Susan Hammond

For those of you who do not know me, my husband Dwight and I, with our son Steven and his family, run a cow/calf operation and raise alfalfa on our ranch in Steens Mountains, near Frenchglen. We have three children, Steven, Lyle and Russel.

As ranchers we understand the critical importance of protecting water rights. This is the reason I have been involved with Water for Life. The members of Water for Life share a common belief that agricultural production is rightfully among the highest priorities for managing the water of the state, and we would hope to convince our state government and government agencies to keep it that way.

As president I am dedicated to maintaining our nonprofit organization’s tradition of providing the best service possible to the natural resource producers not just in Oregon, but throughout the West. For better or worse, we believe that Oregon will continue to be at the cutting edge of environmental regulations affecting everything from how we operate our businesses under water quality management plans to whether we have to provide our names and addresses in order to buy Round Up at the local market. These types of regulations must be based on reasonable goals or we risk setting national precedents that will haunt the country for years to come. That’s where Water for Life enters the picture. We pride ourselves on a long tradition of advocating for practical solutions to real problems.

We are standing up for agricultural water users in many ways. In the Klamath Basin we are involved in legal proceedings to force the State of Oregon to treat water right holders fairly. On the Malheur National Wildlife Refuge, we are working with private property owners to protect themselves from the arbitrary decision making process of the U.S. Fish & Wildlife Service. Through the years our organization has sat on several state task forces representing the interests of agricultural water users. For example, we are currently participating with a task force to develop legislation to increase water storage opportunities.

WFL Board Elects Officers

Endangered Species Act is Subject of Land Use Forum

Water for Life executive director, Brad Harper, was a featured speaker at a March 25, 2000, panel discussion regarding the impact of federal ESA listings of Northwest salmon. The Land Use Forum is an annual event orchestrated by the Oregonians In Action Education Center to brief hundreds of private property right advocates and others of the latest developments in local, state and federal laws and regulations.

The ESA panel included Oregon State Senator Veral Tarno, Don Dodds, a fisheries biologist with North Pacific Research and Dr. James Lannan, an independent fisheries scientist. Bill Moshofsky, President of the OIA Legal Center moderated the panel discussion.

The panelists agreed that the many listings of endangered species within the Pacific Northwest opens a new chapter of federal regulation for property owners, developers, the agriculture community, and practically every person who lives or works in areas where endangered species are present. There was lengthy discussion regarding the draconian "4(d)" rules the National Marine Fisheries Service is proposing to protect salmon.

"When NMFS’s proposes blanket requirements for 150 to 250 foot buffer strips along any waterways where listed species may be present, we have to question their commitment to reasonable solutions," said Harper.

There was also detailed discussion about the biological fiction created by Oregon’s wild fish policy; a policy fully endorsed by NMFS. Sen. Tarno remarked "I have yet to see any convincing evidence that a hatchery-raised fish that leaves Oregon, thrives in the Pacific, and returns to Oregon is somehow inferior to non-hatchery fish making the exact same accomplishment."

Spring Bull Sales Exceed Expectations

Water for Life appreciates the warm receptions we received this spring at bull sales in Oregon and California. We enjoyed introducing ourselves to new faces and getting reacquainted with old friends. Donations to WFL were many and generous and we thank everyone for their support.

Please note Water for Life will be at the Western Video Market’s 11th Annual Golden Nugget Sale in Sparks, Nev. on July 10-11, 2000, where we will be auctioning a superior saddle custom-crafted at the Thissell Saddle Shop and generously donated by Chris Hickman of Merial, the makers of quality livestock pharmaceuticals, including Ivomec. We will also auction a beautiful, one-of-a-kind juniper saddle rack donated by Ross Otley of Juniper By Design.

John Herkner and Pfizer Animal Health for their continued support and the donation of a silver Gercia Bit with rawhide reins and headstall. The bit and headstall were purchased by Walter & Sarah Seput of Chiloquin, Ore. after being purchased and donated back 32 times.

Dr. Gregory J. K. Garcia, MS, DVM of Precision Embryonics for his donation of an embryo collection and flush. The collection/flush procedure was purchased by Scenic View Farm, Bend, Ore.

Dr. Rich Long of Klamath Animal Supply for the donation of the custom handmade saddle crafted by Dale Northrup at Klamath Kowboy Korral. The saddle was purchased by Traynham Ranches, Eagle Point, Ore. after being donated back three times.

Water for Life would also like to thank Bill Lefty, Dr. Rich Long and the Klamath Bull Sale Committee for their continued support, as well as Norm and Virginia Small of Yummy’s Cowboy Cuisine for putting on the Water for Life Appreciation Breakfast.

