[env-trinity] Indian Country Today; New Klamath Water Bill ...

[Thomas P. Schlosser]

Glen conflates rights to property with rights to trustee action. The 
former are preserved, the latter are diminished. Here's why:


Under existing law the U.S. Bureau of “Reclamation is obligated to 
ensure that [irrigation] project operations not interfere with the 
Tribes’ senior water rights.This is dictated by the doctrine of prior 
appropriation as well as Reclamation’s trust responsibility to protect 
tribal trust resources. . . . Reclamation must, pursuant to its trust 
responsibility and consistent with its other legal obligations, prevent 
activities under its control that would adversely affect [the Tribes’ 
fishing] rights.” Memorandum of Regional Solicitor (July 25, 1995)[1] 
<#_ftn1>.This trust duty would be changed by KBRA, as authorized by 
S. 2379, and KBRA would eliminate the trustee’s duty to prevent such 
adverse effects.

Section 5(f) of Sen. Wyden’s S. 2379 would authorize executing the KBRA 
agreement so the United States’ rights and obligations will change.As a 
result, the first priority for Klamath River surface water will go to 
the Klamath Irrigation District (diversions of 378,000 acre-feet per 
year), regardless of the effect on fish restoration.[2] <#_ftn2> When 
after those diversions too little water remains for fish, then not only 
will the United States be unable to protect Indian fishing rights, it 
will be obligated to oppose those rights. That is, the United States 
will enforce the KBRA priority given to water diversions for irrigation.

The KBRA makes this elimination of federal trust responsibility explicit 
for all Basin tribes, signatories or not.[3] <#_ftn3> For example, in 
section 15.3.9:

The United States, acting in its capacity as trustee for the 
Federally‑recognized tribes of the Klamath Basin, hereby provides . . .. 
Assurances that it will not assert:(i) tribal water or fishing right 
theories or tribal trust theories in a manner, or (ii) tribal water or 
trust rights, whatever they may be, in a manner that will interfere with 
the diversion  . . . of water for the Klamath Reclamation Project that 
is . . . provided in Appendix E‑1.

Congressional authorization of the KBRA without an appropriate savings 
clause will change the tribal right (enforceable by the federal trustee) 
from a right to sufficient water to produce the fish on which the Tribes 
rely, into a right to water left over after the diversions per KBRA 
Appendix E-1, regardless of what the habitat consequences may be.It is 
thus similar to rights termination provisions imposed upon Indian tribes 
in the 1950s.This bill would abridge and minimize the 
Government-to-Government relationship between the United States and the 
Hoopa Valley Tribe.

T:\WPDOCS\0020\09773\Corresp\TERMINATION OF TRUST DUTY 021314.docx

kfn:5/27/14


------------------------------------------------------------------------

[1] <#_ftnref1> /Available at/ 
http://www.schlosserlawfiles.com/~hoopa/SolMem072595.pdf.

[2] <#_ftnref2> KBRA App. E-1, /available at/ 
http://www.schlosserlawfiles.com/~hoopa/KBRAsecAppE-1.pdf; full document 
at http://klamathrestoration.gov.

[3] <#_ftnref3> Signatory tribes agreed to relieve the United States of 
this duty in exchange for funding. They also reserved their claims if 
funds or certain events do not occur. E.g., KBRA sec. 15.7.B.ii. 
Non-signatory tribes’ rights are simply changed unilaterally and without 
consideration.

