Supreme Court in Klamath

Herald and News by Ty Beaver, 5/14/09

From left, Justice Martha Lee Walters, Chief Justice Paul DeMuniz and Justice Robert Durham, all of the Oregon Supreme Court, listen to oral arguments Wednesday. State high court hears arguments, answers questions Court asked to help interpret water law By TY BEAVER H&N Staff Writer May 14, 2009 Attorneys representing local water users, the federal government and coastal fishermen argued before the Oregon Supreme Court Wednesday in a case stemming from the 2001 Klamath Basin water crisis.

Those arguments were made on a basketball court rather than in a courtroom.

Six of seven justices from the Oregon Supreme Court convened at Klamath Union High School’s Pelican Court to begin answering questions for the U.S. Court of Appeals about whether Basin water users could sue the federal government for the taking of irrigation water without just compensation.

The justices did not make a decision afterward. It likely will be up to six months, if not longer, before the court sends its opinion to the federal court.

H&N photos by Ty Beaver - Klamath County commissioners Al Switzer and John Elliott, top, listen during a hearing of the Oregon Supreme Court at Klamath Union High School Wednesday with other community members. Klamath Falls attorney Bill Ganong, and other lawyers representing water users and those impacted by the water shutoff, filed a lawsuit shortly after water was restored in fall 2001.

The lawsuit remained in civil court proceedings for years before a judge ruled the water users didn’t have standing to file the suit.

That decision was appealed to the U.S. Court of Appeals, whose judges asked the state court to weigh in on a number of questions about Oregon water law.

Ganong told the court the issue is whether water users have a property right based on various state and federal acts and contracts with the U.S. Bureau of Reclamation’s Klamath Reclamation Project.

Justices asked him to specify how documents and common law fulfill that argument and whether water was appropriated by the state or federal governments at any other time.

Attorney David Shilton of the U.S. Department of Justice argued against the possibility water users have a property right regarding water, saying the relationship between the federal government and water users is based on contracts through which they’ve already attempted legal action.

Appropriate label

Justices asked what the appropriate label for water users’ rights was based on Shilton’s argument, and what then prevented the federal government from arbitrarily cutting off water supplies.

A representative of the Oregon Water Resources Department also testified. The department earlier encouraged the court not to get involved because it would interrupt the Klamath Basin water adjudication process.

But Stiffler told the court that if it does become involved, the department is of the opinion that the water users do have a viable interest regarding the case.

H&N photo by Ty Beaver - Justices of the Oregon Supreme Court listen to oral arguments by a federal attorney Wednesday at Klamath Union High School’s Pelican Court.

Side Bars

Justices take students’ questions

Part of the reason the Oregon Supreme Court holds hearings across the state about twice a year is to interact with the public, especially students. Following are some of the questions asked by students in between cases Wednesday.

Q: What is the next step in this case involving the water users?

A: Justice Robert D. Durham said the court’s role in the case was unique. Instead of making a ruling, the court will answer questions on state law to help another court make a ruling.

The justices of the court will meet and take a tentative vote on how to answer the questions. A justice will then be assigned to draft a brief that all the justices will review and then edit and debate. After a final opinion is written, it will be given to the court requesting it and also made available to the public online.

Q: Before hearing this case, did you know much about Southern Oregon issues and has it helped?

A: Gillette said it’s not uncommon for the court to hear cases of which it has no previous information. The court didn’t know anything specific about issues in Southern Oregon, but its members had heard news reports.

“It would be difficult to live in Oregon and not be aware of the issues in the Klamath Basin,” he said.

Supreme Court road trips

Oregon Supreme Court Chief Justice Paul DeMuniz says it’s not every day the court gets to hear a case in front of the crowd it will impact.

Those attending Wednesday’s hearing at Klamath Union High School’s Pelican Court said it was beneficial to have the hearing in Klamath Falls.

“We felt good about having the opportunity for citizens to see the court in action,” the chief justice said.

DeMuniz said the court tries to handle cases of local interest when it travels around the state.

“It’s very difficult. This was a unique circumstance,” he said.

Greg Addington, executive director of Klamath Water Users Association, and Hollie Cannon, executive director of Klamath Water and Power Agency, said it was great an issue of such great importance locally was being heard in Klamath Falls. Another spectator was just glad the court was in Klamath Falls.

“It doesn’t matter what the issue is as long as they’re here,” said Bill Kenney, Poe Valley irrigator.