When Div. 5 Water Court Judge James Boyd issued a final water-rights decree at 7:23 a.m. Tuesday in the Maroon Creek Reservoir case, he removed the prospect of the city of Aspen ever building a 155-foot-tall dam on Maroon Creek or a 170-foot-tall dam on Castle Creek below Ashcroft.
Although the city had reached agreement in October with 10 opposing parties in two water-court cases over the city’s conditional water rights, the agreements were not in effect until the court’s decree was issued in the Maroon Creek Reservoir case.
So now they are.
“It means the city will not build reservoirs at Maroon or Castle,” said Margaret Medellin, a utilities-portfolio manager for the city. “The decree was the last piece we needed to finalize all our negotiations. So until that was in place, Maroon Creek Reservoir was still a possibility.”
In issuing Aspen’s proposed decree for its conditional rights for the Maroon Creek Reservoir, the judge found that the city had been sufficiently diligent and could maintain its conditional water rights for another six years, but in doing so, he also enshrined the city’s commitment to move the rights out of the Maroon Creek valley. He did the same for the Castle Creek rights last month when he issued a decree for the conditional rights tied to the potential Castle Creek Reservoir.
“The judge’s final decree ensures that the Maroon and Castle dams are dead,” said Matt Rice, Colorado River Basin director for American Rivers, which opposed the city’s efforts to maintain its water rights in the Castle and Maroon creek valleys. “This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers. This collaborative outcome demonstrates that Coloradan’s can protect rivers while planning for a water scarce future.”
The city first filed for the conditional water rights to the two potential reservoirs in 1965, and the decreed rights carry a priority date of 1971. (Please see timeline).
The Maroon Creek Reservoir would have held 4,567 acre-feet of water just below the confluence of West Maroon and East Maroon creeks, in a pristine location in view of the Maroon Bells. The reservoir would have flooded 85 acres of U.S. Forest Service land, including some in the Maroon Bells-Snowmass Wilderness.
The Castle Creek Reservoir would have held 9,062 acre-feet of water behind a dam on the creek two miles below Ashcroft. The reservoir would have flooded 120 acres on both private and USFS lands, including a small area in the wilderness.
Since first claiming the rights, the city periodically filed little-noticed diligence applications to maintain them. Outside of the diligence filings, however, the city did not take any active steps to develop the two dams, although they were mentioned in various city water-planning documents over the decades.
But the city’s last diligence filing, in October 2016, brought statements of opposition from 10 parties: the USFS, Pitkin County, American Rivers, Western Resource Advocates, Trout Unlimited, Wilderness Workshop and four private-property owners — two who owned land in the Maroon Creek valley and two who own land in the Castle Creek valley.
During the resulting water-court process, the city reached a deal with the opposing parties, agreeing to try and move the conditional water-storage rights out of the two pristine valleys to five identified locations in the Roaring Fork River valley.
The locations are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.
“We worked a long time, and all the parties involved really were thoughtful and creative in trying to come up with a solution that the city got the storage that they desperately need, and we protect our environment,” Medellin said. “So I think it’s a real success story.”
In a joint press release issued Tuesday, representatives from American Rivers, Western Resource Advocates, and Wilderness Workshop praised the deal.
“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon Creeks in two of the regions most beloved Valleys, and ensures a sustainable future water supply for the City of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the west and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the City of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”
And Jon Goldin-Dubois, the president of Western Resource Advocates, said “this final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks. The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”
The city now plans to hire consultants to help it prepare an “integrated water-resource plan,” which it has not done since 1990, and then to file two “change cases” in water court seeking to modify the rights, which remain in place, with significant restrictions, for another six years.
All of the parties who settled with the city have agreed not to oppose the city in its upcoming change cases, which must be filed by June 2025, but other parties may do so.
Whatever the outcome of the city’s future efforts in water court, the agreements in the Maroon Creek case say, “Aspen agrees that after final entry of the final decree, it will not seek to retain any portion of the Maroon Creek Reservoir storage right at its original location.” Agreements in the Castle Creek case have similar language.
Paul Noto, a water attorney with the Aspen-based law firm of Patrick, Miller, Noto, represented American Rivers and Trout Unlimited in the cases, as well as Roaring Fork Land and Cattle Co., a property owner in Maroon Creek.
Noto said he was pleased with the outcome of the water-court process.
“For American Rivers and Trout Unlimited, it’s a really good outcome because you had the specter of dams being constructed near the base of the Maroon Bells and that specter has been removed from the table,” Noto said. “We could argue about how likely that was going to be. It was very unlikely, perhaps impossible. But, regardless, that is completely off the table now. And I think that it was commendable that Aspen agreed to that.”
Medellin, however, said climate change means the reservoirs were becoming more likely, not less.
“Obviously, no one had a big appetite for it because we value our watersheds and the city was trying everything it could to avoid that eventuality,” Medellin said. “But when we look at what climate change is doing in our valley and in our world, there was going to be a future that we wouldn’t have been able to operate without that.”
She also said the city made a big concession in walking away from the two reservoirs, as they would have stored water above the city’s diversion structures on lower Castle and Maroon creeks.
“What we traded was the benefits of having a gravity-fed system with protecting those valleys,” Medellin said. “And that was a trade-off that we all felt was appropriate. But we know that by not having a gravity-fed system, it’s going take some creativity and potentially a pipeline.”
It’s an open question for some whether the really city needs as much as 8,500 acre-feet of stored water to meet its future needs.
