June 22, 2020
Paul Simmons, Executive Director
Supreme Court Declines Review in Water “Takings” Case
The United States Supreme Court has denied a petition requesting that it review a lower court decision that ruled Klamath Project irrigators were not entitled to compensation for the re-allocation of water under the Endangered Species Act (ESA) in 2001. The one-sentence order in the case, named Baley v. United States, does not mean that the Supreme Court agreed or disagreed with the decision; rather, it means only that it declined to take up the case. The Court similarly denied review in over 75 cases today: https://www.supremecourt.gov/orders/courtorders/062220zor_mjn0.pdf
“The Court accepts review of a very small percentage of cases. Still, this development is very disappointing,” said KWUA Executive Director Paul Simmons.
The case arose after the Bureau of Reclamation precluded water deliveries in order to maintain water elevations in Upper Klamath Lake for suckers species in Upper Klamath Lake that are ESA-listed as endangered and provide flows for coho salmon in the Klamath River. The plaintiffs in the case asserted that because water rights are property under state law, the federal government was required, under the Fifth Amendment to the U.S. Constitution, to pay compensation for taking the rights.
The case, originally filed in the U.S. Court of Federal Claims in the fall of 2001, has had an extremely long history, including previous appeals and the Oregon Supreme Court responding to a federal appellate court’s request for clarification of Oregon water law. A trial took place in the Court of Federal Claims in 2017. Ultimately, last year, the U.S. Court of Appeals for the Federal Circuit agreed with the trial court that the plaintiffs were not entitled to compensation because there existed senior, tribal rights for lake levels and flows in at least as great amounts as were required under the ESA. That logic meant that no property was actually taken, according to the trial court.
The petition for review to the Supreme Court – known as a petition for writ of certiori – focused on fundamental misunderstandings and misapplications of western water law by the federal courts, both of which are located in Washington, D.C. A multitude of public and private parties, including Oregon Water Resources Congress, Family Farm Alliance, National Water Resources Association, Association of California Water Agencies, American Farm Bureau Federation and several state Farm Bureaus, the counties of Klamath, Modoc, and Siskiyou through Pacific Legal Foundation, and others, filed briefs supporting that the Court accept the case for review.
Mr. Simmons, whose firm became counsel for the plaintiffs after the decision by the court of appeals, said that although the odds of Supreme Court review are long, the plaintiffs believed it was appropriate to pursue the issue. “We thought we had a decent chance, but it did not go the way we wanted. There is no choice but to move on.”
Mr. Simmons also said that, while the courts denied compensation for water being taken, there are still important issues related to how the ESA applies to the Klamath Project, particularly in light of other recent legal developments. “Going forward, we focus on having enough water, period. The Klamath Project is authorized for irrigation and should be operated for irrigation.”
The Klamath Project was authorized in 1905 under the Reclamation Act of 1902. Project facilities divert and deliver water from Upper Klamath Lake and the Klamath River to approximately 175,000 acres straddling the Oregon – California border.