Walden: Court must protect theft of Western water

By Congressman Greg Walden,

The Fifth Amendment protects the right to life, liberty, and property. This week, the Supreme Court should take a critical step to protect the private property rights of farmers and ranchers in the Western states. Their rights were infringed upon by a lower court ruling that upended the water laws of the region and abandoned over a century of federal deference to state law for adjudicating and administering water rights.

The Supreme Court is considering whether to grant review in Baley v. United States, a case that involves bedrock principles of Western law, federalism, and the Fifth Amendment. In the West, the use of water for irrigation is a property right, earned by diligent work and beneficial use of the water. The conflict in Baley centers on the federal government taking water developed and stored solely for irrigation uses authorized through the 1905 Klamath Project.

In 2001, after a century of providing safe and affordable food, farmers had their water reallocated to protect endangered species. Specifically, based on advice from wildlife agencies, the Bureau of Reclamation redirected the farmers’ water to the Klamath River to boost instream flows and required all the remaining water to be left in Upper Klamath Lake to provide extra water for two species of suckerfish that live there.

Adding insult to injury, the Natural Resources Council of the National Academy of Sciences found that there was no scientific basis for taking the farmers’ water; more water, it noted, would not entail more fish. But that finding was too late, and the only possible redress was through the courts. The farmers’ claim was simple: Society chose to adopt and implement the Endangered Species Act in a way that took their property, and so, under the Fifth Amendment, the government is required to pay for the property that it took.

Unfortunately, justice has been long delayed. The case saw delays, appeals, and remands in the federal court system. It even required a side trip to the Oregon Supreme Court, which corrected the federal trial court’s misunderstanding of Western water law principles.

Eventually, 16 years after the taking, the trial court recognized that many of the involved water rights were compensable property rights of the landowners. But the trial court and the Court of Appeals went on and made findings that have upset many public and private entities throughout the West. In particular, the lower courts found that there were, as of 2001, senior federal reserved water rights for the benefit of tribal fisheries, which, by their existence, meant that the farmers really didn’t have a right to the water to begin with.

However, this post-hoc rationalization is flawed. Even if there was a reserved right, these courts ignored the Supreme Court’s 1978 ruling, which limited the quantity of a reserved right to the “minimum amount” necessary for the primary purposes called out in the act establishing the reservation. Subsequent rulings establish that the date of priority of a reserved right is the date of the establishment of the act.

Water rights law is complex and determined and quantified in state adjudication proceedings. Also, states administer water rights based on relative priorities of all parties in a system. By contrast, here, the water was taken from one group of parties under the ESA based on opinions of federal agency staff. Court decisions limiting reserved rights, state authority over water, and state water law were ignored. Also, the farms and ranches rely on water that is stored in reservoirs during relatively wet periods for use during the dry summer. Water stored for irrigation under state law cannot be subject to a federal right claim, but the lower courts did not bother to sort that out.

The federal circuit court’s decision is disruptive, inconsistent with Supreme Court precedent, and at odds with fundamental principles of Western water law. “Friend of the court” briefs have been filed by scores of parties, including the American Farm Bureau Federation, the Oregon Water Resources Congress, New Mexico’s Middle Rio Grande Conservancy District, the Association of California Water Agencies, the Pacific Legal Foundation, and legal scholars.

The issues in Baley are of broad Western and national importance. The Supreme Court should accept the petition for review of the case to honor the Fifth Amendment and respect the principles of cooperative federalism that guide Western water rights and the economies that depend on those principles.

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