Klamath Bull Sale:

Stewart Nelson of Hoescht Roussel, Val and Dick Hubman and Jake Wood of Rogue River Ranch for donating the Angus bull that was sold during the Red Bluff Bull Sale

Garino Livestock and Elmer and Rick Roberti of Roberti Ranch for donating the Angus bull that was sold during the Red Bluff Invitational Heifer Sale

Tony Nicoletti for purchasing the bull sold during the Red Bluff Bull Sale and to Boyd Braren for purchasing the bull sold during the Red Bluff Invitational Heifer Sale

Ken Hufford of Gabrielsen Cattle Company for choosing Water for Life as the recipient of the Bill Owens Memorial donation of $500 to the buyer of the Champion Hereford Bull. The 2000 Red Bluff Champion Hereford Bull was raised by Y Cross Herefords.

Water for Life would like to thank the Madras Sale

Committee & our supporters in Madras:

Walter & Sarah Seput for donating the filly, The Flemmings for boarding the filly.

Thanks to Leroy & Janet Fessler, Ken & Diane Read, and Central Oregon Ranch Supply for purchasing and donating back the filly and Eric Erickson, the final purchaser.

U.S. Supreme Court Addresses Rangeland Reform

A long awaited ruling on the rangeland reform regulations introduced by Department of Interior Secretary Bruce Babbitt in 1994 was finally issued on May 15, 2000. In a unanimous decision, the Supreme Court upheld the supremacy of the Taylor Grazing Act. That Act, dating back to 1934, provides for grazing districts on federal lands and requires the Secretary of the Interior to issue leases or permits for livestock grazing.

At issue in the case was whether Babbitt’s 1994 reforms violated the Act in three areas: (1) redefining grazing preference regulations; (2) changing eligibility for who may own a grazing permit; and (3) giving ownership to all future rangeland improvements to the Department of Interior. The court held that Babbitt’s reforms were allowed because they did not conflict with the purpose of the Act; namely, to provide for grazing on public lands.

Many anti-ranching activists, and even some mainstream media sources, are claiming the case is a huge defeat for the cattle industry, but a close examination of the case does not support this conclusion.

First, the court allowed that the Act requires recognized grazing privileges to be "adequately safeguarded." Although Babbitt’s new definitions may consider land use planning to determine the amount of permissible grazing, the Secretary is ultimately bound to protect those permits.

Second, the court clearly stated that it would be unlawful for Babbitt to issue grazing permits for conservation use. Permits may only be issued for livestock grazing, issuing them for any other purpose would violate the Taylor Grazing Act.

OWYHEE RANCHERS REQUEST WILDERNESS DESIGNATION

In most instances, federal designation as a wilderness area does not promote cattle grazing, but the Owyhee River Canyon is not a typical case.

Since its listing as a Wild and Scenic River in 1984, the Owyhee River in southeastern Oregon has been at the forefront of a battle waged by anti-ranching activists. Recently, the Owyhee has been the center of a federal lawsuit seeking to ban cattle from accessing the river. Some local ranchers have few options, they must cross the river to reach otherwise inaccessible grazing allotments. Other ranchers can continue to graze without accessing the river, so long as off-channel water is available. At stake are 464,000 acres of Bureau Land Management lands approved for grazing, or approximately 27,000 animal unit months.

Although Federal Judge James Redden initially approved an injunction halting most grazing within the Owyhee River Corridor, he has backed off considerably from that extreme position. Redden’s latest decision directs the BLM to allow ranchers to fence cattle away from certain portions of the river and to install pipelines to deliver stockwater off channel.

Water for Life Challenges State over Klamath Adjudication

Water for Life, Inc. presented a full day of testimony before the Klamath County Circuit Court on May 1, 2000. At issue is the Klamath Adjudication, a statutory process to determine pre-1909 water rights in the Klamath Basin.

Water law in Oregon follows the Doctrine of Prior Appropriation, meaning the oldest water rights will always be satisfied before more recent water rights ("first in time, first in right"). But this law was not created until 1909, so that everyone using water prior to that year must go through a lengthy and complex state process to prove the original date of their water right. This process is known as adjudication.

Since the 1970’s, the State of Oregon has been conducting an adjudication process to finally settle the contentious issue of who owns the most senior water rights in the Klamath Basin in southern Oregon. Parties claiming these most senior of water rights include the federal government and the Klamath area tribes.

As part of this process, state officials are required to provide reasonable notice to every person in the Klamath Basin who owns any irrigation works. This notice is intended to protect farmers, ranchers, and other landowners who depend on irrigated water for their livelihood. Many of these water users hold "certified" deeds, whether by prior adjudication or post-1909 claim, to water rights that have been in their families for generations.

