[env-trinity] 3 Stories on Westlands Farmers' Takings Case at the Supremes

[Tom Stokely]

The California State Water Resources Control Board, in Decision 1641 (Bay-Delta Hearings Phases 1-7) found that water contractors such as Westlands (and all CVP,SWP and other contractors) are not "legal users of water" under Section 1701 of the California Water Code because they don't actually hold a water right.  Therefore, a CVP water contract is not a property right, it's simply a contract to deliver water.



The Trinity County Board of Supervisors and the Hoopa Tribal Council have also sent comment letters to the Bureau of Reclamation requesting specific long-term water contract language identifying that water from the Trinity River has a priority right for use in the Trinity River basin so that there can be an end to these takings cases as it relates to use of Trinity River water.  Reclamation has not responded to the request and apparently intends to renew these long-term water contracts without specific language to protect Tribal Trust and County of Origin water rights that are already embedded in federal and State laws, decisions and orders.  



I can provide more information upon request.



Tom Stokely

Principal Planner

Trinity County Planning/Natural Resources

530-628-5949





WATER RIGHTS DISPUTE:

California farmers ask high court to help them get paid for water

Chico Enterprise Record - 2/23/05

By Erica Werner, AP

 

Supreme Court justices waded into the West's contentious water wars Wednesday, hearing arguments from Central Valley farmers who want the government to pay them for water they say they were due but never received. 

 

The government said the water had to be diverted to protect two threatened fish. Government lawyers also said the farmers don't have standing to sue the Bureau of Reclamation directly, because water districts, not individual land owners, negotiate government water deals. 

 

"The water doesn't belong to any one landowner or group of landowners, it belongs to the whole," said government attorney Jeffrey P. Minear. 

 

"It would be very disruptive to the system if a minority of farmers in the district were able to bring a suit," Minear said. 

 

But the farmers' attorney, William M. Smiland, told the court his clients should have the right to try to recoup their loss. 

 

"My clients have suffered massive losses, they've been litigating these claims for 25 years," Smiland said. "We think we should have a forum and a remedy and a right to our day in court." 

 

Justices sounded skeptical of Smiland's arguments. 

 

"The whole point of the district was to make it easier for the U.S. to know with whom it was dealing," said Justice Anthony Kennedy. 

 

Justice Stephen Breyer compared the farmers to children trying to sue to enforce a contract entered into by their parents. 

 

"I might buy a house with the idea of helping my child. ... That doesn't mean he can enforce the contract," Breyer said. 

 

At issue is a water service contract between the federal agency responsible for managing water in the West, and Westlands Water District, which encompasses 600,000 acres of farmland in western Fresno and Kings counties. 

 

In 1993 the Bureau of Reclamation announced it was reducing Westlands' water allocation by half because of federal requirements to protect the threatened winter-run Chinook salmon and delta smelt. Westlands and some farmers in the water district sued. After negotiations Westlands dropped its suit, but some two dozen individual farmers and property owners continued to pursue the matter. 

 

Wednesday's arguments focused on the relatively narrow question of whether the farmers had the right to sue at all. If the Supreme Court reverses lower courts and says they do, it could open the door for hundreds of individual farmers to take on the Bureau of Reclamation. 

 

But environmentalists and water experts were also watching the case because it touches on a bigger issue: whether the government must compensate property owners for irrigation water diverted for environmental purposes. 

 

The Endangered Species Act requires water to be used to protect species in some circumstances where food-growers also claim it, and traditionally no compensation has been given. Changing that could undermine the 

 

Endangered Species Act by making it too expensive to uphold, environmentalists say. 

 

But conservatives and property rights supporters are increasingly arguing that such diversions of water must be regarded as a government "taking" of private property like any other, and compensation must be made. 

 

That view got encouragement when the Bush administration spent $16.7 million in December to settle a lawsuit by four California water districts over water diverted a decade ago to help the winter-run Chinook salmon and the delta smelt. Environmentalists had hoped the government would appeal a ruling in favor of the water districts rather than settle. 

 

The case is Orff et al v. United States of America, 03-1566. #

http://www.chicoer.com/Stories/0,1413,135%257E29409%257E2728167,00.html





Farmers claim land rights in water fight against fish

Contra Costa Times - 2/23/05

By Dean E. Murphy, New York Times Staff writer

SAN FRANCISCO - In a series of lawsuits, including one to be argued before the U.S. Supreme Court today, farmers and water districts are pushing property-rights claims to the forefront of the debate over how to divvy up water among farms, cities and the environment.

In doing so, they are demanding compensation from the government for irrigation water diverted for environmental purposes, calling into question rules in the Endangered Species Act that favor the protection of fish over the growing of food when water is in short supply.

It is an approach that has won sympathy from the Bush administration, which in December agreed to pay $16.7 million to farmers in Tulare and Kern counties in one lawsuit to compensate for reduced water supplies. But the claims have alarmed California officials and many conservation groups, who fear that demands for payment for lost water could spread to other Western states and undermine protections for wildlife.

