Klamath offers lesson about property rights

By Randall O'Toole
Writers on the Range
August 15, 2001
Las Cruces Sun-News

In the 1890s, Oregon's "Cattle King" was Pete French, whose 45,000 head of cattle used to graze on 200,000 acres not far from today's Klamath Basin. At least he was king until 1897, when he was killed in a gunfight with a homesteader. French's story should be familiar to any American moviegoer: the ranchers vs. the homesteaders, (Shane), the cattlemen vs. the sheepmen (Tom Horn), the Anglos vs. the Hispanics (Milagro Beanfield War), and most recently, the Klamath farmers vs. the suckerfish (movie soon to be released by Sundance Films).

At first glance, these seem to be cultural wars, particularly the battle between farmers and environmentalists over whether water in a drought year should be used for irrigation or to protect endangered fish. When the federal government promised the water to the Klamath farmers in 1907, most Americans lived in rural areas and had rural occupations. Today, most Americans live in urban areas and care more about endangered species than endangered family farms. Yet the heart of these battles is not cultural but institutional, namely the institution of property rights.

If the property rights in land and water were clear, none of these battles would have taken place, and Hollywood would have made movies about something else. Pete French knew that a few hundred acres in Central Oregon weren't enough to make a viable farm or ranch. But the federal government didn't allow French to claim ownership of more than a few hundred acres, so he grazed his cattle on federal land. When homesteaders claimed choice parcels of that land, French tried to discourage them. He failed -- though they soon discovered that French was correct and left anyway. When the Bureau of Reclamation built Klamath Reservoir for irrigators, it didn't give Klamath farmers in northern California and southern Oregon ownership of the water. It just let them use the water each year for a modest fee. At least, it did until 2001, when the Fish and Wildlife Service claimed a higher use for the water. If property rights in the land had been clear, French could have sold some land to homesteaders, or they would have moved somewhere else. Few would have tried to drive him off land he legitimately owned.

If property rights in the water had been clear, the Fish and Wildlife Service could have purchased enough water for suckerfish. Farmers could have used the money to take the year off, move, or plant crops that need less water. Without property rights, battles over land and water become struggles of might makes right. In 1897, it was who has the fastest gun. In 2001, it is who has the most political power. Either way, the result is messy. To their credit, Oregon environmentalists are talking about buying out Klamath farmers. But have they learned the real lesson behind this dispute? Do they understand that property rights are a better way to settle these problems than political power?

When Pete French moved to central Oregon, he never thought that homesteaders would try to take the land he used. He turned out to be dead wrong. When the Klamath farmers first started using Bureau of Reclamation water, they never thought that someday most Americans would think suckerfish were more important than them or their farms. They were wrong, too. Today, few environmentalists think that Congress will ever weaken the Endangered Species Act. But what happens if we have another Great Depression? What happens if food prices start to climb? What happens if Americans lose interest in odd-named and odd-looking native varieties of fish and wildlife, as they have lost interest in rural farmers, loggers and miners?

Many environmentalists have so demonized the property rights movement that they think that property rights are incompatible with endangered species. The truth is just the opposite: The protection of endangered species is incompatible with the lack of property rights. In the long run, if we don't want species to go the way of Pete French, Basque sheepherders and Klamath Basin farmers, we had better use property rights rather than political power to protect those species. That means the government should let people buy and sell water rights, habitat rights, or even in some cases the fish and wildlife themselves -- in order to permanently protect them.

Randal O'Toole is a contributor to Writers on the Range, a service of High Country News in Paonia, Colo. He is senior economist with the Thoreau Institute in Bandon, Ore.

Burkstaller said according to the Bureau of Reclamation, an average of 73,000 acre feet of water has been left in the Elephant Butte Reservoir every year, even after all agriculture demands have been met.

He said the bureau has also refused to honor contracts with the El Paso County Water Improvement District that would have enabled El Paso to "significantly reduce its dependence on bolsons."

"Farmers who may wish to periodically sell their water to El Paso and other municipalities are prohibited from doing so by the bureau and the irrigation districts," Burkstaller said.

He suggested the federal government, through its laws and agencies, facilitate making Rio Grande water available to municipalities.

Gary Esslinger, of the Elephant Butte Irrigation District, said EBID has filed suit in New Mexico Federal District Court to contest the bureau's contention that they must approve any transfer of water to municipalities.

"EBID maintains the appropriate provisions of state water law apply and no other approval is needed," Esslinger said. "Intervention by the bureau only serves to delay the transition and adds to the final costs to consumers."

He said while there are no laws per se prohibiting the transfer or leasing of water rights to municipalities, adjudication and the bureau's unflinching position has made it very difficult for farmers to consider leasing their water rights.

"Right now, we don't have the mechanism in place (for such a transfer)," Esslinger said.

In addition, because almost all water rights in the Las Cruces area are for agriculture uses, Esslinger said there may be further obstacles because EBID will not allow transfers of water use outside of the historical use of the water.

Though representatives from Mexico took part in the hearing, Bingaman said there is apparently little coordinated effort between Mexico and U.S. states in terms of determining the amount of water in aquifers and the projected future use.

Turney said under state law, water rights can be leased to municipalities for up to 40 years, but only if the transfer of actual water rights is put to beneficial use.