Arguments to be heard in longstanding Klamath case

A federal appeals court has set July 8 as the date for oral argument in a lawsuit through which Klamath Project irrigators seek compensation for the taking of their water rights.

"This hearing will provide (Klamath) irrigators with an important opportunity to explain why the federal government should be required to compensate Klamath Project farmers and ranchers when it reallocated water to threatened and endangered fish in 2001," said Nathan Ratliff, the attorney coordinating local efforts in the case.

The case, titled Baley, et al. v. United States, has had a long history since it was filed about 18 years ago, and has been the subject of several rulings, including one in 2010 by the Oregon Supreme Court when it answered questions about state law upon request of the federal court. The trial in the case occurred in early 2017, and U.S. Court of Federal Claims judge Marian Blank Horn issued her ruling after trial in September 2017. That decision denied the water users' claims, and was appealed to the U.S. Court of Appeals for the Federal Circuit.

The U.S. Bureau of Reclamation announced in April 2001 that there would be no irrigation water for water users who relied on water from Upper Klamath Lake and the Klamath River. Reclamation had received biological opinions from the National Marine Fisheries Service and Fish and Wildlife Service that stated all water in the system had to go to coho salmon and suckers protected by the federal Endangered Species Act. The decision caused severe local hardship and received international attention.

Horn ruled that some landowners do not have compensable property interests due to particular language in certain districts' water delivery contracts. She also concluded that unadjudicated and senior tribal instream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations, and therefore the water users did not have the right to the water under the Western prior-appropriation doctrine.

Lower Klamath farmer Lynn Long described the 2017 ruling as "a disappointment, to say the least."

"We're family farms; we want to farm and irrigate," he said. "But if the federal government decides to allocate irrigation water to another social purpose, the greater public should bear that cost and pay."

The case is certified as a class action. Marzulla Law, a Washington, D.C., law firm specializing in Fifth Amendment cases, represents the class.

Ratliff said the issues raised in the Klamath case have generated interest from other parties around the country.

"We've seen 'friend of the court' briefs filed by parties as diverse as the state of Oregon and the Middle Rio Grande Conservancy District in Mexico," Ratliff said. "That's important in helping the appellate court understand Western water law, adjudication and water rights administration that we believe are critical."