Klamath Irrigation v. United States ( 2017 )

In the United States Court of Federal Claims
Nos. 1-591L; 7-194C; 7-19401C; 7-19402C; 7-19403C; 7-19404C; 7-19405C;
7-19406C; 7-19407C; 7-19408C; 7-19409C; 7-19410C; 7-19411C; 7-19412C;
7-19413C; 7-19414C; 7-19415C; 7-19416C; 7-19417C; 7-19418C; 7-19419C;
7-19420C
Filed: September 29, 2017
* * * * * * * * * * * * * * * * * ** *
LONNY BALEY, et al., 1 and *
JOHN ANDERSON FARMS, INC., *
et al., For Themselves, and as *
Representatives of a Class of *
Similarly Situated People, *
*
Plaintiffs, * Takings, Physical or Regulatory
* Taking, Permanent or Temporary
v.
* Taking, Water Rights, Tribal Rights,
UNITED STATES, * Endangered Species Act, Federal
* Reserved Rights; Motions for
v. * Reconsideration.
*
Defendant,
*
PACIFIC COAST FEDERATION OF *
FISHERMEN’S ASSOCIATIONS, *
*
Defendant-Intervenor. *
* * * * * * * * * * * * * * * * * ** *
Nancie G. Marzulla, Marzulla Law, LLC, Washington, D.C. for plaintiffs. With her
was Roger G. Marzulla, Marzulla Law, LLC. Of counsel were William M. Ganong,
Special Counsel, Klamath Irrigation District, Klamath Falls, OR and Alan I. Saltman and
Kathleen H. Barron, Smith Currie & Hancock LLP, Washington, D.C.
Kristine S. Tardiff, Trial Attorney, for defendant. With her were Jeffrey H. Wood,
Acting Assistant Attorney General, and Edward C. Thomas, Natural Resources Section,
Environment and Natural Resources Division, United States Department of Justice,
1 As discussed below, case number 1-591L was re-captioned from Klamath Irrigation
District, et al. v. United States to Lonny Baley, et al. v. United States by order of the court
on February 14, 2017 after the claims of Klamath Irrigation District, along with a number
of plaintiffs were dismissed from the case.
Washington, D.C. Of counsel were Stephen Palmer, Office of the Regional Solicitor,
United States Department of the Interior, Sacramento, CA, and Christopher Keifer,
Office of the General Counsel, National Oceanic and Atmospheric Administration, Long
Beach, CA.
Todd D. True, Earthjustice, Seattle, WA for defendant-intervenor.
Susan Y. Noe, Native American Rights Fund, Boulder, CO for amicus Klamath
Tribes.
FINDINGS OF FACT
Plaintiffs in the above-captioned cases are a consolidated class of farmers in
southern Oregon and northern California, who claim they held a right to receive water
from the United States Department of the Interior, Bureau of Reclamation’s Klamath River
Basin reclamation project (the Klamath Project) in 2001. The cases arise from the
government’s actions in 2001, when defendant, acting through the United States
Department of the Interior, Bureau of Reclamation, temporarily terminated water
deliveries to the plaintiffs in order to meet the requirements of the Endangered Species
Act, 16 U.S.C. § 1531, et seq. (2000), as outlined in two Biological Opinions from the
United States Fish and Wildlife Service (FWS) and the United States National Marine
Fisheries Service (NMFS), and its tribal trust obligations to several Native American
tribes. After multiple opinions issued by earlier assigned judges, and, following appeal of
one of those earlier decisions to the United States Court of Appeals for the Federal Circuit,
remand to this court, and reassignment to this judge, a trial was held leading to the instant
decision. Plaintiffs allege, in their remaining claims, that the government’s actions
constituted compensable takings of their property under the Fifth Amendment to the
United States Constitution by depriving them of their alleged rights to use Klamath Project
water, as well as an impairment of their rights under the Klamath River Basin Compact,
Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Compact).
I. The Klamath Project
The Klamath Project, an irrigation project straddling the southern Oregon and
northern California borders, supplies water to hundreds of farms, comprising
approximately 200,000 acres of agricultural land, including those in the Klamath River
Basin, as well as to certain National Wildlife Refuge lands owned by the United States.
The agricultural irrigation water is used by the farmers and ranchers in the Klamath
Project area to grow a variety of crops, including alfalfa, irrigated pasture, small grains,
potatoes, onions, sugar beets, as well as several other miscellaneous crops. The Klamath
Project is managed and operated by the United States Bureau of Reclamation. The
Bureau of Reclamation also manages the Klamath Project to protect tribal trust resources
that depend on Klamath Project Water, including the Lost River and shortnose suckers
and the Southern Oregon/Northern California Coast (SONCC) coho salmon, all three of
which species that are also protected under the Endangered Species Act.
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A. Appropriation of Klamath Project Water Rights by the United States
The Klamath Project is one of the earliest federal reclamation projects. Engineering
investigations for the Klamath Project began in 1903, and, in 1905, the United States
Congress authorized the Klamath Project pursuant to the Reclamation Act of 1902, which
provided for federal financing, construction, and operation of water storage and
distribution projects. See Reclamation Act of 1902, Pub. L. No. 57-161, 32 Stat. 388(codified as amended at 43 U.S.C. § 371, et seq. (2012)). Section 8 of the Act requires
the Secretary of the Interior to comply with state law regarding the appropriation of water
for irrigation (to the extent it is not inconsistent with federal law). See 43 U.S.C. § 383.
Section 8 also provides that: “The right to the use of water acquired under the provisions
of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis,
the measure, and the limit of the right.” 43 U.S.C. § 372.
