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Watershed Moment
A proposed agreement currently before Congress offers hope for a resolution to the contentious battles over water that have defined life in the Klamath River Basin for decades. The work of an unlikely pair of UO professors offers insight into a remarkably complex conundrum, with lives and livelihoods in the balance.

By Bonnie Henderson

* * *

JULIE: This Anglo student in my class said to me, “How can the salmon be your relatives? You eat them?”

JOHNNY: What an idiot!

JULIE: And I told him, salmon are our relatives because we’ve lived in an amazingly bonded way with them since the beginning. The connection goes much deeper than food. It’s a relationship created from thousands of years of coexistence.

WILL: Tell him that all the river tribes—the Klamath, Modoc, and our people, Yurok and Karuk—we all believe the salmon are the spirits of our ancestors come back to give life to everything.

JULIE: He said if there are no more salmon, just go to McDonald’s!

— Scene from the play Salmon Is Everything, by Theresa May

* * *

Adell Amos, JD ’98, remembers the first time she heard the watershed mentioned outside of law school. She was in Washington, DC, where, after a year in Reno, Nevada, clerking for the Ninth Circuit Court of Appeals, she had joined the Honors Attorney Program in the solicitor’s office of the Department of Interior. It was early in 2000, and after a few months of rotating through different divisions, she had just received a permanent assignment with the Division of Parks and Wildlife. It was her first day on the job.

“Do you know anything about the Klamath Basin?” her supervising attorney asked.

She did, a little. Born and raised in a small farming community in Missouri, Amos moved to Eugene in 1995 to attend the University of Oregon School of Law. Richard Hildreth, her water law professor, had frequently cited examples from the Klamath River Basin to illustrate one point or another about water law in the American West. It was all there, it seemed: the interface between federal and state law, the role of tribal rights, issues of water quality and water quantity, of habitat for migratory fish and bird populations. And the sheer press of demand for a limited resource: farmers, ranchers, fishermen, hydropower producers, and more all wanted a piece of the river.

Photo: Map of the Klamath River basin

Amos had a vague understanding of the location of the Klamath Basin: a watershed the shape of an hourglass tipped to the southwest, with Upper Klamath Lake and a network of mostly southern Oregon rivers in the upper bulge, and the forks of the Trinity and other rivers filling out the lower bulge. The Klamath met the Pacific Ocean at one corner of the hourglass, where it touched the coastline south of Crescent City. At the waist of the hourglass, just south of the Oregon-California border, lay Iron Gate Dam, the largest and last of the basin’s five major dams.

There are a lot of big river systems in the West—the Columbia, the Platte, the Colorado. But, Amos noticed, it was often conflicts on the Klamath—much smaller, more remote, with no major cities on it—that Hildreth would cite in class. Water is essential to life as well as commerce, and laws governing the allocation of water rights are complex, similar to but distinct from property laws. Every watershed in the United States has its own water law conundrums, its particular sticking points. But other than international negotiations, it seemed the Klamath had them all.

The problem in the Klamath Basin, as in every watershed, is that nobody can actually own a drop of water—by its very nature, and in a legal sense, water is different from land or buildings or even minerals in the earth—but everybody needs it, everybody wants it, and many claim it. It falls from the sky, it lingers in aquifers and burbles out of springs and into creeks that run into lakes or rivers and ultimately to the sea, crossing myriad property and political borders along the way. Unlike a rock or a house, it gushes and flows, is swallowed and sprinkled, it evaporates and it rains from the sky. You can’t hold title to a particular water molecule. Water rights deal only with how much and when and where water may be borrowed from the bank of natural resources. At various points between its tributaries’ headwaters and its mouth, water of the Klamath Basin has been promised—legitimate promises, legally binding—by one or another arm of the United States government to a dozen different parties over the past hundred-plus years: farmers who need water to irrigate their fields; power companies that make electricity from the water that runs through their powerhouses on the dams; sport and commercial fishermen; cities and counties; even white-water rafting guides, out of work if there’s no white water. And a half-dozen or more Native American tribes, whose traditional homelands stretch from the headwaters to the sea, whose treaty rights guarantee them access to the salmon, suckers, and eels that depend upon the presence of water in various parts of the Klamath Basin.

“Because,” Amos’s new boss continued, “that’s the first assignment we have for you.”

