Ruling Could Have Effect in West
By Seth Hettena
SAN DIEGO - An effort to save two rare fish more than
a decade ago could come back to haunt environmentalists
after a recent court decision awarded millions of dollars
in compensation to farmers who lost water in the process.
If the December ruling by a federal judge survives expected
legal challenges, the government could find itself forced
to pay much more for efforts to protect endangered fish,
draining resources away from conservation.
The eventual result would have implications across the
West, where the federal government often clashes with
property owners in attempts to save species on the brink
"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
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 California's Kern and Tulare counties.
Court of Federal Claims 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.
Wiese's Dec. 31 ruling, which awarded $26 million to a
group of California farmers for the water diversion, 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.
"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.
Environmentalists called the ruling a stealth attack on
the Endangered Species Act that could gut efforts to preserve
species in the future 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
Along the California-Oregon line, for example, a similar
court case could leave the government with a $100 million
bill for water diverted from farmers in 2001 for species
Wiese's ruling could also 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.
"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 (news
- web sites) 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."
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 into a habitat-protection
"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