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 …
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