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Why Flying T Ranch and I, Brandan Topham, do not support the Klamath Basin Restoration Agreement(KBRA).

What is the Klamath Basin Restoration Agreement(KBRA)?

#1 Supports the Klamath tribes claims to substantially more water than exist. If successful, it will dry up off-project irrgators and destroy my family ranch.

#2 Incidental killing of protected species of wildlife.

#3 Reverse racism.

#4 Must trade private property rights if we want affordable power(which is not very affordable compared to other parts of Oregon).

#5 No protection from the Endangered Species Act.

When people start talking about why they support the KBRA they often mention money or stability.

#6 No guarantee of money.

#7 No real protection against cost of dam removal.

#8 Is not voted on by the people.

#9 What meaningful stability?

#10 Why certain groups who should know better signed on... No integrity.

Can the KBRA be Fixed?

I am not trying to take anything out of context, if you are really interested and a glutton for punishment please read the document. If you would rather keep your sanity just understand that this is a make or break issue for every irrigator above Klamath Lake.

What is the Klamath Basin Restoration Agreement(KBRA)?

Supporters of the KBRA often describe it something like this.

The Klamath Basin Restoration Agreement(KBRA) is a historic agreement that settles disagreements among diverse parties and will provide meaningful stability for farmers and ranchers, increase water flows for fish, restores natural fish habitat, establish reliable water and power supplies which sustains agricultural uses, communities, and National Wildlife Refuges and provide economic development to help the tribes become more self stainable.

While that may be what they tell the public, the agreement tends to focuses on only two goals. Water for fish and money and land for the tribes and various governement groups. See Appendix C-2 Budget for Implementation of Agreement

#1 The biggest issue I have with the KBRA is that it tries to dry up my family ranch.

To understand how this will affect our water, you need to understand water rights. The short version of water rights:

The first person comes along and develops a productive use of water, normally irrigation. He is granted a water right for the water he uses with the date of when he started using the water, he is first in line.

Then more people come along and develop more uses for water. They are given water rights for the water that they use with the date that they start using it.

If enough people start using water and get water rights, eventually there will be so many that in a dry year there is not enough water for everyone to irrigate. When this happens, the people who have the latest dates have to stop irrigating and leave the water for those who came earlier. If there still is not enough water the next guy stops irrigating, ect. until there is enough for those that remain. First in time, first in line.

The tribes have time immemorial water rights(that is before anyone else). What is in question is how much water do they use? They are claiming that they need substantially more water than exist in the stream. Off-project irrigators are going to court saying, hey that is not right, you can only claim a much lesser amount. If the Klamath Tribe gets their claim as written right now, every off-project irrigator will have to stop irrigating(some say that the project guys may have to stop as well). Once these claims are established they are permanent. No one can come back later and decide the claims are not right. If they are to be fixed they must be be fixed now.

To be part of the KBRA we have to stop our lawsuits against the tribe's claims. The lawsuits cost a lot of money. If enough of us stop, the remaining people will not be able to pay the lawyer's and experts to stop the tribe's claims. If that happens and the tribes get their current claims to water, then farmers and ranchers get NOTHING. The result for our family ranch of 38 years is that we go broke along with most of the other off-project farmers and ranchers.

If you want to look up the references in the KBRA where the agreement supports the Tribes claims, Section "16.2.1. Off-Project Water Settlement" is the first of several places in the KBRA. I highly recommend having someone who reads legalese on hand to help read it.

#2 Incidental killing of protected species of wildlife.

I could talk about how drying up land and removing the dams that have been there for years building up silt will adversely affect wildlife. Instead, a quick look at the section headers does it for me.

22.2. Section 10 Incidental Take Permit talks about how as needed the parties involved will try to get federal permits for the incidental killing of an unspecified number of ESA listed Species.

23. Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act talks about getting permits for the incidental killing of Bald and Golden Eagles.

24.2. California Fully Protected Species

24.2.1. Recital A Recital is a statement of facts.

24.2.2. New Legislation Changes California law to make it legal for the parties involved to incidentally kill Lost River sucker, shortnose sucker, golden eagle, southern bald eagle, greater sandhill crane, and American peregrine falcon.

#3 Reverse racism.

Once again it is easier to let the document speak for its self. Section 19.5.3. Eligibility talks about eligibility and applying for the affordable power that may be available to off-project water users.

"Klamath Tribal allottees... shall be given the option of priority participation"

That is favoritism of tribal members based only on race, also known as reverse racism.

#4 Must trade our private property rights if we want affordable power.

For off-project irrigators to be part of the affordable power, which should be noted is pretty expensive compared to a lot of the state, we have to be part of the General Conservation Plan. That sounds reasonable, so what is the General Conservation Plan? Section 22.2.2. Part C In short it gives government agencies and the people running the KBRA the ability to tell us what we can and can not do. The plan gives them the the following powers:

"Activities covered under the General Conservation Plan(s) may include, but not be limited to, diversion and application of water, agricultural operations, grazing, road construction and maintenance, vegetation management, timber management, and actions associated with restoration, management, and maintenance of the riparian corridor. Measures for minimization and mitigation of incidental take under the General Conservation Plan(s) will be based on NMFS and FWS evaluation, in cooperation with applicants, of site-specific conditions, and may include, but not be limited to, screening of diversions, management of livestock access, protection and enhancement of riparian vegetation, fish passage improvement, culvert replacement, and reduction of erosion and sedimentation from streambanks and roads."

If what they listed is not enough they have the "include, but may not be limited to" clause which is a blank check that allows them to do anything they want. Speaking of blank checks, "include, but may not be limited to" appears in the KBRA 6 times. A variation "including but not limited to" shows up 21 times. Combined, that is 27 blank checks that anyone who supports the agreement is agreeing with.

