The Klamath Basin: The Tricky Business of Water Rights in the West

By Dan Tarlock and Holly Doremus, Center for Progressive Reform. Posted February 10, 2009.

The issue here is familiar to water lawyers. For decades, water users have tried to turn their inherently insecure rights to use water into secure, exclusive property rights like those of landowners. Courts and academics have long reminded them that water is different. Ownership simply doesn't fit the reality of water use. To control access and use, the western states "own" the water in trust for the public. Individuals such as the Klamath water users can obtain the right to use water, but never classic ownership of it.

This latest litigation twist illustrates just how complex, time-consuming, and expensive it can be to resolve these sorts of property claims, and how such claims can stand in the way of ecosystem restoration efforts. There are good reasons for guaranteeing compensation to those deprived unexpectedly of their property rights by government action. Stable property rights encourage investment, both economic and emotional, in the development of land and water resources. But at the same time, too much deference to property rights enhances the tyranny of the status quo, inhibiting the necessary evolution of rules in response to changed circumstances and changed societal goals. Ultimately, most takings plaintiffs lose on their claims that they must be compensated for the costs imposed on them by new environmental regulations, but they can often force the government into protracted, expensive litigation. The mere threat of takings litigation can chill legitimate regulatory initiatives, especially in a time of ever-shrinking government budgets.

In the end, the Oregon court's decision will not help the irrigators. Whatever word is used to describe their entitlements, the takings issue boils down to whether they were treated so unfairly as to trigger an obligation to compensate. The insistence of Klamath project irrigators that they must be paid for any change to the status quo seems particularly unjustified. Millions of dollars have been poured into the Basin since 2001, much of it going to farmers. Some water has been reallocated to environmental purposes, but only through water banks that have paid farmers for giving up their water. A recent negotiated deal on hydropower dam re-licensing on the Klamath River manages to be highly favorable to the irrigators while still calling for environmental improvement through dam removal. None of that seems to be enough, however. The irrigators continue to pursue what they see as their "rights" to their full limit. That choice is good only for lawyers, not for the environment, not for the Basin's Indian tribes, who have long been denied their much longer established rights, and not for the public fisc.

In the end, it won't even be much help to the irrigators themselves. They are unlikely to ultimately win their case. Even if they do, the courts cannot save them from the real threats to farming in the area, global economic and climatic change.

By definition, ecosystem restoration must displace the status quo to some extent. Sometimes, the losers may deserve some help in dealing with transitions. But takings litigation is too crude a tool for calibrating that help. It tells us little about the extent of the pain caused by change, the extent to which that pain is properly charged to the government or (as is clearly the case in the Klamath) has other causes, or about the appropriate way to distribute its costs.

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Dan Tarlock and Holley Doremus are co-authors of "Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics," published by Island Press in 2008.

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