Court to feds: Pay farmers when water supply goes to fish

By Lynda V. Mapes
Seattle Times staff reporter

Salmon that average 2-3 feet in length pass through the fish ladder in one of the largest salmon runs in the last thirty years at Bonneville Dam in North Bonneville in April.

In a case that could affect water wars across the West, a federal court has ruled that the government must pay property owners when it takes water away from them to protect fish listed under the Endangered Species Act.

Plaintiffs in the Tulare Lake Basin Water Storage District in California argued that by shutting down their water to protect chinook salmon and smelt, the federal government took their property as plainly as if it had built a highway across their farmland.

The case turned on whether the farmers were entitled to payment under the 5th Amendment to the U.S. Constitution, which prohibits the taking of private property without compensation.

The taking, the farmers argued, was a "physical" taking, not merely a "regulatory" one in which the use of their property was reduced, but not eliminated.

In its April 30 decision, the U.S. Court of Federal Claims in Washington, D.C., sided with the farmers. "The federal government is certainly free to preserve the fish," the court said. "It must simply pay for the water it takes to do so."

The case could have broad implications for Washington state and other parts of the West where farmers' water rights are increasingly in conflict with the Endangered Species Act.

In many areas, water rights handed out by the state and federal government reaching back into the last century have allotted more water to farmers than exists in streams. Setting any water aside now to sustain threatened and endangered fish, especially in low-water years, is sparking conflict with those water rights.

In the Methow Valley, for example, irrigators saw their water turned off in May 1999, when the federal government moved to protect endangered Upper Columbia spring chinook and steelhead.

In the Klamath basin at the Oregon-California border, some farmers learned this season they would receive no water from the U.S. Bureau of Reclamation. The National Marine Fisheries Service found in a consultation with the bureau that in this drought year, water must be withheld from farmers to protect suckerfish and coho.

In the Walla Walla basin, Washington irrigators have entered into a settlement agreement with the U.S. Fish and Wildlife Service that curtails their water rights in order to leave water in the river for threatened bull trout. The river had been going entirely dry on the Oregon side due to irrigation withdrawals allowed under Washington state water law.

Some farmers in the Columbia, Yakima and Wenatchee basins also have seen their water rights curtailed to protect fish.

Brian Gorman, spokesman for the fisheries service's northwest regional office, said he was not immediately sure of the decision's impact.

"Water issues are the bugbear of the West, and they remain at their heart unresolved," Gorman said.

Bob Hunter, of the environmental group Water Watch of Oregon, said he was not sure how the case would affect the Klamath basin. He argued, however, that water rights are not absolute, but subject to all laws, including the Endangered Species Act and tribal-treaty rights.

"In the Klamath, water users have a federal contract right for water from the bureau, but that doesn't guarantee water," Hunter said. "I see no taking there, because their right is always subject to the risk that their water might not be available in a drought, or if an agency acts in compliance with existing laws."

Others saw promise in the court's decision.

"This is important precedent," said Galen Schuler, an attorney at Perkins Coie in Seattle representing irrigators in the Methow. "It means the federal agencies are going to have to be a lot more careful."

Schuler believed the case could affect state water-rights holders as well. And even if the federal government is correct in taking water from farmers to protect fish, he hopes to use this ruling to win retroactive payments for his clients.

Peter Fraley, a Wenatchee attorney representing Methow irrigators facing their third season without water, said he expects an appeal in the case, which he believes clarified an important area of law not previously decided by a court.

"The court found these actions are more than a regulation of a water right, they are an actual physical taking of a property right, and they have to pay you for it," Fraley said.

"We have been arguing that for years but it had never been resolved. It changes the scope of negotiations. Now all of a sudden the water-right holders have a chip in the game."

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