On February 22, 1905, the Oregon legislature enacted a statute specifically related
to appropriations of water for Reclamation Act projects, such as the Klamath Project. See
1905 Or. Gen. Laws 401-02. The statute provided:
Whenever the proper officers of the United States, authorized by law to
construct works for the utilization of water within this State, shall file in the
office of the State Engineer a written notice that the United States intends
to utilize certain specified waters, the waters described in such notice and
unappropriated at the time of the filing thereof shall not be subject to further
appropriation under the laws of this State, but shall be deemed to have been
appropriated by the United States; provided, that within a period of three
years from the date of filing such notice the proper officer of the United
States shall file final plans of the proposed works in the office of the State
Engineer for his information; and provided further, that within four years
from the date of such notice the United States shall authorize the
construction of such proposed work.
Id. (emphasis in original). Pursuant to the terms of the 1905 Oregon statute, on May 17,
1905, the United States Reclamation Service, the predecessor to the United States
Bureau of Reclamation, filed a notice with the Oregon State Engineer stating that “the
United States intends to utilize . . . [a]ll of the waters of the Klamath Basin in Oregon,
constituting the entire drainage basins of the Klamath River and Lost River, and all of the
lakes, streams and rivers supplying water thereto or receiving water therefrom” for
purposes of “the operation of works for the utilization of water . . . under the provisions of
the . . . Reclamation Act.” Also pursuant to the terms of the 1905 Oregon statute, the
Reclamation Service subsequently filed with the State Engineer plans of proposed works
and proof of authorization of the Klamath Project. Prior to the development of the Klamath
Project, private landowners and irrigation companies in the area ultimately to be served
by the Klamath Project had begun to divert water for irrigation purposes. The Reclamation
Service acquired the interests of such entities in most of these pre-Klamath Project water
rights or appropriations and integrated them into the Klamath Project.
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The property rights claimed by the plaintiffs in this litigation relate to water that is
diverted from Upper Klamath Lake, a large, shallow lake in which water is stored by
means of a dam (the Link River Dam), and from locations downstream of Upper Klamath
Lake and the Link River Dam on the Klamath River in Oregon. The water is diverted out
of Upper Klamath Lake and the Klamath River and then conveyed through canals and
laterals to individual users in both California and Oregon within the Klamath Project. The
works which divert the water were constructed by the United States between 1906 and
1966 and are currently owned by the United States. The operation and maintenance of
all of the federally owned diversion works downstream of the headgates of Upper Klamath
Lake, as well as works that divert water directly from the Klamath River, however, have
been transferred to two Irrigation Districts, the Klamath Irrigation District and the Tulelake
Irrigation District, by contract, subject to the rules and regulations of the United States
Secretary of the Interior. These two Irrigation Districts operate and maintain works that
distribute this diverted water to serve benefitted lands. Other Irrigation Districts and
individuals that constructed and own their own diversion and delivery facilities also are
parties to contracts with the United States for water made available by the Klamath
Project. The individual plaintiff landowners (or their lessees) apply the diverted water to
irrigate crops.
B. Contracts Between the United States and Klamath Project Water Users
Water is generally diverted and delivered by the Klamath Project pursuant to state
law (to the extent it is not inconsistent with federal law) and pursuant to perpetual
repayment contracts between the Bureau of Reclamation and Irrigation Districts, or
Warren Act contracts between the Bureau of Reclamation and Irrigation Districts or
individuals. Water also is delivered to a smaller number of users pursuant to settlement
contracts and as part of lease agreements for lands in the National Wildlife Refuges
located within the Klamath Project.
1. Repayment Contracts
The Bureau of Reclamation has entered into repayment contracts with two large
Irrigation Districts, the Klamath Irrigation District, which covers the “Main Division” of the
Klamath Project, the approximately 40,000 acres of land that were the first developed for
irrigation as part of the Klamath Project, and the Tulelake Irrigation District, which covers
approximately 63,000 acres of reclaimed lands formerly submerged by Tule Lake in
California. 2 Related to these contracts, however, are several other contracts that were
entered into in the early years of the Klamath Project.
Form A and B Applications
Prior to the establishment of Irrigation Districts, the Department of the Interior had
adopted two forms of applications to receive water from reclamation projects such as the
2Although Tule Lake is spelled as two words, the name of the Tulelake Irrigation District
does not include the space between the two words.
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Klamath Project, “Form A” and “Form B.” See Laws and Regulations Relating to the
Reclamation of Arid Lands, 45 L.D. 385, 406-08 (May 18, 1916). The Form A application
was to be entered into by homesteaders settling within reclamation project lands. Id. at
406. As part of the Klamath Project, Tule Lake was dewatered and its reclaimed lands
were opened to homesteaders in segments between 1922 and 1948. Pursuant to the
terms of the Homestead-Reclamation Act, Pub. L. No. 62-256, 37 Stat. 265 (1912), these
homesteaders were permitted to settle these lands in exchange for payments, which
varied over time, designed to repay Klamath Project costs. Twenty eight of these Form A
applications, entered into by the predecessors of class members owning property within
the Tulelake Irrigation District, were admitted into evidence during the trial. The Form A
application was titled “APPLICATION FOR PERMANENT WATER RIGHT,”
(capitalization in original), and contained the following provision describing the “water
right” at issue in the application:
3. Description of water right.—The quantity of water to be furnished
hereunder shall be that quantity which may be applied beneficially in
accordance with good usage in the irrigation of the land described in
paragraph 2: Provided, That in case of a shortage at any time the amount
to be furnished shall be an equitable proportionate share, as nearly as
practical operations will permit, of the water actually available at the time for
all of the area being watered from the same source of supply, such
proportionate share to be determined by the project manager. . . . On
account of drought, inaccuracy in distribution, or other cause, there may
occur at times a shortage in the water supply, and while the United States
will use all reasonable means to guard against such shortages, in no event
shall any liability accrue against the United States, its officers, agents, or
employees, for any damage direct or indirect arising therefrom.
