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Court Denies Farmers’ and Ranchers’ Just Compensation Claims in Water Takings Case

Western Water Law challenged in the process

KWUA / Klamath Water Users Association Press Release 11/14/19

What's the Takings case?

The 'Takings' case stems from a declaration by U.S. Fish & Wildlife Service and National Marine Fisheries in April 2001 — during a shutoff of water to Basin irrigators — that water diverted from Upper Klamath Lake by Klamath Project irrigators would endanger suckers and coho salmon, citing the Endangered Species Act, according to a story previously published by H&N.

Herald and News 11/15/19:

Klamath Falls, OR–The United States Court of Appeals for the Federal Circuit has ruled in favor the United States in the long-running lawsuit titled Baley v. United States, commonly known as the Klamath Project water “Takings Case.”  The plaintiff water users sought just compensation for taking of their water rights in 2001 when the United States re-allocated irrigation water to threatened and endangered species under the Endangered Species Act (ESA).  Federal Circuit Judge Alvin A. Schall wrote the opinion, which upheld the 2017 ruling of trial court judge Marion Horne of the United States Court of Federal Claims.  The appellate decision, issued November 14, states, “We therefore see no error in the court’s holding that the Bureau of Reclamation’s (Reclamation) action in temporarily halting deliveries of Klamath Project water in 2001 did not constitute a taking of appellants’ property.” 

If the court had ruled in favor of the appellant water users, the government would have been ordered to compensate water users for a “physical takings” of their property.  “It was never about the money,” said Gary Wright, former President of the Klamath Water Users Association (KWUA).  “It has always been about the future of our families and our community.” 

KWUA Executive Director Paul Simmons said that the lower court had acknowledged that many landowners within the Klamath Project have a property interest in the water that is protectable under the Fifth Amendment, and it recognized the seriousness of the impacts to the irrigation community from the events of 2001.  However, the appellate court upheld the lower court’s holding that found that because three tribes in the Basin (Klamath, Yurok, and Hoopa Valley Tribes) have senior, instream rights to water for fisheries, and those rights must be for at least as much water as the ESA required, Reclamation’s actions were not a taking under the Constitution.  The appellate court found that Reclamation’s actions to comply with the ESA and to protect tribal water resources were “one and the same.”  

“It is extremely disappointing,” said Nathan Ratliff, the Klamath Falls attorney coordinating local efforts on the case.  “There are fundamental principles of western water law and water rights adjudication and administration that we just do not believe sunk in with the court.  And the idea that federal agencies can make administrative determinations of water rights that bind some people and not others raises serious due process questions.“

The plaintiffs in the case were represented by Marzulla Law of Washington, DC.  Simmons said that the water users who filed the case will make any decisions about whether to appeal the court ruling.  “The alternatives for any further review consist of filing a petition for reconsideration with the same court or asking the U.S. Supreme Court to review the decision.  The plaintiffs will no doubt evaluate the decision more carefully and consider their options.”



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