Court Ruling Affects ESA - Water Wars - Fighting to recover water

Liberty Matters News Service

10/27/04

It may not be business as usual for radical environmental activists now that a Court of Appeals judge has decided the government must pay for what it takes.

Judge John Paul Wiese ruled that the federal government owes California farmers a lot of money for taking their water to protect Chinook salmon and delta smelt back in 1992 and 1994.

Judge Wiese awarded the farmers $13.9 million in damages, agreeing that denial of their water rights did indeed constitute a "taking" of their property rights.

That figure could balloon to $26 million when interest over the three years is added. Environmental groups view the decision with alarm, fearing it could lead to similar awards that might adversely impact the government's willingness to take property rights to "benefit" fish and wildlife.

"The purpose of these suits is simply a backdoor attack on environmental laws," complained Barry Nelson of the Natural Resources Defense Council. "And frankly, it's to bust the federal budget as the price tag for complying with environmental protection laws," he continued.

The environmentalists have used taxpayers' money to finance their schemes for way too long and the day of reckoning is long overdue.

Former regional director of the Bureau of Reclamation, Lester Snow, seemed to recognize the ESA may have to be handled differently. "It makes the decision [to enforce the ESA] harder because there's direct financial consequences up front. It's a sea change in the way they manage the Endangered Species Act," he said.

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Water Wars - Fighting to recover water

By Robert Montgomery
BASS Times, Sept. 2004

WASHINGTON, D.C. — Depending on what happens on appeal, a ruling in the Court of Federal Claims here could have far ranging consequences in the decades-long battle of private property rights versus protection of fish and wildlife habitat.

"There may be implications for how the Endangered Species Act (ESA) is implemented," said Alf Brandt, the Interior Department attorney who argued the government's case in a losing effort. "There may be implications for how water diversions are made," he added. Judge John Paul Wiese decided that the federal government must pay for the water that it withheld from California farmers in 1992 and 1994. The water was used to help protect endangered winter-run Chinook salmon and threatened delta smelt.

Wiese set compensation at $13.9 million for the farmers in Kern and Tulare counties, who argued that denial of their water rights constituted a "taking" or intrusion on their private property rights. Federal law prohibits the government from taking private property without fair payment.

More than three years ago, the court first ruled that the farmers should be compensated. That means interest has accumulated, according to agricultural interests, who now say compensation should be $26 million. That's not even half of the $65.7 million that farmers were seeking, but it's still enough to cause concern among conservation and environmental groups, who fear the ruling might have a chilling effect on federal efforts to protect fish and wildlife, especially those protected by the ESA.

"The purpose of these suits is simply a backdoor attack on environmental laws," said Barry Nelson of the Natural Resources Defense Council. "And frankly, it's to bust the federal budget as the price tag for complying with environmental protection laws." Lester Snow, former regional director for the Bureau of Reclamation, added: "It makes the decision (to enforce ESA) harder because there's direct financial consequences up front. It's a sea change in the way they manage the Endangered Species Act."

And not just federal policy could be altered by this decision. Some states like California have diverted water for environmental reasons. "Although this is a case against the Untied States, it might well lead to billions of dollars in claims against the state of California," said John Echeverria, executive director of the Environmental Law and Policy Institute.

But whatever the implications, said an attorney for the plaintiffs, this case was about property rights, not environmental protection. There's no free water, just as there's no free lunch," said Roger Marzulla. "There are costs that are going to be borne somewhere along the line. The plaintiffs have a recognized property right under state law. The federal government took it, and the federal government has to pay for it."

Critics have suggested that maybe the federal government doesn't mind losing this case, since President Bush is a strong advocate of private property rights. And they point out that Interior Secretary Gale Norton served on the advisory board of Defenders of Property Rights before she joined the Bush administration. Marzulla founded that organization in 1991. "One isn't sure the federal government is making all that aggressive an effort to achieve the environmental objectives," said Tom Graff an attorney for Environmental Defense.
============== People for the USA (PFUSA) ==============

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