"This is hugely important, a growing storm cloud over the American West," said Richard M. Frank, California's chief deputy attorney general, who oversees water litigation and who opposes paying farmers for water diverted to endangered fish. "We will be seeing a lot more of these kinds of claims brought not only against the federal government, but state governments."

William S. Smiland, a Los Angeles lawyer representing the farmers in the Supreme Court case, Francis A. Orff v. United States, said they and farmers in the other lawsuits long had gotten the short end of the stick and were only demanding their due.

"Nobody really cares about them," Smiland said. "I don't mean to be melodramatic, but they have no political clout. So this is law against politics."

In the early 1990s, many farmers in the Central Valley had their irrigation water halved by federal officials because of severe drought. Flows that normally would have gone to crops were left in rivers for salmon and other fish struggling to survive.

The water shortage took a financial toll on the farmers, whose fields extend across an arid ancient seabed that is the country's most productive farmland owing to a system of dams and canals that brings snowmelt from distant mountains.

Some of the farmers, including Orff of Fresno County, sued the federal government for damages. The case has undergone changes over the years, and today the Supreme Court will consider only a narrow contract issue that focuses on whether farmers, rather than their irrigation districts, have legal standing to sue the federal government.

But the reverberations of the case are considered much broader because a victory for the farmers could open the door to many more lawsuits.

Environmentalists and some state officials worry that hard-won federal protections for endangered species could be weakened. They fear that the government will not make use of protections included in the Endangered Species Act because courts could make the protections too expensive by forcing the government to pay costly damages. # http://www.contracostatimes.com/mld/cctimes/living/science/10969581.htm

 
WATER RIGHT DISPUTE:

Valley farmers go before high court; Their bid to sue feds over undelivered water meets with supreme skepticism

Fresno Bee - 2/24/05

By Michael Doyle, staff writer

 

WASHINGTON - Some San Joaquin Valley farmers had a tough row to hoe Wednesday as Supreme Court justices showed skepticism over the farmers' bid to sue the federal government. 

 

The roughly two dozen Westlands Water District farmers and farming partnerships want money for undelivered irrigation water. It could add up to millions of dollars. But because the district already had settled its own suit against the government, the farmers first require a judicial green light in order to sue on their own. 

 

The result could be a legal and administrative mess, some justices suggested. 

"The whole point of the districts is to make it easier for the government to deal with the farmers," Justice Anthony Kennedy said, cautioning that allowing individual lawsuits would "undermine efficiency." 

 

Justice John Paul Stevens likewise noted that "the government probably thought it would be efficient for the district to represent all the farms," rather than allow dissident farmers to challenge the government in court. Westlands' managers agree, though they've often fought the federal government on other fronts. 

 

"How in the world are we going to be able to administer a water contract if at any given time, a [single] landowner is able to go into court?" 

 

Sacramento-based attorney Stuart Somach asked on Westlands' behalf during the hourlong oral argument Wednesday. 

 

But the individual farmers maintain that having lost both water and money, they deserve a chance to seek compensation. By one estimate, about $32million could be on the table for Francis Orff and the other farmers. 

 

"The United States breached the [irrigation] contract. The United States cut the water and doubled the charge," said William Smiland, the Los Angeles attorney for Orff and the other farmers. "My clients have suffered massive losses. We should have a forum, a remedy and our day in court." 

 

Now in his 80s, Orff began farming about 800 acres in the Westlands Water District following World War II. Like others in the 600,000-acre Wetlands district, he was unhappy when the federal government began cutting irrigation deliveries to preserve endangered species. 

 

Under the 1992 Central Valley Project Improvement Act, more than 1 million acre-feet of water was diverted away from farms and into environmental protection. Westlands and other water districts sued, adding their lawsuit to the long string of legal challenges that have dogged Western water decisions. 

 

In 1995, Westlands dropped its lawsuit as part of the newly adopted Cal-Fed program emphasizing state-and-federal collaboration on solving water problems. Orff and his allies, who represent a small fraction of the entire Westlands district, chose to press on. 

 

"We would have hoped the district would keep going," Smiland said. 

Although the federal government is customarily immune from lawsuits, the 1982 Reclamation Reform Act permitted some suits over water contracts. 

 

The legal question facing the court Wednesday was whether the individual farmers can be considered "intended third-party beneficiaries" of the Westlands water contract, and thus eligible to sue through the waiver of sovereign immunity granted under the 1982 law. 

 

"We don't give a broad construction to waivers of sovereign immunity," Justice Sandra Day O'Connor cautioned. 

 

Associate Solicitor General Jeffrey Minear, representing the Bush administration, likewise added that the water contract was "rendered to Westlands" rather than individual farmers, and that it was Westlands that had "the authority to act on behalf of all of its members." 

 

The one justice who sounded sympathetic to the farmers' position was Justice Antonin Scalia. Other justices wondered why the case wasn't simply brought in the U.S. Court of Federal Claims, where judges have previously issued million-dollar awards to aggrieved farmers. #

http://www.fresnobee.com/business/v-sl-opinion-stories/story/10019238p-10851472c.html




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