A study done for the city by Headwaters Corp. concluded that the city would need 8,500 acre-feet in a much drier future, but that’s including all of the city’s current municipal indoor and outdoor needs, its current irrigation levels on the two golf courses that use city water, and enough water to keep Castle and Maroon creeks above a minimum flow level.
“I understand their desire to plan on the high side,” Noto said. “But I don’t think they proved it and I don’t think they needed to. It was just basically a number that came from horse trading.”
Noto also says it is possible the upcoming water-court process may end up reducing the city’s claim.
“It’s too soon to say if they will take a haircut,” Noto said. “We have to wait and see what the proposal is. I don’t think the city has identified their fill sources and points of diversion, and that’s where the rubber meets the road in terms of the effect on nearby water rights.”
Medellin said she expects the city to now engage with the community in a transparent discussion about the city’s future water needs.
“People have probably lost interest in it to a certain extent, but I think now — as we move into the next phase of the project, where we talk about where are we going to store the water — I imagine that the community is going to get re-engaged,” she said.
Aspen Journalism covers water and rivers in collaboration with The Aspen Times. The Times published this story on June 12, 2019.
[On June 11, 2019], Wilderness Workshop, Western Resource Advocates, and American Rivers welcomed news that a water judge has issued a final decree in the Maroon Creek case, marking the end of the court cases considering Aspen’s rights for water storage. In October 2018, the conservation organizations celebrated the completion of agreements to permanently abandon Aspen’s plans to build dams on Maroon and Castle creeks. Under the agreements, Aspen will now pursue more sustainable water supply alternatives, while protecting important wildlife and recreation areas, including portions of the Maroon Bells-Snowmass Wilderness Area.
“This final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks,” said Western Resource Advocates President Jon Goldin-Dubois. “The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”
“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon creeks in two of the regions most beloved Valleys, and ensures a sustainable future water supply for the City of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the west and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the City of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”
“The judge’s final decree ensures that the Maroon and Castle dams are dead. This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers,” said Matt Rice, Colorado River Basin director for American Rivers. “This collaborative outcome demonstrates that Coloradans can protect rivers while planning for a water scarce future.”
Wilderness Workshop, Western Resource Advocates, American Rivers, Trout Unlimited, and several other parties, including Pitkin County and the U.S. Forest Service, opposed the city’s plans to dam Maroon and Castle creeks. After extensive negotiations, the conservation organizations, the city, and other opposers were all able to reach agreements requiring the city to relocate its water rights and permanently abandon plans to build reservoirs with dams on Castle and Maroon creeks, regardless of whether the city is successful in moving these rights to alternative locations. The city of Aspen played a critical role in helping find solutions to protect the two creeks while maintaining an important source of water for the community.
The Colorado River is short on water. But you wouldn’t know it by looking at a slate of proposed water projects in the river’s Upper Basin states of Colorado, Utah and Wyoming.
The river and its tributaries provide water for 40 million people in the Southwest. For about the last 20 years, demand for water has outstripped the supply, causing its largest reservoirs to decline.
In the Bureau of Reclamation’s 2012 Colorado River Basin Water Supply and Demand Study, you can pinpoint when the lines crossed somewhere around the year 2002. It’s a well-documented and widely accepted imbalance.
That harsh reality — of the river’s water promised to too many people — has prompted all sorts of activity and agreements within the seven Western states that rely on it. That activity includes controversial efforts in some states in the Colorado River’s Upper Basin to tap every available drop before things get worse.
The utility that owns [Gross Reservoir], Denver Water, wants to increase the size of the dam by 131 feet, and fill the human-made lake with more water from the headwaters of the Colorado River via a tunnel that traverses the Continental Divide.
Imagine a tractor trailer hauling dam-building materials making this turn, Long says.
“If they truck all of this material up our canyon, people in our community are gonna get killed by those trucks. Period,” Long said. “There’s a lot of other issues here but the safety thing should really be a serious priority.”
Long and his wife, April Lewandowski, live near the reservoir in a community called Coal Creek Canyon. Like many of her neighbors, Lewandowski commutes from the sparsely populated canyon to her job on the state’s dense Front Range. Her daily commute on the canyon’s two-lane highway is the same as a haul route for trucks needed to build the dam addition.
Long pulls up to a small parking area that overlooks the dam. It’s a deep wall of concrete, stretched between the tree-lined canyon walls of South Boulder Creek.
“I mean you look at how the land splays out, you can see why they want to (build it),” Long said. “It’s so much wider all the way around.”
If the expansion goes through, the place where we’re standing will be submerged in water. The addition to Gross Dam will raise it to 471 feet in height, making it the tallest dam in Colorado…
Denver Water first started taking an expansion of Gross Reservoir seriously after the dry winter of 2002. Exceptional drought conditions took hold across the Mountain West. The utility’s CEO, Jim Lochhead, said in the midst of those historic dry conditions, a portion of its service area nearly ran out of water.
“This is a project that’s needed today to deal with that imbalance and that vulnerability and to give us more drought resiliency,” Lochhead said.
Since then, Denver Water has filed federal permits to start construction, and negotiated an agreement with local governments and environmental groups on the state’s Western Slope to mitigate some effects of the additional water being taken from the headwaters.
Before leaving office, former Colorado Democratic governor and current presidential hopeful John Hickenlooper threw his weight behind the project, giving it an endorsement and suggesting other water agencies in the West take notice how Denver Water approached the process.
But despite the political heft behind the project, it faces considerable headwinds.
