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
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
"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
"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
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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