[env-trinity] McClatchy: Farmers score in battle over diverting Klamath River water for endangered species

[Sari Sommarstrom]

http://www.mcclatchydc.com/news/politics-government/article122393009.html

Farmers score in battle over diverting Klamath River water for endangered
species 

Phil Norton, manager of the Klamath Basin National Wildlife Refuges in
Tulelake, Calif., on July 17, 2001, walks across the mud flats that were
created when water from the Klamath River was cut off.

Phil Norton, manager of the Klamath Basin National Wildlife Refuges in
Tulelake, Calif., on July 17, 2001, walks across the mud flats that were
created when water from the Klamath River was cut off. AL SEIB AP 

By Michael Doyle  12/23/16

 <mailto:mdoyle at mcclatchydc.com> mdoyle at mcclatchydc.com

WASHINGTON 

Northern California and Oregon irrigation districts have won a key round in
a long-running legal battle as they seek compensation for their loss of
water in the Klamath River Basin.

 <https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2001cv0591-474-0> In
a 53-page opinion, U.S. Court of Federal Claims Judge Marilyn Blank Horn
concluded the federal government's 2001 diversion of Klamath River Basin
water amounted to a "physical taking" of the irrigation districts' property.
Horn's ruling Wednesday rejected the government's argument that the
diversion instead amounted to a "regulatory taking."

The technical-sounding difference could shape the final dollar-and-cents'
outcome. As attorney Josh Patashnik put it in a
<http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1015&context=
lawreview> Santa Clara Law Review article, a judge's determination of a
physical rather than regulatory taking "often plays a central role in
determining whether property owners are paid compensation."

"The distinction is important because physical takings constitute per se
takings and impose a 'categorical duty' on the government to compensate the
owner, whereas regulatory takings generally require balancing and 'complex
factual assessments,' " Horn noted.

Horn's decision marks the latest turn in a roller-coaster case first filed
Oct. 11, 2001, by the Klamath Irrigation District, individual farmers and
other water users in the region straddling Northern California and southern
Oregon. The case went back and forth and was originally dismissed but then
resurrected in 2011 by an appeals court.

The districts and farmers, represented by the D.C.-based
<http://www.mcclatchydc.com/news/crime/article24771400.html> Marzulla Law
firm, contend the government owes compensation, under the Fifth Amendment,
for the temporary cessation of water deliveries in 2001 in order to protect
endangered species including the Lost River sucker. The various legal and
procedural complications are enumerated in the 474 separate court filings
made since the first lawsuit landed in the court located near the White
House.

Drawing support from past Western water cases, Horn noted that government
officials employed "physical means" to cut off the farmers' water.

"By refusing to release water from Upper Klamath Lake and Klamath River, the
government prevented water that would have, under the status quo ante,
flowed into the Klamath Project canals and to the plaintiffs," Horn wrote.

Horn added that she was in "no way making any determinations as to the
nature or scope of plaintiffs' alleged property rights," which will be
figured out in a trial.

Michael Doyle:  <tel:202-383-6153> 202-383-6153,
<https://twitter.com/MichaelDoyle10> @MichaelDoyle10


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