U.S. Water News Online
WASHINGTON -- Supreme Court justices waded into the West's contentious water wars, questioning whether individual farmers can sue the government over water they say they were due but never received.
Two dozen farmers from California's Central Valley want the government to pay them about $32 million as compensation for water they were supposed to get under a contract. The Bureau of Reclamation diverted the water to comply with Endangered Species Act requirements to protect two threatened fish.
But the government says its contract with the Westlands Water District only allows lawsuits by the district -- not by individual landowners who are its members. The state of California and the water district itself agree, contending that allowing farmers to sue the government directly could result in a rash of lawsuits and undermine water districts' ability to do business with the Bureau of Reclamation.
"The water doesn't belong to any one landowner or group of landowners, it belongs to the whole," Westlands attorney Stuart Somach of Sacramento told justices.
"It would be very disruptive to the system if a minority of farmers in the district were able to bring a suit," said Bush administration lawyer Jeffrey Minear.
But the farmers' attorney, William Smiland of Los Angeles, told the court his clients should have the right to compensation for their loss.
"My clients have suffered massive losses, they've been litigating these claims for 25 years," Smiland said. "We think we should have a forum and a remedy and a right to our day in court."
Justices sounded skeptical of Smiland's arguments.
"The whole point of the district was to make it easier for the U.S. to know with whom it was dealing," said Justice Anthony Kennedy.
Justice Stephen Breyer compared the farmers to children trying to enforce a contract entered into by their parents.
"I might buy a house with the idea of helping my child. ... That doesn't mean he can enforce the contract," Breyer said.
At issue is a water service contract between the federal agency that manages water in the West and the nation's largest water district. Westlands Water District encompasses 600,000 acres of cotton, tomatoes, onions and other farmland in western Fresno and Kings counties.
In 1993 the Bureau of Reclamation cut Westlands' water allocation by half because of federal requirements to protect the threatened winter-run chinook salmon and delta smelt. Westlands and some farmers in the water district sued.
Westlands dropped its suit two years later as part of negotiations to establish the California Federal Bay-Delta water project. But some two dozen individual property owners and farming partnerships, led by an aging farmer named Francis Orff, continued with the suit.
The argument focused on the relatively narrow question of whether the farmers had the right to sue at all. If the Supreme Court reverses lower courts and says they do, it could open the door for hundreds of individual farmers to take on the Bureau of Reclamation.
The result would be chaotic, Somach said outside court.
But the case was also being watched because it touches on a bigger issue: whether the government must compensate property owners for irrigation water diverted for environmental purposes.
The Endangered Species Act -- passed after the Westlands contract and some other water contracts like it were signed -- requires water to be used to protect species in some circumstances where agriculture also claims it. Traditionally, no compensation has been given. Changing that could undermine the Endangered Species Act by making it too expensive to uphold, environmentalists say.
But property rights supporters are increasingly arguing that such diversions of water must be regarded as a government "taking" of private property, and compensation must be paid.
That view got encouragement when the Bush administration spent $16.7 million in December to settle a lawsuit by California water districts over water diverted to help threatened fish. Environmentalists had hoped the government would appeal a ruling in favor of the water districts rather than settle.
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