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Federal judge turns down case by Klamath River water users
By William McCall The Associated Press Published: Thursday, September 1, 2005, the Register Guard

PORTLAND - A federal judge on Wednesday rejected a $100 million claim by Klamath River Basin irrigators who argued that the government owed them compensation for water diverted from agriculture in 2001 to protect salmon.

U.S. Court of Federal Claims Judge Francis Allegra called the claim "unrealistic" and a "fantasy" in a 52-page opinion issued in Washington, D.C.

He said the irrigators had no property rights to the water, rejecting their argument that diverting it for salmon amounted to an unconstitutional "taking" of private property by the government.

"This ruling is important because it rejects a pretty extreme view of property rights and water law," said Todd True, an attorney for Earthjustice, an environmental law firm involved in the case.

Roger Marzulla, the attorney for the association, which represents about two dozen irrigators, said an appeal was likely.

"What's wrong with this decision is it reverses 100 years of reclamation law," Marzulla said.

He said the ruling gives the federal government "absolute authority and control over all irrigation in the West" - control that is "a very scary prospect for farmers."

One of the farmers leading the battle also called it a bad decision.

"I would give you a bigger perspective that it is bad for America when citizens are deprived of the ability to make a living," said Lynn Long, a member of the Klamath Water Users Association board of directors.

He said courts have been too liberal in interpreting property rights laws, causing problems for farmers and areas of the country that rely heavily on agriculture.

"We don't have a water crisis in America, we have a judicial crisis," Long said.

True, however, said the ruling reflects a more mainstream legal view about property rights.

"Water is a resource that has to be shared and does not belong to one group," True said. "And there has to be a fair balance about how it's used."

Deciding how to manage and allocate water has been a difficult problem in the Klamath Basin ever since the Klamath Project to reclaim farmland was first authorized by Congress in 1905.

The U.S. Bureau of Reclamation must balance the needs of endangered sucker fish in Upper Klamath Lake and threatened coho salmon in the Klamath River with more than 1,000 farms in the Klamath Reclamation District, a sprawling area that lies in the dry highlands east of the Cascade Range along the California border.

Allegra ruled that fishermen and American Indian tribes also had to be considered by federal water managers, along with fish and wildlife - key arguments by the government and the Pacific Coast Federation of Fishermen's Associations, which was allowed to intervene in the case and represented by Earthjustice.

The federation and Earthjustice also argued that requiring payment for water used to protect threatened or endangered species could undermine the Endangered Species Act by making it too costly to enforce.

Allegra said the irrigators may have a contractual claim to the water, but suggested the case was weak.

The Klamath water users originally claimed that irrigators were owed $1 billion in compensation for the diversions that sent about a third of their allotted water to help threatened coho salmon in 2001. The association later reduced that claim to $100 million




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