The Upper Klamath Basin (UKB) is a remote area of high desert and wetlands, characterized by a limited water supply. The Klamath River is the third largest river on the West Coast and extends 250 miles from its headwaters at Upper Klamath Basin Lake, through south central Southern Oregon and Northern California. Tensions surrounding water rights in the UKB reached a critical point on April 6th 2001, when the U. S Department of Interior’s Bureau of Reclamation shut the headgates to the Upper Klamath Lake and delivered no irrigation water to 240, 000 acres of farmland for the first time in nearly a century. The UKB does not contain sufficient water to support the needs of different groups living in the basin, where water demands exceed supply about one out of every seven years. Two groups positioned at opposite ends of the 2001 conflict included farmers relying on irrigation water deliveries and the Klamath, Modoc and Snake tribes, collectively known as the Klamath tribe, a federally recognized Native American Nation who have lived on the shores of Upper Klamath Lake and along the streams and rivers of the UKB for thousands of years.
Although there are many important distinctions between the separate tribes and the individual actors therein, the literature rarely makes these distinctions and refers to the Klamath tribe collectively. As such, a more nuanced analysis is beyond the scope of this paper which will refer to the two groups in conflict, the Klamath and farmers, en mass. Through the establishment of the Klamath Irrigation Project in 1905, the Bureau physically enclosed all water on the Klamath and Lost Rivers for public use, by constructing 701 miles of canals, 728 miles of drains, and a series of dams to physically produce a landscape suitable for agriculture in an area with infertile soil that receives an average of fourteen inches of precipitation annually. The Project opened irrigated land to homesteaders, war veterans and eventually all claimants, while the Bureau issued contracts that guaranteed water rights in perpetuity. After almost a century of continuous water deliveries, farmers with Bureau contracts believed that their rights to irrigation water were immutable. The federal government also promised permanent water rights to the Klamath, in exchange for land which the tribe relinquished in the 1864 Treaty of Council Grove. The government did not inform farmers of the Klamath’s rights when issuing land grants and ignored federal Indian law rights.
In 2001, Klamath water rights included rights to hunt, trap and fish on ancestral land, and were qualified as sufficient instream flow to support productive aquatic habitat, which have a priority date of time immemorial under Oregon’s prior appropriation doctrine. These overlapping claims are complicated because neither of the groups’ customary water rights with a date prior to 1909 have been quantified by the state of Oregon in a formal adjudication process, which began in 1976 and has proceeded slowly due to tens of thousands of outstanding claims. The 2001 crisis was caused not only by conflicting claims to water as a limited resource and overlapping rights to water, but also by conflicting discursive claims to an ideal vision of and relationship to the landscape. This paper will argue that although the mainstream narrative positioned farmers as winners and the Klamath tribe as losers of the conflict, both groups were engaged in a struggle for survival because of the nature of water as a limited and vital resource that was further limited by enclosures of land and property rights. The roots of this conflict date to 1902 when the federal government passed the Reclamation Act, investing in irrigation projects to cultivate land for agriculture and encouraging settlement on individual homesteads.
Although the Bureau of Reclamation is the agency at the forefront of the conflict, it was funded and imbued with the regulatory authority to determine the size, location and timing of irrigation projects by the federal government. The Reclamation Act represented a discourse through which the Bureau encouraged homesteading in order to “reclaim” land that, before irrigation, the Bureau described as “sun-baked prairie and worthless swamps”. The discourse of Reclamation produced the narrative of western expansion, in which homesteaders envisioned themselves as claiming their manifest destiny by putting the last corner of the American frontier into production. In 2001, with the decline of small holder agriculture as a driver of state, local and regional economies, farmers in the Basin discursively positioned themselves as a cultural minority to protect their livelihood, which they viewed as under attack by the Bureau’s attempt to appropriate their water rights. Farmers viewed Project water as their private property, which the federal government was trying to steal by asserting new regulations that threatened to displace Oregon’s law of prior appropriation.
