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 Farmers Lose Klamath Water Fight; Judge rejects most of a suit seeking $1 billion from the U.S. for virtually cutting off irrigation to protect fish during a drought

Los Angeles Times 9/1/05 by Eric Bailey, staff writer

SACRAMENTO A federal judge Wednesday rejected the major arguments of Klamath Basin farmers who sought $1 billion from the federal government after regulators virtually cut off irrigation water during a drought to protect endangered fish.

Environmentalists and fishermen who have been battling farmers over water in the sprawling agricultural basin on the California-Oregon border called the decision by Judge Francis M. Allegra of the U.S. Court of Claims a major victory.


"This is good news for the fishermen and families down river who have been largely shut out of this debate," said Todd True, an attorney for Earthjustice, an environmental law firm involved in the case.

Roger Marzulla, a Washington lawyer representing the Klamath irrigators, said the decision reversed a century of Western water law by handing over state rights "to a federal bureaucracy in Washington."

"It's a pretty scary prospect for all the Western states," Marzulla said, adding that "in a perverse way" the judge had done farmers a favor, offering up an opinion that "is so bad and so wrong it's a huge target for reversal on appeal."

The lawsuit stemmed from a federal decision during the drought-stricken summer of 2001 to shut off water to irrigators in the 220,000-acre basin, a move that undercut crops and sent some farmers skittering toward bankruptcy.

Federal officials said the action was necessary to protect endangered salmon in the Klamath River and two species of sucker fish in Upper Klamath Lake, the sprawling and shallow pool astride Klamath Falls, Ore., that serves as a headwaters to what was once one of America's greatest salmon populations.

Buffeted by criticism from farmers, U.S. officials eventually restored some of the water deliveries and, by some estimates, paid basin farmers about $40 million to offset the costs.

But the irrigators filed a lawsuit, emboldened in part by a court decision in 2001 to compensate farmers in California's Tulare Lake Basin because of water restrictions caused by endangered species concerns.

Officials at the U.S. Bureau of Reclamation, which operates the Klamath irrigation project, declined to comment on Allegra's decision.

Farmers and irrigation officials also said they would withhold any statements until they had studied the ruling, which came out Wednesday afternoon.

But environmentalists and fishermen said the judge had squarely sided with their argument that farmers do not hold a priority right to water in the river and lake needed to ensure that the endangered fish are not sent further toward extinction.

"This attempt to extort money from the federal government for making the right decision to put water in the river and protect endangered fish went nowhere, just as it should have," said Glen Spain of the Pacific Coast Federation of Fishermen's Associations.

The judge soundly rejected the most important arguments expressed by the farmers, who said they deserved compensation because their rights to the Klamath Basin waters amounted to a virtual ownership interest that had been unfairly seized from them.

Allegra called the property claim "rootless" and unrealistic and rejected some of the arguments as "fantasy." He also criticized the earlier Tulare Basin decision, saying that "with all due respect, Tulare appears to be wrong on some counts, incomplete in others."

The judge held open the door for further arguments by both sides on the legal debate over whether U.S. officials breached a contract duty to provide water to the farmers.

Allegra added, however, that the Klamath irrigators faced an "uphill battle" to prove that the federal Endangered Species Act was designed to undermine their contractual right to water from the U.S. government. #




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