The Klamath Basin: The Tricky Business of Water Rights in the West

Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts. Usually, claims of ownership are made to recover a resource from someone else. But that's not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United States to pay them for having limited deliveries from the Project in the drought year of 2001 in order to protect threatened and endangered fish. Having failed so far to get that result in the federal courts, they are now using procedural maneuvering to get another bite at the apple from the Oregon courts. The 2001 "train wreck" spawned litigation on a variety of fronts. The irrigators went the takings route. They have long gotten the benefit of almost all the water in the basin, and have decided to stand on their claimed rights to that water even as the ground shifts from under them. Shortly after the water shut-off, they hired lawyers known for aggressive pursuit of property rights claims, and soon were claiming that the United States owed them a billion dollars (far more than any documented losses) under the Fifth Amendment for having "taken" their water in 2001. The United States Court of Claims ruled for the United States, finding that the irrigators did not have property rights that would support a takings claim, and that their contracts for water delivery were subservient to the Endangered Species Act. On appeal of the takings claim, the Federal Circuit decided that the property issue depended "upon complex issues of Oregon property law." It certified three questions to the Oregon Supreme Court, essentially requesting that the state court resolve those issues, which it has now agreed to do...AlterNet