(emphasis in original). Additionally, a provision of the Form A application titled:
“Conditions of application to be continuing” stated: “All of the within terms and
conditions, in so far as they relate to said land, shall be a charge upon said land to run
with the title to same.” (emphasis in original).
Upon completion of the homesteading process, the United States issued a patent
deed to the homesteader. Twenty eight patent deeds were admitted into evidence at trial,
one for each of the parcels for which a Form A application was admitted into evidence.
Twenty seven of the twenty eight patent applications admitted at trial involved land in
California and the other patent deed involved land in Oregon. Each of these patent deeds
states:
NOW KNOW YE, That the UNITED STATES OF AMERICA, in
consideration of the premises, and in conformity with the several Acts of
Congress in such case made and provided, HAS GIVEN AND GRANTED,
and by these presents DOES GIVE AND GRANT, unto the said [name] and
to his heirs, the Tract above described, together with the right to the use of
water from the Klamath Reclamation Project as an appurtenance to the
irrigable lands in said tract; TO HAVE AND TO HOLD the same, together
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with all the rights, privileges, immunities, and appurtenances, of whatsoever
nature, thereunto belonging, unto the said [name] and to his heirs and
assigns forever . . . but excepting, nevertheless, and reserving unto the
United States, rights of way over, across, and through said lands for canals
and ditches constructed, or to be constructed, by its authority . . . .
(capitalization in original). Additionally, some of the patent deeds contained clauses
reserving to the United States “all uranium, thorium or any other material which is or may
be determined to be peculiarly essential to the production of fissionable materials” or
rights of way for the maintenance of power transmission lines.
The Form B application was to be entered into by owners of private lands that were
included as part of reclamation projects. See Laws and Regulations Relating to the
Reclamation of Arid Lands, 45 L.D. 385, 406-07. One Form B application was admitted
into evidence at trial. Regarding the water to be provided to the applicant, Form B stated:
2. The quantitative measure of the water right hereby applied for is that
quantity of water which shall be beneficially used for the irrigation of said
irrigable lands up to, but not exceeding [a quantity which varied by applicant]
acre-fee per acre per annum, measured at the land; and in no case
exceeding the share, proportionate to irrigable acreage, of water supply
actually available as determined by the Project Engineer or other proper
officer of the United States, or of its successors in the control of the project,
during the irrigation season for the irrigation of lands under said unit. . . .
Under the Department of Interior regulations which governed Form B applications, upon
acceptance by the Bureau of Reclamation, a Form B application “becomes a water-right
contract.” 45 L.D. 385, 408.
Klamath Water Users Association
Form B also included a provision requiring that Form B applicants enter into a
contract with a water users’ association, stating:
This application must bear the certificate, as hereto attached, of the water
users’ association under said project, which has entered into contract with
the Secretary of the Interior . . . . If the Secretary of the Interior has made
no contract with a water users’ association under said project, the applicant
agrees to file, upon his direction, evidence of membership in the water
users’ association organized under the said project . . . .
George Moss Driscoll, who, at the time of trial, held the position of senior water and land
specialist for the Bureau of Reclamation’s Klamath Basin area office, and previously was
a water contracts specialist for the Bureau of Reclamation, testified at trial that, “in addition
to the form A/form B water right applications, [the Bureau of] Reclamation as a matter of
policy initially intended to contract” with such water users associations, which “would be
the entity through which Reclamation intended to directly work with and communicate
with water users on the project.” In the case of the Klamath Project, the relevant
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association was the Klamath Water Users Association (KWUA). The contract between
the United States and the KWUA, dated November 6, 1905, was admitted into evidence
at trial. Under the contract, KWUA guaranteed payments for the Klamath Project works,
to be apportioned among its members. In exchange, only members of the KWUA would
be accepted as applicants for water rights in the Klamath Project. Regarding such rights,
the contract specified:
That the aggregate amount of such rights to be issued shall, in no event,
exceed the number of acres of land capable of irrigation by the total amount
of water available for the purpose . . . and that the Secretary of the Interior
shall determine the number of acres so capable of such irrigation as
aforesaid, his determination to be made upon due and expert consideration
of all available data, and to be based upon and measured and limited by the
beneficial use of water.
The KWUA contract entitles the signor to receive a specified number of shares in
the KWUA. These shares, as well as “all rights and interest represented thereby or
existing or accruing by reason thereof or incident thereto,” were to be “inseparably
appurtenant” to the real estate parcels specified in the contract. Ownership of KWUA
shares entitled their holder to “the right to have such water delivered to the owner thereof
by the Association for the irrigation of said lands, as the Association shall from time to
time acquire or control means for that purpose.” A copy of the stock subscription and
contract used by KWUA also was admitted into evidence at trial.
Klamath Irrigation District and Tulelake Irrigation District Repayment
Contracts
The November 6, 1905 contract between the United States and the KWUA was
eventually supplanted by a July 6, 1918 repayment contract between the United States,
the KWUA, and the newly formed Klamath Irrigation District. The July 6, 1918 contract
“dissolved” KWUA and transferred to the Klamath Irrigation District, an Oregon municipal
corporation, all irrigable lands for which water rights applications to the United States had
been made and/or which were covered by stock subscriptions with the KWUA, as well the
entirety of KWUA’s liability to the United States for Klamath Project construction costs.
