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Fishermen let into takings case

The Link River Dam controls the outflow of Upper Klamath Lake, either to farms or to the Klamath River. Fishermen have become a party to a lawsuit over how the water was managed in 2001.


A federal claims court ruled Monday that a commercial fishing group can join the legal fracas involving $100 million in damage claims by Klamath Reclamation Project irrigators against the government stemming from the summer of 2001.

The irrigators filed the claims four years ago, seeking $1 billion in economic damages from the federal government after it shut down most of the project at the start of the 2001 irrigation season. They have since lowered their damage claim to $100 million.

The ruling by U.S. Court of Federal Claims Judge Francis Allegra in Washington, D.C., granted the Pacific Coast Federation of Fishermen's Associations "full party" status as an affected economic interest in the irrigators' case.

"There is no question that we have an economic stake," said Glen Spain, Northwest regional director for the fishermen's federation. He said the strength of the Klamath stocks are key for fishermen up and down the West Coast.


Judge Allegra wrote, "In the court's view, the PCFFA possesses a legally protectable interest involving the water of the Klamath Basin that is 'related to the property or transaction' at issue, one that lies in maintaining access to that water and ensuring that it is allocated in a fashion that promotes its fishing interests."

Allegra is the second judge to work the case, which has been mired by delays and motions to put the case on hold.

Now the question is whether the case will go on. A hearing to determine whether the water users have property rights for irrigation water is set to start March 30, said Roger Marzulla, attorney for the Klamath Irrigation District and other plaintiffs.

"If they have a property right, then they probably have a taking," he said. If the court says they don't have a right then the case will probably be dismissed.

The complaint brought by the water users was amended in January, changing the damages sought from $1 billion to $100 million, Marzulla said.

The change in damages represents changes in the federal plans of how to manage water in the Klamath Basin.

Originally the claims represented the cost of farmers losing their farms for good, he said. Now the claim is for the cost of the one year's water lost.

Marzulla said the fishermen group shouldn't have been added to the case.

"A judgment for (the irrigators) in this case is not going to impact in any way the water that will be used for the fish that the fishermen catch, particularly since the case only deals with the year 2001," he said.

The judge disagreed, noting that the government had argued if the irrigators win, the Bureau of Reclamation could, in the future, "think twice before allocating water to fishing interests at the expense of further irrigation."

Marzulla said his major concern was that the ruling could complicate an already complex case by making the fishermen, in effect, a full participant.

Spain said the essence of the case is water, and not contract law, so the fishermen should be involved.

"The court acknowledged that there are other downstream interests affected as well," he said.

While letting the Fishermen's Association into the case, the judge denied seven environmental groups intervention - the Institute for Fisheries Resources, The Wilderness Society, Klamath Forest Alliance, Oregon Natural Resources Council, WaterWatch of Oregon, Northcoast Environmental Center and the Sierra Club.

Allegra wrote that he didn't allow the other groups to intervene because the Fishermen's Association will represent their interests and has the same lawyers as the group.

- The Associated Press contributed to this story.






Page Updated: Thursday May 07, 2009 09:15 AM  Pacific

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