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WASHINGTON (AP) — Farmers from Northern California and Oregon tried to convince a federal judge Wednesday that they should be compensated for water the government diverted from irrigation in 2001 to protect Klamath River salmon.
But a government attorney argued that the irrigation districts don’t have property rights that allow compensation if they don’t get as much water as they’re supposed to.
“There is simply no state law-based water right that has attributes of property rights,” Justice Department attorney Kristine Tardiff told U.S. Court of Federal Claims Judge Francis M. Allegra.
Roger Marzulla, representing the water users, disagreed, contending legal precedent “has squarely held that the plaintiffs hold a property right.”
“There is as of today no water right for fish” under Oregon law, he added.
Wednesday’s argument was a step in determining whether the two dozen Klamath Basin irrigators and property owners will collect $100 million they claim they are owed for the 2001 water diversions that sent about one-third of their allotted water to help the threatened coho salmon.
Allegra said he would rule at a later date on the motions under consideration at the five-hour hearing, which focused on whether the rights the Klamath irrigators had to the water were like other property rights, and therefore required compensation.
The Endangered Species Act requires water to be used to protect species in some circumstances where agriculture also claims it, and traditionally, no compensation has been given. But property rights supporters in this case and others are increasingly arguing that such diversions of water must be regarded as a government “taking” of private property, and compensation must be paid.
Allegra’s questions suggested he was undecided. “It is important ... not only to define whether we have property, but what the nature of the property is,” he said.
The Klamath basin farmers say the loss of the water in 2001 prevented some growers from producing any significant harvest that year, and even forced some off their property when they couldn’t make enough money to pay their mortgages.
But attorneys for the government and for the Pacific Coast Federation of Fishermen’s Associations, which was allowed to intervene in the case, contend that fish and wildlife resources have to be protected, too. In 2002, a year after the farmers were denied water, less water was given to fish and tens of thousands of adult chinook died when they returned to warm low water conditions in the Klamath River and were hit by gill rot disease.
Requiring payment for water used to protect species could undermine the Endangered Species Act by making it too expensive to uphold, environmentalists say.
But the position that the government should pay for water it diverts got encouragement when the Bush administration spent $16.7 million in December to settle a lawsuit by four California water districts over water sent to help threatened fish. Environmentalists had hoped the government would appeal a ruling in favor of the water districts rather than settle.
The circumstances of that case are not identical to the one Allegra is considering, so attorneys for the government and fishermen hope the outcome will be different.
Water allocations continue to be a contentious issue in the Klamath Basin, where the Bureau of Reclamation is charged with providing water for endangered suckers in Upper Klamath Lake, threatened coho salmon in the Klamath River, and more than 1,000 farms in the Klamath Reclamation District straddling the Oregon-California border south of Klamath Falls.
Also Wednesday, congressional investigators released a report on the “water bank” the Bureau of Relamation operates in the Klamath Basin as a way to hold water in reserve to supplement river flows. The water bank was instituted after the drought conditions in 2000 and 2001.
The report by the Government Accountability Office found that the Bureau of Reclamation has delivered the required amount of water. But it said the bureau failed to provide stakeholders with clear information about the water bank’s management and status. In a letter of response the Bureau of Reclamation said it would seek to improve its operations.
But a government attorney argued that the irrigation districts don’t have property rights that allow compensation if they don’t get as much water as they’re supposed to.
“There is simply no state law-based water right that has attributes of property rights,” Justice Department attorney Kristine Tardiff told U.S. Court of Federal Claims Judge Francis M. Allegra.
Roger Marzulla, representing the water users, disagreed, contending legal precedent “has squarely held that the plaintiffs hold a property right.”
“There is as of today no water right for fish” under Oregon law, he added.
Wednesday’s argument was a step in determining whether the two dozen Klamath Basin irrigators and property owners will collect $100 million they claim they are owed for the 2001 water diversions that sent about one-third of their allotted water to help the threatened coho salmon.
Allegra said he would rule at a later date on the motions under consideration at the five-hour hearing, which focused on whether the rights the Klamath irrigators had to the water were like other property rights, and therefore required compensation.
The Endangered Species Act requires water to be used to protect species in some circumstances where agriculture also claims it, and traditionally, no compensation has been given. But property rights supporters in this case and others are increasingly arguing that such diversions of water must be regarded as a government “taking” of private property, and compensation must be paid.
Allegra’s questions suggested he was undecided. “It is important ... not only to define whether we have property, but what the nature of the property is,” he said.
The Klamath basin farmers say the loss of the water in 2001 prevented some growers from producing any significant harvest that year, and even forced some off their property when they couldn’t make enough money to pay their mortgages.
But attorneys for the government and for the Pacific Coast Federation of Fishermen’s Associations, which was allowed to intervene in the case, contend that fish and wildlife resources have to be protected, too. In 2002, a year after the farmers were denied water, less water was given to fish and tens of thousands of adult chinook died when they returned to warm low water conditions in the Klamath River and were hit by gill rot disease.
Requiring payment for water used to protect species could undermine the Endangered Species Act by making it too expensive to uphold, environmentalists say.
But the position that the government should pay for water it diverts got encouragement when the Bush administration spent $16.7 million in December to settle a lawsuit by four California water districts over water sent to help threatened fish. Environmentalists had hoped the government would appeal a ruling in favor of the water districts rather than settle.
The circumstances of that case are not identical to the one Allegra is considering, so attorneys for the government and fishermen hope the outcome will be different.
Water allocations continue to be a contentious issue in the Klamath Basin, where the Bureau of Reclamation is charged with providing water for endangered suckers in Upper Klamath Lake, threatened coho salmon in the Klamath River, and more than 1,000 farms in the Klamath Reclamation District straddling the Oregon-California border south of Klamath Falls.
Also Wednesday, congressional investigators released a report on the “water bank” the Bureau of Relamation operates in the Klamath Basin as a way to hold water in reserve to supplement river flows. The water bank was instituted after the drought conditions in 2000 and 2001.
The report by the Government Accountability Office found that the Bureau of Reclamation has delivered the required amount of water. But it said the bureau failed to provide stakeholders with clear information about the water bank’s management and status. In a letter of response the Bureau of Reclamation said it would seek to improve its operations.
