Takings Claims in the Klamath Basin
Tarlock and Doremus are co-authors of Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics, published by Island Press in 2008.
Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts.
Usually, claims of ownership are made to recover a resource from someone else. But that's not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United States to pay them for having limited deliveries from the Project in the drought year of 2001 in order to protect threatened and endangered fish. Having failed so far to get that result in the federal courts, they are now using procedural maneuvering to get another bite at the apple from the Oregon …
On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”
A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact step. The report also recommends additional actions that would undo other policies adopted by the Bush administration that made government less transparent. Another Presidential Memorandum, Transparency and Open Government, sets the stage for additional steps to be taken, although it does not commit the administration to adopt any specific policies to foster more transparency.
While Congress created exemptions to FOIA disclosure, it also for the most part …
