Dozens of organizations have urged the United States Supreme Court to accept review of decisions of lower Courts in the long-running “takings” lawsuit (formally Baley v. United States) concerning the re-allocation of Klamath Project irrigation water to endangered species in 2001.
A month ago, the plaintiffs in the lawsuit petitioned the Supreme Court to review the case, explaining that the lower courts had misunderstood and misapplied western water law and bypassed state authority over adjudication and administration of water rights. April 16 was the deadline for “friend of the court” briefs from parties who agree that the Court should accept the case for review.
“The consistent theme of these briefs is that the case is important throughout the western United States,” say Klamath Water Users Association (KWUA) Executive Director and Counsel, whose law firm filed the petition for review along with Supreme Court expert Tim Bishop from Chicago.
The case was filed in late 2001, the year there was an announcement that no water would be available for Klamath Project irrigation from Upper Klamath Lake. The plaintiffs claim that if the water is taken under the Endangered Species Act, the fifth amendment of the U.S. Constitution requires payment of compensation for the water right, a form of property, that has been taken.
Last November, a federal appeals court ruled that the dedication of irrigation water to suckers in Upper Klamath Lake and coho salmon in the Klamath River did not take irrigators’ water rights because there were superior tribal water rights to water in at least amounts to the water provided under the Endangered Species Act.
“It’s not surprising that water organizations from Washington to New Mexico showed up to say this is not the way water law works,” said KWUA President and farmer Tricia Hill. The Oregon Water Resources Congress led a briefing effort joined by the Klamath Falls-based Family Farm Alliance, the National Water Resources Association and many water groups. “They’ve done a great job of explaining how state water adjudication and regulation was bypassed in the decision.” The Association of California Water Agencies, whose members deliver 90 percent of the water used by cities and farms in California, also chimed in, championing the need to protect water stored in reservoirs for authorized purposes.
Local farm crop protection company businessman Bob Gasser said that there was strong regional support for the water users’ petition. “Klamath County, Siskiyou County, and Modoc County all joined in to say the Court needs to step in and set things straight, and that is appreciated.” Gasser also noted that many producers upstream of Upper Klamath, outside the Klamath Project, joined in that brief, which was filed by Pacific Legal Foundation and Roseburg attorney Dominic Carollo. “The folks up there have big problems of their own, and they stood up for western water principals and the Project in their filing,” said Gasser.
Farm and ranch organizations also weighed in. “When you have the American Farm Bureau, a national organization, step up, that’s a big deal,” according to KWUA Vice President and farmer Ben DuVal. DuVal said that state farm bureaus across the west, also joined the filing. “We appreciate the California and Oregon Farm Bureaus bringing this to the national organization and to states from Washington to Arizona to Hawaii, as well as state cattlemen’s associations who joined.”
The Supreme Court will decide whether to accept the case for review in June, after receiving a response from the federal government. If it accepts the case, further briefs and oral argument would occur later this year.