Northern California and Oregon irrigation districts
have won a key round in a long-running legal battle
as they seek compensation for their loss of water in
the Klamath River Basin.
In a 53-page opinion,
U.S. Court of Federal Claims Judge Marilyn Blank
Horn concluded the federal government’s 2001
diversion of Klamath River Basin water amounted to a
“physical taking” of the irrigation districts’
property. Horn’s ruling Wednesday rejected the
government’s argument that the diversion instead
amounted to a “regulatory taking.”
difference could shape the final dollar-and-cents’
outcome. As attorney Josh Patashnik put it in a Santa
Clara Law Review article,
a judge’s determination of a physical rather than
regulatory taking “often plays a central role in
determining whether property owners are paid
“The distinction is
important because physical takings constitute per se
takings and impose a ‘categorical duty’ on the
government to compensate the owner, whereas
regulatory takings generally require balancing and
‘complex factual assessments,’ ” Horn noted.
Horn’s decision marks
the latest turn in a roller-coaster case first filed
Oct. 11, 2001, by the Klamath Irrigation District,
individual farmers and other water users in the
region straddling Northern California and southern
Oregon. The case went back and forth and was
originally dismissed but then resurrected in 2011 by
an appeals court.
The districts and
farmers, represented by the D.C.-based Marzulla
contend the government owes compensation, under the
Fifth Amendment, for the temporary cessation of
water deliveries in 2001 in order to protect
endangered species including the Lost River sucker.
The various legal and procedural complications are
enumerated in the 474 separate court filings made
since the first lawsuit landed in the court located
near the White House.
Drawing support from
past Western water cases, Horn noted that government
officials employed “physical means” to cut off the
“By refusing to release
water from Upper Klamath Lake and Klamath River, the
government prevented water that would have, under
the status quo ante, flowed into the Klamath Project
canals and to the plaintiffs,” Horn wrote.
Horn added that she was
in “no way making any determinations as to the
nature or scope of plaintiffs’ alleged property
rights,” which will be figured out in a trial.