Environmentalists are suing, arguing the expansion will harm endangered fish. A group of local activists say the additional water will spur unsustainable population growth along the state’s Front Range. In recent months, the utility began sparring with Boulder County officials over whether they were exempt from a certain land use permit.
Building a 131-foot dam addition does come with baggage, Lochhead said. But he argued his agency has done its part to address some of the concerns, like reducing the number of daily tractor trailer trips up Coal Creek Canyon and planning upgrades to the intersection where trucks will turn onto Gross Dam Road.
“It is a major construction project. I don’t want to gloss over that. It will have impacts to the local community,” Lochhead said.
Denver Water staff are doing more outreach in the canyon as well, Lochhead said.
“We are committed to the project and seeing it through. We’re also committed despite the opposition to working with the local community in doing this the right way,” he said…
The latest scuffle with Boulder County has brought the Gross Dam expansion squarely back into public view. At a county commissioner’s meeting in March, residents criticized Denver Water on all fronts, from specific concerns about the construction itself, to broader concerns about water scarcity in the Colorado River basin…
“This project represents an effort by Denver Water … to actually grab water while they can, before federal legislation and management of the Colorado River Basin is imposed,” McDermott said.
What McDermott is referring to is a stark disconnect in the Colorado River watershed. States downstream on the river — Arizona, Nevada and California — signed a new agreement in May called the Drought Contingency Plan that keeps them from becoming more reliant on the Colorado River. It requires cutbacks to water deliveries should levels in Lake Mead, the river’s largest reservoir, continue to drop.
Meanwhile, upstream in Colorado, Wyoming, Utah and New Mexico, no such agreement was made. Those states wound up agreeing to study the feasibility of a program that would compensate farmers to stop irrigating their cropland if reservoirs dropped, with no solid way to pay for it. They agreed too to better coordinate releases from their biggest reservoirs to aid an ailing Lake Powell. While they figure out how to develop those two concepts, the Upper Basin states keep inching along on their development projects to divert more from the river.
The 1922 Colorado River Compact, the river’s foundational governing document, gives Upper Basin states the legal cover to continue developing projects like the Gross Reservoir expansion. In the compact, each basin is allocated 7.5 million acre-feet of the river’s water. Over the decades the rapidly growing and intensely farmed Lower Basin has used much more than that. The less populated Upper Basin has never reached its full allotment. Those state have been using roughly 4.5 million acre-feet for the last 13 years, with the rest flowing downstream for the Lower Basin to use as it sees fit…
Conservation programs tend to be less expensive than massive new projects, [Doug] Kenney said. But additional water supplies stored in reservoirs give more security and reliability. It’s why water leaders push for them, even when the economics don’t make sense.
FromThe Steamboat Pilot & Today (Eleanor C. Hassenbeck):
The collective group of [recently signed] agreements is called the Colorado River Drought Contingency Plan.
It aims to raise the unprecedented low water levels in the largest reservoirs on the Colorado River system, Lake Powell and Lake Mead, to enable them to continue to deliver water and produce hydropower.
In Colorado, it calls for three possible actions:
Creating a bank of stored water in federally owned reservoirs upstream of Lake Powell. This water would be released into Lake Powell in order to make sure Colorado continues to meet obligations to deliver a certain amount of water to downstream states under the Colorado River Compact.
Increasing cloud seeding and removing deep-rooted, invasive plants that take up a lot of water, such as tamarisk.
Creating a voluntary program that would temporarily pay agricultural water users to fallow their land and send water they have a right to downstream. This is called demand management.
Of the options on the table, demand management — the option that would pay farmers not to use their water — is the one most likely to impact Routt County…
Demand management is still only a hypothetical, so the Yampa River Basin could opt out of a program if it doesn’t work for the area.
The Colorado Water Conservation Board has assembled workgroups on topics related to demand management. These groups are now meeting behind closed doors to develop preliminary reports outlining how the program might work.
Brown said once these reports are completed and released to the public, there will be opportunities for community members to provide input on the idea. She said there will be the “opportunity for a real, thoughtful conversation, especially in the Yampa and White (river) basins.”
Brad Wind, general manager of the Northern Colorado Water Conservancy District based in Berthoud, and Jim Hall, Northern Water’s senior water resources engineer, briefed the LSPWCD’s board of directors on Northern’s efforts to keep Colorado-Big Thompson water from leaving the Northern District…
Wind told the Lower board that Northern is working to enforce Article 19 of the 1938 contract between Northern Water and the federal government, known as the Project Repayment Contract. That article, one of 27 contained in the contract, specifies that all seepage and return flows from the use of Colorado-Big Thompson project water are reserved to Northern Water and are not to be taken outside the district’s boundaries.
On May 9, Northern adopted a resolution saying it would “take appropriate actions to enforce Article 19 consistent its interpretation of Article 19.”
Wind said the heavy lifting in that effort will be tracking how C-BT water, and resulting seepage and return flow, are used. He used the phrase “colors of water,” which is a concept that holds that, through close monitoring and accounting, mixed waters from various sources actually can be tracked through multiple uses. For instance, water that is native to the South Platte Basin can be accounted differently from C-BT water, which is diverted from the Colorado River into Grand Lake and piped through the Adams Tunnel to Estes Park and held in Horsetooth Reservoir and Carter Lake for distribution to C-BT members.
Return flows are water that has been diverted from the river, used to irrigate crops or for municipal use, and either seeps back to the river through the ground or is discharged after treatment. Much of the river’s flow in the lower reaches in late summer and through the winter is from return flows from upstream use. Return flows are crucial to irrigators in Weld, Morgan, Washington, Logan and Sedgwick counties.
