http://www.latimes.com/news/local/la-me-water7dec07,1,4813985.story?coll=la-headlines-california
REGION & STATE
Officials want the Bush administration to appeal a decision on reimbursing local agencies for water diversions.
By
Bettina Boxall
Times Staff
Writer
December 7, 2004
State officials are urging
the Bush administration
to fight a court ruling
that would force the federal
government to pay Central
Valley farmers $26 million
for water diverted to
environmental protections — opening
the door to a wave of
similar claims.
Although the
core of the ruling came
down nearly a year ago,
Bush administration officials
have yet to signal whether
they will appeal the case.
They say a settlement is
possible.
If the administration lets
the decision stand, state
officials warn, it could
create a precedent that
would make it prohibitively
expensive to enforce water
quality rules and fish protections.
"We're concerned that
if the case is not overturned,
decades of hard work at recognizing
the importance of the environment
[in water policy] is going
to get thrown out the window," said
Richard Katz, a member of
the State Water Resources
Control Board.
"To lose this case or let
it stand would be a devastating
setback for the environment
and water quality in California."
The state concerns are
bipartisan. Last week, the
water board, representing
the Schwarzenegger administration,
wrote to three Bush Cabinet
members, asking them to
appeal the case and shift
it to the California Supreme
Court.
A month ago,
Democratic Atty. General
Bill Lockyer made a similar
request, saying the ruling
had wrongly interpreted
fundamental aspects of California
law dealing with the public
trust doctrine.
"We just want it made very
clear to the people in Washington
that it's a bipartisan effort
in California and a lot of
people will be watching carefully," Katz
said.
U.S. Department of Interior
Solicitor Sue Ellen Wooldridge
said Monday she did not
know whether the case would
be appealed.
"I don't think that's been
decided yet," she
said.
But
she added that "a settlement
is a possibility in the
case."
The court
decision came in a lawsuit
filed on behalf of Central
Valley irrigation districts
and farmers by Marzulla & Marzulla,
a husband-and-wife law
firm in Washington, D.C.,
that is a leader in the
property rights movement.
Nancie Marzulla founded
Defenders of Property
Rights, an organization
that counted Gale Norton
among its legal advisors
before she became U.S.
secretary of the Interior.
In a series of rulings,
a federal claims court
judge concluded that when
federal fishery protections
forced the cutback of
state water deliveries
to Central Valley irrigation
districts during the drought
of the early 1990s, it
amounted to a taking under
the federal Constitution.
The government, he concluded,
owed the districts $14
million plus interest
and legal fees — an
amount that attorneys
in the case say would
total about $26 million.
The attorney fees are still
being negotiated and a final
judgment has not yet been
issued in the case. When
it is, the government will
have 60 days to appeal.
The ruling, by Judge Paul
Wiese, is already being
cited in other cases, although
it has been criticized in
law review articles.
"It seems bizarre in the extreme
for the administration to
be thinking about settling
the case," said John D. Echeverria
of Georgetown University's
Environmental Law & Policy
Institute. "As a practical
matter, it would send a powerful
message within the federal
family and the federal courts
on this issue….
The administration would
be opening the floodgates
to a whole series of claims."
Echeverria said nearly a
dozen current cases across
the West involve water-related
takings claims, including
two others filed by the
Marzulla firm in California.
California officials are
particularly concerned
with the ruling's potential
effect on state law.
"The decision itself has flaws
on its face," said state Deputy
Atty. Gen. Clifford Lee. "It
would make the state's
authority to manage resources
in the public interest
in many cases prohibitively
expensive."
In previous
federal cases, when farmers
or irrigation districts
have challenged reduced
water deliveries stemming
from environmental regulations,
courts have found that
Endangered Species Act protections
trumped their contract rights.
But to
the applause of property
rights advocates, Wiese
concluded in this case
that if the government
wanted to hold back water
for fish, it had to pay.
In doing so, the judge
essentially endowed the
irrigation districts — the
end users of the water — with
a property right to the
water.
That, state attorneys say,
flies in the face of California
water law, under which the
state Department of Water
Resources holds the rights
to the water it diverts
for farm and municipal
use.