The July 6, 1918 contract was supplemented by a November 29, 1954 “Amendatory
Contract” between the United States and the Klamath Irrigation District. The preamble of
the November 29, 1954 contract states that “the District is obligated, among other things,
to repay to the United States that part of the expenditures made by the United States in
the construction of the Project which is properly allocable to the District” and that “the
District, as the duly authorized representative of the water users within its geographic
boundaries, desires to enter into an amendatory contract with the United States, which
would provide for the District to take over the operation and maintenance of certain of the
Project works.” Under the November 29, 1954 repayment contract, the Klamath Irrigation
District assumed responsibility for the operation and maintenance of certain works in the
Klamath Project from the United States and agreed to provide water and drainage
services through those works to certain other Irrigation Districts, including the Tulelake
Irrigation District, and certain individuals located outside the Klamath Irrigation District.
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The November 29, 1954 contract also contained the following provision regarding water
shortages:
UNITED STATES NOT LIABLE FOR WATER SHORTAGE
26. On account of drought or other causes, there may occur at times a
shortage in the quantity of water available in Project reservoirs and, while
the United States will use all reasonable means to guard against such
shortage, in no event shall any liability accrue against the United States or
any of its officers, agents, or employees for any damage, direct or indirect,
arising therefrom and the payments to the United States provided for herein
shall not be reduced because of any such shortages.
(capitalization in original). The November 29, 1954 contract between the United States
and the Klamath Irrigation District was in effect in 2001.
The Tulelake Irrigation District, a California municipal corporation, services water
users in the reclaimed lands of Tule Lake that were opened to homesteaders between
1908 and 1948. These homesteaders would have submitted a Form A application to
receive their water rights from the Klamath Project. The preamble of the contract between
the Tulelake Irrigation District and the United States states:
[T]he District desires to contract, pursuant to the Federal reclamation laws
and the laws of the State of California, for the furnishing by the United States
of a water supply form the [Klamath] Project works and for the repayment
of the construction charges hereinafter set forth, less such credits as are
applicable under the Federal reclamation laws and the provisions of this
contract; and . . . the parties desire by this contract to provide, in accordance
with and subject to the terms and conditions hereinafter provided, for the
transfer to the District of the operation and maintenance of works and
properties used or useful for the delivery of water to and protection of the
lands within the District . . . .
Similar to the Klamath Irrigation District, under a September 10, 1956 contract with the
United States, the Tulelake Irrigation District assumed responsibility for the operation and
maintenance of Klamath Project works used to supply water to the lands within the district.
The September 10, 1956 contract contained a water shortage provision that was identical
to the one contained in the November 29, 1954 contract between Klamath Irrigation
District and the United States. The September 10, 1956 contract between the United
States and the Tulelake Irrigation District was in effect in 2001.
2. Warren Act Contracts
Warren Act contracts were made with both individual water users and Irrigation
Districts which supplied water to individuals within their boundaries. Warren Act contracts
cover lands that, unlike those within the Klamath Irrigation District and Tulelake Irrigation
District, were not part of the Klamath Project when it was originally developed.
Geographically, these lands are scattered throughout the Klamath Project. These
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contracts were made pursuant to the Warren Act of 1911, Pub. L. No. 61-406, 36 Stat.
925 (codified at 43 U.S.C. §§ 523-25 (2012)). The Warren Act authorizes the Secretary
of the Interior “to cooperate with irrigation districts, water-users' associations,
corporations, entrymen, or water users for the construction or use of such reservoirs,
canals, or ditches as may be advantageously used by the Government and irrigation
districts, water-users' associations, corporations, entrymen, or water users for
impounding, delivering, and carrying water for irrigation purposes.” 43 U.S.C. § 524. In
the Klamath Project, water is delivered to Warren Act contractors through works operated
by the Klamath Irrigation District and the Van Brimmer Ditch Company, an Oregon
business discussed below. Irrigation Districts relevant to this action who have Warren Act
contracts with the United States include: the Enterprise Irrigation District; the Klamath
Basin Improvement District; the Klamath Drainage District; the Malin Irrigation District; the
Midland District Improvement Company; the Pine Grove Irrigation District; the Poe Valley
Improvement District; the Shasta View Irrigation District; the Sunnyside Irrigation District;
and the Westside Improvement District. Warren Act contracts for each of these Irrigation
Districts were admitted into evidence at trial. These Irrigation District contracts were
entered into between 1920 and 1962, although some individual contracts were entered
into as early as 1915.
