CA: Farmers win $26 million landmark water suit

Bakersfield Californian ^ | 1/13/04 | Vic Pollard

[NormsRevenge]

For more than a decade, Kern County farmers and water officials have been complaining bitterly about irrigation water they lost when federal agencies began diverting it to protect endangered fish.

Now, a court has ruled that federal agencies must pay for water they took for environmental protection in the early 1990s, an estimated $26 million.

In a case that could leave the government liable in other programs around the country, a federal claims court judge in Washington, D.C., has given agricultural and urban water agencies a major victory.

The ruling is a blow to environmentalists and federal environmental officials who argued that taxpayers should not have to pay water users for environmental damage caused by their water diversions.

Officials of the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, the targets of the legal action, could not be reached Monday for comment on the case or on whether they will appeal the decision.

The issue arose when the federal agencies took steps that forced the State Water Project and the federal Central Valley Project to sharply reduce the amount of water they pumped out of the Sacramento-San Joaquin Delta in 1992, 1993 and 1994.

Alarmed at the rising number of tiny Chinook salmon and delta smelt that were being sucked into the pumps and killed, the agencies ordered the pumping slowed under the Endangered Species Act.

In a lawsuit filed by the Kern County Water Agency and other users, claims court Judge John Wiese ruled in 2001 that the government was required to compensate the farmers for the water they lost.

In a final decision issued Dec. 31, he said they lost more than 300,000 acre-feet of water that was worth nearly $14 million at the time.

With interest, that has swollen to $25 million to $26 million today, said John Stovall, the Kern water agency's chief attorney.

"The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," Judge Wiese wrote.

If the ruling is not overturned on appeal, the money will eventually be divided among hundreds of farmers in Kern, Tulare and Kings counties who purchase water from the state project's California Aqueduct. A water district that serves the urban Bakersfield area also lost water in the case and should also share in the award, officials said.

The claims were filed only for the three-year period in the early 1990s because a subsequent series of heavy rainfall years required fewer pumping restrictions. And by the time restrictions were reimposed, federal agencies had begun buying water, much of it from Kern County, to replace the lost irrigation water.

However, the attorney who represented the valley water agencies, Roger Marzulla of Washington D.C., said the ruling has implications in other areas. He pointed to the Klamath River basin, where the federal government has imposed severe restrictions on water supplies to farmers in order to protect fish.

Valley water officials were elated with the ruling.

"It's a victory for farmers and urban water users," said Gary Bucher, water supply manager for the Kern County Water Agency. "Anyone who uses water from the Delta -- in California that's most of us -- should welcome this decision."

[Still Thinking]

The federales have a good point that the taxpayers should not be reponsible for cleaning up their mess. How about making the judgment against those staff members who proposed or fought for this action as well as those outside the dept who lobbied for it?

[glock rocks]

ping!

[Wolverine]

Remember Klamath Falls...

 

Our Friends upon the hill at the Klamath Bucket Brigade are still very active and may need our help befor all is said and done. We are prepared to fight back against the eco-terrorists better than before, but that in and of itself, doesn't mean the battle will be easy. Keep ping lists ready for a coming war to protect America from the eco-terrorists within our own country.

[RightlySo]

I think the word "their" in the sentence you are reffering to is in regards to government agencies, not the supposed perpetrators of environmental damage. In this case, the farmers did no damage. Rather, the federal government reduced the amount of water coming from the delta basin upstream because the local government's water pumps sucked up and killed fish.

Certainly the fed's argument is a fallacy. They argued in court that the taxpayer should not have to pay end users (aka, farmers) for the government's choice to reduce water in order to save fish.

A short tangent: what happened to "life, liberty and property"?! FWIW, that phrase I just quoted was the one almost used instead of "...life, liberty, and the pursuit of happiness". It was changed at the last moment, just before the venerable document was signed. The founders of this country knew the importance of private property, and they knew that the government needs to compensate owners at fair market value when the government imposes an easement.

We're seeing a fairly rapid deterioration of that very, very important founding principle.

[sergeantdave]

Interesting implications.

If the feds have to compensate farmers for water diverted (stolen), will the fed also need to compensate property owners whose land was stolen to create de-facto federal nature preserves on private property?

[AndyTheBear]

If the feds have to compensate farmers for water diverted (stolen), will the fed also need to compensate property owners whose land was stolen to create de-facto federal nature preserves on private property?

They have to, if they want to follow the fifth amendment to the US Constitution which forbids them for taking private property for public use with out just compensation.

[sergeantdave]

If that's the case, the fed will owe private property owners hundreds of billions, after interest is calculated. The last number I saw was 103 million acres of private property seized to create government zoos. Don't know if that total is just fed theft or both state and fed.

I'm sure a judge will find that stealing land is different from stealing water and no compensation is due. Then the fascist theft will continue.

[sergeantdave]

If that's the case, the fed will owe private property owners hundreds of billions, after interest is calculated. The last number I saw was 103 million acres of private property seized to create government zoos. Don't know if that total is just fed theft or both state and fed.

I'm sure a judge will find that stealing land is different from stealing water and no compensation is due. Then the fascist theft will continue.

[Ben Hecks]

"... as well as those outside the dept who lobbied for it?"

I would bet that the Sierra Club was involved in this bright idea - we should send them the bill.

[Carry_Okie]

This could be an important precedent.

[Carry_Okie]

If that's the case, the fed will owe private property owners hundreds of billions, after interest is calculated.

That would be trillions, and yes, it's the case. We also have a precedent for regulatory taking of land in the instance of Hage v. US. You'd better hope these courageous folks continue to win in the court of claims. Hage spent nearly two million pursuing his case if memory serves.

[Carry_Okie]

The federales have a good point that the taxpayers should not be reponsible for cleaning up their mess.

No, they don't. The demand for water for fish is an urban democratic claim on the use of a private asset. It's terrible environmental policy because it ends up being used for the profit of those wishing to use regulatory power to put their competitors out of business. That process distorts priorities, misallocates capital, and destroys the wealth that pays for environmental protection. Takings such as these devalue the resource to the point where land is abandoned and overrun with weeds and pests.

[Saundra Duffy]

Maggie - What do you think of this?

[Amerigomag]

This could be an important precedent.

And a doubled edged sword. It could also be interpreted to mean that reallocation is legal as long as compensation, at present value, is forthcoming.

The ruling does not speak to the abuse of regulatory power and "what is not specifically prohibited is generally allowed".

[SierraWasp]

They won in the Federal Court of CLAIMS! Just as Wayne Hage did!

[farmfriend]

Rights, farms, environment ping.

Let me know if you wish to be added or removed from this list.
I don't get offended if you want to be removed.

[farmfriend]

Wow, Norm, great find. Thanks.

[farmfriend]

I think that once the government starts having to fork over some money they will start thinking twice. Maybe then a second way will get a chance.

[B4Ranch]

A loud PING!