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Basin water case argued in Washington, D.C., Compensation sought for federal 'taking' of water in 2001

by Holly Dillemuth, Herald and News 7/11/2019

A longtime 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 Monday.

Nearly 90 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.

“The trial 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,” he said.

Water reallocation

The Monday 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 Service.

“It’s really 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.

“That’s what attracted so much attention from the friend of the court type parties.”

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 Schall.

Klamath Basin irrigators Luther Horsley and Baley, named in the case, attended the hearing, as well as retired special counsel Bill Ganong.

Ganong, a longtime water attorney in the Basin, collected applications from thousands of applicants who have a claim in the class action lawsuit in 2017.

There are currently about 1,200 individuals with a claim in the class action lawsuit, not including organizations.

Ganong assisted lead counsel Roger Marzulla, of Marzulla Law, in critiquing the plaintiff’s oral arguments prior to Monday’s hearing.

Filling the court

Even more 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.

The amicus briefs, filed by those with a strong interest in the case, also reflect the level of wide-ranging interest, according to Ganong.

Entities that 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.

Klamath Tribes Chairman Don Gentry was not reachable by phone as of press time on Wednesday.

Interested parties

Amicus briefs 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.

“Those parties 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 situations.”

“There were at least a half dozen amicus briefs on the government side,” Ganong added.

Court outcome

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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