Will farmers harvest a legal take?

 

Note: This article is a sidebar to this issue's feature story.

Farmers in the Klamath Basin are not the first group of irrigators to lose their water to endangered fish. In the early 1990s, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service ordered California to shut down pumps that divert water to farmers in the Central Valley in order to protect chinook salmon and delta smelt.

"It was very infuriating," says Brent Graham of the Tulare Lake Basin water storage district.

In 1998, the 29 affected irrigation districts sued the federal government, claiming that it unfairly took $25 million worth of water. This spring, the farmers won. A federal judge ruled in May that the farmers are protected under the Fifth Amendment that prohibits the government from taking private property without paying for it.

Now, Klamath Basin farmers say this case sets a precedent, and they want to be paid for their losses. In mid-July, the Tulelake Irrigation District retained the lawyers who won the Tulare case to analyze the Klamath situation in preparation for a lawsuit.

"By taking our water they made our land useless," says Deb Crisp, a local rancher who works for the Tulelake Growers Association. "This lawsuit holds the Department of Interior and these out-of-control agencies accountable for the decisions they are making and the lives they are destroying."

According to the irrigators' lawyers, they could win over $1 billion.

"The similarities are striking between the Tulare case and the Klamath," says Bob Harrison of Defenders of Private Property Rights, the law firm looking into the case. "We have a fair degree of confidence that what the court established in Tulare will be repeated for the Klamath."

Not everyone agrees. Janet Neuman at the Lewis and Clark Law School says the Tulare case has intricacies that may not apply to the Klamath. For starters, the Tulare Lake case only succeeded in proving that the landowners' property was taken by very narrowly defining the property right, she says. That means that decision may not be broad enough to set a precedent for Klamath farmers, who have a history of losing to the Endangered Species Act. Twice in the past year, Klamath farmers have sued the federal government to try to receive their water delivery from the Bureau of Reclamation. In each case, the judge found that the farmers' water right was subservient to the Endangered Species Act.

"The Tulare case is the only one that has gone the other way," Neuman says. "It could be a fluke, but it could also be a warning bell that this thing is far from resolved."

The Klamath Basin farmers plan to file an intent to sue this month.

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