tag:blogger.com,1999:blog-4361990989642100421.post1346682853269963074..comments2024-03-12T10:09:34.656-07:00Comments on KlamBlog: The KBRA did not end Klamath Water User LitigationFelice Pacehttp://www.blogger.com/profile/15745833097325147423noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-4361990989642100421.post-57981302932797036232010-12-11T14:42:44.333-08:002010-12-11T14:42:44.333-08:00Dear KlamBlog:
Thanks for your excellent assessme...Dear KlamBlog:<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Two important clarification points, however:<br /> <br />(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.<br /><br />(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.<br /> <br />We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.<br /><br />--- Glen Spain, for PCFFAGlen Spain -- PCFFAnoreply@blogger.comtag:blogger.com,1999:blog-4361990989642100421.post-64906920348372246582010-12-11T14:42:16.977-08:002010-12-11T14:42:16.977-08:00Dear KlamBlog:
Thanks for your excellent assessme...Dear KlamBlog:<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Two important clarification points, however:<br /> <br />(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.<br /><br />(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.<br /> <br />We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.<br /><br />--- Glen Spain, for PCFFAGlen Spain -- PCFFAnoreply@blogger.comtag:blogger.com,1999:blog-4361990989642100421.post-27425725572758417532010-12-11T14:30:47.324-08:002010-12-11T14:30:47.324-08:00Dear KlamBlog:
Thanks for your excellent assessme...Dear KlamBlog:<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Two important clarification points, however:<br /> <br />(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.<br /><br />(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.<br /> <br />We expect a ruling on the current KID v. US appeal by sometime middle of 2011. Again, thanks for your analysis.<br /><br />--- Glen Spain, for PCFFAGlen Spain - PCFFAnoreply@blogger.comtag:blogger.com,1999:blog-4361990989642100421.post-58363942072382936332010-12-02T10:07:17.272-08:002010-12-02T10:07:17.272-08:00Thanks, Felice, for clearing up a lot of mystery f...Thanks, Felice, for clearing up a lot of mystery for me on the Water Wars issue in the Klamath Basin.<br /><br />I am probably too hopeful that the Public Trust Doctrine will be fully recognized by the Federal Courts to be overturned!<br /><br />JohnUnknownhttps://www.blogger.com/profile/15341975038473394209noreply@blogger.com