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 of extinction.
“There may be implications for how the Endangered Species Act is implemented,” said Alf Brandt, the Interior Department lawyer who argued the government’s case. “There may be implications for how water diversions are made.”
Ruled a 'taking' of property
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 Marzulla, the attorney representing the water districts that brought the claim.
Activists see 'backdoor attack'
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 Natural Resources Defense Council. “And frankly, it’s to bust the federal budget as the price tag for complying with environmental-protection laws.”
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 protection.
Wiese’s ruling could also have a significant impact in California, where courts have halted diversions of water to protect the environment, said John 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.
Situation elsewhere
The question now is whether the Justice Department 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 statute.
“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 process.”
