Takings case moves to
Washington, D.Cl, venue
Basin farmers seeking $30 million in
by Holly Dillemuth, Herald and News 1/20/17
Klamath Basin irrigators are taking their
case to a higher court.
A historic case on the ramifications of a
major water shutoff to Klamath Reclamation
Project irrigators in 2001 will be heard at
trial from local farmers or their attorneys
starting Monday, Jan. 30 in Washington, D.C.
Local water attorney Bill Ganong, who is
among the first of the local group to board
a flight out of Klamath Falls on Jan. 26 for
the trip, has been anticipating it for more
than a decade. Ganong serves as special
counsel for the more than 20 who will
testify during the hearing, which could last
up to three weeks.
“It’s been a long journey,” Ganong said at
his law office downtown last week.“We were
planning on it at about 2005.”
The journey will take the local group to
Washington, D.C. to share testimony in what
is being called the “takings” case at the
U.S. Federal Court of Claims. The trial
begins with testimony from area irrigators
about the impact of the 2001 water shutoff
to their operations.
In April 2001, U.S. Fish & Wildlife Services
and National Marine Fisheries Service issued
biological opinions declaring that water
diverted from Upper Klamath Lake by Klamath
Project irrigators would endanger suckers
and coho salmon, citing the Endangered
“The agencies cannot say, ‘Don’t do it,’”
Ganong said. “They can just say, ‘If you do
it, here’s what’s going to happen. And then
the law says, no U.S. person can allow that
The 2001 water shutoff decision prompted the
historic Klamath Bucket Brigade, a protest
that drew widespread attention to the
Klamath Basin. On May 7, 2001, thousands of
people gathered in downtown Klamath Falls,
forming a line from Lake Ewauna in Veterans
Memorial Park, up Main Street, to the A
Canal bridge at Crater Lake Parkway and
Esplanade Avenue, to drop 50 buckets of
water — one for each state in the U.S. —
into the canal.
“It was a statement and it worked,” Ganong
said. “It was national, live television.”
Irrigation water remained shut off to Basin
farmers between April and July 2001,
available only at minimum levels for stock
“It bankrupted a lot of people or
financially put them in a position where
they had to sell or go find a different
trade or a different occupation,” Ganong
Now, Klamath Basin irrigators will get their
day in court.
“All of them have a story,” Ganong said.
Those attending from Klamath Falls and the
surrounding areas hope to utilize their time
in the nation’s capital to also meet with
the Oregon congressional delegation, Sens.
Jeff Merkley and Ron Wyden, and congressman
“The people who are going back, some of them
are just giddy almost,” Ganong said.
“They’ve been waiting so long and to finally
have it come to trial … it’s a big deal.
It’s just a big deal.”
A long time coming, ‘too late’ for some
But not everyone can make the trip.
“We had to go through a process to add some
witnesses who we hadn’t identified before,
because some of our original people we
identified have passed away or have medical
or age-related issues that prevent them from
traveling,” Ganong said.
“We’ve just lost a lot of people in the ag
community,” Ganong added.
“It’s taken so long for these people to get
to this point and hopefully compensated for
what they lost. For many of them, it’s
almost symbolic now.”
Ganong said farmers could expect to see a
total $28 million to $30 million if a
decision is handed down in their favor.
But he alluded to a favorable outcome for
farmers being more than financial.
“Almost all of the farmers going back —
maybe all of them — they’re third- or
fourth-generation on the same farm,” Ganong
said. “It is in their DNA.”
A long and difficult road
Ganong detailed a lengthy history of the
case, which passed through the hands of two
previous judges, and now is now in the hands
of a third.
“The first judge for approximately four or
five years, apparently had some medical
conditions that interfered with her ability
to perform her job as a judge,” Ganong said.
“So the case got filed and it literally, it
just sat. Nothing really happened for … it
seems like it was four years.”
Stopping to recall the name of the judge, he
“It’s been too long,” Ganong said.
The judge retired and the case was assigned
to the late Francis Allegra.
“In the course of the next few years, there
was a lot that took place, most of it in
writing motions,” Ganong said.
Ganong said Allegra dismissed the claims
that said, one, the U.S. government took
property from farmers, and two, that farmers
were protected under the Klamath Compact.
“He ultimately decided that we didn’t have a
case so he dismissed it,” Ganong said.
“In his opinion, the United States owned the
water and could do whatever it wanted with
it. He found it in their favor.”
An appeal to Allegra’s decision was made,
and over the course of time, the case was
handled by the U.S. Court of Appeals with
assistance from the Oregon Supreme Court.
“That court started looking at our appeal
and decided they had some questions of how
Oregon law applied to this case so they then
referred it to the Oregon Supreme Court and
that was about a two-year detour,” Ganong
said. “The Oregon Supreme Court ruling was
very favorable to us.”
The Oregon Supreme Court ruled that the
water from the Klamath Basin was property,
and that it was taken from farmers.
The court landed back in the hands of
Allegra, who died in 2015.
The “takings” case has been with Judge
Marian Horn since, who set a firm court date
in the face of requests to continue the case
“She took the bull by the horns,” Ganong
Ganong is hopeful of a favorable outcome for
“If we prevail, then going forward, the
federal government will have to weigh the
cost of the decisions it makes on endangered
species and other federal laws,” Ganong
“They haven’t had to at least consider
financially the impact on the community when
they withhold water or delay the delivery of
water and this will turn that around.
“This will not change the law,” he
emphasized. “The United States has a duty to
do whatever is necessary to prevent the
extinction or loss of threatening endangered
species, including taking water, including
taking land, including taking logging.
“What this will do is cause the United
States to pay private property owners for
the loss of their water or their land or
their ability to harvest timber. And it
could be an enormous amount of money.”
The Taking case is based on three
One, a claim that the taking of
Klamath Basin water was a breach of
contract between the United States
and irrigation districts;
Two, a claim for the taking of water
as property, also known as reverse
Three, a claim under the Klamath
Compact, an agreement made between
Oregon and California, and then
ratified by Congress that provided
water from the Upper Klamath Basin
will remain here and be available to
“Under the Fifth Amendment, the United
States can't take your property unless
they pay you for it,” said local water
attorney Bill Ganong.
In the 1950s, Ganong said there was a
push for exporting water from the
Klamath Basin to the Central Valley in
“That then led to local irrigators in
the state of Oregon getting pretty
concerned about making sure the water
stayed here,” Ganong said. “And that led
to the Klamath Compact. And the Klamath
Compact has language similar to the
Fifth Amendment that says the United
States cannot take the water unless they
Irrigation districts, bureau
Representatives from the following
irrigation districts will attend the
hearing at the U.S Federal Court of
Claims: Midland District Improvement
Company, Malin Irrigation District,
Klamath Irrigation District, Shasta View
Irrigation District, Klamath Drainage
District, Westside Improvement District
(Merrill), Klamath Hills Improvement
District, and Enterprise Irrigation
In addition, representatives from
Tulelake, Malin, and Klamath Falls will
share testimonies. Representatives from
the U.S. Bureau of Reclamation Klamath
Basin Area Office may also testify.
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