The American West is arid, and apparently is becoming even more so because of climate change. The western states are in the grip of a prolonged drought that shows no sign of letting up.
The Colorado River’s problems are well known — no water from that river makes it to the ocean anymore — and worse than ever. As ABC News reported here, the reservoir behind Hoover Dam is now only one-third full, its lowest level in history.
Getting less attention, but no less intense, are water fights in places like Oregon, where some farmers are now threatening violence. As CNN reports here,
“Amid historic, climate change-driven drought, the federal government in May shut down the water supply from the Upper Klamath Basin on the California-Oregon border …. As the Klamath Basin dried up, an environmental crisis exploded into a water war this year that has pitted local farmers against Native American tribes, government agencies and conservationists, with one group threatening to take the water back by force.”
Water is a strange animal. It moves around, so you can’t own it like land, a barn, or house; nor does using it use it up. However it’s used, it’s still there. But to be useful, it has to be in a certain place, at the right time, and in the right amount. It always seems there’s either too much (flood) or not enough (drought). In the West, the federal government spent enormous sums on reclamation projects to capture and store water for use by the region’s many competing water users.
Even without these expenditures, and the government’s possession of the water in reservoirs, the law would still consider water public property in most circumstances; and the government doles out rights to use it, which are governed by complex laws and priority-based formulas. Notwithstanding all that, these “use” rights are deemed a form of property for legal purposes.
That’s important, because if these farmers forcibly take water not allocated to them, legally and morally that’s the same as taking someone else’s property by force.
Not all water users enjoy the same priority. Under the “appropriation” system in western states, there are senior and junior water rights. These usually are attached to specific parcels of land, and are considered part of the real estate one acquires when purchasing a ranch, farm, or orchard. However, water rights are “use or lose,” i.e., if a senior water rights holder doesn’t use his allotment, he doesn’t get to keep the water; it’s distributed to junior rights holders.
Then there are Winters Doctrine rights. This refers to a Supreme Court case in 1908 that said Native American reservations’ water needs, in most cases, are senior to all other water rights, i.e., take precedence over non-tribal rights. These tribal rights are extensive, and can include keeping water in rivers to maintain fish populations, where fish are historically and culturally significant to tribes.
That sets up racially-tinged fights over water, reminiscent of battles over other treaty rights, notably fishing and gathering rights. (For example, in Puget Sound, tribal members can go on tideflats bordering private homes to collect shellfish, a fact often resented by non-native homeowners.)
That’s what’s happening in the Klamath Valley. It’s hard to tell a farmer he’ll lose his crops because the water is being kept in the river because of treaty rights.
Treaty rights are poorly understood by the general public. First of all, they belong to tribes, not individual tribal members. (Tribal governments regulate their use by individuals within the tribe.) Tribal status is created by Congress, in the form of federal statutes (which take precedence over state laws), and treaty rights were created by agreements between tribes and the federal government. Native American tribes exchanged vast land areas — most of the United States — in exchange for these rights. In effect, they traded one type of property (land) for another type of property (hunting, fishing, and water rights).
When a tribe has superior treaty rights to water in a river that farmers want for watering their crop, the tribe in effect owns that water, and the farmers have no right to it in the eyes of the law.
If we have rule of law in this country, it’s obvious what should happen. Disputed water rights should be settled in court. Once the courts have decided, their decisions should be enforced. Angry people taking things into their own hands is a law enforcement problem. Violent lawbreakers should go to prison.
Water law is complicated. Defying the law is not. The days of “Winchester law” are over.
Photo: A Klamath Valley farmer in 2013; see article here