Water rights held by the Klamath Tribes must be re-quantified under a recent court decision that’s offered hope to irrigators facing water shut-offs in the region.

The ruling has largely upheld a determination by the Oregon Water Resources Department that the Klamath Tribes have “time immemorial” in-stream water rights that haven’t been diminished or abandoned.

However, Klamath County Circuit Judge Cameron Wogan has agreed with Upper Klamath Basin irrigators that OWRD must re-quantify the Klamath Tribes’ water rights because the agency didn’t consider their “moderate living standard.”

Under an eventual re-quantification, Upper Klamath Basin irrigators with junior water rights can argue that water flows can be reduced and still satisfy the “moderate living standard” for tribal hunting and fishing required under an 1864 treaty.

More immediately, Upper Klamath Basin irrigators expect the ruling will prevent water shut-offs resulting from the enforcement of tribal water rights, since the judge agreed to vacate OWRD’s water claim quantifications.

“If they’re vacated from OWRD’s order of determination, there would be nothing to be enforced,” said Dominic Carollo, attorney for the Upper Klamath Basin irrigators.

The Klamath Tribes dispute this interpretation, arguing that OWRD’s determination remains enforceable until the entire court process is completed for adjudicating water rights in the region.

“Until we get to that end point, what we are left with is that determination,” said Sue Noe, an attorney representing the Klamath Tribes.

The enforceability question will be subject to further legal battles: OWRD must submit a proposed order by March 16 to implement the judge’s findings, and the other parties have until March 30 to object to that proposal.

Irrigators could also file independent legal actions if OWRD tried enforcing tribal rights despite the ruling.

The judge said the “moderate living standard” may not have a practical effect because flows can’t be decreased below the minimum level needed to support “healthy and productive habitat.” How those standards are applied to actual stream levels will be decided by OWRD.

“That’s a do-over. The flows are going to have to be redone based on those two issues,” Carollo said, referring to the moderate living standard and the healthy and productive habitat standard.

Martin Nicholson, an Upper Klamath Basin rancher, said he expects the tribal claims can be re-quantified at a reduced level that still makes irrigation possible, which occurred under a previous settlement agreement that terminated in 2017.

Currently, stream flows fall below the level needed to satisfy tribal water rights even without irrigation in the Upper Klamath Basin, Nicholson said. “The challenge we have is those were set so high that the odds of being able to irrigate even in good (water) years wasn’t very good.”

Noe, the attorney for the Klamath Tribes, said that irrigation was possible in the Upper Klamath Basin under the earlier settlement because the agreement encompassed a broad range of measures aside from minimum in-stream flows.

“There were other components there that contributed to the improvement of the habitat,” she said.

Under the adjudication process, on the other hand, the amount of water is the only element affecting the habitat’s health and productivity, Noe said.

The prospect of tribal water claims getting re-quantified at a lower level isn’t likely, she said.

“We’re not too concerned, because we already aimed our claims at healthy and productive habitat,” Noe said. “We don’t think there’s any excess that could be reduced.”

The judge’s ruling was generally positive, since it denied motions challenging the OWRD’s determination that the tribes hold “time immemorial” water rights, she said.

“That’s a great positive step and positive decision in affirming our water rights,” said Don Gentry, chairman of the Klamath Tribes.

Since the tribes have been enforcing their rights, they’ve already seen improvements in fish health, he said. “The ability to enforce our water rights is critical to protecting species in the system.”

The ruling doesn’t have immediate consequences for irrigators in the Klamath Project, which draws water from Upper Klamath Lake and remains protected under a surviving provision of the earlier settlement.

Upper Klamath Basin irrigators, who are no longer shielded from enforcement by any provisions of the agreement, draw water from tributaries of the Klamath River above the lake.

However, Klamath Project irrigators may ultimately face enforcement as well once the adjudication process is finished, said Paul Simmons, executive director of the Klamath Water Users Association.

Before the legal process is done, the Klamath Project irrigators plan to argue the ruling’s re-quantification requirement should also apply to their situation, Simmons said.