On 6/2/2014 3:59 PM, FISH1IFR at aol.com wrote:
> In a message dated 6/2/2014 9:17:46 A.M. Pacific Daylight Time, 
> tstokely at att.net writes:
>
>     “The Hoopa Valley Tribe is shocked and disappointed,” said Hoopa
>     Valley Tribe Chairwoman Danielle Vigil-Masten, “that the so-called
>     ‘Klamath Basin Water Recovery and Economic Restoration Act of
>     2014’ introduced by Senators: Feinstein, Boxer, Merkley, and Wyden
>     *would effectively terminate water and fishing rights of our tribe.*”
>
> Colleagues....
> I find the above statement puzzling as to how the Hoopa Tribe could 
> possibly come to this conclusion above.  In fact, there is specific 
> language in the new bill that makes such impacts patently impossible.  
> Reading Sec. 3(g) of S. 2376 (The Klamath Basin Water Recovery and 
> Economic Restoration Act of 2014) it clearly says:
>   "Sec. 3(g) TRIBAL RIGHS PROTECTED. -- Nothing in this Act or the 
> Settlements --
>      (1) affects the rights or any Indian tribe outside the Klamath 
> Basin; or
>      (2) amends, alters, or limits the authority of the Indian tribes 
> of the Klamath Basin to exercise any water right the Indian tribes 
> hold or may be determined to hold except *as expressly provided in the 
> Agreements."*
> AND ALSO:
>   "Sec. 5(h)(2) & (3)   EFFECT OF SECTION. -- Nothing in this section  --
>      (2) affects the treaty fishing, hunting, trapping, pasturing, or 
> gathering right of any Indian tribe *except to the extent expressly 
> provided in this Act or the Agreements*; or
>      (3) affects any right, remedy, privilege, immunity, power, or 
> claim not *specifically relinquished and released under, or limited 
> by, this Act or the Agreements."*
> As the Hoopa Valley Tribe is not now, _and has never been_, a 
> Party-signatory to any of the Klamath Settlement Agreements, the 
> savings clause of Sec. 3(g) makes it clear in the statutory language 
> itself that this Act would _in no way whatsoever_ impact any water 
> rights the Hoopa Valley Tribe now has or may in the future be 
> determined to have.
> And as the Tribal water Settlement provisions of the Act include ONLY 
> the "Party Tribes" who have actually signed the Settlement Agreements, 
> and do not include even mention of the Hoopa Valley Tribe, one can 
> only conclude that nothing in this Act would apply to the Hoopa Tribe 
> in any way, nor limit either water or fishing rights of the Hoopa 
> Valley Tribe in any way.  In fact just the opposite -- as the two 
> limiting disclaimers cited above make it clear.
> S. 2376 should be available shortly in full text from the Library of 
> Congress' Congressional Web site THOMAS, both by bill number and key 
> word, at: http://thomas.loc.gov/
> *****
> While it is true that the Klamath Tribal water settlements, which are 
> strictly between the federal government and three other Klamath Basin 
> Tribes (theYurok, the Karuk and the Klamath Tribes of Oregon) who 
> _are_ Parties to the Agreements, means that the Hoopa Valley Tribe 
> cannot  later force the US to sue to overturn its own federal 
> settlement agreements with those other Tribes, _this is precise the 
> case already_.  The US cannot be forced by one Tribe (for which it is 
> Trustee) to sue any other Tribe (for which it also serves as Trustee) 
> -- this would be a direct conflict of interest that would violate the 
> federal Trustee relationship, several federal laws and the Cannons of 
> Ethics that lawyers must abide by.  Doing so would mean the federal 
> government would be, in essence, suing itself!
> And likewise, since the Bureau of Reclamation and other federal 
> agencies are Parties to the Agreements, nor can the Hoopa Tribe force 
> the US (as Trustee) to, once again, _sue itself_ to overturn its own 
> agreements with its own federal agencies.  Again, this would be a 
> direct conflict of interest that is not allowed under the current law.
> But this is precisely the same situation the Hoopa Tribe would be in 
> whenever it tried to sue any federal agency of its own Trustee, i.e., 
> the federal government.  All it means is that in order to do so -- 
> i.e., to exercise any of its water or fishing rights against the feds 
> in Federal Court -- it would simply have to hire its own private 
> attorney's rather than be represented by the U.S. Attorney's Office or 
> Solicitor General.
> There are many examples of that happening in the past.  A recent 
> example in the Klamath Basin is the case /Pacific Coast Federation of 
> Fishermen's Associations, et al. vs. U.S. Bureau of Reclamation/ 
> (2000) (Civ. No. C00-1955 SBA), when we sued BOR over lack of a 
> legal BiOp for the Klamath Irrigation Project.  The Hoopa Valley Tribe 
> and the Yurok Tribe both intervened in that case _against_ the U.S. 
> Bureau of Reclamation to defend their inherent water and fisheries 
> rights -- the only difference between that and any other lawsuit is 
> that, since they were suing their own US Trustee, they had to have 
> their own independent legal counsel. /They could not force their 
> Trustee to, in essence, sue itself./
> But that restriction remains in place whether or not there is (or is 
> not) a Klamath Settlement and whether or not the Klamath Act is 
> ultimately signed into law.  The Klamath Act does not affect that 
> legal limitation on what a Tribe can ask its federal Trustee to do in 
> any way.
> Hence the Hoopa Valley Tribe's statement that the Klamath Act of 2014 
> "would effectively terminate water and fishing rights of our tribe" 
> simply cannot be true.
> It may be an inconvenience to the Hoopa Tribe to have to hire its own 
> independent legal Counsel rather than have access to free legal 
> services of the US government, but that minor inconvenience in no way 
> affects, amends or negates whatever underlying legal water or fishing 
> rights the Hoopa Tribe might in fact have in Court.
> ======================================
> Glen H. Spain, Northwest Regional Director
> Pacific Coast Federation of Fishermen's Associations (PCFFA)
> PO Box 11170, Eugene, OR 97440-3370
> Office: (541)689-2000 Fax: (541)689-2500
> Web Home Page: www.pcffa.org <http://www.pcffa.org/>
> Email: fish1ifr at aol.com

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20140602/3e945ea7/attachment.html>