Salem, OR —

The Oregon Supreme Court today re-affirmed the central role of the United States in the ownership and management of water in the Klamath Basin. The court ruled on key issues in a case stemming from the 2001 Klamath Basin water crisis.

This is a positive development for coastal communities, salmon fishermen, and others who depend on a healthy Klamath River for their livelihoods because Klamath irrigators had claimed they ultimately held a beneficial right to use Klamath Project water independent of the terms of their contracts with the United States.

With their answers, Oregon’s high court justices focused the dispute in a nearly decade-old lawsuit by Klamath Basin irrigators demanding taxpayer dollars on the terms of the irrigators’ contracts with the government.

“This may not be the end of this long-running dispute, but it does limit the most expansive claims by the irrigators and focus attention on the terms of the contracts between the irrigators and the United States,” said Todd True, an attorney with Earthjustice who represented fishing and conservation interests before the Oregon court. “In light of the Oregon Supreme Court’s decision, if this case continues, it seems likely that it will go back to the Federal Circuit – and even back to the Federal Court of Claims — in Washington, D.C., for further review of the terms of the contracts between the irrigators and the United States.”

Earthjustice represents the Pacific Coast Federation of Fishermen’s Associations (PCFFA) and a number of environmental amici in opposing extreme property rights advocates who argued that, under state and federal law, private property is taken whenever water must be left in rivers to protect threatened salmon and other species.

“I hope this ruling will lead the Klamath irrigators to shut the door on this decade old water dispute,” said Glen Spain of PCFFA. “We need to look forward, not backward, to solve the fundamental problem of too many demands for too little water. Let’s prevent these types of crises in the future by working to bring the water budget sheet back into balance throughout the whole Klamath basin.”

In 2009, the Oregon Supreme Court accepted three questions from the Federal Circuit Court of Appeals in Washington, D.C. where the irrigator’s original 2001 case is now on appeal.

In 2001 the Federal Bureau of Reclamation temporarily reduced delivery of water to agricultural water users and irrigation districts in order to provide water necessary to avoid jeopardy to three fish species listed as threatened or endangered under the Endangered Species Act. Shortly after the water was restored, these water user interests filed a lawsuit against the United States in Washington, D.C., alleging that the government had unconstitutionally taken property by withholding water deliveries without compensation.

The federal Court of Claims ruled against the water users in 2007, holding that Klamath irrigators had no property right in Klamath Project water under Oregon law.

The water users appealed to the United States Court of Appeals for the Federal Circuit whose judges asked the Oregon high court to answer three questions about Oregon state water law.

The questions the Oregon Supreme Court addressed in today’s ruling are:

• Does a 1905 Oregon statute preclude irrigation districts and landowners from acquiring a beneficial or equitable property interest in water rights acquired by the United States?
  
• In light of the statute, do the landowners who receive water from the Klamath Basin Reclamation Project have a beneficial or equitable property interest in the water right acquired by the United States?
  
• With respect to surface water rights where appropriation was initiated under Oregon law prior to February 24, 1909, does Oregon State law recognize any property interest, whether legal or equitable, in the use of the Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication?

While the court concluded that the irrigators might hold some kind of equitable interest in Klamath Project water under the 1905 Oregon law, it also concluded that the irrigators’ use of water from the Project was not alone sufficient to establish such a right. Instead, the nature of any equitable rights the irrigators might hold is subject to the specific terms of their water contracts with the United States. Because these contracts were not before the Oregon court, it could not determine whether the irrigators hold an interest in Klamath Project water or the nature of that interest, if any.