Oregon High Court Agrees to Decide Klamath Water Suit Issues

 Washington, D.C.—On January 29, 2009, the Supreme Court of Oregon agreed to decide three issues of State law which will likely determine whether Klamath farmers can recover compensation from the United States for refusing to release water to them in 2001.  The state law issues arose in a federal class action suit filed on behalf of 1,400 farm families and 13 water districts seeking $100 million against the United States for the taking of their water, which the Bureau of Reclamation kept in Klamath Lake to help the endangered sucker fish.  The trial court dismissed the suit in 2007, holding that the Klamath farmers had no property right in Klamath Project water under Oregon law.  The case is now on appeal to the Federal Circuit Court of Appeals in Washington, D.C., which in July asked the Oregon Supreme Court to decide whether Oregon law gives Klamath farmers a property right in Klamath Project water.

 “We are very pleased that the Oregon Supreme Court has agreed to decide whether Klamath water users have any property rights under Oregon law,” said Nancie G. Marzulla, attorney for the farmers and districts.  “We think the trial court got Oregon law wrong, and that the Oregon Supreme Court is the proper court to correctly interpret Oregon law.”  The federal government had opposed certification of these issues to the Oregon courts, arguing that the Federal Circuit Court of Appeals should instead accept the federal trial court’s interpretation of Oregon law.

 The issues which the Oregon Supreme Court has agreed to decide are:

 ·        “Whether, assuming that the United States appropriated water rights for the Klamath Project pursuant to the 1905 Oregon statute, that statute precludes other persons from obtaining a beneficial or equitable interest in those rights”

·        Whether, under Oregon law, beneficial use by the person who receives the water from the Klamath Project is sufficient to give that person a beneficial or equitable interest in the water. 

·        Whether, under Oregon law, anyone may assert either a legal or an equitable property interest in water from the Klamath Project without first having gone through the pending state water rights adjudication.