The Warren Act contracts entered into by the Irrigation Districts all contain similar
or identical language in several key provisions relevant in the current cases. In each of
the contracts, the Irrigation District agrees to pay the United States a specified sum of
money in exchange for delivery of Klamath Project water. All of these contracts contain
language stating that rights to the use the water acquired under the contracts are inferior
to prior rights reserved for the lands of the Klamath Project. The Bureau of Reclamation
has interpreted this to mean that these rights are junior to those held by the Van Brimmer
Ditch Company, Klamath Lake Irrigation District, and Tulelake Irrigation District and, in
the case of a drought, would receive Klamath Project water only after the rights of users
of these three entities had been fully satisfied. Each of the contracts defines an upper
limit to the amount of water the Irrigation District is entitled to receive, although, the exact
limit varies by contract. The contracts for the Malin Irrigation District, the Sunnyside
Irrigation District, the Shasta View Irrigation District, the Enterprise Irrigation District, and
the Pine Grove Irrigation District limit the amount to “two acre feet per acre of irrigable
land during the usual irrigation season.” The contracts for the Malin Irrigation District, the
Sunnyside Irrigation District, and the Shasta View Irrigation District contain additional
language stating that the amount of water provided “shall not exceed the amount that can
be furnished, as determined by the Secretary, at a cost of Thirty-four Dollars
($34.00) . . . and in no event shall it exceed 0.6 acre-feet of water per irrigable acre in any
one month.” The Westside Improvement District’s contract entitles them to receive a
maximum of “two and one-half (2 ½) acrefeet per-acre per annum,” while the Klamath
Basin Irrigation District’s contract limits them to an amount of water “not to exceed an
average of three and six-tenths (3.6) acrefeet per irrigable acre.” Finally, the contracts for
the Klamath Drainage District, Midlands Irrigation District, and Poe Valley Irrigation
District simply limit them to the amount of water that can be put to beneficial use for
irrigation on the irrigable lands within their districts.
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Finally, each of the Warren Act contracts for Irrigation Districts admitted into
evidence at trial also contains a provision limiting the United States’ liability in the event
of water shortages, although there are two different forms this language takes. Those
contracts entered into by the Klamath Drainage District, Malin Irrigation District, the
Klamath Basin Improvement District, the Shasta View Irrigation District, the Sunnyside
Irrigation District, and the Westside Improvement District contain language relating to
shortages caused by droughts or “other cause,” stating, in language similar to that of the
contract with the Malin Irrigation District, with only minor, non-relevant variations, that:
On account of drought, inaccuracy in distribution or other cause, there may
occur at times a shortage in the quantity of water provided for herein, and
while the United States will use all reasonable means to guard against such
shortage, in no event shall any liability accrue against the United States, its
officers, agents or employees, for any damage, direct or indirect, arising
therefrom, and the payments due hereunder shall not be reduced because
of any such shortage.
The shortage provisions in the rest of the contracts, including for the Enterprise Irrigation
District, the Midland District Improvement Company, the Poe Valley Improvement District,
and the Pine Grove Irrigation District, however, are missing the “other causes” language
and state:
The United States shall not be liable for failure to supply water under this
contract caused by hostile diversion, unusual drought, interruption of
service made necessary by repairs, damages caused by floods, unlawful
acts or unavoidable accidents.
At trial, three Warren Act contracts between the United States and individuals,
under which three named plaintiffs received water in 2001, were also admitted into
evidence. Named Baley plaintiffs Daniel G. and Delores Chin owned two parcels that
received water pursuant to individual Warren Act contracts in 2001 entered into by their
predecessor-in-interest. Named John Anderson Farms plaintiff Hill Land & Cattle LLC
owned one parcel that received water pursuant to an individual Warren Act contract in
2001 that was entered into by its predecessor-in-interest. The Warren Act contracts for
these three parcels are identical, or close to identical, in almost all respects and very
similar to the Warren Act contracts entered into by the Malin Irrigation District, the
Sunnyside Irrigation District, and the Shasta View Irrigation District. Like those Irrigation
District contracts, the three individual Warren Act Contracts place upper limits on the
water that will be furnished, “two acre-feet per acre of irrigable land during the usual
irrigation season” for one of the Chin parcels and “two and one-half (2 1/2 ) acre-feet per
acre of irrigable land during the usual irrigation season) for the Hill Land & Cattle LLC
parcel and the other Chin Parcel, while also further stating that this amount “shall not
exceed the amount that can be furnished, as determined by the Secretary, at a cost of
Thirty-four Dollars ($34.00) . . . and in no event shall it exceed 0.6 acre-feet of water per
irrigable acre in any one month.” The individual Warren Act contracts also contain the
same shortage provision as those Irrigation Districts immunizing the United States from
liability in the event of a droughts or “other cause.” Finally, each of the three individual
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Warren Act Contracts has a provision stating: “The terms of this contract shall inure to the
benefit of and be binding upon the successors in interest and assigns of the parties
hereto.”
3. Settlement Contracts: the Van Brimmer Ditch Company
The third type of contract governing delivery of water in the Klamath Project,
settlement contracts, covers the distribution of water to lands that held a water right or a
claim to a water right, prior to the Klamath Project’s inception. George Driscoll testified at
trial that the settlement contractors are a “very minor group” that, among the original
named plaintiffs at the time of trial, includes only the Van Brimmer Ditch Company. The
Van Brimmer Ditch Company is not an Irrigation District, but is instead an Oregon
business corporation that delivers irrigation water to landowners. Each share of Van
Brimmer Ditch Company stock corresponds with one acre of irrigable land with an
appurtenant right to receive water from the company. As a former president of the Van
Brimmer Ditch Company, James Moore, a named plaintiff in the Baley case, testified at
trial, the Van Brimmer Ditch company traces its history back to the 1880s, prior to the
genesis of the Klamath Project, when its founders, the Van Brimmer brothers, posted
notices of appropriation and started drawing water from White Lake, which was
associated with Lower Klamath Lake, via trenches they and others had dug.
Subsequently, the creation of the Klamath Project resulted in the draining of White Lake
and the Van Brimmer Ditch Company entered into a contract with the United States to
receive water from Upper Klamath Lake instead.
