Crooked River Water-Public Right vs. Private Profits

An article in the November 9^th Bend Bulletin reported that due to low water reserves, the Bureau of Reclamation that controls water release from Prineville Reservoir may limit flows in the Crooked River to preserve water for irrigators to the detriment of fish and the Crooked River’s aquatic ecosystem.  https://www.bendbulletin.com/localstate/6666523-151/low-flows-dry-winter-could-spell-trouble-for

In a previous low water year, tens of thousands of trout died, and populations went from thousands of fish per mile of river to around 350 fish per mile. https://www.bendbulletin.com/outdoors/6368573-151/trout-numbers-recovering-in-the-crooked-river-near

One must ask why irrigators can so dewater our rivers and potentially kill thousands of fish with immunity, but if a fisherman should keep one extra fish over the limit, they can be fined as a poacher. Does this make any logical sense to anyone?

The Crooked River is well known as an outstanding redband trout fisheries, but year after year, the fisheries are compromised by irrigators who remove a substantial amount of the flow to irrigate hay and alfalfa fields as pasture and forage for domestic livestock.

This is especially infuriating since all water in Oregon is owned by the citizens of the state. It does not belong to irrigators, though you would not know that from the way water is allotted.

Furthermore, all wildlife (which includes fish) is a component of citizenship rights, and therefore, the public has standing and the state has a Public Trust obligation to protect and preserve those wildlife resources for present and future generations.  This means the state has a duty to protect the habitat (i.e. the flows in the Crooked River) for sustainable fish populations.

In the case of the Crooked River (as well as the Deschutes) the state is clearly not meeting its Public Trust obligations.

Since 1869 the Oregon Supreme Court has recognized that water is a public resource and the state has a public trust obligation and responsibility to protect the public’s interest.

The Oregon Supreme Court has repeatedly recognized a public easement in all navigable-in-fact waters for navigation, fishing, commerce, and recreation, and has also articulated limited ancillary rights to use uplands.

As early as 1915, Oregon withdrew all the waterfalls and streamflow in the Columbia Gorge to protect the scenic beauty and promote tourism. Indeed, as early as 1918, the Oregon Supreme Court recognized that water recreation was a guaranteed right under the public trust doctrine.

This is the same legal case law that has preserved public access to all the beaches of the Oregon coast.

Legal experts concur that although the state can authorize private rights in those resources, however, all private rights are subject to the state’s sovereign ownership—a public easement—requiring the state to maintain these resources, including protection of water quality and stream flows as trustee for the public.

Therefore, any private use of water (and irrigation is a private taking of public water) is subordinate to the public trust to protect the public’s fish, water, and ecosystems.

If the Bureau of Reclamation withholds flows on the Crooked River to reserve these waters for irrigation use, it is a violation of Oregon’s public trust.

Though economics is not a criterion for protecting the public’s resources, the fact remains that keeping water in the river has a higher economic value to the region’s economy than using that water for irrigation.  For instance, in Deschutes County, all agriculture contributed to only 1.2% of the non-governmental income, while Travel and Tourism accounted for 21.7% of income.

And this economic indicator does not account for the 43.2% of people who live or have moved to Deschutes County attracted by the natural environment including outdoor recreation who do not depend on the local economy for their income.

When you combine these figures and one recognizes that maintaining healthy river ecosystems and healthy fisheries are worth far more to Central Oregon’s economy than irrigating hay fields.

But whether economically significant or not, the state has a legal obligation to protect our rivers and fisheries.  There is no such thing as a “water right” rather these are water “privileges” which the state can and should limit to protect the public’s interest in maintaining healthy river ecosystems.

The public interest should not be subserviant to the private profit of irrogators.

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