Judge rejects property claim from irrigators

September 1, 2005

A federal judge says Klamath Basin irrigators don't have a property right to the water they use.

Judge Francis M. Allegra said Wednesday the irrigators may have a breach of contract case against the federal government for shutting off water supplies in 2001, but they don't have a takings case.

Irrigators had sought, first, $1 billion and, then, $100 million. They argued that the shutoff violated their Fifth Amendment rights.

That amendment says the government can't take property without compensating the owners.

"...this ruling may disappoint a number of individuals who have long invested effort and expense in developing their lands based upon the expectation that the waters of the Klamath Basin would continue to flow, uninterrupted, for irrigation," Allegra wrote.

It disappointed their lawyer.

"I've had better days," said Roger Marzulla of Washington, D.C. "What (the judge's opinion) finds is that Klamath Basin farmers have no right to the water.

"What the judge has said is the government can take water away from irrigators, and there is not a damn thing they or the state can do about it."

Marzulla represented 13 agricultural landowners and 14 water, drainage or irrigation districts.

He said he would like to appeal, but needs to talk to his clients first.

"This decision is so bad that the court of appeals will have to reverse it," he said.

Whether the federal government breached district contracts in 2001, Allegra wrote, is an issue that "must await another day."

Marzulla said he would rather pursue an appeal on the Fifth Amendment argument than argue the contract issue.

Allegra is a judge in the U.S. Court of Federal Claims, a part of the federal judiciary that deals in claims against the government, among other things. Like district courts, the first level of most federal cases, appeals of the rulings of the claims court are heard by the circuit courts of appeal and then by the U.S. Supreme Court.

"It looks like the court dismissed the case," said Glenn Spain, whose Pacific Coast Federation of Fishermen's Associations was a party to the case, on the side of the government.

Beyond that, Spain said, he wouldn't comment until today.

The water was shut off for much of the summer as a way of complying with the Endangered Species Act, which protects coho salmon and suckers. The shutoff prompted protests in the Klamath Basin and brought national attention.

Under the ruling, Marzulla said, irrigators will be at the whim of the federal government when it comes to water, and state laws don't apply. The federal government will have 100 percent control of the water.

In his ruling, Allegra said a federal court ruling for a California water storage district, called Tulare, wasn't a precedent for the Klamath case. Marzulla won the Tulare case, which involved the Endangered Species Act and cutbacks of irrigation water.