Agriculture in the UKB is challenged by the area’s high elevation and short growing season. The valley part of the UKB was once a vast system of interconnected lakes and wetlands. Through intense diversion of water for agriculture, which included building dams and draining the wetlands, the Bureau physically produced a hydrologic landscape that, over generations, became normalized to farmers. According to Jenkins, farmers continue to reproduce this altered landscape through their own narratives, which were derived in large part from how they extract capital value from the land. The agricultural landscape of the UKB includes 232, 000 acres of cattle pasture, grass hay, barley, alfalfa, wheat, potatoes, sugarbeets, onions, mint and horseradish, on 1, 744 small farms which are under contracts of perpetual duration for Project water deliveries. Upper Klamath Lake, which serves as the main storage facility for Project irrigation, is one of the last remnants of wetlands in the UKB and is the largest freshwater lake in the West. It is not backed up by a carryover reservoir, which is problematic because despite its large surface area, Upper Klamath Lake is shallow and cannot store surplus water during wet years to buffer dry years. This inefficient storage system leads to inefficient water use, as 2 acre feet of water is lost for every 1 acre foot that is consumed by crops, rendering agriculture in the Basin unsustainable and leading to environmental degradation.
The Bureau’s decision to withhold water deliveries during the summer of 2001 was predicated on the Endangered Species Act (ESA), which mandated higher water levels in Upper Klamath Lake to protect the primary habitat of the Lost River sucker and the shortnose suckers, two fish that are culturally and economically significant to the Klamath tribe. The ESA is legislative tool that is situated within the larger discourse of biodiversity conservation. In this conflict, it was positioned as either the only effective tool for legislating biodiversity conservation or an attack on rural livelihoods. For the Klamath, the Bureau’s decision to keep water in Upper Klamath Lake was viewed as partial reparations for the enclosure of land and water rights on the tribe’s ancestral homeland. Over the century the Bureau had ignored Klamath water rights reserved by treaty, statutes, executive orders and water flows needed for fish, in favor of a discourse of Reclamation, at the expense of the survival and development of the Native community. Recognition of the needs and interests of the Klamath aligned with the interests of the Bureau superficially in 2001, and the tribe was viewed as the winner of the conflict. The decision to enjoin water deliveries, however, was announced only after the Klamath and other stakeholders in the area took the agency to court for failing to comply with the ESA.
Water rights in the Upper Klamath Basin are property rights, and a shifting framework of legal and customary property rights creating overlapping claims to a limited supply of water was a central driver of the 2001 conflict. All Project water is allocated under Oregon law which adheres to the prior appropriation doctrine, a legal framework initially developed by individual Western states as a risk distribution plan for communities of many small scale irrigators in arid regions. Early water rights were customary, because farmers in tightly-knit communities often began diverting water before there was a government to formalize their claims. When Oregon water codes were developed in 1909, the “first in time first in right” ethos of prior appropriation became a way to secure claims and the federal economic investment of irrigation infrastructure. Under the doctrine, water rights are obtained when a group or individuals divert water for beneficial use, like irrigation, and the earliest users hold the most senior claims to the water. If a drought makes it impossible to meet the demands of all claimants, then the earliest claimant retains priority to use any water in the basin.