“To protect return flows, we have to know what they are,” Wind said. “We have to be able to quantify what return flows are coming from C-BT use and what’s from native water. It’s complicated.”
Hall told the Lower board that there is the danger that “change of use” cases going through Colorado water courts could result in return flows from C-BT water being shipped out of the Northern district in violation of Article 19.
“We’re starting to see change cases on irrigation ditches moving water outside the district boundaries,” Hall said. “That’s why it’s important to track this stuff. It’s easier to track municipal water because we can look at their (wastewater treatment facility) discharges, but it’s harder to prove agricultural return flows.”
Hall said return flows from native water are not subject to Article 19, only C-BT return flows.
Wind said Northern will be watching closely all change of use cases that go through Colorado’s water courts and will continue monitoring water usage in the district to make sure C-BT water doesn’t leave the district.
For the first time, the largest tribe in California has one of its own to lead its legal battles.
On a warm September Saturday in 2002, Amy Cordalis stood in a Yurok Tribal Fisheries Department boat on the Klamath River, in response to reports from fishermen that something was amiss on the river. On this stretch of the Yurok Reservation, the river was wide and deep, having wound its way from its headwaters at the Upper Klamath Lake, through arid south-central Oregon to the California coast. Cordalis, then 22, was a summer fish technician intern, whose job was to record the tribe’s daily catch. A college student in Oregon, she’d found a way to spend time with her family and be on the river she’d grown up with — its forested banks and family fishing hole drawing her back year after year.
But that morning, something was wrong. Cordalis watched as adult salmon, one after the other, jumped out of the water, mouths gaping, before plunging back into the river. Her father, Bill Bowers, who was gillnetting farther downriver, looked up to see a raft of salmon corpses floating around the bend. The carcasses piled up on the banks and floated in eddies, as seagulls swept inland to pick at the remains.
Remnants of the fish kill lingered for weeks, as Cordalis and fishermen up and down the river looked on in shock. By the end of it, California and the Hoopa Valley, Karuk and Yurok tribes made a conservative estimate of the toll — 34,000 dead salmon along the Klamath — though officials said the sheer volume made a true count difficult. It was the largest fish kill in both Yurok and U.S. history, and its cause was no mystery. Earlier that year, the federal government had capitulated to public pressure from farmers and ranchers in the Klamath Basin and diverted water from the river to irrigate fields. The resulting low flows created a marine environment where fatal diseases could fester.
The Klamath water crisis and ensuing fish kill marked a pivotal moment for the Yurok Tribe. It shaped a generation of people, many of whom feel a fierce responsibility for a river that not only carries fish and water, but centuries of stories and struggle as well. As Amy Cordalis watched the salmon die, she told herself she would find a way to prevent similar tragedies. Today, she is the Yurok Tribe’s general counsel — meaning that, for the first time, the tribe has one of its own to lead its battles in court.
Since the fish kill, legal fights over the Klamath have rarely abated. As time goes on, though, the stakes increase, as salmon populations steadily drop, stream flows dwindle and disease blights the water. This year, snowpack was a paltry 46 percent of normal in the Klamath Basin by March, and Oregon’s governor, Kate Brown, D, declared another drought in Klamath County. “Tensions are rising, people are looking for any source of water they can possibly use to get their crops wet,” Scott White, executive director of the Klamath Water Users Association, told me. “It is an operational nightmare.”
While the Yurok Tribe, the largest in California, has secured a number of legal wins for water and salmon, Cordalis told me recently that two main issues on the Klamath remain the same: an over-allocated river and dams that diminish water quality. What is different, though, is how the tribe is representing itself in court. As a lead attorney and a tribal member, Cordalis hopes to change those two fundamental problems by creating a legal framework that prioritizes fish as much as it does agriculture. “We are back to the time of the tribes on the river again,” Cordalis said. “We are reclaiming that governance now.”
One of Cordalis’ most important cases, Yurok Tribe et al. vs. U.S. Bureau of Reclamation et al., is currently in the 9th U.S. Circuit Court of Appeals. In that case, the Yurok and Hoopa Valley tribes, joined by commercial fishermen, are suing the Interior Department’s Bureau of Reclamation over the agency’s water plan, which they allege is not adequately preventing the fish diseases that result from low flows. They argue that the salmon, specifically endangered coho, need more water to consistently flush out disease-causing parasites. Water districts and irrigators, namely the Klamath Water Users Association, have sided with the Bureau, disputing the need for increased river flows and claiming they can’t give up any more water. This year, diversions away from irrigation have delayed farming, and White said he worries that some Klamath Basin farmers will go under.
As part of that case, in April , a district court judge ruled that endangered salmon on the Klamath are entitled to prioritized protection under the law. So when infection rates for salmon tipped over the legal limit later that month, water was again diverted from irrigators. The rest of the case has yet to be heard, but if Cordalis and her team secure a win, it will be an incremental step toward restoring Klamath salmon, and by extension the Yurok Tribe. The case and resulting water flows, she said, is “one of the most important conservation measures protecting Klamath River salmon from complete extinction.”
