PORTLAND, Ore. - The story goes like this: "Grandmother," said the young
Indian girl, "what are those big things in the river?" The grandmother
raised her eyes toward the broken blocks of massive concrete through which
the river poured. "Daughter," the old woman said, "those are the dams the
white people left."
Since the Klamath tribes don't expect the white people to leave anytime
soon, they've mounted a lawsuit to get owners of a hydropower business to
compensate the Indians for the loss of their fishery.
A cool $1 billion is what the Klamath tribes - a confederation of the
Klamath, Modoc and Yahooskin Band of Snake Pauite people -- are seeking for
loss of its salmon runs on the Klamath River in southern Oregon. Citing
abrogation of treaty rights and destruction of traditional fishing grounds,
the tribes filed suit against PacifiCorps with the U.S. 9th Circuit Court
of Appeals in May.
PacifiCorp - a Portland-based subsidiary of the British industrial giant,
ScottishPower - operates four dams on the Klamath River. Built without so
much as a nod to fish passage during the first half of the century, the
dams effectively cut salmon off from their spawning grounds beginning in
1911. Denver-based lawyer who filed the claim, Dan Israel, said "That's why
the damages are high. This was intentional and reckless."
Before the basin was developed, the Klamath was the third leading producer
of anadromous fish after the Columbia and the Sacramento rivers. Two years
ago the section of the Klamath below the dams suffered the worst loss of
fish in U.S. history when 33,000 salmon died due to low stream flows.
Over-appropriation and drought continue to plague the Klamath River Basin.
Between a large Bureau of Reclamation irrigation project and the hydropower
projects, fish have fallen through the cracks in water use equations since
the area was settled in the late 19th century.
For much of the period the Klamath tribes were in no position to protect
the fishery that once formed a significant part of their traditional
economy. While the tribes survived the late 1800s and early 1900s when the
majority society devised all manner of machinations to assimilate Indians,
when the federal government decided to 'get out of the Indian business' in
the 1950s, the blow almost broke the spirit of Klamaths.
Under the now-discredited Termination Act, the Klamaths lost their
reservation and their federal status in 1954. A period of severe
demoralization followed. In 1974, however, a year before the Indian
Self-Determination and Education Act of 1975 began to reverse a century of
misguided federal Indian policy, the courts ruled that the Klamaths had not
forfeited their treaty rights. Then a decade later, under the Klamath
Tribes Restoration Act of 1986, federal status was restored, a tribal
government was established, and the community of people clustered around
the upper reaches of the Klamath River Basin began picking up the pieces of
their shattered political, social and economic lives.
In the 30 years since, the Klamaths have generally become an increasingly
significant interest group in the Klamath Basin, a region largely dominated
by agriculture and propped up irrigation. Farmers, long used to getting the
lion's share of the water, have largely opposed the tribes' increasing
involvement. So have the hydropower interests. Still, in one court case
after another, decisions affirming the treaty rights of the tribes have
been handed down. Not only do the Klamaths have the oldest and most
valuable water rights in the basin, their rights to fish, hunt and gather
at their usual and accustomed places was established in the 19th century
treaty they signed with the U.S. government, a treaty that forfeited a
land-base the size of Rhode Island.
Problems in the Klamath Basin largely boil down to over-appropriation of
scarce water resources. The Klamath River drains high desert land, classic
and land of the West marked by sage and Ponderosa pine. At least that's how
it was before the Bureau of Reclamation came in and built its huge
irrigation project in the early 1900s. That's also when the first of the
dams that blocked the salmon runs on the Klamath were built, and by 1962
the last of the structures was erected.
The era, of course, was one in which Americans in the majority society were
on the go. It was the era of development. The idea that the tribes and the
fish and the birds and the natural world generally needed to be considered
was alien to decision makers of that time, buoyed as they were by the
ascendance of America as an economic and political powerhouse.
The 21st century, though, has little in common with the 20th. Gone are the
days when agriculture was the darling of the nation and gone are the days
when hydropower interests can act with single-minded impunity.
The 151-megawatt hydroelectric project on the Klamath River generates
enough power to serve 77,000 homes. According to PacifiCorp officials,
power produced at the Klamath River dams is important because it is used to
meet peak summer energy demands.
Regardless of how significant PacifiCorp thinks the Klamath project is, its
federal license will expire in 2006, and terms of the re-licensing have yet
to be worked out. In a 3,000-page re-licensing application to the Federal
Energy Regulatory Commission, PacifiCorp made a gesture toward fish,
although not salmon. The company proposed spending $10 million on a fish
ladder at one of the dams to benefit trout and other non-anadromous
species. But, PacifiCorp officials said adding new ladders and fish screens
required to move salmon through the dams would run $100 million and is cost
prohibitive. Conservationists and others argue that the company should not
receive new licenses for the outdated dams since the company is unwilling
to upgrade the facilities. Some groups are calling for decommissioning, or
removing the dams that serve power interests to the exclusion of the larger
Israel, who has specialized in tribal river rights and taken cases to the
Supreme Court, said the tribes' lawsuit should take from 18 months to two
years to get a decision. Even then the 9th Circuit Court will be
determining only whether or not PacifiCorp is liable. If the judges find
the power company at fault, further lengthy proceedings will determine the
extent of damages and the monetary award.
Over the course of his 32 years representing tribes in river rights cases,
Israel has worked on the Missouri, Snake, Klamath, and Colorado rivers. He
has been involved in two of the largest river water judgments ever awarded
to the tribes, a $450 million settlement for the Colorado Utes and a $250
million award for the Northern Utes.
"These rivers in the West are becoming more like national parks because of
the high degree of federal legislation influencing public streams," said
Israel. "A century-and-a-half ago many tribes were put on reservations
right in the middle of these water basins. Today the tribes probably
control about half of the unused water in the West, and that stuff's
getting real valuable."
Israel said an acre-foot of water in the Southwest is worth as much as
$30,000, with Colorado River water having the greatest value. While he
assists tribes in this and region with getting their rights to take water
out of rivers honored, in the Northwest the situation is reversed. Israel's
goal there is to help tribes keep enough water in the rivers to support
beleaguered fisheries. No matter where the river, though, "the tribes are
major players on western rivers," Israel said.
"The idea is to elevate the tribes. I hire engineers because they are the
people who can tell you how to fix rivers. Then I bring the economists in
to figure the costs and help prove damages." Israel explained. "When we put
sophisticated expertise like this at the table, good things happen."
Israel continued, "You have got to hammer these companies with the law and
the figures. When we do, the tribes realize that they are equal to their
Israel understands all this is probably the reason the Klamaths hired him.
But whatever the case, the fact that the Klamaths are suing PacifiCorps on
behalf of the salmon indicates that the tribes realize times have changed.
There's more support in the majority society for not only
environmentally-sustainable economies, but also for business that is
conducted in ways that respects diverse cultures. It may take two years,
and the jury is still out, but after 150 years of disenfranchisement, it
might be the Klamath's turn to share in the abundance of a land they once