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Thousands of irrigators could be eligible to join 'takings' suit

Forms must be submitted for compensation

Irrigators who owned or leased land in the Klamath Reclamation Project on April 6, 2001, are urged to join a class-action lawsuit in order to receive compensation, pending a decision in the so-called “takings” case.

Those who believe they may have a claim to compensation related to the water shutoffs of 2001 have approximately 90 days to fill out one form allowing them to join the case, certified by Federal Claims Court Judge Marian Blank Horn as a class-action.

Irrigators can expect to receive an “Entry of Appearance” form partially filled out by their irrigation district. Forms must be returned to Klamath Falls water attorney Bill Ganong by May 19 in order to be eligible to join the suit for compensation.


The case stems from when the Bureau of Reclamation shut off water to Basin irrigators in order to protect endangered fish downstream in the Klamath River in 2001.

Reclamation argues water had to be used to meet the requirements of biological opinions issued that year to promote the health of the sucker and coho salmon.

If they prevail, the irrigators may be awarded up to $28 million. More importantly to them, the irrigators hope a ruling in their favor would mean that federal agencies must balance agriculture’s loss against the benefits to fish downstream.

“(The Entry of Appearance) lays out the timelines and the requirements for giving notice to people who owned land in 2001 or were leasing and farming land in 2001,” Ganong said.

“You have to have owned land that is related to the Klamath Project in 2001 or leased it in 2001 to be in the class,” Ganong said. “It also says it only applies to the west side of the project that receives water from Upper Klamath Lake. The east side, which is Langell Valley, which is served from Clear Lake and Gerber — they actually had water in 2001.

“Since then, they’ve had a lot tougher time but then they were okay,” Ganong said, referencing the east side.

He emphasized to return the form as soon as possible.

“If you think there’s any possibility you have a claim, file it,” Ganong said. “You do not get penalized for filing it. If you don’t file it, then you’re out.”

Upwards of 4,000 people could qualify for compensation, Ganong said, which could be distributed by Judge Horn in one of two ways, pending if her decision favors irrigators. One is a lump sum of approximately $28 million, plus interest.

“We said there were 336,000 acre feet of water that were not delivered and we said each acre foot was worth $88.86,” Ganong said. “If you do that math, you come up with about $28 million.”

After 16 years since the start of the case, Ganong said the interest on top of the proposed lump sum could double the award, if such an option is chosen by the judge.

Another option would be to award funds to individual irrigators who opt in to the case, depending on how much irrigation water they used in 2001.

“It’s completely up to the judge, and she may say we’re not entitled to any money at all,” Ganong said. “That’s part of the spectrum of options.”

Consolidated case

Attorneys for the plaintiff — Marzulla Law, a Washington, D.C.-based firm — filed the third part of the takings case in federal court on Feb. 24: Lonny E. Baley, et al, v. United States and Pacific Coast Federation of Fishermen’s Associations. The case is consolidated, also including John Anderson Farms, Inc., et al, v. United States.

The case completed testimonies by the plaintiff and defendant in the Federal Claims Court in the nation’s capital Feb. 10. Final oral arguments by the plaintiff and defendant will take place on May 9, according Ganong.

“It’ll be a while before we get a decision,” Ganong said.

Water contracts

Klamath Project water refers to land subject to one of two types of contracts with the United States: Repayment or ‘A’ districts; or Warren Act contracts also called ‘B’ contracts.

“There is land, such as the Running Y Ranch, that has a Warren Act contract that’s not served by the district but is eligible because they use Klamath Project water,” Ganong said.


“There’s other land on both the west and east sides of the lakes that have Warren Act contracts that we will notify,” he added. “Anybody that was served by an irrigation district will receive this notice and this form from the irrigation district. The order requires that the district fill in the second page.”

Ganong will submit entries for a shared databank-style spreadsheet with Marzulla Law in Washington, D.C.

“There’ll be thousands of them, I hope,” Ganong said. “The idea is to make sure as many people opt in as they can.”

The form addresses a number of scenarios for landowners, including in the case where a landowner or lessee who died in the years after 2001 can be reimbursed through a claim by way of a relative.

Irrigation districts are no longer plaintiffs in the case, but individual irrigators are.

“The reason we initially named the districts is to give the court the option of certifying this as a class-action, which is now where we’re at,” Ganong said. “Because the court distributed it as a class-action, there just wasn’t any need for the districts to be plaintiff any longer.”

Potential class-action members include irrigators from the following districts: Enterprise Irrigation District, Klamath Basin Improvement District, Klamath Drainage District, Klamath Hills District Improvement Company, Klamath Irrigation District, Malin Irrigation District, Pine Grove Irrigation District, Poe Valley Irrigation District; Shasta View Irrigation District, Sunnyside Irrigation District; Tulelake Irrigation District, Van Brimmer Ditch Company.

Starting on March 17, Ganong and Marzulla Law will submit an updated list of irrigators who are joining the class action suit.

By April 17, both plaintiffs and defendants will file a post trial brief with the court, followed by an opportunity for both sides to respond.

All documents related to joining the class-action are due to Ganong’s office by May 19.

“It’s been pending for 17 years,” Ganong said. “I don’t have any false hopes,” Ganong added. “We were all pleased that she took the bull by the horns and got it to trial and didn’t let it get postponed. She gave us as much time as we wanted in a full, complete trial.”

More costs incurred

The 'takings' case has led local attorney Bill Ganong to seek additional funding from local irrigation districts, such as Klamath Irrigation District, to help cover costs.

Members of an executive committee comprised of representatives from local irrigation districts met with Ganong before approving an additional financial ask from each district in the form of a separate assessment of $2.75 per acre.

“They'll be paying it out of their reserve funds, and then in theory, making it up next year depending on what each board decides to do,” Ganong said. “So no one's going to get a bill for $2.75.”

KID has designated one its current staff members to help handle paperwork for individuals seeking to opt in to the class action suit.

“The smaller districts, it will take some time and effort,” Ganong said.

“It's a huge task.”

— Holly Dillemuth

Water attorney Bill Ganong to retire

Longtime Klamath Falls water attorney Bill Ganong, currently continuing work on the 'takings' case, is planning to retire by the end of 2017.

Ganong will celebrate 100 years of his family practicing law in June.

 “My intent is not to renew my license in 2017,” Ganong said. “That's my intent, we'll see what happens,” he added with a laugh. "I will not practice in 2018.”

Ganong plans to travel to Washington, D.C., to hear oral arguments from both the plaintiffs and defendants in the case at the U.S. Court of Federal Claims, planned for May 9.

Ganong has worked on the case since it began in 2001.



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