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Takings case moves to Washington, D.Cl, venue

Basin farmers seeking $30 million in damages

by Holly Dillemuth, Herald and News 1/20/17

Klamath Basin irrigators are taking their case to a higher court.

A historic case on the ramifications of a major water shutoff to Klamath Reclamation Project irrigators in 2001 will be heard at trial from local farmers or their attorneys starting Monday, Jan. 30 in Washington, D.C.

Local water attorney Bill Ganong, who is among the first of the local group to board a flight out of Klamath Falls on Jan. 26 for the trip, has been anticipating it for more than a decade. Ganong serves as special counsel for the more than 20 who will testify during the hearing, which could last up to three weeks.

“It’s been a long journey,” Ganong said at his law office downtown last week.“We were planning on it at about 2005.”

The ‘Takings’ case

The journey will take the local group to Washington, D.C. to share testimony in what is being called the “takings” case at the U.S. Federal Court of Claims. The trial begins with testimony from area irrigators about the impact of the 2001 water shutoff to their operations.

In April 2001, U.S. Fish & Wildlife Services and National Marine Fisheries Service issued biological opinions declaring that water diverted from Upper Klamath Lake by Klamath Project irrigators would endanger suckers and coho salmon, citing the Endangered Species Act.

“The agencies cannot say, ‘Don’t do it,’” Ganong said. “They can just say, ‘If you do it, here’s what’s going to happen. And then the law says, no U.S. person can allow that to happen.”

The 2001 water shutoff decision prompted the historic Klamath Bucket Brigade, a protest that drew widespread attention to the Klamath Basin. On May 7, 2001, thousands of people gathered in downtown Klamath Falls, forming a line from Lake Ewauna in Veterans Memorial Park, up Main Street, to the A Canal bridge at Crater Lake Parkway and Esplanade Avenue, to drop 50 buckets of water — one for each state in the U.S. — into the canal.

“It was a statement and it worked,” Ganong said. “It was national, live television.”

No water

Irrigation water remained shut off to Basin farmers between April and July 2001, available only at minimum levels for stock water.

“It bankrupted a lot of people or financially put them in a position where they had to sell or go find a different trade or a different occupation,” Ganong said.

Now, Klamath Basin irrigators will get their day in court.

“All of them have a story,” Ganong said.

Those attending from Klamath Falls and the surrounding areas hope to utilize their time in the nation’s capital to also meet with the Oregon congressional delegation, Sens. Jeff Merkley and Ron Wyden, and congressman Greg Walden.

“The people who are going back, some of them are just giddy almost,” Ganong said. “They’ve been waiting so long and to finally have it come to trial … it’s a big deal. It’s just a big deal.”

A long time coming, ‘too late’ for some

But not everyone can make the trip.

“We had to go through a process to add some witnesses who we hadn’t identified before, because some of our original people we identified have passed away or have medical or age-related issues that prevent them from traveling,” Ganong said.

“We’ve just lost a lot of people in the ag community,” Ganong added.

“It’s taken so long for these people to get to this point and hopefully compensated for what they lost. For many of them, it’s almost symbolic now.”

Ganong said farmers could expect to see a total $28 million to $30 million if a decision is handed down in their favor.

But he alluded to a favorable outcome for farmers being more than financial.

“Almost all of the farmers going back — maybe all of them — they’re third- or fourth-generation on the same farm,” Ganong said. “It is in their DNA.”

A long and difficult road

Ganong detailed a lengthy history of the case, which passed through the hands of two previous judges, and now is now in the hands of a third.

“The first judge for approximately four or five years, apparently had some medical conditions that interfered with her ability to perform her job as a judge,” Ganong said. “So the case got filed and it literally, it just sat. Nothing really happened for … it seems like it was four years.”

Stopping to recall the name of the judge, he couldn’t.

“It’s been too long,” Ganong said.

The judge retired and the case was assigned to the late Francis Allegra.

“In the course of the next few years, there was a lot that took place, most of it in writing motions,” Ganong said.

Claims dismissed

Ganong said Allegra dismissed the claims that said, one, the U.S. government took property from farmers, and two, that farmers were protected under the Klamath Compact.

“He ultimately decided that we didn’t have a case so he dismissed it,” Ganong said.

“In his opinion, the United States owned the water and could do whatever it wanted with it. He found it in their favor.”

An appeal to Allegra’s decision was made, and over the course of time, the case was handled by the U.S. Court of Appeals with assistance from the Oregon Supreme Court.

“That court started looking at our appeal and decided they had some questions of how Oregon law applied to this case so they then referred it to the Oregon Supreme Court and that was about a two-year detour,” Ganong said. “The Oregon Supreme Court ruling was very favorable to us.”

Oregon court ruling

The Oregon Supreme Court ruled that the water from the Klamath Basin was property, and that it was taken from farmers.

The court landed back in the hands of Allegra, who died in 2015.

The “takings” case has been with Judge Marian Horn since, who set a firm court date in the face of requests to continue the case further.

“She took the bull by the horns,” Ganong said.

Ganong is hopeful of a favorable outcome for farmers.

“If we prevail, then going forward, the federal government will have to weigh the cost of the decisions it makes on endangered species and other federal laws,” Ganong said.

“They haven’t had to at least consider financially the impact on the community when they withhold water or delay the delivery of water and this will turn that around.

“This will not change the law,” he emphasized. “The United States has a duty to do whatever is necessary to prevent the extinction or loss of threatening endangered species, including taking water, including taking land, including taking logging.

“What this will do is cause the United States to pay private property owners for the loss of their water or their land or their ability to harvest timber. And it could be an enormous amount of money.”

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The Taking case is based on three claims:

  • One, a claim that the taking of Klamath Basin water was a breach of contract between the United States and irrigation districts;
  • Two, a claim for the taking of water as property, also known as reverse condemnation; and
  • Three, a claim under the Klamath Compact, an agreement made between Oregon and California, and then ratified by Congress that provided water from the Upper Klamath Basin will remain here and be available to water patrons.

“Under the Fifth Amendment, the United States can't take your property unless they pay you for it,” said local water attorney Bill Ganong.

In the 1950s, Ganong said there was a push for exporting water from the Klamath Basin to the Central Valley in California.

“That then led to local irrigators in the state of Oregon getting pretty concerned about making sure the water stayed here,” Ganong said. “And that led to the Klamath Compact. And the Klamath Compact has language similar to the Fifth Amendment that says the United States cannot take the water unless they (compensate).”

Irrigation districts, bureau representatives traveling

Representatives from the following irrigation districts will attend the hearing at the U.S Federal Court of Claims: Midland District Improvement Company, Malin Irrigation District, Klamath Irrigation District, Shasta View Irrigation District, Klamath Drainage District, Westside Improvement District (Merrill), Klamath Hills Improvement District, and Enterprise Irrigation District.

In addition, representatives from Tulelake, Malin, and Klamath Falls will share testimonies. Representatives from the U.S. Bureau of Reclamation Klamath Basin Area Office may also testify.



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