"These nonagricultural pre-1909 claims are for extremely large amounts of water, and some of the priority dates go back to time immemorial – literally," said Brad Harper, Executive Director of Water for Life, Inc. "This means we have established farming families who will certainly be driven out of business because there will no longer be enough water to go around."

Because the impact of the adjudication will be so sweeping, Water for Life, Inc. has been closely monitoring the process to provide maximum protection for its members. Most recently it was determined, to the stunned surprise of many of those who have been intimately involved with the adjudication, that many of the local water users had little or no notice their water rights might be rendered valueless.

Speaking at a Board of Directors meeting in Bend, Susan Hammond, President of Water for Life, Inc. and a rancher from Harney County, reported that many water users were either not notified or received very short notice that claims were being made against their water. "We have producers in the Klamath Basin who still have not been notified that they stand to lose their water rights if they don’t participate in the adjudication," said Hammond. "The State is ignoring the law by failing to give every water user due notice that their very existence is under threat."

In a last ditch effort to solve the crisis, Water for Life, Inc. filed a lawsuit with the Klamath County Circuit Court demanding the State extend the inspection period so all water users would have their full entitlement to inspect the claims made by others and determine whether they need to protect themselves as the law allows. After the inspection period, state law requires a contest period during which time people must file contests disputing or supporting claims made for pre-1909 water rights. People who fail to file contests are not allowed to participate further in the process being administered by the Water Resources Department.

Oregon: On Point over Nonpoint

Commentary by Bill Kennedy

In 1993, a segment of the agricultural community felt it was imperative to pursue legislation in response to the assumption that the regulatory auspices of the Federal Clean Water Act (CWA) would soon be dictating state policy for those engaged in agricultural production in Oregon. The resulting legislation, Senate Bill 1010, established a system of agricultural water quality management planning within Oregon and ostensibly provided the state Department of Agriculture with the principle regulatory authority over water quality issues associated with agricultural production.

The Issues

Akin to a land use planning system, the merits of Oregon’s agricultural water quality management planning process continue to be debated. Recently, this debate has significantly intensified.

Many agricultural producers within the state believe the local management plans required by SB 1010 will ultimately result in unreasonable restrictions over traditional agricultural practices. On the other side of the debate, some "environmental advocates" believe the planning process will not progress beyond the initial stage without subsequent action resulting in tangible benefits to the state’s water quality.

As previously discussed, SB 1010 was pursued out of a perceived threat that additional regulations would be imposed over agricultural practices in order to protect water quality. Proponents of the initial legislation argued the Clean Water Act (CWA) required state action with respect to nonpoint source related activities that may impact water quality. The proponents argued that, without specific legislation granting the state Dept. of Agriculture the authority to administer and regulate agricultural activities for purposes of water quality protection, the state Dept. of Environmental Quality would assume the primary role for implementing such regulations. For reference, Oregon’s Dept. of Environmental Quality retains responsibility for the administration of the CWA within the state.

In retrospect, one may suggest the two arguments put forth by proponents of the initial legislation were, at best, premature and, at worst, inherently flawed.

Appeals Court Decision

First, addressing the issue of whether traditional agricultural production may be hindered by the regulatory burden associated with the Clean Water Act, one should review the 1998 decision rendered by the Ninth Circuit Court of Appeals in Oregon Natural Desert Association v. Dombeck. The Ninth Circuit Court held certification under Section 1341 is not required for grazing permits or other federal licenses associated with activities that may cause pollution from nonpoint sources. However, the implications of the decision extend far beyond this immediate question.

With respect to traditional agricultural production and the potential for regulation through the Clean Water Act, the Court found a specific distinction between "point" and "nonpoint" sources of pollution. Traditional agricultural production clearly falls within the latter category. The distinction between a point source and a nonpoint source turned on the defining term of "discharge". The Court held that a point source is defined as a "discernible, confined and discrete conveyance" such as a pipe, ditch or machine." Conversely, pollution, such as runoff from agriculture, represents a nonpoint source. The court’s opinion said the CWA "thus banned only discharges from point sources. The discharge of pollutants from nonpoint sources—for example, the runoff of pesticides from farmlands—was not directly prohibited."

In light of this holding, the subsequent question is one regarding the potential for regulatory intervention over nonpoint source pollution through other CWA provisions. The court stated that "nonpoint source pollution is not regulated by the act, but rather through federal grants for state wastewater treatment plans."

