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Court to hear water case; Oregon Supreme Court to consider issues involving Klamath irrigators

by Steve Kadel, 1/30/09 Herald and News
The Oregon Supreme Court has agreed to decide th ree issues of state law that may det er m i ne whet her Klamath Project irrigators can receive compensation from the federal government for its refusal to release water to them in 2001.
The state court made t h e d e t e r m i n a t i o n Thursday.
   The case stems from a lawsuit filed in 2001 by Klamath Project irrigators. The class action suit involved 1,400 farm families and 13 water districts seeking $100 million against the U.S. for the taking of their water, according to the Marzulla law firm of Washington, D.C., which represents irrigators.
   The conflict arose when the Bureau of Reclamation kept water in Klamath La ke to help the endangered suckers.
   Court of Appeals
   The case is now on appeal to the Federal Circuit Court of Appeals in Washington, D.C. That court asked in July for the Oregon Supreme Court to decide whether Oregon law gives Klamath Basin farmers a property right in Klamath Project water.
   “This is great news for irrigators,” said Klamath Falls attorney Bill Ganong, who helped write the plaintiffs’ brief.
   “The long-term impact is that if we win, then when the federal government decides they need to take water — in this case for fish — they are going to have to pay for that water.”
   Nancie G. Marzulla, attorney for the farmers and irrigation districts, said in a press release that she was “very pleased” the Oregon Supreme Court agreed to decide whether Klamath water users have any property rights under Oregon law.
   Trial court
   She noted that a federal trial court dismissed the irrigators’ suit in 2007, say i n g t hat K la mat h farmers had no property right in Klamath Project water under Oregon law.
   “ We think the tr ial cou r t got Oregon law wrong, and that the Oregon Supreme Court is the proper court to correctly interpret Oregon law,” she said.
   The federal government had opposed sending the issue to the Oregon court, arguing that the Federal Circuit Court of Appeals should instead accept the federal trial court’s interpretation of Oregon law.
   G a n o n g s a id t h e issue would be taken up by the Oregon Supreme Court in speedy fashion.
   Irrigators have 25 days to submit briefs related to three questions, he said. A fter that, the government has 25 days to respond with its own briefs.
Issues to be decided
   Issues which the Oregon Supreme Court has agreed to decide are:
   Whether, assuming that the U.S. appropriated water rights for the Klamath Project pursuant to the 1905 Oregon statute, that statute precludes other persons from obtaining a beneficial or equitable interest in those rights.
   Whether, under Oregon law, beneficial use by the person who receives water from the Klamath Project is sufficient to give that person a beneficial or equitable interest in the water.
   Whether, under Oregon law, anyone may assert either a legal or an equitable property interest in water from the Klamath Project without first having gone through the pending state water rights adjudication.
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