The contract between Van Brimmer Ditch Company and the United States, entered
into on November 6, 1909, begins by recognizing that “the changing by the United States
of the course or water-level of the . . . Lower Klamath Lake [as a result of the construction
of the Klamath Project] will in all probability completely destroy or impair the present
source of water supply used for irrigation purposes of the [Van Brimmer Ditch] Company”
and that “the Company claims that it has established a vested right to the use of fifty
second-feet of water for irrigation purposes from the water of Lower Klamath Lake.” In the
contract, the Van Brimmer Ditch Company agreed to “waive[] and renounce[] to the use
and benefit of the United States any and all of its riparian rights, in relation to the waters
and shores of Lower Klamath Lake appurtenant or incident to the lands now being
irrigated by the Company,” and, in exchange, the United States agreed to “deliver to the
Company during each and every irrigation season . . . a quantity of water, not to exceed
fifty second feet.” The United States also “recognize[d] the right as existing in the
Company to the perpetual use of said fifty (50) second feet of water.” Named plaintiffs
James and Cheryl Moore are landowner-shareholders in Van Brimmer Ditch Company.
In 2001, the Moores owned 135 shares of stock in the Van Brimmer Ditch Company, each
of which corresponded with one acre of irrigable land with an appurtenant right to receive
irrigation water.
4. Leased Lands in the National Wildlife Refuges
The Klamath Project also administers federal lease contracts with farmers on
about 23,000 acres of land within two national wildlife refuges that sit within the Klamath
11
Project, the Tule Lake and the Lower Klamath Wildlife Refuges, pursuant to the Kuchel
Act, Pub. L. No. 88-567, 78 Stat. 850 (1964). These lands are among the most productive
lands in the Klamath Basin. Contracts in the refuges are issued for five to eight years, but
require annual renewal. The Bureau of Reclamation uses a standard lease contract on
these lands. The leases do not specify an amount of water to which the lessor is entitled,
but instead state that: “[t]he Bureau of Reclamation will handle all deliveries of irrigation
water to the leased premises and all draining of the leased premises.” The leases also
contain the following shortage provision: “[T]he United States, its officers, agents and
employees, and its successors and assigns shall not be held liable for damages because
irrigation water is not available or because of an inability to drain the leased premises in
a timely manner.” Of the named plaintiffs, only one, James Frank, alleges that he received
water through a lease contract for lands in one of the National Wildlife Refuges within the
Klamath Project. A lease signed by Mr. Frank on April 19, 1999, and renewable up to
October 31, 2003, for lands in a National Wildlife Refuge was admitted into evidence at
trial.
C. Tribal Rights in Klamath Project Waters
Three Native American tribes, the Klamath, Yurok, and Hoopa Valley Tribes,
(collectively, the Tribes) hold rights to take fish from Klamath Project waters. The rights
of the Klamath Tribes are derived from an 1864 treaty between the Klamath Tribes and
the United States, in which the Klamath Tribes “relinquished its aboriginal claim to some
12 million acres of land in return for a reservation of approximately 800,000 acres in south-
central Oregon.” United States v. Adair, 723 F.2d 1394, 1398 (9th Cir. 1983). Among
other provisions, the treaty guaranteed the Klamath Tribes “the exclusive right of taking
fish in the streams and lakes” that were included as part of the Klamath Indian
Reservation. 3 See Treaty Between the United States of Am. & the Klamath & Moadoc
Tribes & Yahooskin Band of Snake Indians, Art. I., Oct. 14, 1864, 16 Stat 707. The
Klamath Tribes’ reservation abutted Upper Klamath Lake and included several of its
tributaries. Based on the language of the 1864 treaty, a federal court water rights
adjudication determined that the Klamath Tribe holds “[a] water right to support game and
fish adequate to the needs of Indian hunters and fishers.” United States v. Adair, 723 F.2d
at 1411. This right is “non-consumptive,” meaning that the Klamath Tribes are “not entitled
to withdraw water from the stream for agricultural, industrial, or other consumptive uses,”
but instead hold “the right to prevent other appropriators from depleting the streams[’]
waters below a protected level in any area where the non-consumptive right applies.” Id.
(citing 1 R. Clark, Waters and Water Law § 55.2, at 578–81 (1967) and Cappaert v. United
States, 426 U.S. 128, 143 (1976)). Because the 1864 Treaty amounted to “a recognition
of the Tribe’s aboriginal water rights,” the Klamath Tribes’ water rights “carry a priority
date of time immemorial.” Id. at 1414. The Klamath Tribes’ water rights in Upper Klamath
Lake had not been quantified in 2001.
3The Klamath Indian Reservation was terminated in 1954 pursuant to an act of Congress,
but the act explicitly preserved the Klamath Tribes’ water rights. See United States v.
Adair, 723 F.2d at 1411-12 (quoting 25 U.S.C. § 564m(a) (1976)).
12
The rights of the Yurok and Hoopa Valley Tribes are derived from three presidential
Executive Orders issued in 1856, 1876, and 1891, which established, extended, and
combined the Klamath and Hoopa Valley Reservations in California. The first Executive
Order, signed by President Franklin Pierce on November 16, 1855, established the
Klamath Reservation in California. See Charles J. Kappler, Indian Affairs: Laws and
Treaties 817 (1904). The second, signed by President Ulysses Grant on June 23, 1876,
created the Hoopa Valley Indian Reservation, declaring certain lands in California to be
“withdrawn from public sale, and set apart for Indian purposes, as one of the Indian
reservations authorized to be set apart, in California, by act of Congress approved April
8, 1864.” Id. at 815. The third Executive Order, signed by President Benjamin Harrison
on October 16, 1891, combined the Klamath and Hoopa Valley reservations into a single
Hoopa Valley reservation by extending the Hoopa Valley reservation to include additional
portions of the Klamath River. See id. Ultimately, the combined reservation “ran along
both sides of the Klamath River, from the mouth of the Trinity River [in California] down
to the Pacific Ocean.” Parravano v. Babbitt, 70 F.3d 539, 542 (9th Cir. 1995) (citing Mattz
v. Arnett, 412 U.S. 481, 493–94 (1973)). 4 Federal and California state courts have
recognized that the right of the Yurok and Hoopa Valley Tribes “to take fish from the
Klamath River was reserved to the Indians when the [Hoopa Valley] reservation was
created.” United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986) (citing Blake v.
