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A canal headgates

Water flows from the headgates of the A Canal.

After nearly two decades, the takings case stemming from the water shutoff to the Klamath Reclamation Project in 2001 is closed.

The U.S. Supreme Court made the announcement on Monday that it has denied a petition to review a lower federal court’s decision that ruled that Project irrigators of about 175,000 acres on the Oregon and California border are not entitled to compensation for the re-allocation of water under the Endangered Species Act in 2001. The case was one of 75 cases denied review in the same day.

The ‘takings’ case — Baley vs. United States — was filed in the U.S. Court of Claims in the fall of 2001 and sought about $30 million in compensation. A trial was held in January and February 2017, and resulted in a decision that was later appealed in the U.S. Court of Appeals. In 2019, the U.S. Court of Appeals for the Federal Circuit agreed with the trial court that the plaintiffs weren’t entitled to compensation due to senior tribal rights for lake levels and flows under the Endangered Species Act. The trial court deemed that no property was taken.

The case arose after Bureau of Reclamation precluded water deliveries in order to maintain water elevations in Upper Klamath Lake for sucker species in Upper Klamath Lake that are listed as endangered and provide flows for coho salmon in the Klamath River, according to a news release.

The water users, plaintiffs in the case, asserted that because water rights are property under state law, the federal government was required, under the Fifth Amendment to the U.S. Constitution, to pay compensation for taking the rights.

“It doesn’t mean that the Supreme Court agreed with the lower decision,” said Paul Simmons, executive director of Klamath Waters Users Association, whose firm also serves as counsel for the plaintiffs following the U.S. Court of Appeals decision. “It just means that the lower decision stands as is.”

Simmons said as far as the taking of water from the Klamath Project in 2001, the case is a “done deal.”

Simmons said statistically the odds are less than 2% that the U.S. Supreme Court will review a case, but that the lack of a review was “disappointing.”

“In our case, we had a lot of support from other parties who thought it should be reviewed,” Simmons said.

The petition for review to the Supreme Court focused on fundamental misunderstandings and misapplications of western water law by the federal courts, according to a news release, both of which are located in Washington, D.C. The following parties are among those that filed briefs in support of the case: Oregon Water Resources Congress, Family Farm Alliance, National Water Resources Association, Association of California Water Agencies, American Farm Bureau Federation and several state Farm Bureaus, the counties of Klamath, Modoc, and Siskiyou through Pacific Legal Foundation.

Brad Kirby, manager of the Tulelake Irrigation District, said he got “his hopes up” that the case would be reviewed.

“That just kind of came to a screeching halt this morning,” Kirby said. “It’s just shy of 20 years worth of time, effort, and investment by Project irrigators on a very, very major western water issue that just kind of feels like it just fell apart.”

Longtime water attorney Bill Ganong, who served as one of the attorneys on the case from March 2001 to early 2018, also expressed disappointment in the review denial.

“It’s hugely disappointing, the trial court decision and the court of appeals decision was disappointing,” Ganong told Herald and News. “So this was the last shot, either the Supreme Court accepts it or it’s dead. So now it’s dead and it’s the final answer. There is no tomorrow, on that case anyway.”

Ganong agreed that the odds weren’t high of the case being accepted for review.

“They get hundreds, if not thousands of petitions a year, and they physically are only able to take on … 50 or 75 (cases) a year,” Ganong said.

“It’s very difficult to get a petition that’s accepted,” Ganong added.

Ganong called the lack of a review an “odd outcome” and doesn’t know what it exactly means for western water.

“I guess time will have to figure that out,” Ganong said.

Simmons said there is no choice now but to move forward and focus on the Klamath Project having enough water.

“Right now, we focus on getting water,” Simmons said. “We want to have a better outcome in terms of water availability so you don’t have to worry about whether you’re entitled to compensation.”

The Klamath Tribes, which filed briefs in the case to assure tribal rights were recognized, see the lack of review by the Supreme Court as a “tremendous victory.”

The outcome is also seen as affirmation of the tribes’ senior water rights, as also affirmed by the 2019 decision by the U.S. Court of Appeals that declared The Klamath Tribes’ water rights include Upper Klamath Lake.

“We’re pleased to have this case put to rest and the seniority of the Klamath Tribes’ water rights recognized and reinforced,” said Tribal Chairman Don Gentry in a news release. “The courts in this case were correct about our treaty rights, which include protecting and sustaining the endangered C’waam and Koptu in Klamath Lake. We look forward to healing and restoring our tribal fisheries.”

John Echohawk, executive director of the Native American Rights Foundation, also praised the decision not to review the case at the U.S. Supreme Court level.

“We were proud to represent the Klamath Tribes through this 19-year litigation,” Echohawk said in a news release. “The law is very clear about the Klamath Tribes senior water rights in the region. The courts have been very clear as well. We are glad the courts reached the right outcome in this case and that tribal rights and sovereignty have been affirmed.”

To learn more about the case, go online at https://www.supremecourt.gov/orders/courtorders/062220zor_mjn0.pdf.