[env-trinity] Judge rejects Klamath farmers' water claim

[Josh Allen]

Judge rejects Klamath farmers' water claim 

http://www.kgw.com/sharedcontent/APStories/stories/D8CB68JG0.html 

09/01/2005 

By WILLIAM McCALL  / Associated Press 
  

A federal judge on Wednesday rejected a $100 million claim by Klamath
River Basin 
irrigators who argued the government owed them compensation for water
diverted 
from agriculture in 2001 to protect salmon. 

U.S. Court of Federal Claims Judge Francis M. Allegra called the claim
"unrealistic" and 
a "fantasy" in a 52-page opinion issued in Washington, D.C. 

He said the irrigators had no property rights to the water, rejecting
their argument that 
diverting it for salmon amounted to an unconstitutional "taking" of
private property by 
the government. 

"This ruling is important because it rejects a pretty extreme view of
property rights and 
water law," said Todd True, an attorney for Earthjustice, an
environmental law firm 
involved in the case. 

Roger Marzulla, the attorney for the association, which represents about
two dozen 
irrigators, said an appeal was likely. 

"What's wrong with this decision is it reverses 100 years of reclamation
law," Marzulla 
said. 

He said the ruling gives the federal government "absolute authority and
control over all 
irrigation in the West" - control that is "a very scary prospect for
farmers." 

One of the farmers leading the battle also called it a bad decision. 

"I would give you a bigger perspective that it is bad for America when
citizens are 
deprived of the ability to make a living," said Lynn Long, a member of
the Klamath 
Water Users Association board of directors. 

He said courts have been too liberal in interpreting property rights
laws, causing 
problems for farmers and areas of the country that rely heavily on
agriculture. 

"We don't have a water crisis in America, we have a judicial crisis,"
Long said. 

True, however, said the ruling reflects a more mainstream legal view
about property 
rights. 

"Water is a resource that has to be shared and does not belong to one
group," True said. 
"And there has to be a fair balance about how it's used." 

Deciding how to manage and allocate water has been a difficult problem
in the Klamath 
Basin ever since the Klamath Project to reclaim farm land was first
authorized by 
Congress in 1905. 

The U.S. Bureau of Reclamation must balance the needs of endangered
sucker fish in 
Upper Klamath Lake and threatened coho salmon in the Klamath River with
more than 
1,000 farms in the Klamath Reclamation District, a sprawling area which
lies in the dry 
highlands east of the Cascade Range along the California border. 

Allegra ruled that fishermen and American Indian tribes also had to be
considered by 
federal water managers, along with fish and wildlife - key arguments by
the 
government and the Pacific Coast Federation of Fishermen's Associations,
which was 
allowed to intervene in the case and represented by Earthjustice. 

The federation and Earthjustice also argued that requiring payment for
water used to 
protect threatened or endangered species could undermine the Endangered
Species Act 
by making it too costly to enforce. 

Allegra said the irrigators may have a contractual claim to the water,
but suggested the 
case was weak and they "face an uphill battle." 

The Klamath Water Users Association orginally had claimed irrigators
were owed $1 
billion in compensation for the diversions water that sent about a third
of their allotted 
water to help threatened coho salmon in 2001. The association later
reduced that claim 
to $100 million. 

 

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