Texas Water Case Is 'Takings' On Steroids; Farmers Want $500 Million in Damages From Mexico, but Critics Say the Water Wasn't Theirs in the First Place

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Nancie Marzulla, an attorney representing the farmers, says the Texas water case resembles "takings" cases such as the $1 billion lawsuit against the U.S. Bureau of Reclamation filed by Klamath Basin farmers, who claim losses from measures taken to protect endangered salmon. "In takings cases, we often use the word 'expropriated,'" says Marzulla. "NAFTA uses the word 'expropriated.'"

Representatives of environmental groups and lawyers experienced with Chapter 11 NAFTA claims say the trade agreement is inappropriate for resolving a border water dispute. "It's takings on steroids," says Juliet Beck, a California-based water analyst with the consumer watchdog group Public Citizen. "It's totally unprecedented, using NAFTA to trump a treaty."

"It's a completely baseless claim," says Mary Kelly, senior attorney and program director for U.S./Mexico Border Initiative at Environmental Defense in Austin, Texas. Not only is the amount of the water deficit alleged in the claim "greatly exaggerated," Chapter 11 is intended to protect companies investing in another country, not in a cross-border situation, she says. "Somehow (the farmers' efforts) have been sold on the idea that it is possible to use a very novel interpretation."

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Texas Water Case Is 'Takings' On Steroids; Farmers Want $500 Million in Damages From Mexico, but Critics Say the Water Wasn't Theirs in the First Place

Jimmie Steidinger and Bobby Sparks cultivate grapefruit, oranges, cotton and sugarcane on the flatlands along the meandering lower Rio Grande in south Texas. They're among hundreds of small farmers on the U.S.-Mexico border, one of the nation's premier growing areas despite a mere 15 to 26 inches of rain each year. Farmers s...

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