Wednesday, December 1, 2010

The KBRA did not end Klamath Water User Litigation

Klamath River Basin citizens and others who pay attention to Klamath water issues continue to grapple with the controversial Klamath Basin Restoration Agreement (KBRA) also known as the Klamath Water Deal.  So many claims and counterclaims have been made about the complex Deal that even those who signed it sometimes appear confused about its provisions.

One of the claims most often made by Water Deal promoters is that those who have reached agreement have buried the hatchet and will no longer engage in litigation. Many in the media picked up on that assertion. For example, the widely-read High Country News magazine featured the KBRA in a front page story declaring “Peace on the Klamath”.

So it may come as a surprise to some that those irrigators who most support the Water Deal continue to seek money damages as compensation for the federal government cutting water deliveries in 2001 in order to protect Coho salmon and other endangered fishes. And while it is no longer covered by Klamath River Basin media outlets, Klamath Irr. Dist. v. United States continues to work its way through the courts. How that lawsuit is finally resolved may significantly impact the durability of the Water Deal.

The Klamath water users’ lawsuit could be precedent setting - which explains why it is being watched closely by those who follow western water law. If the irrigators win the case, it would be necessary to pay those holding federal water delivery contracts whenever water they ordinarily use is needed in stream to sustain fisheries and keep aquatic ecosystems healthy.

That likely explains why those in the fishing and environmental community who support the Water Deal are also still involved in the litigation. One of the chief promoters of the Water Deal – Pacific Coast Federation of Fishermen’s Association’s Glen Spain – is the main spokesperson for those opposing money damages for the irrigators.

Here is how Todd True – the Earthjustice lawyer representing environmental and fishing interests – characterizes the litigation’s importance:
          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. 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.

The prospect of having to pay irrigators and other water users to maintain fish in a living river is a big deal for the environmental and fishing communities.  If the Klamath water users win this case, most western rivers will likely die because it will cost too much to keep them alive. That’s because agricultural interests control 80% to 90% of the water available in most western river basins during the summer dry season.

The Endangered Species Act and other public uses trump that control, however, and have been used to reallocate water from irrigation and other out-of-stream uses to in-stream use. A win for the water users would not change that but would require payment whenever water is reallocated to in-stream use. That in turn will means more dry western rivers and streams each summer and likely extinction for many Pacific Salmon populations unless taxpayers bear the cost.

What is at issue in the lawsuit is known as the Public Trust Doctrine. Dating from the times of the Roman Empire, The common law PTD affirms that water is a public good which cannot be bought or sold for individual gain. The PTD was the basis for the Mono Lake Decision which forced the City of Los Angeles to stop draining Mono Lake. If successful, the Klamath water users’ lawsuit would redefine water as private property which can be bought or sold without regard to the public interest or the environment.   

KlamBlog has argued that the KBRA Water Deal itself would set the same precedent – although not through a court decision. That’s because the KBRA guarantees the same water users suing for damages in Klamath Irr. Dist. v. United States first rights to an amount of Klamath River water greater than those same water users have received in most recent years.  That in turn means that water would need to be purchased from those water users during drought years in order to provide the Klamath flows salmon and other fishes need to survive.

Many who oppose the Water Deal do so because requiring the leasing of water during droughts so that salmon can survive not only undermines the Public Trust Doctrine but is also fiscally unsustainable. How long will taxpayers be willing to pay water users so that salmon can survive during droughts?

Those water users who receive Klamath water via the Bureau of Reclamation’s Klamath Project agreed to the KBRA because that Deal brings them many benefits – including big subsidies and control of a lot of water. The subsidies, however, require federal funding which is looking increasingly unlikely. That leaves control of water as the main KBRA water user benefit. If they win their lawsuit, however, the water users will not need the KBRA to secure that control.

Is Klamath water user support for the KBRA solid or simply a hedge against a legal defeat? Unfortunately, we may have the opportunity to find out.

4 comments:

John M. said...

Thanks, Felice, for clearing up a lot of mystery for me on the Water Wars issue in the Klamath Basin.

I am probably too hopeful that the Public Trust Doctrine will be fully recognized by the Federal Courts to be overturned!

John

Glen Spain - PCFFA said...

Dear KlamBlog:

Thanks for your excellent assessment of the importance of the Klamath Irrigation District vs. U.S. Court of Claims Fifth Amendment property rights “takings” claim (KID vs. US), now in the final stages of appeal.

The KID vs. US case is left over from 2001 and it is not surprising that the much later KBRA signed in 2010 has not resulted in its dismissal. For one thing, only some of the Plaintiffs in that case are organizations that have signed the KBRA – many are individuals. Thus if every party who signed the KBRA withdrew, the case would still continue – but then without PCFFA as an Intervener to protect fisheries interests.

Also, this case provides PCFFA the best opportunity to date to discredit the “property rights” and Fifth Amendment “takings” basis of this and many similar cases. An adverse ruling against the irrigators will set a strong precedent discouraging such claims in the future.

