, Klamath Basin irrigator Ed Baley and crowd watching Marzulla takings hearing at 7am in Klamath Falls

Do the Klamath Irrigators have rights to the stored water in the Klamath Reclamation Project, a storage that they paid for in full? According to the irrigators’ deeds, land owners and their heirs forever have water rights apportioned to their land; does this constitute a property right under the fifth amendment? Can it be sold?

U.S. District Judge Francis M. Allegra via teleconference

These are some of the questions asked by U.S. District Judge Francis M. Allegra on March 30th in a federal claims court in Washington D.C. while dozens of interested people viewed the Marzulla takings case live in the OIT college union. After water was withheld from Klamath farms in 2001, irrigators filed a takings lawsuit against the federal government for taking their water: water stored with the specific purpose of irrigation. This stored water would not have been available for any uses before the project was built.

Roger Marzulla, attorney for the Klamath Irrigators, told Judge Allegra about Tulelake homesteaders Fred and Velma Robison. With the Klamath Reclamation Act, Robison’s water priority goes back to 1905 when Congress decided to build a reclamation project to settle the West and create small family farms to feed the nation. Water from the previous Tule Lake was rerouted into ditches, Klamath Lake for storage, reservoirs for evaporation, and down the Klamath River so land could be farmed. This project is one of the most efficient in the United States.

Documents state that after living on their land for a specified time and paying for construction of the Klamath Project, the homesteaders would be given a deed to their land. Until the time the cost was paid, the U.S. government held a "lien on the land patented or for which water right is certified, together with all rights appurtenant or belonging thereto". Marzulla argued the government could not put a lien on the land or water if it is not considered ‘property.’ And why would they build irrigation storage, require farmers to pay for it with the promise of water rights "for his heirs and assigns forever", then not acknowledge that right. Go HERE for ORIGINAL DEED.

Marzulla continued that water which was put into Upper Klamath Lake was for irrigation use only: irrigation of small family farms, many that historically were under water. He cited several similar court cases and said many western states have the same laws and rights. Even "the biological opinion says irrigators have water rights."

Justice Department attorney Kristine Tardiff representing the U.S. told Judge Allegra that irrigators expected water every year. It’s a "contractual defined expectancy". She contended that there is no ownership of water like there is with land, and people can not sell or transfer their water.

It was the Department of Justice and Bureau of Indian Affairs who hired Dr Hardy to create science to shut down the Klamath Project. This ‘science’ was not open to peer review by irrigators or any objective sources, and it was later found ‘flawed’ by the National Research Council.

Marzulla brought up that each year since 2003, U.S. has bought a substantial amount of water, this year 100,000 acre feet. If irrigators did not own something, the U.S. would not be buying water from them.

Attorney for intervener Pacific Coast Federation of Fishermen's Associations said that Endangered Species Act rights trump private water rights.

James Ottoman, descendent of Czech families who settled Malin in 1909, attended the teleconference. His family was named National Farm Family of the Year in 1975. In 2001, when water was withheld from 1400 family farms, he was one of the statistics. He lost his farm along with several other long-time settlers.

"I still have concern how they made the decision to take our water away. It was wrong, but it was planned," said Malin farmer Ellen Crawford. Since the 2001 water shut-off, the court ruled that the coho listing was illegal, and the National Research Council said that the water shut-off was ‘unjustified’.

Steve Kandra, Klamath Water Users President, said it was gratifying that people in the Klamath Basin could participate in this hearing. He complimented Judge Allegra on his pledge to come to a conclusion expeditiously.

Questions still remain. Do the deeds and patents issued by the United States of America to settlers and their heirs, many of whom were veterans, mean what they say? Are these documents promising water rights with farmers’ lands fictitious? How can contracts between our President and our War Veterans now be overruled by a 1973 Endangered Species Act? And can the United States government take deeded water from family farmers and not be required to pay for it?

It’s up to Judge Allegra..