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If they can't have their water, farmers want cash

Two cases will decide what happens when government doesn't deliver


WASHINGTON Two courts. Dozens of California farmers. Millions of dollars in the balance.

For Central Valley irrigated agriculture, the judicial soil is well prepared. In two cases now coming front and center, federal judges and the Justice Department confront some serious questions whose common ground is water.

Specifically: What does the federal government owe valley farmers when promised water is not delivered? A lot, some say.

"Water is property," Tracy Republican Richard Pombo, chairman of the House Resources Committee, said Wednesday. "If the water is being taken for a public purpose, namely saving endangered species, those property owners should be compensated."

In one case, lawyers representing two dozen Westlands Water District farmers are filing their legal arguments in the Supreme Court. The farmers contend the federal Bureau of Reclamation broke its 1963 contract for water deliveries, and they want money in return.

"They've had to fight, unfortunately, their own government tooth and nail, from day one," William Smiland, a Los Angeles-based attorney for the Westlands farmers, said Wednesday. "They've had their water cut off, and the price doubled."

Smiland added that "many millions of dollars" are at stake in the case.

First, though, the farmers must clear an imposing hurdle. The 9th U.S. Circuit Court of Appeals ruled the individual farmers could not sue because they were only an "incidental" part of a contract signed by the water district. The Bush administration agrees, noting that the Westlands Water District itself backed out of its own lawsuit in 1995.

"Although the contract contemplated that irrigators such as (the farmers) would benefit from the contract, the contract did not express an intent, explicitly or implicitly, to confer any contractual rights on the irrigators," Acting Solicitor General Paul Vincent advised the court.

In other words: The farmers may be using the water, but it's only the irrigation district that can sue.

"It's simply a question of whether they can even get through the courthouse door," Smiland said of the farmers, who are led by Francis Orff.

The Supreme Court could hear oral arguments in the case by February, with environmental groups backing the government. Water not delivered to the farmers has helped restore the crucial SacramentoSan Joaquin Delta.

"By the 1980s, after more than a half-century of massive federal and state water diversions, the Central Valley's natural environment was under considerable stress," the Natural Resources Defense Council noted in an earlier legal brief.

But while the Bush administration is fighting farmers with one hand, with another it's weighing a big-time settlement.

In a separate case involving water-short farmers in Tulare and Kern counties, the Justice Department is considering a federal court's order to pay a bill exceeding $25 million.

"I have heard they are getting close to a settlement," Pombo said.

Court backs farmers

The Corcoran-based Tulare Lake Basin Water Storage District, Kern County Water Agency and three others sued the federal government for its decisions, though it was the State Water Project that failed to de-liver the water.

The Court of Claims agreed the failure to deliver irrigation water amounted to a taking of the Tulare farmers' property.

The water diversions helped protect the threatened delta smelt and endangered winter-run chinook salmon from the government's delta pumping plants. However, Judge John Paul Wiese said the lost water cost the farmers $13.9 million, plus some $9.8 million in interest accumulated over the years.

Since then, farmers and the Justice Department have fought over additional costs and attorney fees that farmers peg at about $2.1 million. If a final settlement is imminent, as some on Capitol Hill believe, it will attract close attention as a precedent-setting move.

"It's the first time we're aware of that the federal government has been directed under the Endangered Species Act to pay claims," Justice Department attorney Fred Disheroon told the Land Letter report earlier this year.

Bee Washington Bureau reporter Michael Doyle can be reached at 202-383-0006, or mdoyle@mcclatchydc.com.


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