Oregon high court rules irrigators have a property interest in water  

March 12, 2010

   A federal appeals court charged the state’s high court to answer questions about whether the irrigators could sue the federal government for the taking of irrigation water without just compensation.

   The state Supreme Court said in its opinion that irrigators have a property interest in the water, but it didn’t say if that translates to a full property right. That decision will be made by a federal appeals court.

   “In our view, it’s wonderful,” said Bill Ganong, a Klamath Falls attorney representing the irrigators.  

   The lawsuit stems from the 2001 water crisis, when federal officials shut off water to land irrigated by water from Upper Klamath Lake to protect endangered fish species in the lake and Klamath River. The region is facing a similar problem this year. Snowpack, river inflows and the lake level are below average, and the traditional beginning of the irrigation season is only weeks away.

   Impacted irrigators, which included any on the Klamath Reclamation Project west of Olene and into Northern California, filed suit after the 2001 crisis, saying the federal government took their property by violating the Constitution’s Fifth Amendment and breaching a contractual obligation to provide water to the Project.    

   Good news

   Scott Seus, a Project irrigator in Northern California, said the court’s decision is a bit of good news as another water shortage looms. He declined to say whether the possible success of the lawsuit would yield a similar effort should irrigators be denied water this year.

   “It couldn’t be more relevant to what we’re going through right now,” he said.  

   Ganong said the state Supreme Court’s answers weren’t exactly what he and his clients were hoping for, but now the case likely will be sent back to the original judge for a new decision.

   Property rights

   The state Supreme Court said any full rights to the water were subject to contracts irrigators have with the federal government, contracts which the court did not review as part of its efforts. The value of those potential property rights has not been determined.

   The lawsuit sat in the U.S. Court of Federal Claims for years before a judge ruled irrigators didn’t have standing to file suit. That decision was appealed to the U.S. Court of Appeals, which asked the Oregon Supreme Court to answer questions about Oregon water law. State Supreme Court justices visited the Basin last May to hear arguments on the case.

   Those siding with the federal government — environmental groups and organizations representing coastal fishermen — found a different reason to be pleased with the court’s findings.

   “This may not be the end of this long running dispute, but it does limit the most expansive claims by the irrigators and focus attention on the terms of the contracts between the irrigators and the United States,” said Todd True, an attorney with Earthjustice, a law firm representing environmental interests.