked feverishly to reclaim political and financial control over the District.  As the direct result of their efforts, KID business has been disrupted at considerable patron expense, KID Board majority member-supporting patrons have been repeatedly harassed and intimidated, majority KID Board members and counsels have been compelled to address specious allegations contained in Oregon Ethics Commission and Oregon Bar complaints, and KID Board majority members have faced a malicious Oregon recall petition effort launched by former KID Board members.81  These persons also engaged in such tactics largely to tortiously interfere with my legal representation of the District82 so that the Klamath Basin Agreements would proceed forward, and to prevent revelation of their prior questionable KID Board-related activities.

Sadly, by using their public offices to promote their personal interests, alienating members of their local communities, and pursuing this illusory financial bounty, Klamath Basin Agreement proponents have lost not only their grip on reality, but also their traditional American83 common sense neighborly values.84  This is the greatest tragedy of all.

ENDNOTES

  1. Klamath Water Users Association, KWUA Homepage
  2. Family Farm Alliance
  3. Eric Bailey, Klamath Water Deal Reached (Jan. 16, 2008).
  4. Terri Hansen, Landmark Klamath River Restoration and Dam Removal Agreements Signed, Indian Country (Feb. 23, 2010).
  5. Congress.gov, Congressional Record—Klamath Dam Removal Secret Meetings, U.S. House of Representatives (March 03, 2016).
  6. Felicep, The Obama Administration and the Klamath River Basin, High Country News (Jan. 21, 2009).
  7. Klamath Restoration.gov, Klamath Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities (Feb. 18, 2010).
  8. Klamath Restoration.gov, Klamath Hydroelectric Settlement Agreement (Feb. 18, 2010).
  9. U.S. Department of Interior, Klamath Hydroelectric Settlement Agreement</i> (amended as of April 6, 2016).
  10. Klamath Tribes, Upper Klamath Basin Comprehensive Agreement (April 18, 2014).
  11. U.S. Department of Interior, 2016 Klamath Power and Facilities Agreement (April 6, 2016).
  12. Congressional Record (Feb. 4, 2016), at pp. 688-689,  (containing the text of the Wyden-Merkley Amendment).
  13. Congress.gov, S.Amdt.3288 to S.Amdt.2953, 114th Congress (2015-2016).
  14. Cong.gov, S.2012 - North American Energy Security and Infrastructure Act of 2016, 114th Congress (2015-2016).
  15. P.L. 106—498 - ‘Klamath Basin Water Supply Enhancement Act of 2000, 106th Congress, 114 Stat. 2221 Nov. 9, 2000).
  16. Scott White, Doing Good for Klamath Basin Agriculture, Capital Press (July 7, 2016).
  17. See, e.g., Walt Disney Company, Disney’s Believe’ Fact Sheet (Dec. 9, 2012) (describing ‘Disney’s Believe’ as “Disney Cruise Line’s signature show aboard the Disney Dream and the Disney Fantasy.”).
  18. Wikipedia, Good Things Come to Those Who Wait (explaining that “‘Good things come to those who wait’ is an English phrase extolling the virtue of patience. The related phrase ‘all things come to those who wait’ was used by Violet Fane in 1892.”).
  19. Syydansk University (Southern University of Denmark), The Emperor’s New Clothes, Hans Christian Andersen Center, SDU Department for the Study of Culture.
  20. Herald & News, Klamath Basin Benefits from Energy Bill (April 21, 2016) (“The U.S. Senate Tuesday passed a long-anticipated bipartisan energy bill, and Klamath Basin irrigators will reap some benefits, according to a press release. The Klamath Water Users Association (KWUA) announced that it has been working for more than six months on the package along with Sens. Ron Wyden and Jeff Merkley, both Oregon Democrats, and others. [...] ‘This is a significant achievement and one that wouldn’t have been possible without the relationships KWUA has developed with other stakeholders over the years,’ said Brad Kirby, president of KWUA.”) (emphasis added).
