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PRESS RELEASE  March 11, 2008  Marzulla Law

Federal Circuit agrees to send Klamath water issues to Oregon Supreme Court

Washington, (D.C.) – On March 11, 200, a three-judge panel for the U.S. Court of Appeals for the Federal Circuit agreed to send four issues to the Oregon Supreme Court for resolution at in the pending appeal of Klamath Irrigation District v. United States, No. 2007-5115. The lawsuit involves the taking of water from the Klamath Reclamation Project in 2001 in order to protect two species of endangered fish. In 2004, the trial judge held that the water users had no property right in the Klamath Project, relying on a 1905 Oregon statute that the court held conveyed all of Oregon’s water rights to the United States. The Federal Circuit’s ruling now means that the Oregon Supreme Court will have a chance to rule on these issues and will determine for itself what the 1905 Oregon statute means.

“We are really pleased with that the Federal Circuit agreed with our argument that these important issues of State law should be resolved by an Oregon Court,” stated Nancie G. Marzulla, counsel for the Klamath water districts and water users. “Oregon courts should be the final arbiter of Oregon law, not a federal judge in Washington.”

Certification of issues pending in federal court “allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response.” In this case, the trial judge had interpreted an Oregon statute based purely on what the trial judge believed that the Oregon State Legislature intended to accomplish in a 1905 statute. No Oregon court had ever interpreted this statute in this context and there was no legislative history supporting the trial judge’s ruling. On appeal, the water districts and the water users argued that this issue and the related water rights issues should be certified to the Oregon Supreme Court for resolution.

The parties have been ordered to submit a joint statement of facts pertinent to the four certified questions by April 9, 2008. Thereafter, the issues will be transmitted to the Oregon Supreme Court for review.

MARZULLA LAW is a Washington, D.C.-based law firm that has extensive experience in litigation of complex regulatory and constitutional claims on behalf of home and business owners. Further information about the case is available on-line at www.marzullalaw.com.
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