Arnett, 663 F.2d 906, 911 (9th Cir.1981); People v. McCovey, 685 P.2d 687, 697 (Cal.),
cert. denied, 469 U.S. 1062 (1984)); see also Parravano v. Babbitt, 70 F.3d at 547 (“The
1876 and 1891 executive orders that created the extended Hoopa Valley Reservation
and the 1988 Hoopa–Yurok Settlement Act vested the Tribes with federally reserved
fishing rights . . . .”). “[T]he right reserved includes fishing for ceremonial, subsistence,
and commercial purposes.” United States v. Eberhardt, 789 F.2d at 1359. The
Department of the Interior, in a July 25, 1995 memorandum prepared by the Department’s
Regional Solicitor for the Pacific Southwest Region, recognized that “[t]he Yurok and
Hoopa Valley Tribes have federal Indian reserved fishing rights to take anadromous fish[ 5]
within their reservations in California” and that “[t]hese rights were secured to the Yurok
and Hoopa Indians by a series of nineteenth century executive orders.” A January 9, 1997
4 In 1988, Congress enacted the Hoopa–Yurok Settlement Act, 25 U.S.C. § 1300i, to
divide the extended Hoopa Valley Reservation into the Yurok Reservation and the Hoopa
Valley Reservation. “One of the concerns of Congress at the time of the 1988 partitioning
was to protect the [Yurok and Hoopa Valley] Tribes' fisheries.” Parravano v. Babbitt, 70
F.3d at 542. “Although the 1988 Hoopa–Yurok Settlement Act did not explicitly set aside
fishing rights, it did make clear that the partitioning would not dispossess the Tribes of
their assets.” Id. at 546.
5 “Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and
reach mature size, and eventually complete their life cycle by returning to the fresh-water
place of their origin to spawn.” Washington v. Washington State Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 662, modified sub nom. Washington v. United States,
444 U.S. 816 (1979). Salmon are a species of anadromous fish. See id. at 663.
13
memorandum by the Department of the Interior’s Regional Solicitors for the Pacific
Southwest and Pacific Northwest Regions recognized that the Yurok and Hoopa Valley
Tribes “hold adjudicated water rights which vested at the latest in 1891 and perhaps as
early as 1855.” In a letter the Yurok Tribe submitted to the NMFS on March 23, 2001
commenting on the NMFS’ draft Biological Opinion regarding Klamath Project operations,
the Yurok Tribe maintained that it held a federally reserved water right with a priority date
of time immemorial. There is no evidence in the record that the rights held by the Yurok
and Hoopa Valley Tribes have ever been quantified as water rights.
D. The Klamath Compact
On August 30, 1957, Congress gave its consent to the Klamath Compact, an
interstate compact between the states of California and Oregon, which plaintiffs allege
defendant has violated. See 71 Stat. 497, 497-508. The stated purposes of the Klamath
Compact are, “with respect to the water resources of the Klamath River Basin”: “[t]o
facilitate and promote the orderly, integrated, and comprehensive development, use,
conservation, and control thereof for various purposes”; and “[t]o further
intergovernmental cooperation and comity with respect to these resources and programs
for their use and development and to remove causes of present and future controversies.”
Id. at 497. Article III of the Klamath Compact recognizes certain water rights within the
Klamath basin, stating:
A. There are hereby recognized vested rights to the use of water originating
in the Upper Klamath River Basin validly established and subsisting as of
the effective date of this compact under the laws of the state in which the
use or diversion is made, including rights to the use of waters for domestic
and irrigation uses within the Klamath Project. There are also hereby
recognized rights to the use of all waters reasonably required for domestic
and irrigation uses which may hereafter be made within the Klamath Project.
B. Subject to the rights described in subdivision A of this article and
excepting the uses of water set forth in subdivision E of Article Xl [regarding
waterfowl management areas], rights to the use of unappropriated waters
originating within the Upper Klamath River Basin for any beneficial use in
the Upper Klamath River Basin, by direct diversion or by storage for later
use may be acquired by any person after the effective date of this Compact
by appropriation under the laws of the state where the use is to be made,
as modified by the following provisions of this subdivision B and subdivision
C of this article, and may not be acquired in any other way . . . .
Id. at 498. Article XIII of the Klamath Compact contains the language regarding the United
States obligations not to “impair” water rights without just compensation, which plaintiffs
allege defendant has violated, stating:
The United States shall not, without payment of just compensation, impair
any rights to the use of water for use (a) [domestic use] or (b) [irrigation use]
within the Upper Klamath River Basin by the exercise of any powers or
14
rights to use or control water (i) for any purpose whatsoever outside the
Klamath River Basin by diversions in California or (ii) for any purpose
whatsoever within the Klamath River Basin other than use (a) or (b).
