An Oregon law could threaten the future of the proposed Klamath Basin Restoration Agreement. State lawmakers from Klamath Falls said Oregon Water Resources Department staff violated state law by participating in closed-door meetings with the Klamath Tribes during two-and-a-half years of settlement talks. Proponents of the water settlement said Wednesday they hadn’t yet heard about the law, but said it needs further review and shouldn’t take away from settlement efforts.

“I think we’re going to have to take a fair look at it,” said Jeff Mitchell, Klamath Tribes council member, adding he wonders why state lawmakers are bringing the issue up now instead of earlier in the settlement process.

“They’ve known all along these meetings were going on,” he said. Stakeholders released the proposed agreement Jan. 15. It allocates water in the Klamath River watershed between irrigators, tribes, fishermen and conservationists and also advocates removal of four hydroelectric dams owned by Portland-based PacifiCorp.

State Rep. Bill Garrard, R-Klamath Falls, said he raised the legal issue about the settlement talks during a mid-February meeting of the House Environment and Energy Committee.

The potential violation concerns Oregon Revised Statute 539.310. The law says state agencies can negotiate with sovereign nations, such as tribes, but must do so in public meetings and allow public comment.

The settlement talks were closed to the general public and did not permit public comment

Garrard said Phillip Ward, director of the Oregon Water Resources Department, was at the meeting as well as a representative of Gov. Ted Kulongoski’s office. They said they would look into the matter.

“Their response was basically ‘oops,’ ” Garrard said.

The department has not signed the agreement, but if it does an individual or organization could sue it for violating state law, a battle the plaintiff would likely win, Garrard said.

State Sen. Doug Whitsett, R-Klamath Falls, is working with Garrard on the issue. The senator said he would withhold comment until the Oregon attorney general responded to his questions. Whitsett has publicly spoken against the proposed settlement.

Ruben Ochoa, Oregon Water Resources Department spokesman, said the department wants more information to better understand how it may have violated state law, specifically the definition of what a negotiation is, before responding to the concerns.

“When we have more information we’ll be happy to discuss it,” he said.

Anna Richter-Taylor, spokeswoman for Kulongoski, also said she would need to look into the issue before commenting.

Oregon Department of Justice staff confirmed that Whitsett contacted the department and natural resources attorneys are scheduled to meet with him.

Luther Horsley, president of the Klamath Water Users Association, said he was not clear on the public meeting requirements, but said he it would be disappointing if the state was not allowed to participate.

“The talks needed to be confidential to get a product out,” he said.

Edward Bartell, president of the Klamath Off-Project Water Users said he was not familiar with the situation enough to comment.

He did say that he and other irrigators have been concerned about the Oregon Water Resources Department’s approval of the agreement because it  has a role in the water adjudication process.

Garrard said his concerns were not meant to destroy the agreement and he is not planning any legal challenges, but thinks that stakeholders need to address the issue before moving forward.

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