Over the twentieth century the prior appropriation doctrine evolved from a framework of customary rights to a formal administrative system, regulated by the state of Oregon, which allocated increasingly scarce water to state water holders, in this case farmers with Bureau contracts, at a subsidized rate. The role of the federal government was limited to that of a water provider. The Reclamation Act says that federal Projects should defer to state law with respect to water rights. By invoking the ESA in 2001 to curtail water deliveries, the federal government asserted its regulatory water rights, because the obligation to comply with federal environmental mandates supersedes state water rights. The farmers immediately sought an injunction of the decision, along with one billion dollars in damages, to compensate for an estimated $157 million dollars of lost agricultural production. Water rights and access to water in the Upper Klamath Basin was shaped by enclosure of Klamath tribal land and property rights by the U. S federal government. The General Allotment Act of 1887 allocated parcels of land to individual tribe members and families, an act of enclosure which reduced Native land holdings from 138 million acres to 48 million acres, freeing additional land for agricultural expansion and further complicating water rights. In 1905 the Bureau enclosed all water on the Klamath and Lost Rivers by building Project infrastructure, which served as fixed capital for the federal government to exert control over access to water. Enclosure continued with the Termination Act of 1954, when the federal government dissolved the Klamath reservation it created in 1864, and purchased or condemned all remaining Klamath tribal land. The land was never returned, even after tribal status was reinstated in 1980. The federal government sought to secure its claim to the water, which it had relinquished to the Klamath in 1864 during the dispossession of tribal land, forcing them onto a reservation. In 1908, the Supreme Court ruled that when the federal government created reservations, it claimed by implication unappropriated surface water sufficient to support the needs of the reservation, in the present and future. The Bureau also claimed reserved Indian water rights. Both of these rights have a priority date, similar to prior appropriation rights, but the water does not have to be put to beneficial use. When the federal government sought to clarify its water rights in the absence of reservations, the state of Oregon argued that any tribal water rights and concomitant federal claims were extinguished by the Termination Act and must be heard during the formal state adjudication of water rights.
In 1983, the Ninth Circuit District Court of appeals determined that the Termination Act preserved pre-existing water rights, “including an instream flow right necessary to effectuate the hunting and fishing rights, ” granted to the Klamath tribe by the 1864 treaty that created the reservation. These rights date to time immemorial, which means that the Klamath’s water rights are almost always senior under the prior appropriation doctrine. The rights are based on treaties made by the federal government, which is part of federal law and supersedes state law unless Congress specifies otherwise. The Klamath’s claims are weakened, however, because their water rights are not quantified. Through the enclosure of land, the Klamath tribe has been dispossessed of political power to secure water rights and disproportionately excluded from access to water compared to farmers and other groups in the community. Although federal rights act as a trust protection for tribal water interests on paper, the Klamath have historically had little support from the Bureau or Congress. Farmers, as the intended beneficiaries of Project water, historically benefited from the prevailing configuration of property rights in the UKB. In 2001 they were confronted with the reality that their prior appropriation rights were superseded by federal claims. Farmers account for ninety-three percent of water use in the UKB. Capital costs of the Project were fifty-three million dollars, which farmers had largely paid off by 1994. This repayment history bolstered farmers’ claims to Project water, and they believed that their Bureau contracts entitled them to guaranteed. In 2001, they paid operation and maintenance fees to the irrigation districts, but nothing for water. They paid less than ten percent of the going commercial rate of electricity to pump water and since federal rights remain unquantified, no limitations for water use were ever imposed.
After the delivery curtailments, widespread crop failure mobilized farmers to protest with direct actions, twenty-four hours vigils and a symbolic “bucket brigade” which drew a crowd of thirteen thousand. Protesters forced open the head gates four times, using a chain saw and blow torch after the Bureau welded them shut. Local law enforcement supported the protesters, calling the crisis a “federal issue”, and acknowledged the potential for extreme violence to the extent of civil war if water was not returned. The UKB has an entrenched irrigation culture which prior to 2001, had been struggling economically due in part to a declining, aging population with high unemployment rates and agricultural income which had fallen with the price of agricultural commodities. Many farmers in the Basin construct their identity around a sense of pride for their livelihood, situated within the specific locality of the UKB. The earliest white settlement in the UKB began in the 1850’s with ranchers who built private irrigation networks to increase hay production for their livestock during the dry season. The Project was constructed to fund the struggling irrigation communities that were already established and, through the 1950’s, lured thousands of farmers with an explicit guarantee of water to irrigate cash crops. In 2001, the Project accounted for half of agricultural production on the best land. Farmers view agriculture not only as an occupation, but as a consummate lifestyle that is tied directly to a heritage of homesteading and cultivating arid terrain, in the face of greater global economic forces that have threatened to undermine their livelihood.