She would be serving as a staff lawyer for the U.S. Fish and Wildlife Service (USFWS), which operates Klamath Basin National Wildlife Refuge. Humans, in fact, are not the only species with a legal interest in the water of the basin. The ducks and geese, the white-faced ibis and sandhill cranes, the American white pelicans whose image Klamath Union High School claims for its mascot—all depend on the presence of water in the lakes, marshes, and meadows of the upper basin. Eighty percent of the waterfowl that migrate on the Pacific Flyway funnel through the Klamath Basin. In 1905 the U.S. Bureau of Reclamation began draining the wetlands here, converting the lakes and marshes on both sides of the state line to agricultural land and luring farmers with the promise of irrigated cropland and pastures. Today less than 25 percent of those historical wetlands remain. The USFWS is charged with making sure the wetlands stay wet, a de facto promise to the birds—including bald eagles, still on the endangered species list back in 2000—that they will continue to have a place to roost, rest, and nest. And not only the birds: among the fish living in Upper Klamath Lake are Lost River and shortnose suckers, both on the endangered species list. The Endangered Species Act of 1973 prohibits anyone from “taking,” in legal terms, a listed animal. That prohibition—another implicit promise—applies not only to killing such an animal but to significantly modifying its habitat.

So Amos went to work providing legal guidance to the refuge from her office in Washington, DC. By the end of that year, she and her colleagues could see that the basin’s conflicts over water, which had been building for years, were about to multiply. Hydrologic predictions suggested that 2001 was going to be a severe drought year in the Klamath Basin. There simply would not be enough water for everyone who wanted it, who claimed it, to whom it had been promised. Open the irrigation gates for farmers, and there might not be enough water for healthy populations of fish. Keep the gates closed, and there may be no crops for farmers to take to market.

* * *

ALICE: You raise ’em up straight, give ’em the fear of God, and healthy respect for nature, and love of the land, and they turn around and sue your water rights out from under you.

TIM: (under his breath) Sorta like we did to the Indians.

ALICE: I heard that, and no, it’s not, it’s different. It’s that Mac Hardy. I knew he’s a greedy son-of-a-bitch when your father and he played poker on Wednesdays. Always drunk our beer and never brought any.

TIM: (He has heard all this before) It’s not personal, Mom. Isn’t that what you always tell Phillip?

ALICE: That’s different.

TIM: How? Indians should not get their share of the water they need, but they should not take it personally? But we can?

ALICE: This is family.

TIM: I hardly know what family means anymore.

 

Secretary of the Interior Gail Norton, newly appointed by just-elected President George W. Bush, made the call in April 2001: Close the head gates. Stop the water from flowing into the irrigation canals in the Klamath Basin. It seemed to be the only way to ensure that enough water would flow down the river to meet the requirements of the Endangered Species Act.

It was the first time in history that the federal government—whose Bureau of Reclamation dug irrigation canals and built dams throughout the dry West early in the twentieth century to encourage homesteading—had shut off the water to one of its own irrigation projects to protect endangered species and to meet tribal claims to water. For nearly a century, the bureau’s Klamath Project had reliably supplied water to more than 1,000 farms in the basin: 235,000 acres of wheat, barley, alfalfa, potatoes, onions, and cattle pasture. Closure of the spigot ignited a firestorm of protest that spread well beyond the basin. Thousands of protesters from around the country—farmers and others defending what some claimed were their “God-given rights”—came to Klamath Falls to form a symbolic bucket brigade, dipping into lake water and pouring it into an irrigation canal. Desperate locals forced open the head gates late at night. Others set up barbecues along the canal and, in an in-your-face gesture to the feds and the tribes, grilled salmon. After the local sheriff refused to intervene, U.S. marshals and FBI agents were called in to defend the head gates and prevent the violence that seemed about to erupt—and might have, had the September 11 terrorist attacks not diverted attention from the Klamath Basin.

Even 2,300 miles away in Washington, the tension was palpable. “Here I was, a freshly minted lawyer,” Amos recalls, “providing legal advice in the context of what was an absolutely historic event in western water law.” Historic, and wrenchingly complex: a drama with no clear villain. A specialist in environmental law, Amos had an affinity for the tribes and the fish and birds dependent upon a healthy ecosystem. Raised on her grandparents’ farm, she couldn’t help but sympathize with the farmers and fishermen, native and non. She vividly remembers the panicked phone call from the regional office of the DOI in Klamath Falls reporting vandalism at a head gate and asking what to do, and the somewhat dazed response from her fellow Washington lawyers who had never dealt with anything like this before: “I think,” she recalls someone saying, “we call the federal marshals.”