If Cordalis succeeds in winning this case and others, she will owe much of it to the family members who fought before her. Cordalis’ grandmother, Lavina Bowers, née Mattz, the family matriarch, has lived through the acquisition of Yurok lands and water by non-Natives, confrontations with armed federal agents, and the gradual renewal of Yurok political will and culture. I met Bowers at the Requa Inn, a 104-year-old hotel owned by Cordalis’ aunt (the first Yurok owners in nearly 100 years), which overlooks the Klamath River on the Yurok Reservation. It was a blue-skied January morning, and the light shimmered on the water’s surface through the inn windows while Cordalis and her 2-year-old son, Keane, played nearby. Bowers wore a denim jacket and silk neckerchief, and as she described growing up in the 1930s, her traditional shell earrings swung gently back and forth.
As a child, Bowers lived upriver on a family farm, where she and her brother, Raymond, picked salmonberries in summer and rode a boat to school in the fall. It was a time of intense racism, socially accepted and legally codified in state and federal policy. At that time, the Yurok, a tribe long established along the rugged coast and Klamath River, had no overarching government and little say in what happened to its lands or people. Many of Bowers’ peers were sent to boarding schools by the Bureau of Indian Affairs, a disruption that fractured her generation. Some returned, trying to earn a living in the fishing canneries in Klamath Glen on the reservation, or with the lumber companies, whose wealth was held primarily in non-Native hands. “Indian people have never really had justice,” Bowers told me. “A lot of us didn’t know how to stand up and talk for ourselves. I was an Indian kid that was treated like an Indian.”
The Yurok signed a treaty with the United States in 1851, but white settlers, hungry for gold in the newfound state of California, pressured Congress not to ratify it. A reservation was established in 1855, but as early as 1874, settlers argued that it had been abandoned, and that they had a right to homestead. In 1887, Congress passed the General Allotment Act, essentially divvying up the reservation into small parcels for each Yurok, with any “surplus” lands going to non-Native homesteaders. Much of the allotted land thus passed out of Yurok hands. “Each time that I make a trip to the territory,” a BIA superintendent wrote in 1918, “I have it more forcibly impressed upon my mind that somehow the Indians did not get a fair portion of the land.”
Still, they had the river. In the early 1940s, despite a state ban on traditional salmon gillnetting, Lavina and Raymond would sneak down to the Klamath at night to fish. Under the light of the moon, they would set their long nets across the breezy river, lie on a sand bar and wait for the fish. When game wardens came by to pull up the nets, the children would hide under a blanket. “I used to lay there under the blanket thinking they’d hear my heart beat,” Lavina said. “I’d try not to breathe.”
Raymond Mattz was 12 years old when he first got in trouble with a warden for gillnetting. As an adult, in September 1969, he was fishing the fall run of chinook salmon at the family’s fishing hole, called Brooks Riffle — named for his great-great-great grandfather. When a state game warden caught Mattz and a group of friends with five gill nets, Mattz claimed all five nets were his and was arrested. He then sued the state of California to return the nets, but the state refused to return them, claiming that Mattz could not legally gillnet in the state of California. The state argued that the Yurok Reservation had lost so much of its land to non-Native homesteaders and companies that it no longer met the legal definition of Indian Country. At its core, Mattz vs. Arnett was a challenge to tribal sovereignty, the ability of tribes to govern themselves. The case went to the U.S. Supreme Court, and the state lost. The court affirmed, in 1973, the Yurok Tribe’s treaty rights to fish by traditional means, including gillnetting, and declared that the Yurok Reservation was indeed a part of Indian Country, a legal term that refers to lands held by tribes. Mattz’s stand on Brooks Riffle is not only part of Cordalis’ family lore but is also recorded in federal Indian law.
The Mattz case became part of a broader conflict in the Northwest called the Fish Wars. Triggered in part by the political momentum of the civil rights era, the Fish Wars included civil disobedience, such as “fish-ins,” in which Indigenous fishermen would flagrantly practice their treaty-held fishing rights, only to be arrested. The movement was also galvanized by the landmark Boldt Decision of 1974, which reaffirmed the rights of tribes to co-manage their fisheries and to harvest according to various signed treaties.
“The fact that we won that right in the Supreme Court, you’d like to think that they decided the way that things should be,” Bowers said.
Still, after the case was concluded in 1973, California found other means to invalidate the tribe’s fishing rights. A Supreme Court decision in 1977 gave states the power over tribes to regulate tribal fishing for conservation purposes. In 1978, the California Department of Fish and Wildlife closed down Indian fishing on the Klamath River, ostensibly for conservation reasons. Lavina’s son (and Amy’s father), Bill Bowers, remembers that period well. Signs and bumper stickers put up by disgruntled non-Native fisherman appeared on and near the reservation: “Can an Indian, Save a Fish.” Federal agents in riot gear enforced the moratorium by pulling up nets and ramming boats, and, the Yurok allege, by using physical violence and intimidation. “The hostility that was there was intense,” Bill told me. They began fishing at night again, leaving their flashlights in the truck.
It was into this moment of unrest that Cordalis was born, in March 1980.
Cordalis was the first of five siblings. From the time she was 5, Cordalis and her dad, a Yurok citizen and parole and probation officer, would drive from their family’s home in Oregon to Requa, on the reservation, when the salmon began their spring run from the Pacific up the Klamath, and again in the fall when the fish returned to the ocean. The pair would hang out at the seasonal fishing camps along the river and at their family fishing hole at Brooks Riffle, where, Cordalis says, “it all began.”
They would watch the salmon move up the river, scales glinting in the sun, and they would talk about the Yurok’s history. The Yurok people have fished and eaten the same runs of Klamath salmon for so many generations, Bill told her, that their DNA is intertwined. He told Amy fishing stories and family history as they drove home, bouncing down the road, the truckbed full of chinook salmon. Bill would talk politics with his fishing buddies, as Amy listened from the backseat of the cab of her dad’s truck. “She was my cruising buddy,” Bill told me.
