2001 water “takings” case filed with U.S. Supreme Court

by Holly Dillemuth

March 13, 2020

Agricultural producers in the Klamath Project have taken the water “takings” case to the highest court in the land.

Somach Simmons & Dunn from Sacramento, along with Timothy Bishop of the law firm Mayer Brown, filed a petition on the decision related to the class action case with the U.S. Supreme Court on Friday. Roger and Nancie Marzulla, of Marzulla Law, who both worked on the case for many years, have withdrawn as counsel on the case.

The case, titled Baley v. United States, was filed 19 years ago when the U.S. Bureau of Reclamation re-allocated irrigation water to threatened and endangered species. A favorable outcome would mean upwards of $30 million collectively in compensation for irrigators named in the case.

Bishop, a Supreme Court expert, has successfully pursued cases before the Supreme Court regarding Endangered Species Act and Clean Water Act on behalf of regulated businesses and agencies, according to a news release.

Simmons also serves as executive director of Klamath Water Users Association.

“Water Users really doesn’t have any standing in the case,” Simmons said. “It’s individual’s property rights.”

Simmons said the U.S. Supreme Court reviews a small percentage of cases that parties ask to have reviewed, said Simmons, legal counsel on the case with Somach Simmons & Dunn.

Simmons emphasizes that the case is of great national importance, especially for water users in the Western United States.

“They have to be convinced it’s important,” Simmons told Herald and News.

In essence, producers asked the United States Supreme Court to review decisions denying their claims that their water rights were illegally taken in 2001 under the ESA, according to a news release from Klamath Water Users Association on Friday afternoon.

“The Baley lawsuit relies on the fact that rights to use water are property rights owned by landowners,” said Klamath Falls attorney Nathan Ratliff, who has coordinated efforts for the plaintiffs in the case. “The Fifth Amendment to the U.S. Constitution requires that the government provide just compensation for any taking of private property.”

The petition to the Supreme Court argues that the lower federal courts have misunderstood and misapplied the basic principles of western water law, according to the news release.

“The Supreme Court is not required to hear the case at all, but we believe it should understand that these are issues of broad importance that it should address,” said Mike Byrne, a Modoc County rancher.

In April of 2001, Reclamation announced that there would be no irrigation water for water users who rely on water from Upper Klamath Lake and the Klamath River for crop production.

Reclamation had received biological opinions from the National Marine Fisheries Service and the U.S. Fish and Wildlife Service that stated that all water in the system had to go to coho salmon and suckers protected by the federal ESA.

The controversial decision caused severe local hardship, and it received international attention. The lawsuit has a long history, including prior appeals and a request by federal courts that the Oregon Supreme Court clarify important issues of Oregon water law.

The Oregon Supreme Court held a hearing in Klamath Falls in 2009 and issued a ruling supporting the irrigators’ position that the original trial court had misinterpreted state law.

That ruling revived the case and returned it to the federal courts, according to the news release. Ultimately, after a two-week trial in 2017, which was attended and reported on by Herald and News, U.S. Court of Federal Claims Judge Marian Blank Horn concluded that un-adjudicated, senior tribal in-stream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations.

Therefore the water users did not have the right to the water under the western prior appropriation doctrine. Last fall, the U.S. Court of Appeals for the Federal Circuit affirmed the ruling.

“This ruling was a disappointment, to say the least,” said Luther Horsley, in a news release.

Horsley attended the 2017 trial and 2019 appeal argument.

“But we’ve been down before in this case and bounced back, and it’s too important to walk away now,” Horsley said.

In a 2017 interview with Klamath Tribes Chairman Don Gentry, he called the decision in the 2017 trial “another another positive step towards the healing and restoration of our tribal treaty fisheries.

“We certainly have confidence that the decision in both the district court and the D.C. Court of Appeals reached,” said Jay Weiner, special water counsel for the Klamath Tribes.

Weiner is based out of Rosette Law Firm in Sacramento.

“We’ve just received the petition and so we’re still reviewing it,” Weiner added.  “We don’t think there’s basis for overturning it.”

It is expected that the U.S. Supreme Court will decide in June whether to take the case, according to a news release.

Leave a Reply

Your email address will not be published. Required fields are marked *