Supreme Court in Klamath
Herald and News by Ty Beaver, 5/14/09
From left, Justice Martha Lee Walters, Chief Justice Paul DeMuniz
and Justice Robert Durham, all of the Oregon Supreme Court, listen
to oral arguments Wednesday. State high court hears arguments,
answers questions Court asked to help interpret water law By TY
BEAVER H&N Staff Writer May 14, 2009 Attorneys representing local
water users, the federal government and coastal fishermen argued
before the Oregon Supreme Court Wednesday in a case stemming from
the 2001 Klamath Basin water crisis.
Those arguments were made on a basketball court rather than in a
Six of seven justices from the Oregon Supreme Court convened at
Klamath Union High School’s Pelican Court to begin answering
questions for the U.S. Court of Appeals about whether Basin water
users could sue the federal government for the taking of
irrigation water without just compensation.
The justices did not make a decision afterward. It likely will be
up to six months, if not longer, before the court sends its
opinion to the federal court.
H&N photos by Ty Beaver - Klamath County commissioners Al Switzer
and John Elliott, top, listen during a hearing of the Oregon
Supreme Court at Klamath Union High School Wednesday with other
community members. Klamath Falls attorney Bill Ganong, and other
lawyers representing water users and those impacted by the water
shutoff, filed a lawsuit shortly after water was restored in fall
The lawsuit remained in civil court proceedings for years before a
judge ruled the water users didn’t have standing to file the suit.
That decision was appealed to the U.S. Court of Appeals, whose
judges asked the state court to weigh in on a number of questions
about Oregon water law.
Ganong told the court the issue is whether water users have a
property right based on various state and federal acts and
contracts with the U.S. Bureau of Reclamation’s Klamath
Justices asked him to specify how documents and common law fulfill
that argument and whether water was appropriated by the state or
federal governments at any other time.
Attorney David Shilton of the U.S. Department of Justice argued
against the possibility water users have a property right
regarding water, saying the relationship between the federal
government and water users is based on contracts through which
they’ve already attempted legal action.
Justices asked what the appropriate label for water users’ rights
was based on Shilton’s argument, and what then prevented the
federal government from arbitrarily cutting off water supplies.
A representative of the Oregon Water Resources Department also
testified. The department earlier encouraged the court not to get
involved because it would interrupt the Klamath Basin water
But Stiffler told the court that if it does become involved, the
department is of the opinion that the water users do have a viable
interest regarding the case.
H&N photo by Ty Beaver - Justices of the Oregon Supreme Court
listen to oral arguments by a federal attorney Wednesday at
Klamath Union High School’s Pelican Court.
Justices take students’ questions
Part of the reason the Oregon Supreme Court holds hearings across
the state about twice a year is to interact with the public,
especially students. Following are some of the questions asked by
students in between cases Wednesday.
Q: What is the next step in this case involving the water users?
A: Justice Robert D. Durham said the court’s role in the case was
unique. Instead of making a ruling, the court will answer
questions on state law to help another court make a ruling.
The justices of the court will meet and take a tentative vote on
how to answer the questions. A justice will then be assigned to
draft a brief that all the justices will review and then edit and
debate. After a final opinion is written, it will be given to the
court requesting it and also made available to the public online.
Q: Before hearing this case, did you know much about Southern
Oregon issues and has it helped?
A: Gillette said it’s not uncommon for the court to hear cases of
which it has no previous information. The court didn’t know
anything specific about issues in Southern Oregon, but its members
had heard news reports.
“It would be difficult to live in Oregon and not be aware of the
issues in the Klamath Basin,” he said.
Supreme Court road trips
Oregon Supreme Court Chief Justice Paul DeMuniz says it’s not
every day the court gets to hear a case in front of the crowd it
Those attending Wednesday’s hearing at Klamath Union High School’s
Pelican Court said it was beneficial to have the hearing in
“We felt good about having the opportunity for citizens to see the
court in action,” the chief justice said.
DeMuniz said the court tries to handle cases of local interest
when it travels around the state.
“It’s very difficult. This was a unique circumstance,” he said.
Greg Addington, executive director of Klamath Water Users
Association, and Hollie Cannon, executive director of Klamath
Water and Power Agency, said it was great an issue of such great
importance locally was being heard in Klamath Falls. Another
spectator was just glad the court was in Klamath Falls.
“It doesn’t matter what the issue is as long as they’re here,”
said Bill Kenney, Poe Valley irrigator.