Bill was forthright about the hardships the Yurok were up against — the drug and alcohol abuse and poverty that existed alongside pervasive racism, and social and environmental injustices. “You can change things,” he would tell her, “but you have to do that within the prevalent system. The most effective way is working with that system.”
In 2004, two years after the fish kill, a 24-year-old Cordalis began classes at the Pre-Law Summer Institute through the American Indian Law Center at the University of New Mexico, an intensive program for Indigenous law students that replicates the first eight weeks of law school. Helen Padilla, director of the center and a tribal member of Isleta Pueblo, told me the program is designed to “open the door for the opportunity for Indian people to be able to have a voice” in the legal issues that affect them. Many of the students who go through the program do so for the same reasons as Cordalis, Padilla said: to give back to their tribe and improve their communities. “An Indian attorney has a much more vested interest in advocating for their Indian clients, and a better understanding of why a tribe might want to litigate or negotiate,” Padilla said.
There, Cordalis began to learn the full scope of tribal sovereignty, the power of treaties, and the authority that tribes have in government-to-government relationships with the United States. Because tribes remain the sovereign nations they were before colonizers arrived, they have a unique relationship with the United States. Cordalis had known few lawyers before, and even fewer who were Indigenous. That experience, coupled with mentorship from the Indian law firm Berkey Williams, which often represented the Yurok, helped her understand how much could be done within a legal framework, inside the system. “It was the first time that I’d encountered these issues my family has been dealing with for hundreds of years, in an academic way,” Cordalis said. It revealed how much agency the law could provide, and how legal decisions in one part of Indian Country could affect all tribes. “Up until that point, we were the clients,” she told me. “We were the victims, frankly.”
She also learned the limits of the law. A thesis she co-authored in law school analyzed a Supreme Court case that permitted the logging of Yurok ancestral lands, even though they had deep spiritual importance to the tribe. The justices decided that because the Forest Service owned the lands, the Yurok had no legal right to their management. Historically, she wrote, the United States has attempted to sever tribes like the Yurok from their lands, especially once legal title is forcibly transferred, regardless of a tribe’s past relationship to the land. The justices, she argued, ignored history. “The tribal narratives underlying (the case) suggest the opposite is true — that tribal attachment to place persists before, during, and after legal conquest.”
Cordalis graduated from Sturm College of Law, at the University of Denver, in 2007, and went to work as an attorney for the Native American Rights Fund in nearby Boulder. There, she learned the complexities of water law and how it intersects with Indian law. NARF was established in Boulder in 1971, with an all-Indigenous board. John Echohawk, NARF’s executive director since 1977, was in the first class of students to graduate from the pre-law institute that Cordalis attended. “For so long, the only choices were non-Indian attorneys,” said Rodina Cave Parnall, a Quechua Peruvian Indian, director of the institute. Since the institute’s inception in 1967, when there were just a handful of Indigenous lawyers, some 1,200 students have graduated, including former Assistant Secretary of Indian Affairs Kevin Washburn, a member of the Chickasaw Nation. Native American lawyers and leaders have steadily established themselves across Indian Country and beyond, as a new, younger generation is filling the ranks.
As Cordalis began practicing law, the issues on the Klamath continued to evolve. In 2006, the license to operate the Klamath Hydroelectric Project expired. The project’s eight aging dams cut off miles of habitat for salmon, blocking their ability to run up the river, and that year, due to the low salmon numbers, commercial fishing was closed along more than 400 miles of coastline. The hydropower operator, PacifiCorp, faced the possibility of environmental lawsuits if it did not retrofit the dams to help salmon, but the cost of doing so outweighed their profitability. So, in 2009, PacifiCorp began working with a coalition of politicians, conservation groups and tribal nations. The working group, which called itself the Klamath River Renewal Corporation, reached an agreement to remove four of the eight dams on the Klamath, pending federal approval, beginning in 2020 — the largest dam removal project in the United States.
In litigation, Klamath Basin irrigators remain agnostic about the dam removal, because its effect on their interests is unclear. Some proponents say removing the dams could alleviate legal pressure on agriculture, because without dams, a more natural water cycle could help flush out fish diseases — and decrease lawsuits. Meanwhile, the farmers and ranchers on the Upper Klamath continued to struggle. During the drought of 2010, the Klamath Basin received $10 million from Congress. Two years later brought another drought, as did the following year, and the year after that (and the next year, and the next).
In 2013, severe drought meant that farmers’ water was cut off during critical parts of the growing season. Amid rising discontent, Oregon state watermasters — a state position that helps track water rights — had to personally visit farms and shut off their irrigation water. “People are hurt, they are angry, and I think there’s grieving,” Roger Nicholson, a cattle rancher in the Wood River Valley near Fort Klamath, told HCN at the time. “To lose the productive ability of our land is almost like the loss of a family member. It’s deep down.”
The emotional events of that year drove one watermaster, Scott White, to become the new director of the Klamath Water Users Association in 2016. “At the end of the day, farmers are the backbone of America,” White told me. “To be able to grow food and feed America: It’s hard to do that without water.”
