[env-trinity] LA Times December 22

[Byron]

U.S. to Pay $16 Million in Water Rights Case

Feds settle with Central Valley farmers who sued when deliveries were cut to
help endangered fish.

Los Angeles Times - 12/22/04

By Bettina Boxall, staff writer

The Bush administration announced Tuesday that it has agreed to pay $16.7
million to a group of Central Valley farmers and irrigation districts whose
water deliveries were cut to protect endangered fish.

State officials had strongly urged the administration not to settle the
farmers' claims, arguing that such a precedent could make it prohibitively
expensive to protect endangered species. 

But the payment was immediately hailed as a significant victory by property
rights advocates and critics of the Endangered Species Act.

"This is a very strong precedent," said Brian Kennedy, a spokesman for the
House Resources Committee, which is headed by one of the act's most vocal
detractors, Richard W. Pombo (R-Tracy). "This should really fire a shot
across the bow of federal regulators, reminding them that their actions have
consequences and their actions cost money."

The U.S. Department of Justice settled the case despite widespread warnings
that it would lead to a flood of similar claims. The California attorney
general's office, the Schwarzenegger administration and attorneys for the
National Oceanic and Atmospheric Administration all wrote the Justice
Department in the last year, asking the Bush administration to appeal a U.S.
Court of Claims ruling in favor of the farmers.

Justice officials had little comment on their decision not to heed those
recommendations. "This settlement is the result of careful and deliberate
negotiations between the parties," said department spokesman Blain
Rethmeier.

The Claims Court ruling came in a lawsuit filed by Roger Marzulla, a former
Justice Department official in the Reagan administration who is pursuing
similar claims in three other cases. Although the settlement contains
language stating that it establishes no legal precedent, Marzulla said the
case "establishes the fundamental principal that the government is free to
protect the fish; it simply has to pay for the water it takes to do so.

"The federal government," he added, "has recognized it can't come on like a
bull in a china shop and seize all the water it wishes without paying for
it."

Calling the ruling "ill-conceived and poorly reasoned," state Chief Deputy
Atty. Gen. Richard Frank said the Bush administration's decision to settle
the case was disappointing. "I'm not going to say it will produce a sea
change in federal law and policy, but it will generate additional claims and
controversy." 

In a statement, Sen. Dianne Feinstein (D-Calif.) said the settlement was a
"mistake that will establish a precedent that could require the public to
pay tens of millions of dollars to water users in many cases where even a
small portion of their anticipated deliveries are needed to protect
endangered salmon or other fish." 

The case grew out of a drought in the early 1990s, when the State Water
Project reduced deliveries to irrigation contractors to aid two fish species
protected by the federal Endangered Species Act, the delta smelt and the
Chinook salmon.

Marzulla, a leader in the property rights movement, argued that the farmers
had a property right to the water and that when federal environmental
protections forced a reduction in deliveries, that amounted to a taking
under the U.S. Constitution. U.S. Claims Court Judge John Paul Wiese agreed,
awarding the plaintiffs $14 million, plus attorneys fees and interest.
Attorneys in the case expected that to total $26 million.

The settlement leaves it up to plaintiffs and attorneys to decide how to
divvy up the $16.7 million. The plaintiffs include the Kern County Water
Agency, several farm operations and the Tulare Lake Basin Water Storage
District, which serves mega-farmer J.G. Boswell.

Sue Ellen Wooldridge, solicitor for the U.S. Interior Department, which
oversees the Endangered Species Act, said she didn't think the case would
have a broad effect because federal water contracts have shortage provisions
that effectively insulate them from takings claims.

"I think the ramifications are limited," she said. "The federal contracts
contain the shortage provisions which the courts have interpreted as
allowing [the U.S. Bureau of Reclamation] to protect the species without
causing a taking."

In urging an appeal of Wiese's decision, state officials said it undermined
state law by finding that the end user of the water, the irrigation
districts, held a property right to the water. Under California law, they
said, the Department of Water Resources holds the rights to the water it
diverts for farm and municipal use.

Environmentalists condemned the settlement, saying it amounted to an
invitation for more claims. 

"By settling rather than fighting this case, the Bush administration is
simply encouraging more of these legal attacks against our water quality
laws and other public safeguards," said Hal Candee, senior attorney for the
Natural Resources Defense Council. "That hurts the taxpayers as well as the
environment."

Marzulla has filed similar takings claims for $1 billion in the Klamath
Basin, where fish protections forced irrigation cutbacks on the
Oregon-California border, and for the city of Stockton and irrigators who
lost deliveries from the New Melones Dam in the Central Valley. He said he
is preparing another case in Ventura County.

"I think it is helpful to have this case resolved so we can pursue
resolution of the other cases," Marzulla said.

Interior Secretary Gale Norton previously served as a legal advisor to a
property rights group founded by Marzulla's wife, Nancie. But Marzulla said
Norton recused herself from the Tulare case and played no role in it. "She
has had nothing to do with the prosecution of the Tulare case," he said

 

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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