From: Michael Doyle, The Sacramento Bee
Published February 25, 2005 12:00 AM

Justices Weigh Water Rights

WASHINGTON — Some San Joaquin Valley farmers had a tough row to hoe Wednesday as Supreme Court justices showed skepticism over the farmers' bid to sue the federal government.


The roughly two dozen Westlands Water District farmers and farming partnerships want money for undelivered irrigation water. It could add up to millions of dollars. But because the district already had settled its own suit against the government, the farmers first require a judicial green light in order to sue on their own.


The result could be a legal and administrative mess, some justices suggested.


"The whole point of the districts is to make it easier for the government to deal with the farmers," Justice Anthony Kennedy said, cautioning that allowing individual lawsuits would "undermine efficiency."


Justice John Paul Stevens likewise noted that "the government probably thought it would be efficient for the district to represent all the farms," rather than allow dissident farmers to challenge the government in court. Westlands' managers agree, though they've often fought the federal government on other fronts.


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"How in the world are we going to be able to administer a water contract if at any given time, a (single) landowner is able to go into court?" Sacramento-based attorney Stuart Somach asked on Westlands' behalf during the hourlong oral argument Wednesday.


But the individual farmers maintain that having lost both water and money, they deserve a chance to seek compensation. By one estimate, some $32 million could be on the table for Francis Orff and the other farmers.


"The United States breached the (irrigation) contract. The United States cut the water and doubled the charge," said William Smiland, the Los Angeles-based attorney for Orff and the other farmers. "My clients have suffered massive losses. We should have a forum, a remedy and our day in court."


Now in his 80s, Orff began farming about 800 acres in the Westlands Water District in the years following World War II. Like others in the 600,000-acre Westlands district -- the nation's largest -- he was unhappy when the federal government began cutting irrigation deliveries in order to preserve endangered species.


Under the 1992 Central Valley Project Improvement Act, more than 1 million acre-feet of water was diverted away from farms and into environmental protection. Westlands and other water districts sued, adding their lawsuit to the long string of legal challenges that have dogged Western water decisions.


In 1995, Westlands dropped its lawsuit as part of the newly adopted Cal-Fed program emphasizing state and federal collaboration on solving water problems. Orff and his allies, who represent only a small fraction of the entire Westlands district, chose to press on. "We would have hoped the district would keep going," Smiland said.


Although the federal government is customarily immune from lawsuits, the 1982 Reclamation Reform Act permitted some suits over water contracts. The legal question facing the court Wednesday was whether the individual farmers can be considered "intended third-party beneficiaries" of the Westlands water contract and thus eligible to sue through the waiver of sovereign immunity granted under the 1982 law.


"We don't give a broad construction to waivers of sovereign immunity," Justice Sandra Day O'Connor cautioned.


Associate Solicitor General Jeffrey Minear, representing the Bush administration, added that the water contract was "rendered to Westlands" rather than individual farmers, and that it was Westlands that had "the authority to act on behalf of all of its members."


The one justice who sounded sympathetic to the farmers' position was Justice Antonin Scalia. Other justices wondered why the case wasn't simply brought in the U.S. Court of Federal Claims, where judges have previously issued million-dollar awards to aggrieved farmers.


Source: Knight Ridder/Tribune Business News


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