Friday, March 5, 2021
CapitalPress.com 3
Irrigators hope to benefit from Klamath re-quantification ruling
By MATEUSZ PERKOWSKI
Capital Press
Water rights held by the Klam-
ath 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 imme-
morial” 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 liv-
ing standard.”
Under an eventual re-quantifi-
cation, Upper Klamath Basin irri-
gators with junior water rights
can argue that water flows can be
reduced and still satisfy the “mod-
erate 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
Andrew Mariman/Associated Press File
A cowboy drives cattle near Fort Klamath, Ore., in the Upper Klamath Basin. Irrigators in the basin
hope to benefit from a court ruling ordering the re-quantification of tribal water rights.
agreed to vacate OWRD’s water
claim quantifications.
“If they’re vacated from
OWRD’s order of determina-
tion, 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 com-
pleted for adjudicating water rights
in the region.
“Until we get to that end point,
what we are left with is that deter-
mination,” 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 par-
ties have until March 30 to object to
that proposal.
Irrigators could also file indepen-
dent legal actions if OWRD tried
enforcing tribal rights despite the
ruling.
The judge said the “moderate liv-
ing standard” may not have a prac-
tical effect because flows can’t be
decreased below the minimum level
needed to support “healthy and pro-
ductive habitat.” How those stan-
dards 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 stan-
dard 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, Nichol-
son 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 pos-
sible in the Upper Klamath Basin
under the earlier settlement because
the agreement encompassed a broad
range of measures aside from mini-
mum in-stream flows.
“There were other components
there that contributed to the improve-
ment 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 gener-
ally positive, since it denied motions
challenging the OWRD’s deter-
mination 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 enforc-
ing 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.”
USDA concludes ‘mystery seed’ investigation, creates new guidelines
By SIERRA DAWN MCCLAIN
Capital Press
WASHINGTON, D.C.
— USDA has concluded its
months-long investigation
into last year’s “mystery
seed” case, during which
thousands of people across
the U.S. received unsolicited
seed packages in the mail.
The Agriculture Depart-
ment said that after a detailed
investigation, it found no
evidence that someone was
trying to harm U.S. agri-
culture. The report con-
cluded the seeds were likely
part of an internet scam to
help a seller boost its search
results.
The investigation also
prompted the agency to cre-
ate new guidelines to pre-
vent such events in the
future.
Last summer, thou-
L
sands of Americans nation-
wide received mysteri-
ous seed packages, labeled
as though they were from
China, Uzbekistan, the Sol-
omon Islands, the United
Arab Emirates, Kyrgyzstan
and elsewhere.
The mass mailing sparked
concern about foreign seeds.
State and federal agriculture
departments issued warn-
ings to citizens not to plant
the seeds, saying the pack-
ages could potentially con-
tain invasive species, patho-
gens or pests.
“We are thankful to the
public for reporting the
seeds and getting them to
USDA officials so that we
could investigate them and
avoid introducing foreign
pests into our environment,”
Osama El-Lissy, plant pro-
tection and quarantine pro-
gram deputy, said in a
WSDA
USDA has concluded its months-long investigation into
last year’s “mystery seed” case, during which thousands
of people across America received unsolicited seed
packages in the mail.
statement.
A few months into the
investigation, USDA con-
cluded that the seed samples
were benign, including vari-
eties like rosemary, cabbage,
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mustard and basil.
Nevertheless, USDA’s
Animal and Plant Health
Inspection
Service,
or
APHIS, concluded the
seed shipments were ille-
gal because they entered
the U.S. without a permit or
phytosanitary certificate.
Agency spokeswoman
Cecilia Sequeira told the
Capital Press last summer
that the packages were prob-
ably part of a global “brush-
ing scam,” generating fake
sales to boost a seller’s
legitimacy. But the agency
did not issue that final con-
clusion officially until this
month, after further probing
and analysis.
Last
year’s
scare
prompted a few major
changes that could impact
seed sales in the future.
In response to the scam,
online retail giant Ama-
zon banned foreign sales of
seeds in the U.S.
USDA this month, also
acting in response to last
year’s events, issued addi-
tional guidance to help
online buyers and sellers
comply with U.S. laws when
they import seeds and live
plants from other countries.
The
new
guidance
explains buyer and seller
responsibilities,
outlines
required documents, includ-
ing import permits and phy-
tosanitary certificates, pro-
vides information about
which seed and plant species
have import requirements
and clarifies what plants are
not allowed in the U.S.
“We’ve been working
closely with e-commerce
companies and other federal
partners to stop the flow of
illegal plant and seed ship-
ments entering the coun-
try,” said El-Lissy of USDA.
“This new site is a big step
forward in our efforts to
facilitate the safe trade of
plants and seeds through the
e-commerce pathway.”
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