U.S. Water News Online
PORTLAND, Ore. -- A federal judge has rejected a $100
million claim by Klamath River Basin irrigators who argued the
government owed them compensation for water diverted from agriculture
in 2001 to protect salmon.
U.S. Court of Federal Claims Judge Francis M. Allegra called the
claim "unrealistic" and a "fantasy" in a 52-page opinion issued in
He said the irrigators had no property rights to the water,
rejecting their argument that diverting it for salmon amounted to an
unconstitutional "taking" of private property by the government.
"This ruling is important because it rejects a pretty extreme view
of property rights and water law," said Todd True, an attorney for
Earthjustice, an environmental law firm involved in the case.
Roger Marzulla, the attorney for the association, which represents
about two dozen irrigators, said an appeal was likely.
"What's wrong with this decision is it reverses 100 years of
reclamation law," Marzulla said.
He said the ruling gives the federal government "absolute
authority and control over all irrigation in the West" - control that
is "a very scary prospect for farmers."
One of the farmers leading the battle also called it a bad
"I would give you a bigger perspective that it is bad for America
when citizens are deprived of the ability to make a living," said
Lynn Long, a member of the Klamath Water Users Association board of
He said courts have been too liberal in interpreting property
rights laws, causing problems for farmers and areas of the country
that rely heavily on agriculture.
"We don't have a water crisis in America, we have a judicial
crisis," Long said.
True, however, said the ruling reflects a more mainstream legal
view about property rights.
"Water is a resource that has to be shared and does not belong to
one group," True said. "And there has to be a fair balance about how
Deciding how to manage and allocate water has been a difficult
problem in the Klamath Basin ever since the Klamath Project to
reclaim farmland was first authorized by Congress in 1905.
The U.S. Bureau of Reclamation must balance the needs of
endangered sucker fish in Upper Klamath Lake and threatened coho
salmon in the Klamath River with more than 1,000 farms in the Klamath
Reclamation District, a sprawling area which lies in the dry
highlands east of the Cascade Range along the California border.
Allegra ruled that fishermen and American Indian tribes also had
to be considered by federal water managers, along with fish and
wildlife - key arguments by the government and the Pacific Coast
Federation of Fishermen's Associations, which was allowed to
intervene in the case and represented by Earthjustice.
The federation and Earthjustice also argued that requiring payment
for water used to protect threatened or endangered species could
undermine the Endangered Species Act by making it too costly to
Allegra said the irrigators may have a contractual claim to the
water, but suggested the case was weak and they "face an uphill
The Klamath Water Users Association orginally had claimed
irrigators were owed $1 billion in compensation for the diversions
water that sent about a third of their allotted water to help
threatened coho salmon in 2001. The association later reduced that
claim to $100 million.
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