Farm Bureau urges court to hear Klamath water case

California Farm Bureau Ag Alert by Dave Kranz, April 22, 2020

Writing on behalf of Klamath Project farmers, the American Farm Bureau Federation and 12 Western state Farm Bureaus urged the U.S. Supreme Court to hear a case stemming from the 2001 shutoff of irrigation water along the California-Oregon border.

In a brief filed with the court last week, Farm Bureau said the federal government overstepped its authority in cutting off Klamath Project irrigation water, that the action was a taking of the irrigators' property rights and that irrigators should be compensated for that taking.

The case, known as Baley v. United States, was filed 19 years ago, after the U.S. Bureau of Reclamation reallocated water in the Klamath Basin to benefit protected fish. In 2017, a trial court ruled against the irrigators. Last November, an appellate court declined to overturn the ruling. Earlier this year, the irrigators asked the Supreme Court to review the case.

The Farm Bureau brief says the earlier decisions in the case, if allowed to stand, "would upend farmers' and ranchers' settled reliance interests on state-law determinations of water rights" and would lead to an "unprecedented power grab by federal agencies over State-administered water resources."

The Bureau of Reclamation's action to cut off project water, the brief said, ignored state systems that define water rights by granting priority to earlier-in-time rights.

"By allowing the Bureau of Reclamation to curtail water rights without consideration of users' respective priorities, the Federal Circuit broke with more than a century of Western water law," the Farm Bureau brief said.

In addition, the brief said, affected farmers "are entitled to compensation for the taking of their water rights and the resulting refusal to deliver water in 2001."

In its argument, Farm Bureau made the distinction between farmers' right to use water and their right to receive a delivery of Klamath River water from the federal project.

If the Klamath irrigators are correct that their use rights were improperly curtailed, Farm Bureau said, "they are entitled to compensation for the taking of those rights—even supposing their contracts with the government authorized the government not to deliver water under the circumstances."

Farm Bureau emphasized the question raised in the Klamath farmers' lawsuit "is not a mere abstraction."

"Under the rule announced by the (appeals court), farmers and ranchers in the arid West operate under the constant threat that federal bureaucrats will unilaterally override their water rights in service of federal interests once more, just as they did in 2001," the brief said, adding that "the stakes for farmers and ranchers thus could not be higher."

In conclusion, Farm Bureau said the Klamath case represented a clear example of a government taking, and urged the Supreme Court to hear the case.

"Without just compensation for such takings, farmers would be profoundly discouraged from making productive investments in agriculture," Farm Bureau said.

The "friend of the court" brief on behalf of the Klamath irrigators came from AFBF and the California and Oregon Farm Bureaus, as well as state Farm Bureaus in Arizona, Colorado, Idaho, Hawaii, Montana, Nevada, New Mexico, Utah, Washington and Wyoming.

(Dave Kranz is editor of Ag Alert. He may be contacted at dkranz@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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