The 2001 crop year was calamitous for many farmers in the Klamath Basin. Irrigators accustomed to receiving 325,000 to 400,000 acre-feet of water from Upper Klamath Lake alone got not a drop. Despite federal disaster assistance, farmers sustained crop losses in the millions of dollars, and when the farmers’ incomes tanked, so did many others’: equipment dealers, fertilizer salesmen, shoe shops. The hope, of course, was that 2002 would be a more normal year water-wise. “Because in a wet water year,” Amos says, “there may not really be enough water for everyone, but you can pinch and squeeze and make it work.” But by April, it appeared 2002 would be a repeat of 2001: dry, too dry to both irrigate crops and keep river and lake levels high, upstream and down. This time, politics trumped science. “We’ll do everything we can to make sure water is available for those who farm,” President George Bush declared on a visit to Portland in January 2002. Three months later, at the start of the growing season, the head gates were opened, the irrigation canals filled, and the flow of the main Klamath River was reduced to a trickle.

* * *

LOUISE: It was just after one of the Jump Dances in the fall . . . My son, who was four, was always talking about how he couldn’t wait to fish with his daddy and his grandpa, but the men wouldn’t let him out there. “When you’re bigger than the fish,” my father would say, “that’s when you can catch one!” So that day, we’re laughing and talking and happy. Where’s my son? Down by the water across the path there where the grass breaks and the sand begins. He’s okay. Then I hear his voice, and we all turn around, and there he is with a great big salmon draped across his two little arms. Straining and fighting to keep standing, he’s so happy, crying out . . .

ZEEK: Look, Mama, I caught a fish! I caught it myself! I caught a fish!

LOUISE: (taking it) That fish was dead; it was already dead.

 

Tens of thousands of Chinook salmon, newly arrived in the river for their fall migration upstream, lay dead, reeking and rotting, three and four fish deep in places, on gravel bars all along the lower Klamath River in early fall of 2002. They were killed by parasites that had run amok among too many fish crowded into too-shallow channels of warm water. At least 33,000 adult Chinook died after the flow below Iron Gate Dam was reduced to 1,350 cubic feet per second—350 cfs less than scientists’ estimates of the minimum needed to prevent the extinction of endangered Coho salmon, which would soon begin their late-fall run up the river.

The farmers were irrigating again. But downstream, the people of a culture built around salmon, a people who consider salmon their brother, were watching them die in droves. The entire community was affected—certainly the native people, who comprise nearly one-fifth of the population of California’s Del Norte and Humboldt Counties, but everyone else as well. You couldn’t avoid the smell, the presence of death, the grief, the anger.

An emergency meeting of stakeholders—mostly scientists and representatives of government agencies dealing with water and wildlife—was called. Among the attendees was Humboldt State University theater professor Theresa May: not a stakeholder per se, but a keenly interested observer.

* * *

Scene 12—A location overlooking the mouth of the Klamath River, a few miles from the Yurok Tribal Headquarters. An imaginary Town Hall
is taking place.

WILL: All along the Klamath River we need to have the federal government recognize that Tribes have a senior water right. We have court cases and court decisions that have substantiated this right. How much water does it take to protect fish? For crying out loud, enough so that they don’t die!

TIM: Look, I’m not antifish, I’m just antibullshit. I don’t accept that the water is overallocated. My family has been cattle ranching in upper Klamath for 150 years. A lot of folks like me love this land as much as our Indian neighbors do. We want our children to have a reason to stay and work the land. And that means economic incentives.

FISHER WOMAN: I live in Crescent City, California. My family business is fishing and we don’t have any support from the government like you all. I drove up here because I wanna know how the hell a whole industry disappears overnight?

 

Photo: Theresa May and Adell Amos in front of the University of Oregonís Many Nations Longhouse.
PHOTO BY JACK LIU
Theresa May and Adell Amos in front of the University of Oregonís Many Nations Longhouse. The professors of theater and law, respectively, have made issues involving Klamath Basin water rights central to their work.

