Water Ruling Could Have Effect in West: New York Times

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>ta A w P Miller, Steve From: Loretta Lohman [lorettalohman @comcast.net] Sent: Thursday, February 12, 2004 8:03 AM To: Dave Merritt; John Shields; Miller, Steve; Dick Parachini; Daniel M. Beley; BILL McKee; Kathleen Reilly; Laurie Fisher; Randal J Ristau; Carl Norbeck Subject: Fw: NYTimes.com Article: Water Ruling Could Have Effect in West > Water Ruling Could Have Effect in West • February 12, 2004 • By THE ASSOCIATED PRESS > Filed at 9:20 a.m. ET • SAN DIEGO (AP) -- 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 W. Brandt, the Interior • Department lawyer who argued the government's case. '-There • may be implications for how water diversions are made.— • 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 J. Marzulla, the attorney representing the water • districts that brought the claim. • Environmentalists called the ruling a stealth attack on the • Endangered Species Act that could gut efforts to preserve 1