KLAMATH FALLS, Ore. — Agricultural producers in the Klamath
Project have taken the water “takings” case to the highest court
in the land.
The case, titled Baley v. United States, was filed 19 years ago
when the U.S. Bureau of Reclamation re-allocated irrigation
water to threatened and endangered species. A favorable outcome
would mean upwards of $30 million collectively in compensation
for irrigators named in the case.
Somach Simmons & Dunn from Sacramento, along with Timothy Bishop
of the law firm Mayer Brown, filed a petition on the decision
related to the class action case with the U.S. Supreme Court on
Friday.
Bishop has successfully pursued cases before the Supreme Court
regarding Endangered Species Act and Clean Water Act on behalf
of regulated businesses and agencies, according to a news
release.
In essence, producers asked the United States Supreme Court to
review decisions denying their claims that their water rights
were illegally taken in 2001 under the ESA, according to a news
release from Klamath Water Users Association on Friday
afternoon.
"The Baley lawsuit relies on the fact that rights to use water
are property rights owned by landowners," said Klamath Falls
attorney Nathan Ratliff, who has coordinated efforts for the
plaintiffs in the case. "The Fifth Amendment to the U.S.
Constitution requires that the government provide just
compensation for any taking of private property."
The petition to the Supreme Court argues that the lower federal
courts have misunderstood and misapplied the basic principles of
western water law, according to the news release.
"The Supreme Court is not required to hear the case at all, but
we believe it should understand that these are issues of broad
importance that it should address," said Mike Byrne, a Modoc
County rancher.
In April of 2001, Reclamation announced that there would be no
irrigation water for water users who rely on water from Upper
Klamath Lake and the Klamath River for crop production.
Reclamation had received biological opinions from the National
Marine Fisheries Service and the U.S. Fish and Wildlife Service
that stated that all water in the system had to go to coho
salmon and suckers protected by the federal ESA.
The controversial decision caused severe local hardship, and it
received international attention. The lawsuit has a long
history, including prior appeals and a request by federal courts
that the Oregon Supreme Court clarify important issues of Oregon
water law.
The Oregon Supreme Court held a hearing in Klamath Falls in 2009
and issued a ruling supporting the irrigators' position that the
original trial court had misinterpreted state law.
That ruling revived the case and returned it to the federal
courts, according to the news release. Ultimately, after a
two-week trial in 2017, which was attended and reported on by
Herald and News, U.S. Court of Federal Claims Judge Marian Blank
Horn concluded that un-adjudicated, senior tribal in-stream
water rights must be at least as great as the ESA-based Klamath
River flows and lake elevations.
Therefore the water users did not have the right to the water
under the western prior appropriation doctrine. Last fall, the
U.S. Court of Appeals for the Federal Circuit affirmed the
ruling.
"This ruling was a disappointment, to say the least," said
Luther Horsley, in a news release.
Horsley attended the 2017 trial and 2019 appeal argument.
"But we've been down before in this case and bounced back, and
it's too important to walk away now,” Horsley said.
In a 2017 interview, Klamath Tribes Chairman Don Gentry called
the decision in the 2017 trial "another positive step towards
the healing and restoration of our tribal treaty fisheries.
"We certainly have confidence that the decision in both the
district court and the D.C. Court of Appeals reached," said Jay
Weiner, special water counsel for the Klamath Tribes.
"We've just received the petition and so we're still reviewing
it," Weiner added. "We don't think there's basis for overturning
it."
It is expected that the U.S. Supreme Court will decide in June
whether to take the case, according to a news release.
Simmons also serves as executive director of Klamath Water Users
Association.
“Water Users really doesn't have any standing in the case,”
Simmons said. “It's individual's property rights.”
Simmons said the U.S. Supreme Court reviews a small percentage
of cases.
.“They have to be convinced it's important,” Simmons said.
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