Environmental Law and Policy Alerts – Update from Somach Simmons & Dunn

April 22, 2020

Baley v. United States: Water Users in the Klamath Project Petition the U.S. Supreme Court for Certiorari

On March 13, 2020, water users in the Klamath Reclamation Project (Project) petitioned the United States Supreme Court to review the Federal Circuit Court of Appeals’ decision in Baley, et al. v. United States, et al. (Baley).  The decision denied the water users’ takings claims for the 2001 Project water shutoff on water law grounds.  A copy of the petition for writ of certiorari is available here.  The petition explains that the Federal Circuit improperly deemed the Bureau’s regulatory action under the Endangered Species Act to constitute adjudication and administration of water rights for tribal purposes, and thereby sidelined Oregon’s adjudication and administration of water rights in the Klamath Basin.  The water users argue that the appellate ruling is contrary to western water law because it circumvents deference to state water rights administration by allowing federal regulators to determine and enforce their own rights outside the state system.  The petition further argues that the Federal Circuit’s ruling is at odds with the Reclamation Act, McCarran Amendment, and state prior appropriation doctrines, which subject federal reclamation projects to state water law, including priority administration.  The water users seek U.S. Supreme Court review on this important federalism issue and they assert that all water rights, whether they are state or federal reserved rights, must be subject to the same state administrative rules and priority designations. … Read More

Written by Richard S. Deitchman and J. Palmer Hilton