Oregon water regulators rightly overturned an “automatic stay” that shielded irrigators from the enforcement of the Klamath Tribes’ water rights, according to a federal judge.

Earlier this year, the Klamath Tribes asked the state’s Department of Water Resources to “regulate off” junior irrigators who draw water from Upper Klamath Lake and its tributaries.

Farmers file lawsuit

The agency ordered the 45 farms to stop irrigating, finding the lake’s water level was low enough to adversely affect the tribes’ oldest “time immemorial” water rights.

However, four farmers filed a lawsuit arguing OWRD should have ignored the “futile” request because federal officials were releasing water from the lake to improve habitat for protected fish.

Threatened salmon depend on flows downstream, but reduced lake levels are harmful to endangered suckers, complicating water management in the region.

The U.S. Bureau of Reclamation lacks a water right for the diversion, which has wasted water and lowered the lake level enough to infringe on tribal water rights, according to the farmers’ complaint.

Under Oregon law, the filing of such a lawsuit “automatically stays” enforcement orders issued by state water regulators, allowing farmers to continue irrigating.

However, OWRD decided to overrule that “automatic stay” last month because it would substantially harm the public, which has a “reasonable expectation” that such regulatory orders will be enforced.

Reversal affirmed

U.S. Magistrate Judge Mark Clarke in Medford, Ore., has now determined the state agency correctly ended the “automatic stay,” since tribal water rights are entitled to be fulfilled before the junior irrigators “receive any water at all.”

“Permitting petitioners to divert water when the Tribes’ water rights remain unfulfilled would run contrary to the prior appropriations doctrine and undermine the very foundation of Oregon water law,” the judge said.

The prior appropriations doctrine refers to the “first in time, first in right” system of Western water law, under which the most senior users have priority to withdraw water.

The judge said the farmers “cannot shift all responsibility” for the insufficient lake level to the federal government, which is trying to operate the irrigation systems within the Klamath Project while abiding by the Endangered Species Act and honoring senior water rights.

By continuing to irrigate, the farmers hinder the U.S. Bureau of Reclamation from maintaining a lake level that satisfies tribal water rights, Clarke said. “In other words, petitioners’ continued water diversions move Reclamation’s ‘nearly impossible’ task of balancing interests closer to being actually impossible.”

It was reasonable for OWRD to override the automatic stay to prevent substantial public harm, given the implications for water law, Clarke said.

The judge said he lacks the authority to allow irrigators to even minimally decrease lake levels, which would involve imposing his own judgment on how to quantify and enforce tribal water rights.

“This Court will not ignore the people, communities and resources that depend on the Tribes’ water rights,” he said.

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