By Lisa McEwen, SJV Water
The long, circuitous path of a lawsuit against the federal government for cutting off water during the crushing 2014 drought to farms and cities that rely on supplies from the Friant-Kern and Madera canals could lead all the way to the U.S. Supreme Court.
At least, that’s the goal of attorneys who filed a writ of certiorari on behalf of 20 Friant Water Authority districts, the City of Fresno and several San Joaquin Valley farmers on Sept. 5.
The filing is a formal request for the high court to review the case. The lawsuit stems from when the Bureau of Reclamation issued a “zero allocation” to Friant water contractors in 2014 and again during the drought year of 2015.
Contractors who get their water from the Friant system sued alleging the federal government breached its contract and that it illegally took their property rights to the water without just compensation.
In 2016, the case went to the Court of Federal Claims, which dismissed the Friant districts’ illegal taking argument.
The court ruled that the United States, not the districts or their landowners, owns the water rights underlying the federal Central Valley Project project.
The court later shot down Friant’s breach of contract allegations.
On appeal, the Federal Circuit upheld the lower court’s dismissal of the taking claims, according to the procedural history laid out in the writ.
Friant districts have argued that federal Reclamation law states otherwise.
“The federal circuit garbled the whole notion of property and water rights,” said Friant’s Washington, D.C. attorney Nancie Marzulla. “They got it so flat wrong that it cried out for review by the Supreme Court.”
Though chances of any case being granted review by the Supreme Court are slim, Marzulla said this case is “a unicorn,” because of the apparent conflict in the Federal Circuit court’s findings.
Marzulla and co-counsels Lawrence Ebner and Visalia’s Alex Peltzer are asking the justices to consider prior Supreme Court rulings that recognized Section 8 of the Reclamation Act of 1902, which states that owners of irrigated lands hold a property right in federal Reclamation project water — a right that is attached to their land.
They also seek to prove that the federal government took the growers’ and the City of Fresno’s water property rights without just compensation, in violation of the Fifth Amendment of the United States Constitution.
The focus of the appeal is the constitutional impact of Reclamation’s decisions on farmers’ water-property rights, and in particular, the rights of the Friant division growers.
“The government’s position is that (Friant contractors) don’t get a dime in compensation despite what the Fifth Amendment says,” said Ebner.
Which means if the justices accept the case, their opinion could have broad ramifications on water users throughout the nation.
“I can guarantee you that the government will take the decision, as it stands, and they will argue that Reclamation can allocate as it wishes and property owners have absolutely no say,” Marzulla said. “These growers are people who have invested decades worth of work and money into their farms and agricultural business. This kind of ruling is devastating to them.”
What’s next
Marzulla said petitioning the Supreme Court is a last-ditch effort to “straighten out the law” on behalf of all water users, especially those in the West.
“We are definitely at the end of the road on this issue for the Friant water users,” she said. “They have really fought a valiant fight here to protect their rights. They’ve gotten short shrift from judicial decision makers every step of the way. This is our last chance to get a court to pay attention to what’s going on here.”
The case was docketed with the Supreme Court on Sept. 9.
Now, a 30-day clock begins for the Bureau of Reclamation to file a response. Friant attorneys can then file a reply. The court clerk then sends the petition to the justices for consideration.
Progress of the case may be tracked at us.supremecourt.gov.
