[env-trinity] AP: Calif. farmers lose big irrigation drainage 'takings' claim

[Tom Stokely]

Calif. farmers lose big irrigation drainage 'takings' claim
Farmers said the federal government should compensate them for failing to build drainage from their farms.

 

BY: MICHAEL DOYLE

 | 05/25/2023 03:40 PM EDT

The sun sets over a human-made wetland at the San Luis National Wildlife Refuge near Gustine, Calif., on Feb. 2, 2007.Marcio Jose Sanchez/AP Photo

E&E NEWS PM | A federal court has uprooted a bid by farmers in California’s San Joaquin Valley to secure compensation for the federal government’s environmentally disastrous and decades long failure to provide irrigation drainage.

In the latest round of a generation-spanning dispute, the U.S. Court of Federal Claims dismissed a lawsuit filed by farmers who contend the government’s failure to build the promised drainage amounts to an uncompensated taking of their property.

“Although the Court is sympathetic to the damage to Plaintiffs’ lands caused by the United States’ failure to fulfill its statutory drainage obligation, it cannot allow this case, which is clearly beyond the Court’s jurisdiction, to proceed,” Court of Federal Claims Judge Zachary Somers wrote.

Somers' May 19 ruling to end the farmers’ lawsuit first filed in 2011 turned on a timing issue, as he concluded the claims’ filing fell outside the statute of limitations.

An attorney for the farmers declined to comment on the ruling Thursday.

The underlying problem, meanwhile, remains as pressing as ever. The federal government is still on the hook for providing drainage to the farms, notably those in the Rhode Island-sized Westlands Water District, which are served by the massive Central Valley Project.

Underneath Westlands' highly productive crop fields is a dense clay layer that prevents irrigation water from draining. Eventually, contaminants like selenium accumulate.

When Congress authorized in 1960 part of the CVP that serves the San Joaquin Valley, lawmakers recognized the issue and included drainage as a fundamental part of the overall project. The Bureau of Reclamation proposed a 188-mile drain ending in the Sacramento-San Joaquin Delta.

But only about 87 miles of drainage were built, leading to a lethal, bird-deforming toxic soup at the drain’s premature terminus at Kesterson National Wildlife Refuge, which is now a unit of the San Luis National Wildlife Refuge.

“Despite a plethora of studies, numerous attempts at concocting various plans, and extensive litigation, the drainage infrastructure has still, to date, not been completed,” noted Somers, a Trump administration appointee.

In 2000, the 9th U.S. Circuit Court of Appeals ruled that Reclamation was still responsible for the drainage. Estimates initially pegged the drainage construction costs at about $2.7 billion; the estimated price tag has since reached upward of $3.7 billion.

Negotiation talks between Reclamation and Westlands culminated during the Obama administration with a proposed 2015 settlement agreement. Under the deal, Westlands would provide the drainage, but its remaining debt to the government for the construction of the CVP — more than $250 million — would be forgiven, The district would also retire acreage, under the deal.

This deal requires congressional action, and though House bills have been previously introduced by Rep. David Valadao (R-Calif.), they have stalled.


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E&E News: Calif. drainage deal sinks into doldrums

<p>An ambitious irrigation drainage deal is mired deeper than ever in legislative and legal limbo, alarming farm...
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Some environmentalists and lawmakers — including Rep. Jared Huffman, the California Democrat who is the ranking member on the House Natural Resources Subcommittee on Water, Wildlife and Fisheries — have denounced the proposed settlement as a giveaway to politically powerful farmers.

“We need to know that the Westlands Water District didn’t get a sweetheart deal, and that the federal government is working to protect Americans’ financial and environmental interests,” Huffman said during an earlier debate.

Democratic Sen. Dianne Feinstein of California once tried to lead negotiations on a final irrigation drainage deal, convening stakeholders for closed-door sessions in her Senate office, but they bore no fruit. No one else has since taken up the challenging task of getting the parties together.

A previous ruling by another Court of Federal Claims judge had given the lead plaintiff, Michael Etchegoinberry, and other farmers a green light to pursue their so-called takings case.

In the new ruling, though, Somers concluded that the federal government’s failure to act on the drainage, which was the alleged cause of harm to the farmers, occurred more than six years before the suit was filed.

Citing the “numerous other events that occurred in the long saga of whether the United States was going to provide drainage to the San Luis Unit,” Somers stated that the farmers “were not permitted to put their heads in the sand allowing the statute of limitations to run and then pop them up and run to court” simply when they wanted to.

“Despite never receiving drainage to their properties and the fact that no property within Westlands has received drainage since 1986, Plaintiffs still assert that their claims did not stabilize until [2010],” Somers wrote, adding that he “cannot concur” with the farmers’ reasoning.

“Simply put, numerous actions and decisions by the United States related to drainage in the San Luis Unit and litigation brought by multiple parties related to drainage over several decades, including litigation alleging the very taking at issue here … should have alerted Plaintiffs to the [timing],” Somers wrote.

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