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Water takings suits land in federal claims court

Tam Moore, Oregon Staff Writer, Capital Press 12/2/05

The little-known U.S. Court of Federal Claims is getting a docket full of Western water cases. It’s the court that in 2001 found for Tulare Lake Basin Water Storage District, bringing a $16.7 million settlement payment last December.

Fourteen Klamath Basin irrigation and drainage districts that earlier this year lost a plea for damages over the 2001 cutoff of federal irrigation water are asking Judge Francis Allegra to let the case go to the U.S. Court of Appeals. The cutoff came in a droughty year after U.S. Bureau of Reclamation decided it had to reserve Upper Klamath Lake water as habitat for three fish under Endangered Species Act protection.

Roger Marzulla, attorney for the Klamath farmers, details this case and others in the November issue of The Water Report, a journal on Western water issues published in Eugene, Ore. His article is on the Internet at www.thewaterreport.com under “current issue.”

Marzulla says in the $500 million claim filed by Stockton East Water District and Central San Joaquin Water Conservation District, the court holds oral arguments Dec. 19. Its chambers are in Washington, D.C., although judges sometimes come West to hear part of the cases.

The Stockton issue turns on a BuRec 1993 decision to a 155,000-acre-foot-a-year contract for delivery from the New Melones unit of its Central Valley Project. BuRec contended that new laws and the ESA required habitat.

A BuRec contract made in 1958 is the basis for the third case, brought by Casitas Municipal Water District in California’s Ventura County. It operates the Ventura River Project and claims BuRec made delivery contingent on district construction of a $9.3 million fish diversion for ESA-protected steelhead and dedicated flows to fish habitat. Marzulla said he expects that case to be tried sometime in 2006.

Allegra, when denying the major claim from Klamath irrigators, said he believed the Tulare facts didn’t match the Klamath situation. Judge John Wiese, who decided Tulare, boiled it down to the federal government has a right to protect fish and “It must simply pay for the water it takes to do so.”

Tam Moore is based in Medford, Ore. His e-mail address is tmoore@capitalpress.com .



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