An off-project power user does not have to sign up for the program, but if they do not then they are not eligible for the affordable power that the agreement is promising.

Two other things to note about this.

  • The on-project users do not have to be part of the 'General Conservation Plan' or give anyone a blank check about regulating what they do to apply for the affordable power.
  • The "affordable" power in this agreement is more expensive than in most of Oregon.

#5 No protection from the Endangered Species Act.

Remember the water shut off for on-project irrigators? It was caused by the Enviromental Species Act(ESA). This agreement does nothing to protect any water user from the ESA. The agreement is happy to say so in many places. The first being in Section 2.2.7. No Alteration of Environmental Review.

#6 No guarantee of money.

Yes, the agreement begs Oregon and California voters for money and also begs the Federal Government for more money. This money is not guaranteed by the agreement. Section 2.2.3. Availability of Public Funds is the first of many places in the agreement to say that nothing in the agreement is a commitment of funds by Public Agencies or any government.

#7 No real protection against cost of dam removal.

Yes, there appears to be a cost cap for electricity customers with regard to the cost of removing the dams. What happens when removing of the dams goes over budget? At some point the taxpayers will get to pay for it. Since I am a taxpayer, the cap on cost to Pacific Power is of little use as I will get hit with taxes to cover it.

#8 Is not voted on by the people.

Nothing in this agreement is voted on by the people. Instead several groups have come together and appointed themselves as our represenatives to make decisions that will have a masive impact on the area. If the supporters get their way and the KBRA passes and is fully funded there will be no checks or balances against them. Once that happens there will be no way for the people to hold them acountable.

#9 What meaningful stability?

With no protection from the Endangered Species Act (see point #5) and drying up off-project water users (see point #1), I have to ask where is the stability? I guess a person could argue that if agriculture is destroyed and there is nothing left, that is pretty stable.

#10 Why certain groups who should know better signed on... No integrity.

Two of our County Commissioners, Cheryl Hukill and Al Switzer, came out to the ranch to see how we are going to be affected by the KBRA. A few nights before, I read the agreement and got ready to point out all of the problems and damage it was going to do to us. Over lunch we discussed the agreement in detail. They came to the same conclusions I did on points #1-#7 and then went on to explain to us many major things wrong with the KBRA that I have not covered in this writing.

Having little experience with politicians, I asked how they could consider signing the KBRA knowing all of these major problems that they just agreed were in it?

Their answer to me was they did not see any way to stop the KBRA so they were going to join it and try to lessen its impact.

I have lived in the sticks for my whole life and had not even considered they would think that way so I was unprepared to respond. Having had time, here is my response to them or anyone who is thinking along those lines. Where is your integrity? The people who elected you to office expect you to warn them if something like this is happening and to stand against it.

Morals aside, lets look at what happens when someone signs the agreement. The first thing they do by adding their names to the KBRA is agree to support the KBRA. Section 3.1. Obligation to Support Then the people who run the KBRA go to the government and voters and say hey look at this list of who supports this agreement, give us money to do it.

Once a person signs they can no longer object, and if the KBRA is funded, what can they do to lesson its impact? In the case of the Commissioners, after hearing thier position, I read the relevant parts of the KBRA to see what they can do. Klamath County is the only major party not part of the "Technical Advisory Team and Interim Technical Team" (See Appendix D.11). This is the sub-group in the KBRA that will be doing a lot of the decision making that will be bad for the County. On all of the other teams or boards(gangs is a better word for these groups) anyone who wants to limit the KBRA, will be out voted by no less than three Federal Agencies, two States, four Tribes, and Commercial Fishing. Depending on which "gang" there are various numbers of Conservation/Restoration Groups who will also have a vote.

Against that many votes in the few "gangs" that Klamath County Commissioners can be part of, I do not see how they can make much of a difference, while at the same time they are helping the KBRA with public support.

My solution for people with this stance is to elect new people who not only see the problem, they stand up against it. We can start with electing Dennis Linthicum as a Klamath County Commissioner. I was in 4-H with his kids and he was a 4-H leader in our 4-H club. I found him to be a man of his word and someone who takes time to understand an issue before acting on it. I believe his integrity along with his experiance running a local business where he has interacted with residents from all areas of Klamath should make him a good County Commissioner and vastly better than what we have now.

Can the KBRA be Fixed?

I have pointed out the problems so what needs to happen before a person of integrity can sign the KBRA and still sleep at night?

The list includes but is not limited to:

  • The adjudication needs to be completed or the Klamath tribes need to lower their claims on off-project water.
  • The agreement needs to be fair for all, no racism, reverse racism or favoritism of on-project vs off-project.
  • The KBRA needs to be passed in a vote, by the people of Klamath county.
  • The leaders of the KBRA should not be appointed, they need to be elected, by the people effected by the KBRA. Not appointed or voted on by people from out of the area.
  • There needs to be some basic protection from the ESA.
  • The affordable power needs to be affordable and off-project users should not be expected to give up their property rights to be eligible for the power.
  • Other species of wildlife both protected and non-protected need to be considered more than they are.
  • There needs to be a clear plan of what happens in a drought.
  • There should not be a single "includes but not limited to" blank check in the agreement.

If you want to help change the KBRA so that it is fair for all, people and animals, speak up. Let people know that you do not believe the KBRA is good for the region as writen now. When given a chance to tell our leaders what you think this May election help us start by voting the ones who supported it out and relecting the ones who have stood for fairness and the rule of law.

If you have any questions feel free to contact me.

Brandan Topham

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