Basin water case argued in Washington, D.C.,
Compensation sought for federal 'taking' of water in 2001
Dillemuth, Herald and News 7/11/2019
court case involving the shutoff of water to multiple water
users in the Klamath Basin in 2001 attracted wide-ranging
attention from Pacific Northwest-based organizations and
those within the legal community in Washington, D.C., on
minutes of oral arguments were heard Monday at the U.S.
Court of Appeals at the Federal Circuit. The case, which
water users lost in 2017, is being appealed.
court’s decision of course was that, although some members
of the class, water users, individuals, have property
interests in water rights, some do not based on the
specifics of contracts, so that’s one issue that had to be
addressed,” said Paul Simmons, executive director of the
Klamath Water Users Association.
“Those who do
have property interests in rights, they didn’t really have a
compensable property interest taken because there are senior
water rights in the system, which means that the water users
really weren’t actually entitled to have the water at all,”
hearing provided legal counsel the opportunity to explain
why irrigators believe the federal government should be
required to compensate agricultural producers for the
alleged “taking” of irrigation water reallocated by Bureau
of Reclamation for delivery to threatened and endangered
fish species in 2001. The reallocation stemmed from
biological opinions issued in 2001 by U.S. National Marine
and Fisheries Service and the U.S. Fish and Wildlife
not a dispute about who has water rights, it’s a dispute
about how our water rights, adjudicated by whom, and how are
they enforced and administered,” Simmons said.
attracted so much attention from the friend of the court
The case, known
as the takings case, is: Lonny E. Baley, et al, and John
Anderson, et al, v. United States and Pacific Federation of
Fishermans Association. Presiding Judge Pauline Newman is
overseeing the appeal, with Judges Raymond Chen and Alvin
irrigators Luther Horsley and Baley, named in the case,
attended the hearing, as well as retired special counsel
longtime water attorney in the Basin, collected applications
from thousands of applicants who have a claim in the class
action lawsuit in 2017.
currently about 1,200 individuals with a claim in the class
action lawsuit, not including organizations.
lead counsel Roger Marzulla, of Marzulla Law, in critiquing
the plaintiff’s oral arguments prior to Monday’s hearing.
interesting than the content of the hearing to Ganong were
the attendees who filled the chambers of the courtroom,
which he said was three to four times the size of the trial
court in 2017.
“It was full,
which shows the interest in the legal community in this case
and what this court’s going to do,” Ganong said.
briefs, filed by those with a strong interest in the case,
also reflect the level of wide-ranging interest, according
filed amicus briefs include: the Klamath Tribes, Hoopa
Valley Tribe, and Yurok Tribe (all separate filings); the
State of Oregon, the City of Fresno, farm bureaus from
Oregon, California, Idaho, Nevada, New Mexico, Utah and
Wyoming; and the Natural Resources Defense Council. In
addition, multiple irrigation districts in California filed,
as well as Oregon Water Resources Congress.
Chairman Don Gentry was not reachable by phone as of press
time on Wednesday.
filed by “friends of the court” may not necessarily have a
part in the case, but have a perspective on the issues
involved in the case, according to Simmons. Simmons has also
served as secondary counsel on the case since 2001.
“You get these
friends of court briefs because the implications of one
decision are greater than that case or broader than that
case,” Simmons said.
all saw some of the same fundamental concerns that the
plaintiffs have, particularly about the way that the court
addressed water rights and water rights administration and
senior and junior water rights,” Simmons said.
“It’s just not
the number of briefs, it’s the number of other interested
parties,” Ganong added.
Some of them
include water associations and farm bureaus from all over
the Pacific Northwest.
“The message I
guess to the court was … this case has importance beyond the
Klamath Basin and the result of this case could affect all
sorts of different people and all sorts of different
“There were at
least a half dozen amicus briefs on the government side,”
Simmons said an
outcome from the court could come by or before Dec. 31. It’s
at the discretion of judges reviewing the case.
If water users
are awarded damages, it is likely to total multi-millions,
and would be determined by the court, according to Ganong,
and that the number could be doubled or quadrupled due to
interest accumulated since April 2001.
Once a decision
is made, Simmons said if needed, the case could reach the
U.S. Supreme Court.
“Whoever is on
the wrong side of the decision would have the opportunity to
ask the Supreme Court to review the case,” Simmons said, a
process that would occur through a petition.
“It’s up to the
court whether they’re even going to decide if they’re going
to look at it.”
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