Klamath River — Upper Klamath Basin irrigators will again have their day in court after a Feb. 17 ruling by the United States Court of Appeals for the Federal Circuit overturned a denial of the irrigators’ claims in the United States Court of Federal Claims.

In Klamath Irrigation District v. United States, a number of irrigation, water and drainage districts and individual landowners in California and Oregon sought compensation for the cutting of water deliveries in 2001, arguing that the federal government failed to fulfill contractual water deliveries and that failure constituted a “taking” under the fifth amendment to the United States Constitution. The 2001 shutoff was instituted after a biological opinion, to which the governing agencies are bound, recommended that water be conserved for endangered or threatened species if water levels fell below a certain point.

The plaintiffs also made claims relating to the Klamath Basin Compact and breach of contracts.

The United States Court of Federal Claims denied the claims of the plaintiffs, holding that they had failed to assert “cognizable property interests” in Klamath Project water and were therefore unable to prove a takings claim.

Multiple issues are raised in the appeals decision regarding how to deterimine whether or not the plaintiffs individually have “an equitable or beneficial property interest” in water rights deemed to be held by the United States. The appeals court then requested that the Oregon Supreme Court answer three questions for it before determining how to proceed.

Based on the answers given by the supreme court, the appeals court vacated the claims court’s ruling and remanded the suit back to that court, holding that the government should have the burden of showing how, if at all, the rights of the plaintiffs to use Klamath project water have been altered, redefined or clarified to deprive the plaintiffs of cognizable property interests.

In addition to arguing against the plaintiff’s claims of having a property right in the water, the government also argued that in doing its duty to adhere to the Endangered Species Act (ESA), it had a sovereign acts defense and was immune to breach of contract claims.

While the appeals court agreed that the government met one requirement to qualify for a sovereign acts defense, it states that the claims court failed to properly assess the second qualification regarding the impossibility of performing the duties under contract.

Remanded to the claims court, the suit will now see each plaintiff’s property rights claim assessed and a determination made as to whether the government could have avoided shutting off water deliveries and still meet its duties under the ESA.

Offering no guidance with respect to damages, the appeals court also states that the claims court, if finding in favor of any of the plaintiffs, will have to determine the amounts of compensation.

– David Smith can be reached at dsmith@siskiyoudaily.com