H&N's: Ruling in takings case not the end

Ruling in takings case not the end

September 2, 2005

Klamath Falls Herald and News

Klamath Basin irrigators involved in a federal takings case and their attorney are regrouping after their main claim was rejected earlier this week.

"Of course we are disappointed with the judge's ruling, but the case goes on," said Steve Kandra, president of the Klamath Water Users Association. "We just go on to the next phase."

That next phase could be an appeal to the U.S. Court of Appeals, said Roger Marzulla, a Washington, D.C., attorney representing 13 agricultural landowners and 14 water, drainage or irrigation districts in the case.

But he first needs to meet with his clients and see what legal avenue they want to pursue. He plans to meet with them late next week.

"There is no announcement until next week," he said. "Now we are all trying to digest this thing."

In a 52-page ruling, U.S. Federal Claims Court Judge Francis M. Allegra Wednesday rejected a $100 million takings claim brought by Klamath Basin irrigators. They filed the claim in response to the federal government's shutoff of irrigation water in 2001 to keep more water for coho salmon and two kinds of sucker fish, all protected by the Endangered Species Act.

"This ruling is important because it rejects a pretty extreme view of property rights and water law," said Todd True, an attorney for Earthjustice, an environmental law firm involved in the case.

Allegra ruled that the irrigators had no property right to the water, going against the irrigator's argument that diverting it for fish was an unconstitutional taking of private property by the government.

"The courts are saying you have to look to the contracts and not constitutional law," said Glen Spain, whose Pacific Coast Federation of Fishermen's Associations intervened into the case in March 2005.

Allegra said the irrigators may have a contractual claim to the water, but suggested the case was weak and they "face an uphill battle."

Allegra ruled that fishermen and American Indian tribes also had to be considered by federal water managers, along with fish and wildlife - key arguments by the government and the fishermen.

"Almost all of these decisions have some good and some bad to them," Kandra said.

Lynn Long, a member of the Klamath Water Users Association board of directors, said the ruling was a bad decision.

"I would give you a bigger perspective, that it is bad for America when citizens are deprived of the ability to make a living," he said.

He said courts have been too liberal in interpreting property rights laws, causing problems for farmers and areas of the country that rely heavily on agriculture.

True, however, said the ruling reflects a more mainstream legal view about property rights.

- The Associated Press contributed to this report.