  21. Congressman Greg Walden, 2d District of Oregon.
  22. Inside Gov., Congressional Staff, Kevin J Eastman - Legislative Director, Rep. Doug LaMalfa (R-CA1).
  23. Lawrence A. Kogan, Letter Correspondence to Kevin J. Eastman (May 18, 2016) (discussing the subject matter of their May 16, 2016 Washington, D.C. meeting, particularly, their discussion of the need for textual changes to the Wyden-Merkley Amendment).
  24. Congressional Record (Feb. 4, 2016), at pp. 688-689, supra (containing the text of the Wyden-Merkley Amendment).
  25. U.S. Department of the Interior Office of the Secretary, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators, Press Release (April 6, 2016).
  26. Lawrence A. Kogan, The Wyden-Merkley Amendment: The Dog that ‘Don’t Hunt’, Capital Press (June 23, 2016).
  27. Congressional Record (Feb. 4, 2016), at pp. 688-689, supra (containing the text of the Wyden-Merkley Amendment).
  28. Id.
  29. Tales With Morals, The Miser and His Gold - An Aesop’s Fable.
  30. FY 2012-2017 Monies Interior Department Budgeted for the Klamath Basin.
  31. U.S. Department of Interior Secretary’s Indian Water Rights Office, 2014 Fall Indian Water Rights Consultationhttps://www.doi.gov/siwro/2014-fall-consultation (”Currently, funding for Indian water rights settlement negotiation support comes from funds appropriated by Congress each fiscal year for both Bureau of Indian Affairs (BIA) and the Bureau of Reclamation (BOR) programs. Funding to pay the costs of enacted settlements comes either from annual appropriations or, in a few cases, from mandatory but limited funds such as the Lower Basin Development Fund or the Reclamation Water Settlements Fund. [...] Currently, BIA and BOR play the largest roles in funding the Department’s Indian water rights program. [...] Other agencies such as the Fish and Wildlife Service offer technical assistance and the Department’s Office of the Solicitor and the U.S. Department of Justice provide legal assistance.”) (emphasis added).
  32. The Heritage Foundation, Economic Freedomhttp://www.heritage.org/issues/economic-freedom (”Economic freedom is the fundamental right of every person to control his or her own labor and property. In an economically free society, individuals are free to work, produce, consume, and invest in any way they please, with that freedom both protected by the state and unconstrained by the state.”) (emphasis added).
  33. U.S. Department of Interior, Klamath Hydroelectric Settlement Agreement (amended as of April 6, 2016), supra, at Appendix E.
  34. Wikipedia, Mandarin (bureaucrat)(bureaucrat) (“The term is generally applied to the officials appointed through the imperial examination system”).
  35. WeThePeopleRadio.com, Bayou Boy - The John Bezdek Files.
  36. WeThePeopleRadio.com, Ed Sheets, U.S. Government Operative & Mediator. Paid $$ Big Bucks to Secure Favorable Water Rights Deals for Tribes at Northwestern Irrigators’ Expense.
  37. U.S. Department of Interior, 2016 Klamath Power and Facilities Agreement (April 6, 2016), supra at Recitals, p.1.
  38. Will Houston, Dam Removal Plan to Feds by End of 2016?, Eureka Times-Standard (July 20, 2016).
  39. National Marine Fisheries Service and United States Fish and Wildlife Service, Biological Opinions on the Effects of Proposed Klamath Project Operations from May 31, 2013, through March 31, 2023, on Five Federally Listed Threatened and Endangered Species (May 2013).
  40. The Hoopa Valley Tribe, Notice of Violations of the Endangered Species Act, prepared by Law Offices of Morriset, Schlosser, Jozwiak and Somerville, P.C. (May 17, 2016).
  41. Yurok Tribe Office of the Tribal Attorney, Sixty-Day Notice of Intent to Sue Pursuant to the Endangered Species Act: Failure to Reinitiate Consultation on the Klamath Project (June 24, 2016).
