Feds, farmers talk damage from river restoration

June 8, 2011 

WASHINGTON – The Obama administration is quietly negotiating with a handful of California farmers who say San Joaquin River restoration efforts damage their land east of Los Banos.

The closed-door discussions could peacefully resolve a lawsuit filed nearly a year ago by Wolfsen Land & Cattle Co. and several associated families unhappy over side effects from river restoration. Some environmentalists, though, fear a potential settlement could undermine the river plan.

"We are concerned that if the result of the case is less water going down the river channel, that would threaten the restoration," Natural Resources Defense Council attorney Jennifer Sorenson said Wednesday.

The negotiations remain sealed tight, so far. A confidentiality agreement binds the participants, and several environmental groups failed recently in their effort to join the talks, which are overseen by Judge Nancy Firestone of the U.S. Court of Federal Claims. Farmers' attorneys could not be reached to comment.

The private discussions are taking place alongside a raucous, public debate over river restoration. Valley members of Congress are pushing a bill to end the restoration plan, while California's two Democratic senators are vowing to defend the river program.

The restoration plan agreed to by farmers on the Valley's east side in 2006 ended an 18-year-old lawsuit in which environmental groups had challenged the drying out of the river below Friant Dam. Congress implemented the plan in 2009, calling for salmon to be reintroduced by Dec. 31, 2012.

Federal officials are now discussing the possibility of postponing the deadline, while some lawmakers want the whole thing scrapped.

"The ill-advised restoration program has already caused hundreds of thousands of dollars in damage to private land owners," Rep. Jeff Denham, R-Atwater, said at a recent House hearing.

Denham supports the bill chiefly authored by Rep. Devin Nunes, R-Visalia, that would block the river restoration plan. The bill's long-term political prospects are in doubt, so long as California's two senators oppose it.

"This bill is fraught with legal controversy that will seriously set back California's ability to resolve its water challenges," Sens. Dianne Feinstein and Barbara Boxer wrote Rep. Tom McClintock, R-Elk Grove, this week.

McClintock chairs the House water and power subcommittee, which has held the first of two scheduled hearings on the legislation.

In the federal lawsuit filed last August, Wolfsen Land & Cattle claims that the initial October 2009 release of water down the formerly dry San Joaquin River streambed caused flooding or seepage that damaged some 12,973 adjacent acres.

The farming families say the damage amounts to a taking of private property, for which they are owed compensation under the Fifth Amendment. Neither the original lawsuit nor subsequent legal documents specify a dollar amount, and starting in January the negotiators agreed to keep their alternative dispute resolution sessions secret.

In late May, Chief Judge Emily Hewitt of the claims court rejected a bid by the Natural Resources Defense Council and the Pacific Coast Federation of Fishermen's Associations to be added to the case as interveners. This would have given the groups a seat at the table, which they said was necessary to protect the integrity of the river restoration settlement.

Hewitt said the Justice Department would adequately protect the river restoration plan.

Sorenson said environmental groups still have the option to appeal the judge's decision keeping them out of the case.

The reporter can be reached at mdoyle@mcclatchydc.com or (202) 383-0006.

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