The Klamath Basin’s non-Native agricultural ties to the land are deeply entrenched. In 1902, Oregon and California both ceded land to the federal government, which then opened it to homesteading with the promise of water rights for farmers. Veterans of both world wars were given preference, as wetlands were drained and dams were raised on the Klamath. The Bureau of Reclamation’s mission for the Klamath Project was to “reclaim the sunbaked prairies and worthless swamps.”
Ever since, these communities of farmers and ranchers have hung on like stalwart junipers, enduring economic hardship and drought, with the support of the federal government. But that’s been changing slowly, particularly since endangered and threatened species have gained priority under the law, and since tribes began exercising their senior water rights. (Tribal water rights, which can date back to original treaties, often provide the oldest rights on a river.) That long history means that farming out here is more than an income; it’s a culture. And that produces a binding knot of paradoxes between river users. “When I do have those conversations with those folks, whether it’s the Klamath Tribes or the Yurok Tribe, and they talk about their issues and concerns, I mean, it sounds like I’m talking to my guys,” White, the most frequent legal opponent of the downstream tribes, told me. “It’s just different perspectives that are out there, but they are identical issues.”
In 2014, the Yurok Tribe offered Cordalis a position on its legal team. It had always been her intention to return to Requa, so Cordalis and her husband, Daniel Cordalis, a citizen of the Navajo Nation and an attorney, moved back with their 2-year-old son, Brooks — named for the family riffle on the Klamath. But they found it difficult going; they couldn’t find a house, or daycare, or a good grocery store. Food insecurity is prevalent across Del Norte and Humboldt counties, and the closest store to Klamath Glen is about 30 minutes away. After a few months, Daniel was offered a position as an attorney with the environmental law group Earthjustice, in Boulder, so they returned to Colorado.
Later that year, the Yurok Fisheries Department recorded a sweeping epidemic on the Klamath River: 81 percent of its juvenile salmon were infected with Ceratanova shasta, a deadly parasite that thrives when water flows are low. As Cordalis resettled in Colorado, C. shasta infection rates rose, hitting 91 percent the following year, an outbreak that would damage the fish population for years to come. In August 2015, Cordalis had her second son, Keane, named after the Yurok word for fisherman. A year later, when the Yurok Tribe asked her to be the tribe’s general counsel, she agreed. She moved her family to McKinleyville, an ocean-side town just south of the Yurok Reservation, and got to work.
Cordalis, who is now 38, is only the second tribal attorney in the tribe’s history. The first, John Corbett, started in the 1990s with few resources to work with. “When he first started, they gave him a milk crate, a pad and a pencil,” Cordalis told me. By contrast, Cordalis now has a staff of five that prioritizes water issues, dam removal and reacquiring Yurok land for Yurok ownership. While her team represents a broader trend in Indian Country, Native Americans still make up just .2 percent of lawyers nationwide. Still, an Indigenous-led team can change the way law is practiced.
Chief Justice of the Yurok Tribe Abby Abinanti, herself a tribal member, was the first Native woman to pass the bar in California, in 1974. Cordalis’ role as both a general counsel and a Yurok citizen is an important development, Abinanti told me. “A lot of what you do as a lawyer is communicate with people who don’t know the story,” Abinanti said. “And the best storytellers are the ones who are a part of that story.” Reclaiming the legal narrative allows the tribe to litigate in the Yurok way. While law is often about individual rights, that’s not all the tribe focuses on. “It isn’t, ‘I have the right to do this to you,’ it’s, ‘I have a responsibility to do this for the community,’ and that is a very different approach to the world,” Abinanti said.
“Having a Yurok person in this role can have an impact,” Cordalis said, “because there’s a lot of ways to interpret the law. It’s going to make a difference, because we’ll exercise that sovereignty like Yuroks, not a county or state government.”
Cordalis told me there are many avenues to effect change, be it through science, activism or litigation. Her legal approach, she said, is to identify common ground where possible. With the irrigators, it’s the Klamath. “That creates the tension, but it also means we both rely on the Klamath River for our livelihood,” she said. “And I think that connection to place and a resource creates a sense of respect and duty to protect.” Cordalis said she feels less personal resentment toward the upstream irrigators and the feds than some of her elders and peers do. After all, it was her father, uncle and aunts, not her, who endured armed standoffs on the Klamath. Even so, the family stories drive her, she said. They carry a weight that brings momentum to her work.
“Lawyers aren’t born, they’re made,” Abinanti said. “It’s a lot of hard work, and she’s going to do the work. I do believe she is the future.”
Within her first six months on the job, Cordalis was involved with two major water cases that have implications for salmon survival and the Klamath’s health. One of them is the case against the feds currently in the 9th Circuit. The other was a battle over water allocation on the Trinity River, a major tributary to the Klamath, and whether water should go to salmon, or be diverted to California agriculture. In 2017, the 9th Circuit ruled that the amount of evidence demonstrating the salmon’s need was “staggering,” and that the restoration of the fisheries on the river was “unlawfully long overdue.” The court ordered the flushing flows to rehabilitate the Trinity, which had lost 80 percent of its salmon habitat due to the irrigation project on the river, to continue.
Both cases represent progress, but an even bigger task may yet lie ahead. While piecemeal litigation addresses problems one by one, no successful, large-scale agreement to deal with water allocation on the Klamath exists. “It’s a living, organic basin, and it will be there forever, and people need to have long-term solutions that they control, rather than courts,” said Paul Simmons, who represents the Klamath Water Users Association and was involved with negotiating the last agreement. Cordalis agrees. While lawsuits can be a useful tool, she said, “nobody really wins through litigation.” Water is not the only answer to restoring the fishery, and a comprehensive review of river management is needed to support both sustainable agriculture and the return of a pre-dammed river, she said.
