Monday, December 27, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: Fifth Amendment restored

If the government takes your property, it owes you money

During the drought of the early 1990s, the California State Water Project reduced water deliveries to Kern County irrigation contractors to aid two fish species protected by the federal Endangered Species Act -- the delta smelt and the Chinook salmon.

Roger Marzulla, a former Reagan Justice Department official and a leader in the modern property rights movement, went to court, arguing farmers had a property right to that water. When promised deliveries were reduced due to "environmental protection" concerns, that amounted to a taking under the U.S. Constitution, he pointed out.

U.S. Claims Court Judge John Paul Wiese agreed, awarding the plaintiffs $14 million plus attorneys fees and interest -- expected to add up to $26 million.

Tuesday, over the protests of Gov. Arnold Schwarzenegger, the Bush administration announced it has agreed to settle the suit, paying $16.7 million to central valley farmers and irrigation districts whose water deliveries were cut to protect the endangered fish.

"This is a very strong precedent," explains Brian Kennedy, a spokesman for the House Resources Committee, which is chaired by one of the Endangered Species Act's most vocal detractors, Richard W. Pombo, R-Calif. "This should really fire a shot across the bow of federal regulators, reminding them that their actions have consequences and their actions cost money."

Although the settlement contains language stating that it establishes no legal precedent, Mr. Marzulla agrees the case "establishes the fundamental principal that the government is free to protect the fish -- it simply has to pay for the water it takes to do so."

And that's exactly what has the green extremists' kitty-cats cowering under the bed, as they protest the prospect of actually having to set some priorities, paying back the real costs accrued by innocent third parties as these zealots literally move whole rivers in their doomed race to "save" every weed and bug on the planet.

"By settling rather than fighting this case, the Bush administration is simply encouraging more of these legal attacks against our water quality laws and other public safeguards," said Hal Candee, senior attorney for the Natural Resources Defense Council.

The settlement is a "mistake that will establish a precedent that could require the public to pay tens of millions of dollars to water users in many cases where even a small portion of their anticipated deliveries are needed to protect endangered salmon or other fish," added Sen. Dianne Feinstein, D-Calif.

What? The federal government might have to pay property owners the real value when it takes their property for a perceived "public use" -- just as Americans are guaranteed in the Fifth Amendment, part of the U.S. Constitution Ms. Feinstein had to swear to "protect and defend" before she was allowed to take office?

Oh, the horror!

Mr. Marzulla has filed two similar takings claims -- one, for $1 billion, in the Klamath Basin, where fish protections forced irrigation cutbacks on the Oregon-California border.

Go et 'em, Mr. Marzulla.