Two important clarification points, however:

(1) Federal law does not recognize the Public Trust Doctrine. Federal law derives solely from the U.S. Constitution, and no federal court to date has ever relied upon the ancient Public Trust Doctrine in any of its decisions. The common law Public Trust Doctrine has been brought into California water law through the Mono Lake Case, but water rights are a state matter, not a federal one.

(2) You do mischaracterize the impact of the KBRA on the Bureau of Reclamation’s (BOR) current Irrigation Project Oregon State water right. The BOR’s current Oregon State water right is essentially unlimited, i.e., to “all the water then available” that can be used for irrigation as of the date of their claim of 1906. The KBRA only “guarantees” that the BOR Project will be entitled to LESS water (i.e., a “capped” amount for the first time ever) than they are otherwise currently entitled to. And if that annual “capped” water amount is further restricted by ESA or Clean Water Act constraints, there is NOTHING in the KBRA that overrides those federal laws. No mere contractual agreement like the KBRA can ever superseded federal law.

We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.

--- Glen Spain, for PCFFA

Glen Spain -- PCFFA said...

Dear KlamBlog:

Thanks for your excellent assessment of the importance of the Klamath Irrigation District vs. U.S. Court of Claims Fifth Amendment property rights “takings” claim (KID vs. US), now in the final stages of appeal.

The KID vs. US case is left over from 2001 and it is not surprising that the much later KBRA signed in 2010 has not resulted in its dismissal. For one thing, only some of the Plaintiffs in that case are organizations that have signed the KBRA – many are individuals. Thus if every party who signed the KBRA withdrew, the case would still continue – but then without PCFFA as an Intervener to protect fisheries interests.

Also, this case provides PCFFA the best opportunity to date to discredit the “property rights” and Fifth Amendment “takings” basis of this and many similar cases. An adverse ruling against the irrigators will set a strong precedent discouraging such claims in the future.

Two important clarification points, however:

(1) Federal law does not recognize the Public Trust Doctrine. Federal law derives solely from the U.S. Constitution, and no federal court to date has ever relied upon the ancient Public Trust Doctrine in any of its decisions. The common law Public Trust Doctrine has been brought into California water law through the Mono Lake Case, but water rights are a state matter, not a federal one.

(2) You do mischaracterize the impact of the KBRA on the Bureau of Reclamation’s (BOR) current Irrigation Project Oregon State water right. The BOR’s current Oregon State water right is essentially unlimited, i.e., to “all the water then available” that can be used for irrigation as of the date of their claim of 1906. The KBRA only “guarantees” that the BOR Project will be entitled to LESS water (i.e., a “capped” amount for the first time ever) than they are otherwise currently entitled to. And if that annual “capped” water amount is further restricted by ESA or Clean Water Act constraints, there is NOTHING in the KBRA that overrides those federal laws. No mere contractual agreement like the KBRA can ever superseded federal law.

We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.

--- Glen Spain, for PCFFA

Glen Spain -- PCFFA said...

Dear KlamBlog:

Thanks for your excellent assessment of the importance of the Klamath Irrigation District vs. U.S. Court of Claims Fifth Amendment property rights “takings” claim (KID vs. US), now in the final stages of appeal.

The KID vs. US case is left over from 2001 and it is not surprising that the much later KBRA signed in 2010 has not resulted in its dismissal. For one thing, only some of the Plaintiffs in that case are organizations that have signed the KBRA – many are individuals. Thus if every party who signed the KBRA withdrew, the case would still continue – but then without PCFFA as an Intervener to protect fisheries interests.

Also, this case provides PCFFA the best opportunity to date to discredit the “property rights” and Fifth Amendment “takings” basis of this and many similar cases. An adverse ruling against the irrigators will set a strong precedent discouraging such claims in the future.

Two important clarification points, however:

(1) Federal law does not recognize the Public Trust Doctrine. Federal law derives solely from the U.S. Constitution, and no federal court to date has ever relied upon the ancient Public Trust Doctrine in any of its decisions. The common law Public Trust Doctrine has been brought into California water law through the Mono Lake Case, but water rights are a state matter, not a federal one.

(2) You do mischaracterize the impact of the KBRA on the Bureau of Reclamation’s (BOR) current Irrigation Project Oregon State water right. The BOR’s current Oregon State water right is essentially unlimited, i.e., to “all the water then available” that can be used for irrigation as of the date of their claim of 1906. The KBRA only “guarantees” that the BOR Project will be entitled to LESS water (i.e., a “capped” amount for the first time ever) than they are otherwise currently entitled to. And if that annual “capped” water amount is further restricted by ESA or Clean Water Act constraints, there is NOTHING in the KBRA that overrides those federal laws. No mere contractual agreement like the KBRA can ever superseded federal law.

We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.

--- Glen Spain, for PCFFA