The last attempted negotiation, the Klamath Basin Restoration Agreement, died after Congress failed to pass the necessary legislation to support it. That agreement took years to formulate and was propelled by a friendship between the former executive director for the Yurok Tribe, Troy Fletcher, and the former director of the Klamath Water Users Association, Greg Addington, who used to golf together. “The real beauty of the past agreement was the relationships that were built,” said White, the current director. “The tragedy is that I think that we’re back in that era of litigation.” He’s still looking for his “golfing partner,” he said. In the meantime, the severity of this year’s drought has him worried. “Yes, absolutely we want to get to a long-term solution of some sort, where we don’t have to face these issues year in and year out. But on the other hand, if we don’t survive this year, we’re not going to be at a table to talk about that.”
The irrigators and river tribes have a long road to rebuild, starting from the rubble of three previously failed agreements. Under the Trump administration, Alan Mikkelsen, a senior advisor to the secretary of Interior, has begun contacting stakeholders about the potential of a new agreement, because at this point, it’s obvious that no one who depends on the river is doing well — not the farmers, not the fishermen, and certainly not the salmon.
Last August, the Yurok Tribe held its annual Salmon Festival, a public celebration of the first return of native chinook to the Klamath each fall. The 2017 festival was overshadowed by painfully low salmon runs, so much so that festivalgoers ate salmon from Alaska instead. (The year before, they’d had hamburgers and hot dogs.) Because of the long life cycle of chinook, the juvenile salmon populations plagued by C. shasta in 2014 and 2015 were returning as adults, with deeply thinned ranks. The tribe cancelled commercial fishing for the second year in a row, and, for the first time, it cancelled subsistence fishing, a particularly personal blow to families on the Klamath. As the festival got underway, the nearby docks were unusually quiet — devoid of boats, burger shacks and sun-beaten fishermen. A parade went on under skies smudged with smoke from southern Oregon wildfires.
“It’s saddening and sickening to see what’s happening to our salmon runs in the Klamath River,” Chairman Thomas O’Rourke told me in his office, a few days after the parade. “The impacts are major; it’s a way of life. In the modern world, people take things for granted and say, ‘You can eat other things.’ Here, our people depend on our resources to live.”
Two months later, Oregon’s irrigators appealed the lower court’s decision to allow increased flows for the salmon — the next step in a potentially long path to the U.S. Supreme Court.
In January, I drove with Cordalis to the mouth of the Klamath, where the river empties into the Pacific Ocean. We were supposed to take a boat upriver, to see Brooks Riffle, but the boat had broken down, so we walked the quiet docks instead, the estuary water in the afternoon light glinting like fish scales. Little Keane ran ahead, as Cordalis told me about the sense of loss she feels at not having seen the Klamath at its wildest and healthiest. She’s never seen the salmon runs she heard about in her dad’s stories. “Grandma and Great-Uncle Ray talk about huge fish runs; I’ve never seen that,” Cordalis said.
The Yurok’s ancestral lands were once called the Redwood Empire, a vast swath of land that stretched inland through old growth and rocky cliffs, with the Klamath running through it like an artery, the coho salmon red and thick as blood. As Yurok lands were taken, the Klamath suffered, and today, even if the four dams come down, even if the fish got all the water in the Klamath, the salmon would still have to contend with an unhealthy ocean.
We returned to the car with Keane in tow, and, as the sun set, began the drive home. “You talk about the American Dream,” Cordalis said, the coastal mists and forest shadows darkening in the twilight. “My family has experienced the exact opposite, through assimilation and genocide — just taking, taking, taking.”
Despite all that, the Yurok have always had the Klamath and its salmon. Today, that sense of place sustains the tribe’s persistence and underpins Cordalis’ work. A generation ago, no one would have thought it possible that the four dams could come down. Now, it seems it’s just a matter of time. “We see who we are, and our core values don’t change,” Cordalis said. “And the funny thing is that we’ve been fighting that same thing since white people came here, so we’re kind of good at it by now.”
FromThe Durango Herald (Mary Shinn) via The Pine River Times:
While the region was blessed with a wet winter and spring, the town of Bayfield is investing in a plan to guide the town in dry times.
“Even though we’re getting dumped on right now, it’s not going to happen every single year,” Mayor Matt Salka said.
The Bayfield Board of Trustees unanimously agreed to spend $30,000 Tuesday on a plan that Wright Water Engineers will develop, Town Manager Chris La May said. Funding for the plan is coming from a Colorado Water Conservation Board grant.
The plan will assess the town’s vulnerability to drought and the best ways to respond in a worst-case scenario, he said.
“(The town) needs to have a plan that has a longer life than the election cycle or the term of the city manager,” he said.
The exceptional drought conditions last year especially demonstrated the need for a drought plan, which is expected to be completed in the next 8 to 10 months, La May said.
Bayfield relies on water from the Los Pinos Ditch, and by mid-summer there were questions about whether there would be enough water in the ditch to fulfill the town’s water rights because the rights are subject to the state’s priority water system.
When water is scarce, more senior water users have a right to the water before the town receives it.
The town owns water rights in Vallecito that can be called on when there is not enough water available for the town to draw from the Los Pinos Ditch.
Last year, the town’s leadership was constantly debating whether it was time to purchase more expensive water rights in Vallecito Reservoir, Salka said.
The plan would help determine the criteria for investing in more expensive water rights in the future, he said.