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s"3 'v'r'�. t s�; 0 kuia )M s 4 s* TM Water Rlyhts, Water Quallty & Water Solutions / in the West TAKING & WATER RIGHTS In This Issue: CONSTITUTIONAL & CONTRACTUAL REMEDIES FOR GOVERNMENT TAKINGS THE TULARE LAKE DECISION AND BEYOND Takings by Roger J. Marzulla, Marzulla & Marzulla (Washington, DC) & Water Rights .......... 1 Litigating water rights cases in federal courts is often a complex and challenging undertaking. First, many judges defer to agency decision- making and rulemaking NW Regional regarding hydrology and the imperatives of the federal Endangered Species Act ( "the ESA Sediments obligates federal agencies to afford first priority to the declared national policy of saving Evaluation .................. 7 endangered species," PCFFA v. Bureau of Reclamation, 2005 WL 2649448, *1 (9th Cir. 2005) (internal quotations omitted)). Judges also may defer to the Clean Water Act, and congressionally imposed limitations on jurisdiction (for example, Orff v. United States, 125 S. Ct. 2606 (2005) (holding the Reclamation Reform Act, 43 U.S.C. § 390uu, does Water Law Changes not permit a claimant to sue the United States alone)). Accordingly, a federal district in Nebraska ................ 16 judge may be more inclined to rule for the federal agency (such as the Bureau of Reclamation, the Fish and Wildlife Service, or the National Marine Fisheries Service) and against the water user in an injunctive case. See, e.g., Klamath Water Users Protective Ass'n v. Patterson, 191 F.3d 1115 (9th Cir. 1999); and Barcellos and Wolfsen, Inc. v. Westlands Water Dist., 899 F.2d 814 (9th Cir. 1990). Fortunately, equitable relief in the district court is not the sole remedy available to irrigators and urban water users. Although they may not be able to compel deliveries, they may nevertheless recover Water Briefs ............... 22 damages — sometimes including attorney's fees and expert witness costs — in the US Court of Federal Claims located in Washington, DC. The Court of Federal Claims has nationwide jurisdiction over monetary claims (other Calendar ..................... 26 than in tort) founded on federal statutes, executive regulations, government contracts, and the Constitution. A number of water districts have availed themselves of this jurisdiction to assert monetary claims against the United States for failure to deliver water to which Upcoming Stories: they were entitled under state law. This article explores several such cases: their legal theories, the government's defenses and (as of this writing) what the court has ruled. Endangered Species Although it is too early to declare victory in most of these cases, the holdings thus far provide reason for optimism that water users are not entirely without a judicial remedy Act Update when the government refuses to make available to them the water to which they are entitled under state law. As one judge has already ruled, "[tlhe federal government is Irrigation & certainly free to preserve the fish; it must simply pay for the water it takes to do so." Conservation Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 324 (2001). Likewise, when dealing with water rights claims against another government, certain treaties, such as the North American Free Trade Agreement (NAFTA), provide a basis Zuni Settlement upon which to seek monetary damages. & More! THE TULARE LAKE BASIN CASE In January 2005, the United States paid $16.7 million to a group of California water districts for the taking of about 300,000 acre -feet of water they were entitled to from two water projects located in California (State Water Project water). The two water projects Issue #21 November 15, 2005