PANNER OPINION VACATED

July 23, 2003  The Ninth Circuit Court of Appeals vacated the opinion of Oregon District Judge Owen Panner which revisited opinions of the United States District Court for Oregon and the Ninth Circuit Court of Appeals given some twenty five years ago. The earlier opinions recognized the rights of the Klamath Tribe(s) to hunt, fish, gather and trap upon the reservation which they formerly occupied, but which they subsequently conveyed away.

The decision was that Judge Panner should not have revisited those opinions nor should he have given a judgment in favor of the Tribes which expanded upon those rights. Furthermore, yesterday’s opinion required the federal courts to terminate federal involvement in the controversy concerning the nature and scope of those rights as they affect the waters of the Klamath Basin until after the Oregon administrative and Judicial process has been completed, and any intervention by the federal courts thereafter would be by the United States Supreme Court if it should accept an appeal from the appellate courts of Oregon.

The decision will permit the State to continue its .process of adjudicating the relative rights to the waters of the Klamath Basin without federal interruption with respect to these Indian claims. It left to the Oregon administrative and judicial process the interpretation of the federal law and any disappointed party in that adjudication - the United States, the Klamath Tribe(s), or others - would have the opportunity of attempting to challenge that interpretation by application to the United States Supreme Court only when the Oregon process is completed.

The decision did not approve or disapprove the interpretation urged by the Klamath Tribe(s) and the United States which Judge Panner endorsed, nor the contrary interpretation expressed by the Oregon Department of Justice, nor another interpretation urged by the private appellants with whom the State of Oregon joined in this appeal. All of the parties will now be left to develop in evidence the factual basis upon which their interpretation will affect the extent to which the Klamath Tribe(s) will be able to control the use of water within the Klamath Basin.

Noteworthy, is that the opinion expressly recognized that the earlier decision of the United States District Court for Oregon had been approved by the Ninth Circuit Court of Appeals with a caveat, that being the limitation upon the Tribes’ claim upon the water only to the extent that its members currently depended upon natural products to sustain themselves by exercising the reserved rights to hunt, fish, gather, and trap.

Resource Conservancy, Inc., a non-profit organization representing private appellant groups, said that they were welcoming the opportunity of establishing that the Tribe(s) have long since ceased to depend upon the aboriginal lifestyle to sustain themselves and that, instead, their members were sustaining themselves in much the same way as other Americans, and the Tribes have no greater claim to natural products or the waters which support them than any other American. The ‘casino and tobacco economy’, they said, have been substituted and in most of the United States, including Oregon, these profit points are available only to Tribes.

The efforts of the private appellants were supported by Klamath County through their commissioners and by Water for Life, Inc. with its many private members throughout the community and region.