The overriding law of the old American West was simple: First come first served.
That meant the first person to divert from a river on to a crops or for a mine had the strongest right. That philosophy held until lawyers for the West’s Indian tribes forced decision-makers to recognize that the tribes were using the lands and waters long before the miners, farmers, and others showed up.
That triggered water fights in court that often turned ugly. Now climate change is turning the entire southwest into a frequent drought victim. Resolving the remaining water right fights will only get harder as reservoirs like Glen Canyon and Lake Mead continue to recede.
The Klamath River Basin along the Oregon-California border blew up in 2001, when farmers’ headgates were locked to preserve flows for endangered salmon, prompting a classic modern Western environmental saga. Farmers lost $27 million to $47 million and there were death threats, shootings and even a farmers’ cavalry charge.
The Bush administration made sure the farmers got their water, triggering one of the largest salmon die-offs in history. Then the Klamath tribes got angry.
PacifiCorp raised electric rates 1,000 percent and made everybody mad — which got everybody to the table. When the Federal Energy Regulatory Commission ordered PacifiCorp to install fish ladders on its three dams in 2007 — which would cost more than removing the dams — the stage was set for a grand deal.
Dirk Kempthorne, the former Idaho governor who had just been appointed interior secretary, brought all the sides to the table, and they cut a deal, which included eventually removing PacifiCorp’s Klamath dams. But some ranchers weren’t happy and kept fighting.
When the state of Oregon recognized the tribes’ senior water rights in 2013, the ranchers were dry again and came back to the table. In 2015, the parties cut a new deal to carry out the earlier agreements that shared the water between the tribes and the ranchers and farmers. But Congress failed to act, and it fell apart. The tribes’ senior water rights stayed in place and the future of the farms, dams and salmon was finally resolved by removing the dams.
For the Yurok, Karuk, Hoopa, Shasta and Klamath tribes living along this river since time immemorial, there’s much to celebrate. They have long fought for the lives of the salmon that are harmed by these dams, and for their right to fish for them.
Even PacifiCorp, which marketed the electricity of the four hydroelectric-producing dams, also has something to cheer about. PacifiCorp, which is owned by billionaire Warren Buffett, won’t have pricey fish ladders to install and its share of the cost of dam removal has been passed to ratepayers in both states.
Environmentalists are also hailing this latest victory for river-renewal, based on the Electric Consumers Protection Act of 1986. The law ordered operators of most federal dams to provide passages for fish so they could swim upstream to spawn.
For California and Oregon officials, along with farmers and others who had reached an agreement as far back in 2008, the dam removals signal that this long and emotional fight is finally over. And why has there been a settlement after all this time? A short answer is the growing reality of the West’s increasing aridity.
In Idaho it was different, in fact it was “a great state triumph,” the late Supreme Court Justice Antonin Scalia said in 2014.
Justice Antonin Scalia swears in Dirk Kempthorne as Interior Secretary in 2006
Scalia spoke at a celebration of the 27-year review of more than 158,000 claims to use water from the basin that begins in Yellowstone National Park, stretches west to the Oregon border and north to Clearwater County. The adjudication is the largest ever completed and comes as states such as California were struggling with a drought caused by nature and over-pumping of its aquifers.
“It's a state doing what states ought to do, define private property rights,” Scalia said.