Species Protection Threatened By Water-Rights Ruling

In December, a federal judge in Washington, D.C., awarded $26 million to a group of California farmers for the early 1990s water diversion, ruling that the farmers were entitled to compensation for the water they lost.

If the judgment survives expected legal challenges, the government could find itself forced to pay millions more for efforts to protect endangered fish. That would have implications across the West, where the federal government often clashes with property owners in attempts to save species on the brink of extinction.

Along the California-Oregon border, for example, a similar court case could leave the government with a $100 million bill for water diverted from farmers in 2001 for species protection.

"There may be implications for how the Endangered Species Act is implemented," said Alf W. Brandt, the Interior Department lawyer who argued the government's case. "There may be implications for how water diversions are made."

Environmentalists say the ruling is a stealth attack on the Endangered Species Act and could gut efforts to preserve species in the future.

The case stemmed from the government's efforts to protect endangered winter-run chinook salmon and threatened delta smelt between 1992 and 1994 by withholding billions of gallons from farmers in Kern and Tulare counties. The farmers continued making payments for the pumps and canals that brought the water to them.

In the first decision of its kind, Senior Judge John Wiese ruled that the government's halting of water constituted a "taking" or intrusion on the farmers' private property rights. The Fifth Amendment to the Constitution prohibits the government from taking private property without fair payment.

"What the court found is that the government is certainly free to protect the fish under the Endangered Species Act, but it must pay for the water that it takes to do so," said Roger J. Marzulla, the attorney representing the water districts that brought the claim.

Brent Graham, general manager for Tulare Lake Basin Water Storage District, one of the plaintiffs, insisted that the claim was not an attack on the Endangered Species Act.

"You have to pay us for the water you're taking," Graham said.

The case was heard in the Court of Federal Claims in Washington, D.C., which hears claims against the federal government. It has been on the front lines of a quiet battle between environmentalists and property rights activists.

Wiese's Dec. 31 ruling is a clear victory for champions of property rights, who have sought to rein in what they see as regulatory excesses committed in the name of the environment. Critics called it a radical legal decision that seeks to undermine environmental laws by making them too costly to enforce.

"The purpose of these suits is simply a backdoor attack on environmental laws," said Barry Nelson, a senior policy analyst with the National Resources Defense Council. "And frankly, it's to bust the federal budget as the price tag for complying with environmental-protection laws."

Environmentalists also said the massive pumps installed in the Sacramento-San Joaquin Delta to send water to farms and cities killed massive numbers of salmon and smelt and bore some of the blame for the poor health of the species.

Wiese's ruling would have a significant impact in California, where courts have halted diversions of water to protect the environment, said John D. Echeverria, executive director of the Environmental Law and Policy Institute at the Georgetown University Law Center.

It also could start a rush of claims against the state.

"Although this is a case against the United States, it might well lead to billions of dollars in claims against the state of California," Echeverria said.

The question now is whether the Justice Department will choose to appeal. If the ruling is appealed and upheld, efforts to protect fish throughout the West could become even more costly.

The U.S. Forest Service is being sued over a plan to close irrigation ditches in the Methow Valley in Washington state to provide additional water for endangered fish runs. In New Mexico, the Bureau of Reclamation is seeking court approval to take water from farmers and cities to help the endangered Rio Grande silvery minnow.

Marzulla scoffed at the notion that the judgment will break the government's bank. He noted the U.S. Fish and Wildlife Service budget includes about $4 million to protect elderberry bushes along the Sacramento River that may host an endangered beetle.

"This judgment is nothing," Marzulla said. "It's not going to do anything other than ... give some small quantity of justice to a few of the farmers who were injured in what was really a pretty rash act."

Marzulla also is involved in a Court of Federal Claims case over $100 million worth of water the U.S. Bureau of Reclamation took from farms in the Klamath Basin in 2001 to protect endangered suckers and threatened coho salmon. He said he was exploring similar claims on behalf of others, whom he declined to name.

Marzulla has been at the front lines of the property rights movement and has frequently invoked the Fifth Amendment takings clause. As an assistant attorney general under President Reagan, he helped draft a 1988 executive order intended to minimize government takings on private property rights.

In 1991, he and his wife founded the Washington, D.C.-based Defenders of Property Rights. Interior Secretary Gale Norton was on the group's advisory board until she was nominated by President Bush to the Cabinet.

The Endangered Species Act needs to be reined in, Marzulla said. He said protecting species, the original goal of the act, has been lost in the past 30 years as the law has been steadily broadened by "bureaucratic fiat" into a habitat-protection statute.

"We're trying to use a hammer to drive a screw into the wall," he said. "It's not working very well. It's very clumsy, and it caused a lot of damage in the process."