May was new to the community, but not to environmental conflicts. Nationally prominent in the field of ecocriticism, she had joined the HSU faculty the previous year. At the meeting, she was struck by the high level of antagonism in the room, and by something else. Elders from the affected Indian tribes—people for whom the fish kill represented not only lost income, but lost identity—crowded the back of the room, but none spoke. It was as if the tribes and the government policymakers existed in separate universes.

“What can theater do?” May recalls pondering. “What can theater do that is different from media coverage? Or that is different from a stakeholders’ meeting or town hall? And what I think theater can do is tell stories that touch our hearts”—stories, she says, that help us “grow the compassion necessary for change, justice, and ecological sustainability.”

The following spring term and several more times over the next two years, May offered a special topics class at HSU in which students explored the impact of the fish kill on people throughout the region, upstream and down. Gathering up all the threads from what May came to call the Klamath Theatre Project—transcripts of interviews with community members, with fisheries scientists, with farmers and politicians and loggers and teachers—she spent much of the summer of 2005 writing a script. Salmon Is Everything debuted the following spring in a workshop production—no real costumes, minimal set—that packed Humboldt State’s Studio Theater every night of its three-night run.

It was to be May’s finale at Humboldt. Four months later, in fall 2006, she accepted a job in the UO theater department, and she and her husband moved into a bungalow on Eugene’s College Hill. Even as she settled into her new life in Oregon, the Klamath River remained in her consciousness (and on her car, where a bumper sticker implored “Un-Dam the Klamath”). Always at the back of her mind was the notion of reviving Salmon Is Everything, giving it a full-scale production in Eugene: a place outside the Klamath Basin, but not so very far away.

Neither woman remembers exactly how the topic came up; it may have been that bumper sticker. But when, in June 2007, May struck up a conversation with her new next-door neighbor, she discovered that the two of them had something more significant in common than a garden wall. Two years earlier, Adell Amos had exchanged her job in Washington, DC, for a faculty position at the UO law school, trading water rights litigation for scholarship on water rights adjudication and the role of administrative agencies in setting national and local water policy. Like her predecessor, professor Hildreth, Amos found herself frequently citing examples from the Klamath Basin in the water law class she now taught. May was thrilled to meet someone deeply involved in an issue that had dominated her life for years. But when she proposed interviewing Amos to add the lawyer’s perspective to her still-evolving script, May was taken aback by her neighbor’s response.

“I just can’t talk about it,” Amos said.

“I’m so glad you’re doing the play,” Amos back-pedaled. “It’s a really important story to tell, God bless you for telling it. But I can’t do it.” Her years in the legal shop at the DOI had left Amos emotionally drained when it came to the Klamath, discouraged about the chances of ever finding common ground in the basin. There seemed to be no way to mend the deep cultural rifts between communities, no way to give all the parties the water they needed and what that water represented: life for the fish and birds, a living for farmers and fishermen, a way of life for the tribes.

Then, in February 2009, Amos got an unexpected call. President Obama had just been inaugurated, and Interior Secretary Ken Salazar’s deputy chief of staff was inquiring whether Amos would consider returning to the capital, this time as the Department of the Interior’s deputy solicitor for land and water resources.

Amos assumed the Klamath would be part of the portfolio, and it was. But since her last stint in the DOI, a tectonic shift had taken place in the basin’s political landscape. Traditional adversaries had, incredibly, begun to talk, and compromises were beginning to emerge. Two linked agreements—the Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement—were now in the offing among the tribes, irrigators, fishermen, environmental groups, the states of Oregon and California and several of their counties, and a host of federal agencies. At the center of those agreements was the proposal riding on Theresa May’s bumper: un-dam the Klamath.

When all was said and done, dam removal was what the tribes most wanted. Dams have had a devastating impact on Klamath River salmon populations. Only one of the major dams on the Klamath allows fish passage; the lower four block salmon, steelhead, lamprey, and other anadromous fish from reaching 350 miles of habitat upstream. Farmers were fond of those dams. Not that the dams held back water for irrigation—they didn’t—but their powerhouses provided dirt-cheap electricity. Those dams’ licenses ran out in 2006, however, and they have since been running on temporary permits from the Federal Energy Regulatory Commission. PacifiCorp, operator of the powerhouses, would not be allowed to continue generating electricity without adding sophisticated fishways. Not only were environmentalists and the tribes pushing to have the dams removed, but it was becoming apparent to PacifiCorp that it might well cost the company more to install the required fish passage facilities than it would to remove the dams altogether.

