Court considers key question in Klamath water case

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• Should the public have to pay irrigation interests to sustain healthy rivers and wild salmon?

WASHINGTON, DC, Nov. 18, 2010 -- The U.S. Court of Appeals for the Federal Circuit today heard arguments about whether the waters of the Klamath Basin--vital to restoring the Klamath River and wild salmon runs-- belong to the public or private irrigation interests. The case stems from the 2001 Klamath Basin water crisis.

Klamath irrigators have long claimed they own the waters of the Klamath Basin and taxpayers should pay them when water must remain in the Klamath River and up-stream lakes to avoid killing wild salmon and other fish. The irrigators believe the federal government illegally took that water in 2001 to ensure that endangered fish could survive.

The case is being closely watched by coastal communities, salmon fishermen, their families and others who depend on a healthy Klamath River for their livelihoods.

"Most people think the water flowing in our rivers belongs there and enough of it should be kept there to keep our rivers healthy and sustain wild salmon and other fish and wildlife," explained Todd True, an attorney with Earthjustice who is representing fishing and conservation interests. "The irrigators in the Klamath Basin have a different idea. They think the water is theirs even if the river dries up and all the fish die. They want the government to pay them for the water it kept in the Klamath River in 2001 to ensure the survival of wild salmon and other fish. We think the law is clear and the government is not required to pay private parties to sustain our rivers and keep important and valuable wildlife species from going extinct."

"Those of us who depend on healthy rivers and streams for our livelihoods are not asking for compensation for all the wild salmon that have been lost over the years because irrigation has left too little water in our rivers and streams," said Glen Spain of the Pacific Coast Federation of Fishermen's Associations (PCFFA). "We need to look forward, not backward, to solve the fundamental problem of too many demands for too little water."

Last spring, the Oregon Supreme Court decided that state law does not give irrigators ownership of Klamath Basin water just because they use it. Oregon's high court justices focused on state law issues in the nearly decade-old lawsuit by Klamath Basin irrigators demanding taxpayer dollars for water they claim they should have received in 2001.

Earthjustice represents the Pacific Coast Federation of Fishermen's Associations (PCFFA) and a number of environmental groups in a friend of the court brief opposing property rights advocates who argued that, under state and federal law, private property is taken whenever water must be left in rivers to protect threatened salmon and other species.

In 2001, the federal Bureau of Reclamation temporarily reduced delivery of water to agricultural water users and irrigation districts in order to provide water necessary to avoid jeopardy to three fish species listed as threatened or endangered under the Endangered Species Act. Shortly after the water was restored, these water user interests filed a lawsuit against the United States in Washington, D.C., alleging that the government had unconstitutionally taken property by withholding their water deliveries without payment of compensation.

The federal Court of Claims ruled against the water users in 2007, holding that Klamath irrigators had no property right in Klamath Project water.

The water users appealed to the United States Court of Appeals for the Federal Circuit whose judges in 2008 asked the Oregon high court to answer questions about Oregon state water law.

The case has now returned to the Court of Appeals for the Federal Circuit which heard arguments today about the remaining federal law issues in the case. A decision in the appeal is not expected for several months.

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