[env-trinity] Fresno Bee December 17

[Byron]

I could comment, but I won't.

 

PROJECT

Water ruling caught in federal fight 

Feinstein is against $26m award to five irrigation districts. 

Fresno Bee - 12/17/04

By Michael Doyle, staff writer

WASHINGTON - A multimillion-dollar Central Valley water dispute has caught
the Bush administration in a California tug-of-war. 

Fearing an expensive precedent, Democratic Sen. Dianne Feinstein this week
urged the administration to appeal a $26 million judgment awarded to five
Valley irrigation districts. Feinstein joined other top state officials in
warning of bad fallout from a settlement some think could be imminent.

"This precedent could make it impossible for the state and federal agencies
to protect and manage the San Francisco Bay-Delta, the heart of the state's
water system, without vastly increased public expenditures," Feinstein
cautioned in a letter to three Bush administration Cabinet secretaries. 

The California Attorney General's Office and chairman of the state Water
Resources Control Board are likewise urging the Justice Department not to
settle with the Corcoran-based Tulare Lake Basin Water Storage District and
Kern County Water Agency.

But tugging from the other side, Westerners long skeptical about federal
environmental laws have been publicly and privately rooting for a settlement
with the water districts. Tracy Republican Richard Pombo, chairman of the
House Resources Committee, told The Bee this month that he's heard a
settlement is near. He wants the farmers to win. 

"It's a matter of contract and what the contract says," Robin Rivett, an
attorney with the Sacramento-based Pacific Legal Foundation, said Thursday.
"It's a very strong case that the property owners had their property taken
from them."

Rivett, whose group filed a friend-of-the-court brief supporting the
farmers, said he actually would see some benefit in a government appeal.
Convinced that the government would lose in the appellate court, he said
this would extend the legal precedent further than the current ruling by the
U.S. Court of Federal Claims.

The Tulare and Kern districts and three others sued the federal government
over undelivered irrigation water. The undelivered water helped preserve
valuable smelt and salmon protected under the Endangered Species Act, but it
also hurt farmers' pocketbooks.

"At issue is not whether the federal government has the authority to protect
the winter-run Chinook salmon and delta smelt," U.S. Court of Federal Claims
Judge John Paul Wiese noted in his April 2001 opinion, "but whether it may
impose costs of their protection solely on [the water districts]."

Wiese concluded the Fifth Amendment's prohibition against the government's
uncompensated taking of private property applied to the diversion of
contracted-for irrigation water. That means the water districts must be
reimbursed for their losses.

Wiese's initial opinion and subsequent calculation of damages - $13.9
million plus $9.8 million in interest plus attorney fees - sparked
considerable debate both inside and outside the federal government.
Attorneys noted they hadn't seen similar cases of Fifth Amendment financial
claims compelled because of the Endangered Species Act.

"The interpretation of California law in [Wiese's] opinion could
fundamentally change the way that water resources are managed in California,
to the serious detriment of California taxpayers and resources users," Art
Baggett, chairman of the state Water Resources Control Board, said in his
own letter sent to the Justice Department, Interior Department and Commerce
Department this month.

The Commerce Department oversees the National Oceanic and Atmospheric
Administration, which in March reminded the Justice Department that it, too,
had been urging an appeal for the past three years.

Baggett and Feinstein, along with the state Attorney General's Office, want
the case shipped to the California Supreme Court, where technical questions
of state water law could be resolved in favor of the environment. In
particular, they note the state's responsibility to "protect public trust
uses" of water.

"If there was to be a referral to the state court, it should have happened
years ago," Rivett retorted.

The case also inspired other Westerners to file similar claims.

In April, the city of Stockton, San Joaquin County and the Stockton East
Water District used similar reasoning to file a half-billion-dollar lawsuit
over the federal government's failure to deliver water from New Melones
Reservoir. Separately, farmers in the Klamath Basin along the
California-Oregon border filed their own $1 billion claim over irrigation
shortfalls.

In all three cases, the Washington-based firm of Marzulla & Marzulla is
pressing the claims.

 

 

Byron Leydecker

Chair, Friends of Trinity River

Consultant, California Trout, Inc.

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 519 4810 ce

415 383 9562 fx

bwl3 at comcast.net

 <mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org
(secondary)

http://www.fotr.org

http://www.caltrout.org

 

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