U.S. Water News Online
SAN DIEGO -- An effort to save two rare fish more than a
decade ago could come back to haunt environmentalists after a recent
court decision awarded millions of dollars in compensation to farmers
who lost water in the process.
If the December ruling by a federal judge survives expected legal
challenges, the government could find itself forced to pay much more
for efforts to protect endangered fish, draining resources away from
The eventual result would have implications across the West, where
the federal government often clashes with property owners in attempts
to save species on the brink of extinction.
``There may be implications for how the Endangered Species Act is
implemented,'' said Alf W. Brandt, the Interior Department lawyer who
argued the government's case. ``There may be implications for how
water diversions are made.''
The case stemmed from the government's efforts to protect
endangered winter-run chinook salmon and threatened delta smelt
between 1992 and 1994 by withholding billions of gallons from farmers
in California's Kern and Tulare counties.
Court of Federal Claims Senior Judge John Wiese ruled that the
government's halting of water constituted a ``taking'' or intrusion
on the farmers' private property rights. The Fifth Amendment to the
Constitution prohibits the government from taking private property
without fair payment.
Wiese's Dec. 31 ruling, which awarded $26 million to a group of
California farmers for the water diversion, is a clear victory for
champions of property rights, who have sought to rein in what they
see as regulatory excesses committed in the name of the environment.
``What the court found is that the government is certainly free to
protect the fish under the Endangered Species Act, but it must pay
for the water that it takes to do so,'' said Roger J. Marzulla, the
attorney representing the water districts that brought the claim.
Environmentalists called the ruling a stealth attack on the
Endangered Species Act that could gut efforts to preserve species in
the future by making them too costly to enforce.
``The purpose of these suits is simply a backdoor attack on
environmental laws,'' said Barry Nelson, a senior policy analyst with
the National Resources Defense Council. ``And frankly, it's to bust
the federal budget as the price tag for complying with
Along the California-Oregon line, for example, a similar court
case could leave the government with a $100 million bill for water
diverted from farmers in 2001 for species protection.
Wiese's ruling could also have a significant impact in California,
where courts have halted diversions of water to protect the
environment, said John D. Echeverria, executive director of the
Environmental Law and Policy Institute at the Georgetown University
``Although this is a case against the United States, it might well
lead to billions of dollars in claims against the state of
California,'' Echeverria said.
The question now is whether the Justice Department will choose to
appeal. If the ruling is appealed and upheld, efforts to protect fish
throughout the West could become even more costly.
The U.S. Forest Service is being sued over a plan to close
irrigation ditches in the Methow Valley in Washington state to
provide additional water for endangered fish runs. In New Mexico, the
Bureau of Reclamation is seeking court approval to take water from
farmers and cities to help the endangered Rio Grande silvery minnow.
Marzulla scoffed at the notion that the judgment will break the
government's bank. He noted the U.S. Fish and Wildlife Service budget
includes about $4 million to protect elderberry bushes along the
Sacramento River that may host an endangered beetle.
``This judgment is nothing,'' Marzulla said. ``It's not going to
do anything other than ... give some small quantity of justice to a
few of the farmers who were injured in what was really a pretty rash
The Endangered Species Act needs to be reined in, Marzulla said.
He said protecting species, the original goal of the act, has been
lost in the past 30 years as the law has been steadily broadened into
a habitat-protection statute.
``We're trying to use a hammer to drive a screw into the wall,''
he said. ``It's not working very well. It's very clumsy, and it
caused a lot of damage in the process.''
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