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http://pacificlegal.org/view_PublicationDetail.asp?iID=278&dt=October 2004&sTitle=PLF+Fights+For+Water+Rights+In+The+West&iParentID=9
PLF Fights For Water Rights In The West

October 2004


In the last few years, Pacific Legal Foundation’s Western Water Law Project has been sending federal, state, and local regulators and environmentalists a powerful message that PLF will enforce through legal precedent: Where the government takes water rights away from ranchers, farmers, and even from entire water districts for a public benefit, it has to pay for it.

Indeed, in 2001, the Court of Federal Claims embraced the arguments filed by PLF and recognized that government diversion of water away from the Tulare Lake Basin Water Storage District in central California to benefit the winter-run chinook salmon constituted a regulatory “taking” no different in kind than the government taking of private land by eminent domain to build a highway bypass across a cornfield.

Water storage districts in the San Joaquin Valley of California contain many hundreds of thousands of acres of highly productive agricultural land. The principal purpose of these water districts is to acquire and distribute water, including water from the State Water Project, to water users within the district. In 1992, the National Marine Fisheries Service, acting under authority of the federal Endangered Species Act, required water that would otherwise have been delivered by the districts to the water users to be used instead for the benefit of the Sacramento winter-run chinook salmon. As a result, the amount of water delivered to the users was reduced by many thousands of acre feet. This reduction in water was repeated with similar results in 1993 and 1994.

The plaintiffs in this case (Tulare Lake Basin Water Storage District v. United States) brought a lawsuit against the federal government claiming that their property—their contractual right to use water—had been taken without just compensation in violation of the U.S. Constitution. PLF’s Western Water Law Project filed a friend of the court brief to support the district’s case, and on April 30, 2001, the Court of Federal Claims ruled in favor of the plaintiffs. Following a separate trial for damages this past December, the same court awarded some $26 million in damages and interest—the biggest such award for water rights to date.

There are other, similar water rights cases coming up through the courts, too, including a billion dollar claim stemming from the water taken from Klamath Basin farmers by the federal government to support the habitat of two sucker fish in the Upper Klamath Lake and the southern Oregon-northern California population of coho salmon in the Klamath River.

Apart from providing compensation for the holders of valid water rights, these victories serve a second important purpose by forcing the government—and the bureaucracy—to feel some part of the enormous sting it visits on landowners. Too often, when the government does not have to lay out compensation for environmental regulations, bureaucrats have little reason to resist being turned into the tool of environmental excess.

Brushing aside the rule of law, not to mention common sense, one environmental lobbyist recently bemoaned that these damage awards forced a choice between “bankrupting the taxpayers and bankrupting environmental protection”—as if those were the only two constituencies. Yet, over its 30-year history, PLF has ably demonstrated that sound environmental regulation cannot ignore the rights of individuals and the protection of their health, safety, welfare, and their constitutionally protected private property rights, which include water rights. When these interests are given the highest priority by government, private owners retain incentives to search out ways to improve the efficient use of their lands—and this inures to the benefit of everyone and the environment. But when government diminishes security in a property right (like water), it usually means the affected land will be used less productively, thus imperiling environmental interests.

While we can take some comfort in recent decisions affirming the right to be compensated when water rights are taken by government regulation, environmental activists are cleverly changing their tactics. Instead of using the Endangered Species Act, as they have been, to force the government to take water outright—and then leaving the taxpayers to pick up the tab—environmentalists are now using the ESA to make it impossible for irrigators to get to their water in the first place.

PLF’s Western Water Law Project is well aware of this tactical shift and will engage big-government environmentalists. We intend to fight this effort in every corner, because to lose this fight would be to allow environmentalists to conspire with state and federal governments to make an end-run around the Takings Clause of the Constitution, wreaking economic havoc in the western states where water is scarce and water rights invaluable.

Although these access cases are emerging around the United States, we first saw this approach played out in a recent case that PLF argued before the U.S. Ninth Circuit Court of Appeals (Okanogan County v. National Marine Fisheries Service). There PLF’s Northwest Center fought in support of Okanogan County and various landowner and water user associations in litigation against the National Marine Fisheries Service and the U.S. Forest Service. Citing requirements under the ESA, the federal agencies refused to allow Washington’s Methow River Valley farmers to continue using the irrigation ditches crossing federal lands that had been employed for decades.

PLF fought hard against the misguided application of the ESA and bureaucratic overreach. Unfortunately, the federal appeals court allowed the District Court ruling—which focused on the language of a Forest Service permit, rather than the near destruction of the underlying permit rights. The U.S. Supreme Court refused to hear the case last May, but we remain undaunted and will search out other cases until we get the High Court’s attention.

Through your financial support, PLF’s Western Water Law Project will fight tirelessly to vindicate the water rights which form the backbone of America’s agricultural economy and rural way of life.

Andrew T. Lloyd is a PLF attorney and director of the Western Water Law Project.


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