Irrigators face tricky negotiations after legal victory

Apr 12, 2016

Capital Press

Irrigators face tricky negotiations after legal victory By Mateusz Perkowski Capital Press

Irrigators fighting a lawsuit over the threatened Oregon spotted frog have won a key battle but face new challenges in upcoming settlement negotiations.

U.S. District Judge Ann Aiken has filed an official opinion denying a preliminary injunction sought by environmentalists that would have significantly disrupted the operations of three irrigation reservoirs in Central Oregon.

The Central Oregon, North Unit and Tumalo irrigation districts must now strive to protect their interests during settlement talks with environmentalists and the federal government.

Growers are generally outmatched in terms of time and money in such litigation, which doesn’t help their position during negotiations, said Karen Budd-Falen, an attorney who represents natural resource industries.

“The farmers are going to be under significant pressure to settle even if they end up with less water,” she said. “It really is like David and Goliath, with two Goliaths instead of one.”

Aiken’s recent ruling was no surprise, since she’d already told the plaintiffs — WaterWatch of Oregon and the Center of Biological Diversity — they’d failed to prove such an injunction was necessary during a court hearing in March.

However, the environmentalists then asked the judge not to issue a written ruling, which would have prevented the opinion from being cited in future legal proceedings.

Aiken has now denied that request and issued a decision stating their proposed injunction would “create certain hardship for farmers and ranchers” while its benefits to the spotted frog would be “questionable.”

The environmentalists argue that the Crane Prairie, Wickiup and Crescent Lake dams have reversed the natural flow patterns of streams to the detriment of the frog in violation of the Endangered Species Act.

Their injunction motion sought an order requiring the U.S. Bureau of Reclamation to alter reservoir operations to promote higher flows in winter and lower flows in summer.

The government and irrigation districts argued the species had adapted to the system over the past 70 years, so the injunction proposal could hurt the frogs as well as farmers.

In her written opinion, Aiken said she would defer to federal biologists rather than “pick and choose among expert opinions,” particularly since the stream flow options demanded by the environmentalists wouldn’t clearly help the frogs.

Aiken noted the environmentalist proposal was “not based on studies or surveys of the frog and the hydrological conditions of the Upper Deschutes River basin over a meaningful period of time. Rather, plaintiffs’ proposals are based primarily on the limited observations of one individual over the course of several weeks.”

“This fact alone renders the requested relief questionable,” the judge said.

Apart from officially denying the injunction, Aiken’s written opinion directs the parties to enter “judicial settlement proceedings” before U.S. Magistrate Judge Thomas Coffin.

Such three-way negotiations are tricky for farmers and ranchers, since environmentalists have greater financial resources and basically nothing to lose in the litigation, said Budd-Falen.

“Even if the environmental guys get only half of what they requested, they’re still ahead,” she said.

While a co-defendant, the government can “print money” and has its own attorneys, so it similarly doesn’t face the same uncertainty and constraints as the irrigators, she said.

Natural resource defendants have also accused the Obama administration of leaving them out in the cold while reaching “sweetheart” deals with environmentalists as part of a “sue-and-settle” strategy.

In 2013, for example, the 9th U.S. Circuit Court of Appeals threw out a settlement over forest species management between federal agencies and environmentalists because the agreement circumvented public rule-making procedures.

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