  42. The Karuk Tribe Administrative Office, Notice of Violation and Intent to File Suit Under the Endangered Species Act (June 14, 2016, filed on June 24, 2016)
  43. Earthjustice, Sixty-Day Notice of Violations of the Endangered Species Act by Failing to Reinitiate Consultation on Klamath Project Operations (July 20, 2016).
  44. The Wilderness Society Center for Landscape Analysis, Klamath River Basin.
  45. U.S. Environmental Protection Agency EPA Region 9, Klamath River Basin.
  46. Arlee Montana, Flathead Reservation Map.
  47. Legiscan, Votes: MT SB262 (2015), Regular Session, Montana Senate Bill 262 (Adjourned Sine Die) (otherwise referred to as the “CSKT Water Compact”).
  48. CSKT Legal Department, Basin Boundary & CSKT-Montana Compact (Basins in the Confederated Salish and Kootenai Tribes - Montana Compact) (July 1, 2015).
  49. CSKT Legal Department, Basin Boundary & CSKT Claims (Basins in Which the Confederated Salish and Kootenai Tribes Have Filed Water Rights Claims) (June 25, 2015).
  50. The Kogan Law Group, P.C., Memorandum of Law, Legal Analysis of S.3013—The Salish and Kootenai Water Rights Settlement Act of 2016 and Related Congressional Tribal Forest Management Legislation, prepared for Western States Constitutional Rights, LLC (Aug. 29, 2016).
  51. The Kogan Law Group, P.C., Transmittal Letter from Western States Constitutional Rights, LLC to Senator Jon Tester, United States Senator, Montana (Sept. 6, 2016) (summarizing legal memorandum and providing additional reasons why S.3013, S.3014, S.3085 and H.R.2647 are unconstitutional and should not be passed by Congress).
  52. The Kogan Law Group, Summary - The Salish and Kootenai Water Right Settlement Act of 2016 (s.3013) and the Tribal Forestry Management Provisions Within S.3085, S.3014 and H.R.2647 Collectively Violate Montanans’ and All Western Americans’ U.S. Constitutional RightsSee also Western States Constitutional Rights, LLC, Unconstitutional Congressional Legislation to Hand Western and Rural Lands and Waters to Native American Tribes, Press Release.
  53. 114th Cong. 2d Session, S.3013, To authorize and implement the water rights compact among the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, the State of Montana, and the United States, and for other purposes (May 26, 2016).
  54. 114th Cong. 2d Session, S.3014, a bill to improve the management of Indian forest land, and for other purposes (May 26, 2016), at Section 3(a) (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Section c(3)(A)). See also 114th Cong. 1st Session, H.R.2647, An Act To expedite under the National Environmental Policy Act of 1969 and improve forest management activities on National Forest System lands, on public lands under the jurisdiction of the Bureau of Land Management, and on tribal lands to return resilience to overgrown, fire-prone forested lands, and for other purposes (July 13, 2015), at Section 702 (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Section c(1)). See also 114th Cong. 2d Session, S.3085, A Bill To improve forest management activities on National Forest System land and public land, and for other purposes (June 22, 2016), at Section 502 (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Section c(2)(B)).
  55. S.3014, supra at Section 3(a) (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Sections c(3)(A)(i)-(ii)). See also HR.2647, supra at Section 702 (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Section c(1)). See also S.3085, supra at Section 502 (amending Section 305 of the National Indian Forest Resources Management Act (25 U.S.C. 3104) to add new Section c(2)(B)(i)-(iii)).
  56. U.S. Forest Service, National Forest Locator Map.
  57. Daniel Timmons, Water Rights Settlements in Oregon’s Klamath Basin Facing Uncertain Future, Marten Law (Feb. 22, 2016)
  58. Hoopa Valley Tribe v. Bureau of Reclamation and National Marine Fisheries Service, Complaint for Declaratory and Injunctive Relief, Case 4:16-cv-04294 (U.S. Dist. Ct. N. Calif., Oak. Div.) (July 29, 2016).
