01/13/05 Compensation precedent?, Part one

It was late last year that the U.S. government made a major announcement, one with legal precedent written all over it. They had reached a settlement in a court case in California, for the amount of $16.7 million dollars. The money will go to four water districts in the Central Valley  Tulare Lake  San Joaquin Valley area of Central California. Those districts sued for the governments' taking of water over a decade ago to help in recovery efforts of two rare fish protected under the federal Endangered Species Act. The original settlement issued last year by the Judge presiding over the case was for $26 million dollars. MARZULLA: This case was filed by the farmers as a matter of principal and not primarily for the money. Their view was that they needed to establish the principle that the government could not take their water without paying for it. That's Roger Marzulla, an attorney representing a group of California growers in the case. The judge ruled three years ago that the taking of water for fish was a violation of property rights under the Fifth Amendment of the U.S. Constitution. But it's the settlement, not the ruling, that sets the precedent. It was the first time the Federal Government agreed to settle in such a case, and more importantly, with the settlement recognize the right of growers to be compensated for water takings. Under the terms of the settlement, the state of California must set up a water account to buy irrigation rights. In Marzulla's opinion, since the public at large benefits from the Endangered Species Act, it also should pay when growers lose their crops to protect listed species. MARZULLA: This case deals directly with irrigated agriculture in California but it has significance to farmers across the country, who have to deal with environmental regulations. Specifically in this case, the Endangered Species Act was applied to these farmers to take their water. Now when Marzulla puts it in those terms it is easy to understand why Western property owners plagued by both the regulatory and financial burdens E.S.A. has placed on them, are rejoicing over the ruling. There is now hope that the hammer that has been the Endangered Species Act in the past can be set aside both in future considerations of water takings, and compensation for current claims. Just ask the long suffering growers of the Klamath Basin of Oregon and California. More on that in our next program.