A Takings of Water
Can't We Find A Better Way to End Water Conflicts?
by ED HUNT
| posted 02.16.04 |scribe
This is a story of water, salmon,
farmers and the US Constitution.
It's one of those big stories that doesn't get much
attention ... that slips under the radar. After all
the ruling came on December 31st when many reporters
were watching Dick Clark count backwards on TV.
Of course, it could be nothing. A court decision
that gets overturned on later appeal, or a ruling
that stands but doesn't stand as a precedent for
similar, more far-ranging cases.
On the other hand, it could be big.
To understand what's going on here, you need to know
a little civics. The Fifth Amendment to the
Constitution bans the government from taking the
private property of its citizens without just
compensation. Seems the British had a habit of
taking whatever the army needed from the Colonists
and our fore-fathers were determined that the US
government wouldn't follow suit.
It's a good rule -- but 200 years later it is still
In recent years property rights advocates have
argued that regulation can essentially constitute a
government "takings" of a person's property. If land
use laws or environmental regulation keeps you from
using your land -- for example -- hasn't the
government "taken" your property without
compensation? Others take it even further -- arguing
that whenever regulation reduces the assessed value
of property, why, that's like taking money out of
Takings initiatives have been on the ballot in both
Washington and Oregon -- both seeking to expand the
definition of takings to require compensation any
time property values are reduced by regulation.
Washington voters rejected the measure while Oregon
voters approved it -- only to have it later deemed
Good thing too -- the nature of such an extreme
definition of property takings would make land use
regulation essentially unenforceable. No government
could afford to compensate every property owner for
every fluctuation in land value.
However, in some cases the courts have ruled with
the property advocates -- but usually it is in cases
where government regulation has prohibited all
reasonable use of property.
Of course there are other cases that push property
rights issues in other directions. One such is the
case down in California in which farmers asserted
that they had a constitutional right to water from a
federal project to irrigate their crops. When the
government withheld that water to save some fish.
Well, that was as good as taking money from their
pockets, the farmer's argued. So far, the courts
have seen things their way.
Plenty of big questions being raised here: Who owns
the water? Can water from a federal project really
be private property -- and thus protected as a
If the farmers own the water -- or at least have a
Constitutional property right to it -- there could
be some very big implications for natural resources
in Salmon Nation.
Salmon, along with a number of other critters, need
water. Of course, there are competing demands for
that water -- from growing cities to growing crops.
Water is one of the fundamental flashpoints of
environmental conflict in the West. If the case
stands and sets a precedent, it could alter how the
government makes water diversion decisions and could
recast the economic calculus of saving salmon and
“There may be implications for how the Endangered
Species Act is implemented,” Alf Brandt, the
Interior Department lawyer who argued the
government’s case told AP. “There may be
implications for how water diversions are made.”
It all started a decade ago when the government
tried to protect winter-run Chinook salmon and delta
smelt by withholding billions of gallons of water
from California farmers. About 250 farmers in two
water districts sued, saying the water shut-off
amounted to a taking of their property.
It's easy to see where the farmers are coming from.
The government spent the first part of the last
century building water projects in the West to
attract farmers and foster an agriculture industry.
Agriculture in much of the West is built on a
government commitment that irrigation water will be
available each year to make the crops grow. So
there's little arguing that the farmers are harmed
when the water is taken away. The larger question is
whether government owned the water, or whether the
farmers had a Constitutional property right to it.
Do commitments and history and economic dependence
add up to a "right?"
The case has wound its way through the courts for
the better part of a decade -- being closely watched
by property rights advocates and environmentalists.
Then on December 31st, Court of Federal Claims
Senior Judge John Wiese ruled that the water shut
off constituted a “taking” of the farmer's private
property rights. The judge said the farmers and
water districts were owed roughly $26 million by the
This case is significant because it's the first time
a federal judge has ruled that water is protected by
private property rights. Even water from a
government irrigation project is subject to
compensation when diverted to protect or restore
endangered species. The case doesn't say the
government lacks the right to save water for salmon
and other endangered species, but it requires
federal resource managers to compensate water users
when it does so.
"When the federal government decides to take water
from them for environmental purposes, there's
nothing wrong with that. But they better be prepared
to pay for it," Robin Rivett told
the Contra Costa Times. Rivett is a lawyer for
the Sacramento-based Pacific Legal Foundation, a
nonprofit law firm that specializes in private
property rights. "This case is not going to be the
only case that focuses on these kinds of issues."
That of course, could make water diversions for
salmon restoration much more expensive.
In addition to the suit by Klamath Basin farmers,
the US Forest Service is being sued for closing
irrigation ditches in the Methow Valley of
Washington, the Bureau of Reclamation is trying to
take water away from farmers and cities to help and
endangered fish native to the Rio Grande. In
California, water diversions are common and this
case could lead to "billions of dollars" of claims
against the state, according to John Echeverria,
executive director of the Environmental Law and
Policy Institute at the Georgetown University Law
At the same time, buying and leasing water back from
farmers for endangered salmon has become more
accepted practice in recent years. Rather than
lawsuits -- which take years to make their way
through the courts and appeals, a more productive
approach is for conservation groups to work together
with farmers to ensure there is enough water for
salmon. (I'd rather see the money go to the farmers
than the lawyers anyway.) Indeed, long-term water
leases could allow for rural redevelopment and help
struggling farmers switch to crops, cultivation
methods or livestock that use less water. That could
help avoid future conflicts over water, while
helping both farmers and fish.
It's unclear how much of a precedent this case will
set. It has already spurred a similiar suit in the
Klamath Basin, but there is a wide diversity in the
water contracts that farmers sign with federal
government. In this particular case, for example,
the farmers had to pay the federal government for
the water -- even when the water was not delivered
due to environmental restrictions. Those payments
may have been enough of a toehold to give the
farmers a "takings" claim, while other farmers and
other water districts have very different
arrangements that may not make for such a strong
Regardless, the success of the case -- and the
multi-million dollar judgment -- is likely to
attract an increasing number of takings claims.
Don't be surprised if the federal government alters
its approach to these issues to avoid "takings"
"These takings cases are really a backdoor attack on
environmental protection laws," Barry Nelson, a
water policy analyst for the Natural Resources
Defense Council. said. "They're designed to force
the public to choose between bankrupting state and
federal budgets and bankrupting environmental
"It´s important to start finding solutions that help
both farmers and fish and support a more diverse
economy,” George Grant, owner of Falcon Butte Farms
told the Idaho Statesman. "In our view, programs
like this one can be very good for the redevelopment
of rural Idaho communities.”
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