  59. Statement of Danielle Vigil-Masten Hoopa Valley Tribal Council Chairwoman, Before the Committee on Energy and Natural Resources United States Senate, on S. 2379 Klamath Basin Water Recovery and Economic Restoration Act of 2014, Hearing of the Subcommittee on Water and Power, 113th Cong., 2d Sess. (June 3, 2014).
  60. ICTMN Staff, New Klamath Water Bill Has One Opponent in Hoopa Valley Tribe, Indian Country (June 1, 2014) (discussing the Hoopa Valley Tribe’s opposition to The Klamath Water Recovery and Economic Restoration Act of 2014).
  61. See e.g., Dan Bacher, Judge Sides With Hoopa Valley and Yurok Tribe Scientists, Preventing a Fish Kill on the Klamath, IC Magazine (Aug. 28, 2015) (discussing how “[a] federal judge on Aug. 26 [had] denied a request by the San Luis Delta Mendota Water Authority and Westlands Water District for a temporary restraining order and preliminary injunction against the higher supplemental flows from Trinity Reservoir being released to stop a fish kill on the lower Klamath River.”).
  62. Klamath Restoration.gov, Klamath Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities (Feb. 18, 2010), supra at Section 15.3.6.
  63. David Smith, Whistleblowers Claim Millions Wasted in Klamath Project, Siskiyou Daily News (July 2, 2015).
  64. Public Employees for Environmental Responsibility, Federal Probe into Klamath Irrigator Contracts Ordered - U.S. Special Counsel Directs Interior to Justify Legality and Purpose of Payments, Press Release (June 30, 2015). See also Oregon Wild, Despite Federal Investigation, Senate to Consider Controversial Klamath Water Bill, Press Room (July 27, 2015).
  65. U.S. Office of Special Counsel (OSC), About, OSC website.
  66. U.S. Office of Special Counsel, Letter Correspondence from OSC Disclosure Unit Attorney, Siohban Smith Bradley to PEER’s Tod Pederson and Paula Dinerstein, Re OSC File No. DI-15-2383 (June 26, 2015).
  67. Lacey Jarrell, KWAPA Eliminates Position, Herald & News (July 14, 2015).
  68. Lacey Jarrell, KWAPA Reinstates Former Executive Director, Herald & News (July 30, 2015). See also Lacey Jarrell, KID Hires Interim Manager, Herald & News (April 21, 2016).
  69. Public Employees for Environmental Responsibility, Letter Correspondence from PEER’s Paula Dinerstein to Interior Department WRO OIG Michael Colombo Re Expansion of Audit of Reclamation Contracts (Feb. 19, 2016)
  70. U.S. Department of the Interior Office of the Inspector General, Semiannual Report to Congress For the period ending March 31, 2016, at p. 52.
  71. Klamath Water and Power Agency, Final Financial Status and Progress Reports Re Agreement R10AC20669, Water User Mitigation Plan (WUMP) (March 25, 2016), at pp. 1-20. See also Klamath Water and Power Agency, Final Financial Status and Progress Reports Re Agreement R10AC20669, Water User Mitigation Plan (WUMP) (March 25, 2016), at pp. 21-44. See also Klamath Water and Power Agency, Final Financial Status and Progress Reports Re Agreement R10AC20669, Water User Mitigation Plan (WUMP) (March 25, 2016), at pp. 45-64. See also Klamath Water and Power Agency, Final Financial Status and Progress Reports Re Agreement R10AC20669, Water User Mitigation Plan (WUMP) (March 25, 2016), at pp. 66-71.
