[env-trinity] CC Times - More on Judge's Water Payment Decision

Byron bwl3 at comcast.net
Tue Jan 18 15:09:52 PST 2005


U.S. water pact makes big waves

Contra Costa Times - 1/18/05

By Mike Taugher, staff writer

A multimillion-dollar settlement reached quietly during Christmas week
between California farmers and the Bush administration is likely to lead to
more lawsuits seeking big payouts from taxpayers.

The $16.7 million settlement cements, for the first time, a court finding
that government efforts to protect endangered species violate the
constitutional protection of property rights.

Rather than appeal, as California state officials and some federal
government lawyers urged, the Bush administration decided to accept defeat
and pay farmers for water diverted to help endangered salmon.

In doing so, the administration signaled its approval of the idea that
farmers served by government water projects own the water delivered through
those projects.

"I think it was a terrible thing that the government didn't appeal it,
partly because it's wrong and partly because the government is usually quite
zealous about trying to protect the Treasury against claims that are
disputable," said Joseph Sax, a law professor emeritus at the University of

"It's obvious that the case is seen as a green light by property rights
advocates," added Sax, who was a counselor to the Clinton administration on
water and other environmental issues.

The case, known as Tulare Lake, marks the first time a court has found the
government's enforcement of the Endangered Species Act a violation of the
Fifth Amendment prohibition against taking private property without
compensation, according to the farmers' lawyer in the case, Roger Marzulla.

Several similar lawsuits are already on deck: The city of Stockton and other
surrounding agencies seek $500 million for water they say the federal
government failed to deliver from New Melones Dam over a 10-year period;
Klamath farmers want $100 million for water diverted to protect endangered
salmon and suckers; and a small Ventura County water district is expected
soon to file a claim for about $8 million for water released in the Ventura
River for steelhead.

The success of the Tulare case is expected to bring even more lawsuits.

"I think this fight is going to get a lot meaner before it gets nicer.
There's tens of billions of dollars at stake," said Andrew Lloyd, a lawyer
for the Sacramento-based property rights law firm, the Pacific Legal

At issue is whether water users actually own property rights to the water
they use. If so, the Constitution protects them from governmental "taking"
of that water without compensation.

That could make protecting endangered species very expensive, and might
eventually make it too costly for government agencies to protect endangered
fish and other aquatic species.

In a March 2004 memo urging the Department of Justice to appeal the case,
lawyers for the National Oceanic and Atmospheric Administration said the
legal threat presented by the Tulare Lake case was already making it more
difficult for the agency's biologists to enforce endangered species
protections for salmon.

Environmentalists and others contend water is a public resource and that,
with a few exceptions, farmers and urban water agencies do not own it.

The Tulare Lake case says they do. The ruling is not binding on other
courts, but the fact that the government declined to appeal the case leaves
the door open for other water districts to file similar claims, according to
lawyers on both sides of the issue.

Other judges could rule differently, or they could follow the lead of the
Tulare Lake judge, Judge John Paul Wiese of the U.S. Court of Federal Claims
in Washington, D.C.

"It (the settlement) sends a clear message that the Bush administration
wants to encourage lawsuits against the government," said Hal Candee, a
lawyer for the Natural Resources Defense Council.

A spokesman for the U.S. Department of Justice did not return phone calls.

But Lloyd, the property rights lawyer, suggested the government may be
waiting to appeal until it has a case it is sure to win.

Candee dismissed that argument, saying that many experts believe the
government could have won an appeal of the Tulare Lake case. Water users
with long-term water contracts have tried for years to force the government
to pay them when some of their contracted allotment of water is shifted to
endangered species.

Some have sued for breach of contract, while others, like those in the
Tulare Lake case, have gone further by claiming to be deprived of private

Neither legal course has been successful until now.

In the Tulare Lake case, the federal claims court found that even though the
water rights were held by the California Department of Water Resources,
their customers gained a property right to the water through their
contracts. Marzulla, a Washington, D.C. lawyer for several water users,
successfully argued that his clients owned rights to their contracted water
because the state water department exists to deliver water to them.

The state Department of Water Resources "has only one right to the use of
that water, and that is to put it in the California Aqueduct and send it
south," he said.

The water users are customers of the state-owned State Water Project, which
includes Lake Oroville, massive pumps at Byron and the 444-mile California
Aqueduct, which ends in Riverside County.

"The government is certainly free to protect the fish as long as it is
willing to pay for it," Marzulla said.

To environmentalists and others, the contracts do not amount to ownership of
water. They also say the possibility of shortages is spelled out in the

If the ruling stands, government agencies may decide they can no longer
afford to take actions aimed at protecting endangered fish and other aquatic
species, said Sax, the Berkeley professor emeritus.

"If it (the Tulare Lake case) is followed in other cases and by other
judges, it could have a very powerful, adverse effect on enforcement of the
Endangered Species Act," Sax said.



Byron Leydecker

Chair, Friends of Trinity River

Consultant, California Trout, Inc.

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 519 4810 ce

415 383 9562 fx

bwl3 at comcast.net

 <mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org




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