Court Awards Compensation for Federal Takings

By Cat Lazaroff

WASHINGTON, DC, May 8, 2001 (ENS) - A precedent setting ruling in federal claims court has determined that the redirection of water supplies to endangered species in California in the early 1990s constitutes a taking of property, and that water customers must be compensated. The ruling could affect similar claims now being raised by farmers in northern California, where irrigation water has been withheld to aid endangered fish.

California's State Water Project customers who lost water supplies during a drought between 1992 and 1994 suffered a taking of property and must be compensated, the court decreed in a ruling balancing California water rights and the federal Endangered Species Act.


The California State Water Project includes 32 storage facilities, including Lake Oroville, the reservoir behind the 700 foot high Oroville Dam, the nation's tallest dam (Photo courtesy California Department of Water Resources)
The U.S. Court of Federal Claims in Washington, DC ruled on April 30 that the affected water users had a contractual right to receive water that could not be taken without compensation under the federal government's power in enforcing the Endangered Species Act.

"The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," Judge John Paul Wiese ruled.

The court noted that the Fifth Amendment to the Constitution is intended "to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

Plaintiffs in the case hailed the ruling as a major milestone in establishing government accountability in regulating the state's water resources and balancing environmental and economic concerns.

"Actions that were taken by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service during the last drought to protect winter run chinook salmon and the Delta smelt were done for the benefit of everyone," argued Roger Marzulla, lead attorney for the plaintiffs. "However, water users bore the brunt of those actions and suffered as a result."

The plaintiffs were the Kern County Water Agency, Tulare Lake Basin Water Storage District, Wheeler Ridge-Maricopa Water Storage District, Lost Hills Water District and several individual water users in those districts. Located in the southern San Joaquin Valley, they receive supplemental water supplies from the State Water Project.

These customers estimate they lost at least 380,000 acre feet of water, worth about $25 million, between 1992 and 1994 due to Endangered Species Act enforcement. The water users are obligated to pay their share of the State Water Project's operating costs every year, regardless of how much water they actually receive.


About 20 million Californians depend on the State Water Project for at least part of their water needs. The Quartz Hill Water Treatment Plant, which receives water by gravity from the California Aqueduct, supplies 65 million gallons of water per day (Photo courtesy Antelope Valley East Kern Water Agency)
The court's ruling also affirmed the primacy of the State Water Resources Control Board in controlling use of California's water resources, and noted that the water was lost despite the state board's own decisions on water allocations. Additional court proceedings will be scheduled to determine monetary damages.

The case could set a precedent for northern California farmers to win compensation for the federal government's decision to shut off irrigation water that serves more than 90 percent of the farmers in the area. Proponents of efforts to rewrite the Endangered Species Act may also use the case as ammunition in their arguments that enforcement of the act results in illegal government takings of private property.

More than 10,000 people rallied in Klamath Falls on Monday to protest the Bureau of Reclamation's decision to allocate almost all the water in the Klamath Basin Project to protect the endangered sucker fish in Upper Klamath Lake, the project's primary reservoir. The water is also being directed to aid threatened coho salmon in the Klamath River, which drains the basin.

Buckets representing each of the 50 states were passed from Veteran's Memorial Park, down Main Street to Modoc Field in Klamath Falls, by veterans, farmers, local citizens and elected officials, where the buckets were emptied into a dry irrigation ditch. The tri-county Klamath Basin produces $100 million each year in hay, grains and vegetables.

Farmers want the government to compensate them for the crop losses they will experience due to a shortage of water. Livestock herds, now being liquidated, are worth another $100 million in replacement costs, farmers say.


Part of the Klamath Project, the Lost River Diversion Dam is on Lost River about four miles below Olene, Oregon, where it provides irrigation water for nearby farms
"We call upon Congress to recognize that while sucker fish are important, people are more important," said Ric Costales, president of the Frontiers of Freedom's Pacific Region, which helped organize the rally. "Current law has it backwards. It is time for a new conservation approach that values wildlife and people and our constitutional liberties."

Frontiers of Freedom - People for the USA, was founded in 1995 by Malcolm Wallop to oppose government intervention in private lives. The foundation calls itself "the antithesis to the Sierra Club and Vice President Al Gore's 'Earth in the Balance'," the former vice president's book about the threat of global warming and the need for government action.

The foundation argues that with careful planning, irrigation need not threaten fish, and points to the Endangered Species Act as the source of misguided government water decisions.

"There is no reason why we can't protect farmers and fish," said George Landrith, executive director of Frontiers of Freedom. "Yet the Endangered Species Act through its cumbersome command and control mechanisms requires that fish be protected and that farmers and their families be bankrupted. That is simply wrong and we must set things right."

"It is time to face the truth - the Endangered Species Act does not work and cannot be fixed by adding a few words or moving a couple commas," added Landrith. "We must start over and build from scratch a new law that actually protects endangered species and at the same time preserves constitutional rights and the dignity of people."