California, Oregon farmers lost water in 2001; now they want to be paid

By Michael Doyle

McClatchy Washington Bureau

WASHINGTON — Northern California and Oregon farmers who lost irrigation water in 2001 for the sake of fish are plunging into a climactic courtroom battle for tens of millions of dollars in compensation.

Years in the making, the trial set to start Monday in the U.S. Court of Federal Claims near the White House involves a lot of money, but that’s not all. For other Westerners, too, it can have broader implications, clarifying what the government may owe for water steered away from crops toward environmental protection.

“It’s a civil rights case, at bottom,” farmers’ attorney Nancie Marzulla said in an interview. “It involves the protection of private property. We all expect the government to respect private property rights.”

Marzulla added that, “depending on how the judge rules,” the Klamath case could influence other Western lawsuits where farmers, ranchers or others claim the government took their water.

The same court ruled in 2001, for instance, that the federal government had taken water without paying compensation to California’s Tulare Lake Basin Water Storage District and others that had been deprived of water for the sake of the delta smelt and the winter-run chinook salmon. The judge later concluded the water districts were owed $13.9 million plus interest, and the case is still cited.

Over the course of this latest trial, expected to last about two weeks and involve several dozen witnesses and more than 2,200 exhibits, Judge Marian Blank Horn will sort through competing versions of what happened early in the George W. Bush administration.

Facing threats to the Southern Oregon/Northern California Coast coho salmon and two other fish species protected under the Endangered Species Act, the Bush administration opted not to release roughly 336,000 acre-feet of water from the large, shallow Upper Klamath Lake and the Klamath River to hundreds of farmers served by the state-straddling Klamath Project. An acre-foot is enough water to serve a family of four for a year.

The administration stopped the irrigation deliveries under the guidance of the Fish and Wildlife Service and the National Marine Fisheries Service, two agencies with which other Western farmers have periodically clashed.

“The Bureau of Reclamation was faced with a ‘perfect storm’ of events and factors that affected the availability of water from the Klamath Project,” Justice Department attorneys said in a brief in December, adding that the farmers “had no reasonable expectation of receiving water from the Klamath Project under these circumstances, much less a ‘right’ to receive such water.”

The Klamath Irrigation District, in Klamath Falls, Oregon, and individual farmers have priced the lost irrigation water at $28,582,310. They want that much as compensation for what they call the government’s taking of property. The Fifth Amendment prohibits the taking of private property for public use without just compensation.

The government counters that the irrigation water, if it’s indeed to be counted as a taking, should be valued at between $14,933,870 and $25,897,040. The farmers’ and the government’s estimates differ, in part, over whether any taking was permanent or temporary.

The farmers also want interest that’s accumulated since April 2001, the date they say they lost the water, and they want attorneys’ fees to cover a pair of consolidated cases that have gone up and down through various courts since first being filed in October 2001.

Horn has already handed one key victory to farmers, with a 53-page decision in December declaring that the government’s action should be analyzed as a potential “physical” rather than a “regulatory” taking of the contracted-for irrigation water. This could make it easier for the farmers to secure the compensation they seek.

“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 explained.

Horn’s December decision, though, left for the trial itself the bottom-line determination of whether the government’s stopping of water deliveries was, or was not, a taking that triggered the Fifth Amendment’s compensation requirement.

First appointed to the claims court in 1986 by President Ronald Reagan, Horn has confronted a host of associated issues. These range from whether to certify the lawsuits as a class action on behalf of about 1,400 landowners to whether the government is correct that contracts have modified the farmers’ property rights.