  72. Klamath Water and Power Agency, Final Financial Status and Progress Reports Re Agreement R10AC20669, Water User Mitigation Plan (WUMP) (March 25, 2016), supra at Transmittal Letter (signed by David Cacka, Chairman of the Board of Directors), and p. 14 (showing Ed Bair as Chairman of the Board of Directors until his resignation in July 2015).
  73. See also Id., at pp. 9-10; pp. 23-26, 29-31, 34, 43; pp. 62-63; pp. 68, 71.
  74. Houston Engineering, Inc., From Fisheries Manager to Family Farmer: Improved Products for Communicating Water Supply, Drought and Climate Change Risk for Daily Decision Making within the Klamath Basin, California, and Oregon USA, Summit Proceedings (Dec. 2012), at p. 4 (bearing the following subsection: “Ed Bair, Agricultural Producer Klamath Irrigation District Board Member and Klamath Water and Power Authority (KWAPA) Board Chair”).
  75. Gold Dust Farms, About Gold Dust Farms.
  76. Malin Potato Cooperative, Inc., Sand Land Potato Growers (identifying as a Malin Potato Cooperative “grower” Carleton Farms of which Greg Carleton, a current minority and former majority KID Board member, is an owner). See also Basin Gold, Basin Gold Personnel—Salespeople (identifying “Dave Cacka at Malin Potato Co-op at (541) 798-5665 in Merrill, OR” as a person responsible for “Sales handled outside of Basin Gold’s office.” Dave Cacka is a current a minority and former majority KID Board member). See also Malin Potato Coop Video and here (narrated by Malin Potato sales representative, Dave Cacka, a current minority and former majority KID Board member). See also Klamath Irrigation District Recall, Signatures Delivered to KID District Office (Aug. 23, 2016) (”[...] KID irrigators Ed Bair, Jason Chapman and Ross Fleming went above and beyond the number of patron signatures required by law to trigger the recall votes…” Ed Bair was a KID Chairman of the Board and a Board member until November 2015. Jason Chapman and Ross Fleming are also former KID Board members.)
  77. Linked-in, Profile of Greg Addington, Principal at Addington Consulting (showing Greg Addington as former Chief Executive of the Klamath Water Users Association from April 2005 to December 2015).
  78. Patrick O’Toole, Why Support Klamath Deals? Our World Needs Food, (March 26, 2015) (featuring a story about Family Farm Alliance Executive Director Dan Keppen and FFA’s support for pro-KBRA legislation).
  79. See Family Farm Alliance, Letter Correspondence from Dan Keppen, Executive Director to Darla Ripchensky, Chief Clerk U.S. Senate Committee on Energy and Natural Resources Re Response to Questions Submitted by Chairman Lisa Murkowski</i> (June 7, 2016).
  80. Lawrence Kogan, KID Lawyer Claims Bias by Newspaper, Herald & News (July 26, 2016).
  81. Klamath Irrigation District Recall, About the Klamath Irrigation District Recall PAC (explaining that “Three separate Recall Political Action Committees (PACs) were formed to take action against the majority faction of the Klamath Irrigation District’s Board of Directors who appear to be using this irrigation district to advance political ideals that are not in the interest of the district or its patrons,” and that “the chief petitioners are [...] Ed Bair, [...] Ross Fleming, [...and] Jason Chapman.”).
  82. Lacey Jarrell, KID Board Terminates Attorney, Herald & News (July 15, 2016).
  83. Poor Richards.net, Proverbs and Aphorisms from Benjamin Franklin’s Poor Richard’s Almanac.
  84. Bartleby.com, Modern American Poetry, Robert Frost (1875), 64—Mending Wall (referring to good neighborly values).


Lawrence Kogan -- Bio and Archives | Comments

Lawrence Kogan recently served as special counsel to the Klamath Irrigation District where he was tasked, in part, with generally addressing Klamath Basin Agreement matters. Mr. Kogan also recently served as special counsel to Siskiyou County addressing Amended KHSA matters.  He is managing principal of the Kogan Law Group, P.C. of New York, NY

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