In 2001, with their livelihood under direct attack, farmers employed the narrative of the Jeffersonian yeoman farmer and the cowboy to gain public sympathy, by positioning themselves as modern victims of the discourse of biodiversity conservation. They erected billboards along Highway 97 with the slogans, “Call 911 Some Sucker Stole Our Water”, “Stop Rural Genocide, ” and “Federally Created Disaster Area”. These discursive strategies were part of a larger strategy of loud and visible protests, which attracted media attention nationwide. Some of this anger was directed at the Klamath, who were viewed as the group motivating the suckerfish protection. According to Doremus and Tarlock, “tribal members were subjected to racial taunts and violent confrontations and were made to feel unwelcome in the commercial establishments of Klamath Falls”. While farmers raged, some members of the Klamath tribe said that they felt like their rights had been vindicated. In a statement, tribal chairman Allen Feldman reminded farmers that overuse of water had severely damaged the livelihoods of his community. In the Klamath language, suckerfish are called c’waam. The Klamath River and the fish within it are central to the tribe’s culture, as they have depended on c’waam for ceremonial, subsistence, and economic purposes for millennia. The mainstream narrative, that was reproduced by media outlets as visible as the New York and Los Angeles Times, positioned the conflict between farmers who had labored in the Basin for generations, and “two obscure and valueless fish”.
In 1986, agricultural runoff into the naturally nutrient rich Upper Klamath Lake caused algae blooms that killed thousands of suckerfish, prompting the Klamath tribe to close its c’waam fishery. The shortnose and Lost River suckers were listed as Endangered under the ESA in 1988. Since the fish became endangered, the tribe has struggled with food security. In 2001, incomes in the Klamath tribe were among the lowest in Oregon. In a 2010 interview, Perry Chocktoot Jr. , the director of culture and heritage and former tribal council member for the Klamath tribe, recounted a narrative in which suckerfish were a gift from the Creator during a time of famine, and have since helped the Klamath people to thrive. According to Chocktoot, life in the UKB began to change in the 1850’s when the first settlers colonized the tribe’s land. During the crisis, farmers used the discursive strategy of calling the suckerfish “trash fish. ” Yet the Klamath’s narrative recalls a time in the recent past when settlers sought help preparing the fish to eat so that they would not starve. Although the Klamath were positioned as winners of the conflict, they enjoyed few tangible benefits of the irrigation limits, which served to signify a tentative hope that their treaty rights might finally prove effective, rather than as an immediate source of economic or cultural benefit. Because of a long history of violated rights, the Klamath remained less vocal than the farmers throughout the conflict, viewing the outcome as only a temporary victory. A water attorney for the Klamath tribe, Bud Ullman, asserted that the mainstream narrative of “fish versus farms” was not only incorrect, but doing a deep disservice to the community. According to Ullman, the general ecosystem degradation stemming from the limited nature of water in the UKB was exacerbated by catastrophic drought. The nature of water as a limited resource was produced partly by the physical landscape and partly by the myriad promises made at different levels of government, bestowing overlapping rights to different users in the community.
Doremus and Tarlock regard the UKB as a classic example of an environmentally degraded landscape which does not contain the amount of water necessary to support the preferred uses of multiple groups, including wildlife, in an isolated, rural community. Although much of the literature and media commentary on the 2001 conflict positioned the Klamath tribe as winners and farmers as losers, it is more likely that both groups, and the environment, suffered from the historical mismanagement of water by the federal government. Through enclosure, dispossession and exclusion, the Bureau dismantled the historical commons of running water and transformed it into a resource that could be delivered to specific groups and individuals, spurring the transformation of the doctrine of prior appropriation from a framework of customary rights to a framework of private rights. It is likely that a complete restructuring of the existing property regime, in addition to a re-imagination of the landscape to balance resource use and ecosystem function is necessary to advert conflicts in the future.