In regard to Sections 208 and 319 of the CWA referencing nonpoint sources of pollution, the court said the act "provides no direct mechanism to control nonpoint source pollution but rather uses the ‘threat and promise’ of federal grants to the states to accomplish this task."

Thus, it would appear, the clairvoyant abilities of the proponents of the 1993 legislation may have been less than exact.

Question of Authority

Turning to the second argument, proponents argued that without a distinct grant of authority, the state Dept. of Environmental Quality, rather than the state Dept. of Agriculture, would dictate regulations over agricultural activities suspected of contributing to water quality degradation.

Upon close analysis, the legislation fails to provide the state Dept. of Agriculture with clear authority over the agricultural community’s fate, with respect to the regulation of nonpoint source activities. Existing statutory provisions grant the Dept. of Environmental Quality significant latitude in the ultimate regulation. Authorities granted to DEQ are contained in ORS 568.930, which, in part, provides:

(1) All agricultural activities conducted on agricultural lands within the boundaries of an area subject to a water quality management plan shall be conducted in full compliance with the plan and rules implementing the plan and with all rules and standards of the Environmental Quality Commission relating to water pollution control. In addition to any other remedy provided by law, any violation of those rules or standards shall be subject to all remedies and sanctions available to the Department of Environmental Quality or the Environmental Quality Commission. (emphasis added)

While the proponents were diligent in their efforts to market the merits of the legislation on the basis of this grant of jurisdictional authority to the state Dept. of Agriculture, the specific legislative provisions demonstrate a contrary policy. Subsequent interpretations also suggest selling the legislation under the guise that the Dept. of Agriculture would retain responsibility for nonpoint source activities associated with agricultural practices was little more than slight of hand.

A revealing statement illustrating how the legislation has been interpreted by parties outside the realm of the state’s agricultural community can be found in a 1999 veto statement issued by Governor John Kitzhaber. The Governor’s veto statement on SB 675, a legislative measure addressing issues associated with the certification of activities under Section 401 of the Clean Water Act, contained specific references to the authority of the Dept. of Environmental Quality:

Current law contains an express provision granting the DEQ the right to continue regulating nonpoint source pollution from agricultural activities. It recognizes DEQ’s authority to assure attainment of water quality standards on agricultural lands by working with the Oregon Department of Agriculture on agricultural water quality management plans. (emphasis added)

Upon review of the statutes and the Governor’s veto message, it is clear the exclusive grant of authority thought to be provided to the state Dept. of Agriculture through the legislation is illusory.

In light of the Ninth Circuit Court’s decision in ONDA v. Dombeck and the many issues surrounding Oregon’s Agricultural Water Quality Management planning system, what direction should future policy follow with respect to the inherent relationship between nonpoint source activities and water quality related issues?

First, as well defined in the Dombeck case, specific provisions of the CWA addressing regulation of nonpoint source pollution are based upon a "threat and promise" of federal grants for state action. Federal grants should be considered to assist state efforts to improve nonpoint source practices that are found to impair water quality.

Second, policy makers should remain cognizant of the distinction between point source and nonpoint source activities when addressing policies associated with the regulation of water quality.

Third, policy makers may be well advised to enhance opportunities for those engaged in nonpoint source activities, such as agriculture or silviculture, to improve practices through educational and voluntary opportunities.

In Memory of . . .

Long time Water for Life supporter Richard "Dick" Barrett, 68, passed away March 24, 2000, in Langell Valley.

Barrett moved from California to Langell Valley in 1965, where he established his family’s ranch. He belonged to St. Barnabas Episcopal Church, was active in the Klamath Cattlemen’s Association, and the Langell Valley 4-H.

Barrett is survived by his wife, Marilyn, his son and daughter-in-law, Glenn and Linda Barrett, his daughters and sons-in-law, Karen and Doug Seeley, and Linda and Frank Hammerich, as well as ten grandchildren and two great-grandchildren.

Memorial contributions be sent to St. Barnabas Episcopal Church Memorial Fund, 12201 W. Langell Valley Rd., Bonanza, Ore., 97623; and Water for Life, Inc.

Another esteemed Water for Life member, Gertrude "Trudy" Smith, 76, died February 24, 2000, at her home in Redding, Calif. Smith lived most of her life in Redding and was married to her late husband, L.C. Smith, for 30 years.

Smith owned and managed two cattle ranches, one in Fort Klamath, Ore., and the other near Redding. She was an active member of the California Cattlemen’s Association and the National Rifle Association. She is survived by her daughter, Carole Chase, her sisters Margaret Allen and Frieda Scheidegger, as well as three grandsons, six great-grandchildren, a niece and a nephew.