Ag Today January 31, 2017

Testimony opens in ‘takings’ trial in D.C.

Irrigators lay out their case

By HOLLY DILLEMUTH H&N Staff Reporter  13 hrs ago  (0)

Klamath  Basin irrigators walk into the Federal Claims Court in Washington, D.C., Monday to have their case heard. Trial may last up to three weeks.

WASHINGTON, D.C. — The federal courtroom chambers were full on Monday for opening arguments kicking off the “takings” case hearing in Washington, D.C.

More than 25 Basin irrigators — or those who represent them — are scheduled to testify in the consolidated case at the U.S. Federal Court of Claims over the course of the next three weeks. Testimony may also be heard from Bureau of Reclamation officials from Klamath Falls and Sacramento.

“It’s been a long time coming,” remarked Judge Marian Blank Horn. “I can assure you, it doesn’t always take this long.”

The case is formally known as Klamath Irrigation District et al v. the United States and Pacific Coast Federation of Fishermen’s Association and John Anderson Farms, Inc. et al v. United States.

Horn, seated beneath the federal court’s seal, expressed a desire to hear the interests on both sides of the case.

“It’s my responsibility to get through this expeditiously,” Horn added. “We do intend to be careful with it.”

The case stems from the federal water shutoff to irrigated land in the Basin in 2001 to protect fish downstream, thanks to two biological opinions that protect endangered species. Irrigators claim the action damaged their livelihoods and are seeking damages that may total $25 million.

Mark Stuntebeck, former manager of the Klamath Irrigation District, was one of the first three to testify for the plaintiffs Monday.

The defendant’s attorney Edward Thomas questioned Stuntebeck about the impact of the water shutoff.

“The farmers were shocked,” Stuntebeck said. “They’d lost their livelihoods, that’s how they made their living.”

Stuntebeck went further to explain the social and economic impacts to the community.

“There were suicides,” he said. “There were foreclosures on farms. I would describe it as pictures I remember seeing of the Dust Bowl in the 1930s.”

Marc Van Camp, a licensed engineer and certified water rights examiner, testified on the irrigator’s behalf, too, sharing that based on methods he used in 1992 and 1994 — relatively similar drought years — he identified that full deliveries of irrigation water could have been made to water users in the Klamath Reclamation Project in 2001, were it not for two biological opinions submitted by U.S. National Marine Fisheries Service and the U.S. Fish and Wildlife Service.

During opening arguments, Kristine S. Tardiff, of the U.S. Department of Justice Environmental & Natural Resources Division, said that neither side can contest that 2001 was a difficult water year.

“You’re not going to hear otherwise from any witness here,” Tardiff said. “We don’t dispute that.”

Tardiff asserted that the case reflects an overlap of an extremely dry water year mixed with the need for compliance with the Endangered Species Act and tribal water rights.

Tardiff said the plaintiff’s case is “completely divorced” from “historical and factual context.” She noted that that the Klamath Project irrigators are subject to compliance with the ESA as well as hold a junior water right to members of the Klamath Tribes.

After a full day in court, irrigators, who are all staying at the same hotel in the nation’s capital, walked the bustling neighborhoods from the courthouse back the hotel.

“It’s just a relief to get it started,” said Bill Ganong, water attorney and special counsel to the plaintiffs. “After three judges and 16 years, it is a relief to finally be here at trial.”

The trial will continue Tuesday morning with several witnesses planning to testify. Look for updates on Facebook and Twitter and at