Everyone has given up something to forge the agreements. Irrigators, for example, have agreed to cut back on their water use in normal years and to pursue alternatives such as pumping groundwater or leaving some land fallow for a year, in exchange for an assurance that the water would never again be completely turned off.

Approval of the settlement package, currently making its way through Congress, will require a significant infusion of federal dollars. Secretary Salazar is hoping for congressional approval by the end of 2012—an uncertain proposition, given election-year politics and lean budgets. But Amos is hopeful. “One of the fascinating things about this Klamath settlement is that it had its birth in the Bush administration, and Ken Salazar has carried it through,” Amos observes. “There are dynamics in that basin that seem to take it out of that Ping-Pong political reality.”

Amos returned to Eugene in May 2011—just in time to catch Salmon Is Everything before the end of its two-week run at the UO’s Robinson Theatre. May had finally pulled it off: a full-scale production of the play, with a stunning set designed by then-graduate student Dan Carlgren, MFA ’12. Before restaging the play, May had consulted Gordon Bettles, MS ’03, steward of the Many Nations Longhouse at the University, for his input, and she added more of the perspective of the Upper Klamath Basin tribes—the Klamath-Modoc people—than she had in the first production. She arranged for sociologist Kari Norgaard, PhD ’03, a “first foods” researcher set to join the UO faculty the following fall, to give a preperformance talk based on her research about the negative impact the elimination of such traditional foods as salmon has had on the health and well-being of the Karuk people living along the middle Klamath River.

Amos was overwhelmed: by the production itself, and by the opportunity to see the Klamath Basin story, a story she already knew by heart, played out not in legal briefs but on the boards.

“I’ve fantasized about bringing in all the attorneys I know who have worked on this issue to just watch it. I would not be surprised at all if you ended up with a room of people sobbing,” Amos says. “Because the law is the law, but for those of us who work on these water conflicts, they just get so to the core of the way societies are organized and what they value. The resource of water is so fundamental for people.”

In the final scene of Salmon Is Everything, “Tim” and “Julie”—the farmer and the tribal member—come together in an ending that May is quick to admit did not really happen that way. “The point of the play wasn’t just to document what happened,” she says, “but to point the way toward a possible future—to dream the way forward.

“While I don’t have proof,” she adds, “I think the fact that this play existed played a part in the conversations about taking the dams out. It unleashes the stories that need to be heard. And once they’re unleashed, they’re out.”

* * *

TIM: Julie? Hi. Tim, Tim McNeil.

JULIE: Oh, hi.

TIM: Listen, you know how you were telling me about how when the first salmon came up the river, that your people would do a ceremony and then send a runner upriver to the Karuks and Nu-Tini-Xwes and then they would do a ceremony?

JULIE: Yeah . . .

TIM: I know this sounds stupid, but when that first salmon comes, I want you to call me. Call me and tell me, okay? And on that day I’m going to go down to the pivot field and turn off my irrigation pump for the day. Then we’re going to call our friends down in the Scott Valley, and they’re going turn their pumps off.

JULIE: Ahh, okay . . .

TIM: And I’m going to call Walt in the Klamath Project and he’s agreed to turn his water off for a day. And he’s going to call the members of the Water Users Association and they’re all gonna turn their water off on that day. A dozen admin folks who work for the City of Klamath Falls are going to fill milk jugs with water from the tap in their house and drive it down to the edge of the Klamath River and dump it in. Don’t laugh! I know it’s more an act of love than of water. It’s holding another place tight, holding other families tight.

JULIE: Okay.

TIM: Okay?

JULIE: Okay. I’ll call you. I’ll tell my Gram and the others.

TIM: This is just a start. We’ve got a lot of people up here who are going to be hard to convince. They’re just afraid.

JULIE: I always wonder if the salmon are afraid, after they’ve gotten used to the ocean and all that freedom, if they’re afraid to go home.

JULIE: Well, I sure hope we can all have as much courage as a fish.

* * *

Adell L. Amos, recipient of the 2009 Orlando John Hollis Faculty Teaching Award, is associate dean for academic affairs and former director of the Environmental and Natural Resources Law Program at the UO School of Law. The 2011 UO production of Theresa May’s Salmon Is Everything was that year’s Region Seven nominee for the National Playwriting Program David Mark Cohen Award from the Kennedy Center American College Theater Festival.


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