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'Takings' trial adjourns

U.S. Federal Court Judge Marian Blank Horn adjourned the Klamath Basin “takings” case in Washington, D.C., on Monday, bringing an official end to the trial.

But there is still more work to be done.

“It is likely considerable time will be required to thoroughly complete review of the record and issue a final judgment,” said Klamath Falls water attorney Bill Ganong in a news release.

Further briefings based on the evidence and applicable legal standards, followed by closing oral argument, is tentatively planned for May 9, according to Ganong.

“We know it will be after May 9,” he said. “Sometime after that, the judge will issue her final opinion.”

The two-week trial started on Jan. 30 at the U.S. Court of Federal Claims, within walking distance of the White House. More than 20 irrigators or those representing the interests of irrigators testified during the trial of their losses in 2001 when water was shutoff to benefit endangered fish downstream.

Bureau of Reclamation officials were listed as witnesses for the defense during the trial, and shared agreements that the water available in 2001 had to be used to meet the requirements of biological opinions issued that year to promote the health of the sucker and coho salmon, according to Ganong.

If they prevail, the irrigators may be awarded up to $30 million. More importantly to them, the irrigators hope a ruling in their favor would mean that federal agencies must balance agriculture’s loss against the benefits to fish downstream.

Class-action lawsuit documentation

Ganong said legal counsel for the plaintiff are formulating documents that will make it possible for irrigators to opt in to what has been certified as a class-action lawsuit.

Ganong and lead counsel Roger Marzulla, of Marzulla Law, based in Washington, D.C., worked on drafting a notice and a claim form for the suit on Tuesday.

“You have to file a form that says you’re joining the class and going to make a claim for the damages you suffered,” Ganong said.

Ganong said the defense, led by Kristine S. Tardiff, of the U.S. Department of Justice Environmental & Natural Resources, will have an opportunity to review the class-action form with Marzulla Law, with a chance to discuss its contents.

“By Friday, they will either have agreed on the notice and the claim form and that will go to the judge,” Ganong said.

“If there’s a disagreement, then the judge will resolve that disagreement and issue the final form. So by Monday or Tuesday of next week, there will be an order approving the notice that goes out and the claim form that goes out.”

The claim form is not finalized yet, but Ganong said irrigators wishing to fill out a form will be able to do so locally. A deadline to file will be determined by the court.

All actions are preliminary and subject to negotiation, according to Ganong.

Ganong, who heads home today from the nation’s capital, said he was impressed by those who testified at trial.

“The sincerity and the impact on the community, that just came through clearly,” Ganong said.

Opting in to class action law suit

Irrigators can opt to join the class action law suit if they experienced damages due to the shutoff of irrigation water in the Klamath Reclamation Project in 2001.

Land owners who join the suit will need to fill out a form, which is underway but not finalized. Those who join the lawsuit will not be liable for the costs of the suit.

The costs of this lawsuit are being paid by the irrigation, drainage and improvement districts, and Van Brimmer Ditch Co.

“There will have to be additional assessment or additional funds from the (irrigation) districts to get to the end,” Ganong said.

Ganong plans to meet this week with a committee comprised of representatives from irrigation districts to determine the need for funding.




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