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Our Klamath Basin Water Crisis
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Court reinstates irrigators' lawsuit

Water shut off suit to be reheard

By LEE JUILLERAT Herald and news 2/18/11

A lawsuit filed by Klamath Basin irrigators against the U.S. government for withholding irrigation water in 2001 has been sent back to the U.S. Court of Claims in Washington, D.C., for rehearing.

The U. S. Court of Appeals Wednesday sent the case filed by 14 Klamath Basin water, drainage and irrigation districts and 13 Basin agricultural landowners to Claims Court Judge Francis Allegra.

Bill Ganong, a Klamath Falls attorney and one of the attorneys representing the plaintiffs, said the order is unusual because it directs the court how it should proceed in making its decision.

"I've never seen an appellate court do this before," Ganong said. "It lays it right out for the judge."

At question, he said, are whether farmers have a private property right in the use of the water and, if so, whether they are entitled to compensation for the loss of water in 2001.

The Claims Court previously ruled against the irrigators.

The districts appealed to the U.S. Court of Appeals for the Federal Circuit, which sent it to Oregon Supreme Court for clarifications of issues of state law before returning it to the Court of Appeals.

Ganong said the Court of Appeals ruling gives farmers hope that they may be compensated for damages suffered in 2001 and other years when water supplies were limited, including 2010.

If rulings - which could take years to litigate - favor farmers, he said, it could affect water management.

"It gives hope again and gives strength to the voice of the farmers on how water in the Klamath Basin will be used," Ganong said. "If (the federal government) takes irrigation water for other uses it will have to pay the farmer fair market value. That will have a significant impact on how water is managed. It will help balance the scales against the Endangered Species Act. They won't be able to take it, they'll have to buy it."

The case stems from the 2001 decision by the U.S. Bureau of Reclamation to cut off irrigation water supplies to 220,000 acres of Klamath Basin irrigable crop lands to provide limited water from the Upper Klamath Basin to protect one threatened fish species and two endangered species. Water deliveries were halted from April through July 2001, when some water was released.

Ganong said the Claims Court would have a scheduling conference to establish timelines for further court proceedings.

"I expect a lot could happen this year," he said, including possible appeals of future rulings, which could take years.

If farmers eventually receive a favorable decision, Ganong said they would be eligible for compensation for the value of lost water, with compounded interest, and attorney fees. Ganong said more than of $1 million has already been spent on litigation.