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Farmers
get mixed decision on Klamath cutoff suit
Tam
Moore
Oregon Staff Writer
Capital
Press
9/9/2005
6:00:00 AM
The four-year effort to get federal compensation
for the 2001 cutoff of irrigation water in most of the Klamath
Reclamation Project stumbled last week in a mixed decision by the U.S.
Court of Federal Claims.
Judge Francis Allegra, who took over the complicated case last
December, found in an Aug. 31 opinion that cutting off federal
irrigation water isn’t a “taking” requiring compensation under
the U.S. Constitution. He said some of the 14 project irrigation
districts that brought suit, and some of the 12 individuals and
farming businesses who joined the pleading, may have a case for breach
of contract.
You can read the opinion on the Internet at www.uscfc.uscourts.gov/Opinions/Allegra/05/ALLEGRA.Klamath.pdf.
Allegra ordered the irrigators, the U.S. government and the Pacific
Coast Federation of Fishermen’s Associations, which joined on behalf
of the government, to tell him in writing before Oct. 4 how they wish
to proceed. The opinion, granting in part a U.S. motion for summary
judgment, is 52 pages long and reads like a textbook on the Klamath
Project, which celebrated its 100th anniversary earlier this year.
In rejecting the takings argument, Allegra also rejected much of a
landmark 2001 case in the same court that resulted in millions of
dollars in damages for Tulare Lake Basin Water Storage District. That
case turned on the California Water Plan cutting back contract
deliveries because of federal Endangered Species Act limitations put
on operation of diversion pumps at the Sacramento Delta.
“With all due respect, Tulare appears to be wrong on some counts,
incomplete in others and distinguishable at all events,” Allegra
wrote.
Roger Marzulla, who represented Tulare irrigators and is lead attorney
on the Klamath claim, told the Associated Press, “This decision ...
reverses 100 years of reclamation law,” giving the federal
government “absolute authority and control over all irrigation in
the West.”
Marzulla called it a “scary prospect for farmers.”
In 2001 the Klamath Basin appeared headed for the driest year on
record. To help three fish under ESA protection, the U.S. Bureau of
Reclamation reneged on water delivery contracts dependent on Upper
Klamath Lake storage, saying that water was needed as fish habitat.
Only two irrigation districts on the project’s east side that draw
water from smaller reservoirs got service for the full irrigation
season. One draft of 70,000 acre feet from Upper Klamath Lake was
released in July after BuRec recalculated actual water levels against
minimums set in a biological opinion.
Allegra upheld the legal principle that states, not the federal
government, allocate water rights. Both California and Oregon, which
share the 200,000 acres of project cropland, have water laws dealing
specifically with the federal project. On the Oregon side of the
border, the issue is complicated because an adjudication of pre-1909
and federal water claims begun in 1976 remains unfinished.
The original takings suit claimed $1 billion in damages. Irrigators
amended that down to $100 million last year. Testimony before a
congressional committee put estimated damages in the
multimillion-dollar range, but most observers were waiting for the
lawsuit to sort out actual damages.
At issue, in addition to the contract liability yet to be decided, is
the Fifth Amendment to the Constitution, which says, in part: “nor
shall private property be taken for public use without just
compensation.”
Allegra, in words that may be used in many future Western water
pleadings, said the Fifth Amendment principle, when applied to water
comes down to this: “Water belongs to the public and is held in
trust by the states involved.” The only resulting private property,
he held, is the user’s right to put that water to use.
What’s more, he found that state law varies when it comes to water.
“Differences sometimes are pronounced – particularly as they apply
to the United States, and especially, in terms of reclamation – any
attempt to extrapolate the reclamation water rights owned by an
individual in one state from cases involving the laws of another state
is perilous..., “ he wrote.
Not only that. Allegra found that the various contracts written since
1905 create five different landowner interests for the use of project
water:
n Exchange agreements where pre-existing water rights were traded for
access to project water;
n Contracts between irrigation districts (on behalf of patrons) and
BuRec;
n Contracts between district and BuRec in which farmers may claim to
be “third-party beneficiaries” to water;
n Water applications made by homesteaders on reclaimed land, made by
landowners outside former lake boundaries and those holding federal
patent deeds; and
n At least two state water rights Oregon granted districts after the
1953 repeal of the original 1905 Klamath Project water grant law.
The Court of Claims didn’t get to any of the contract issues
earlier. Instead, it focused on federal attempts to sidetrack the
whole lawsuit. The first issue, rejected a couple of years ago, was a
U.S. position that this claim ought to wait until Oregon finishes its
water adjudication. Since then, Allegra and his predecessors have been
preoccupied with relating water delivery to the Fifth Amendment.
That part of the legal battle appears over. However, if the irrigators
continue the suit on contract issues, BuRec faces other challenges.
Most of the “drought” clauses in those contracts call for reducing
deliveries – sharing the water shortage. In 2001 the headgate on the
main project diversion slammed shut, and the “A” Canal dried up.
The only sharing was for fish and the hydroelectric turbines
downstream.
The Associated Press contributed to this report. Tam Moore is based in
Medford, Ore. His e-mail address is tmoore@capitalpress.com.
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