Supreme Court review requested in Water Takings Case

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KLAMATH FALLS, Ore. - Producers in the Klamath Project have asked the United States Supreme Court to review decisions denying their claims that their water rights were illegally taken in 2001 under the Endangered Species Act (ESA). 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.

"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."

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

"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 Modoc County rancher Mike Byrne.

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

Ultimately, after a two-week trial in 2017, United States Court of Federal Claims Judge Marian Blank Horn concluded that un-adjudicated, senior tribal instream 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, who 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."

The case is certified as a class action. The petition to the Supreme Court was filed by the law firm of Somach Simmons & Dunn from Sacramento, along with Timothy Bishop of the law firm Mayer Brown. Mr. Bishop is an expert in Supreme Court practice and has successfully pursued cases before the Supreme Court regarding the ESA and Clean Water Act on behalf of regulated businesses and agencies.

"The dispute is about the Constitution and how water rights are adjudicated and administered in the western states, nothing else" said Byrne.

It is expected that the Supreme Court will decide in June whether to take the case.

A copy of the petition is available at www.kwua.org.

Source: Klamath Water Users Association