Id. at 507. Article XIII, however, limits this obligation of the United States to pay just
compensation to those rights acquired after the effective date of the Klamath Compact,
stating:
But the exercise of powers and rights by the United States shall be limited
under this paragraph 2 only as against rights to the use of water for use (a)
or (b) within the Upper Klamath River Basin which are acquired as provided
in subdivision B of Article III after the effective date of this compact, but only
to the extent that annual depletion in the flow of the Klamath River at Keno
resulting from the exercise of such rights to use water for uses (a) and (b)
do not exceed 340,000 acre-feet in any one calendar year.
Id. Finally, with respect to the rights of Native Americans tribes, Article X of the Klamath
Compact states: “Nothing in this compact shall be deemed . . . [t]o deprive any individual
Indian, tribe, band or community of Indians of any rights, privileges, or immunities afforded
under Federal treaty, agreement or statute.” Id. at 505.
E. The Klamath Adjudication
In 1975, pursuant to the Water Rights Act of 1909, the Oregon Water Resources
Department initiated the Klamath Basin General Stream Adjudication (the Klamath
Adjudication), a general adjudication to determine the ownership of rights to the waters
of the Klamath Basin. The Klamath Adjudication covers pre-1909 state-based surface
water rights not previously adjudicated, as well as federal reserved water rights in the
Klamath Basin. Claims were filed beginning in 1990, and administrative hearings were
initiated in 2001. On March 7, 2013, the adjudicator for the Klamath Adjudication issued
orders of determination on all claims filed in the Klamath Adjudication. On February 28,
2014, the adjudicator issued amended and corrected versions of the orders of
determination, which have been submitted to Oregon state courts for judicial
confirmation. 6
Case 003 in the Klamath Basin Adjudication addressed water rights associated
with the Klamath Project. Three claims in case 003, claims 298, 321-6 and 321-7,
concerned the water rights appropriated by the Van Brimmer brothers and subsequently
at issue in the 1909 contract between the Van Brimmer Ditch Company and the United
States. Claim 298 was filed by the United States, which “assert[ed] that it own[ed] the
water right appropriated because Van Brimmer transferred the right to the United States”
as part of the November 6, 1909 contract. In the corrected partial order of determination
6The findings of the Klamath Adjudication are available on the Oregon Water Resources’
Department website at http://www.oregon.gov/owrd/Pages/adj/ACFFOD.aspx.
15
for case 003, 7 the adjudicator denied the government’s claims on the grounds that,
although, in the 1909 contract, the Van Brimmer Ditch Company transferred its riparian
rights to the government, the 50 cubic feet per second (cfs) of water identified in the
agreement were appropriative water rights, rather than riparian rights, and nothing in the
agreement could be construed as transferring Van Brimmer’s appropriative rights to the
government. Claims 321-6 and 321-7 were brought by the Van Brimmer Ditch Company
along with a number of other Klamath Project water users. The two claims were
“essentially duplicative,” but based on different appropriation dates. Claim 321-6 was
based on a second notice of appropriation made by the Van Brimmer brothers on
September 4, 1883. The adjudicator granted this claim to the Van Brimmer Ditch
Company with a priority date of September 4, 1883, but limited it “to a quantity of 50 cfs,
as defined in a 1909 contract between Van Brimmer and the United States,” on the
grounds that any additional water rights held at that time were abandoned by the Van
Brimmer Ditch Company. Claim 321-7 was based on a second notice of appropriation
filed by the Van Brimmer brothers on September 19, 1884. The adjudicator denied the
claim on the grounds that the earlier priority date was supported by the evidence. 8
II. Events in 2001
A. The Endangered and Threatened Fish
“In light of its dual purposes of serving agricultural uses and providing for the needs
of wildlife, the Klamath Project is subject to the requirements of the Endangered Species
Act. See Pub.L. No. 93–205, 87 Stat. 884 (1973) (codified, as amended, at 16 U.S.C. §
1531 et seq.) (the ‘ESA’).” Klamath Irr. Dist. v. United States, 635 F.3d at 508. “Pursuant
to the ESA, the Bureau [of Reclamation] has an obligation not to engage in any action
that is likely to jeopardize the continued existence of an endangered or threatened
species or result in the destruction or adverse modification of the critical habitat of such
a species.” Id. at 509 (citing 16 U.S.C. § 1536(a)(1)). “In a 1999 Ninth Circuit decision,
the interests of [Klamath] Project water users were declared subservient to the ESA, the
result being that, as necessary, the Bureau has a duty to control the operation of the Link
River Dam in order to satisfy the requirements of the ESA.” Id. at 508 (citing Klamath
Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999), amended
by 203 F.3d 1175 (9th Cir. 2000)). Of relevance to this litigation, Klamath Project
operations potentially affect three species of fish protected under the Endangered
Species Act: the endangered Lost River sucker; the endangered shortnose sucker; and
the threatened SONCC coho salmon. The Lost River and short nose suckers were listed
7 The corrected order of partial determination for case 003 is available at
http://www.oregon.gov/owrd/ADJ/ACFFOD/KBA_ACFFOD_07017.PDF.
8 In a joint status report filed October 28, 2014, the parties informed the court that, in
2014, the Klamath Adjudication also issued an order of partial determination finding that
“the United States, BIA [Bureau of Indian Affairs], as trustee for the Klamath Tribes, holds
a water right for specified elevations in Upper Klamath Lake with a priority date of ‘time
immemorial.’”
16
as endangered in 1988, see Final Rule, Determination of Endangered Status for
Shortnose Sucker and Lost River Sucker, 53 Fed. Reg. at 27130 (July 18, 1988), while
the SONCC coho salmon was listed as threatened in 1997. See Final Rule, Threatened
Status for Southern Oregon/Northern California Coast Evolutionary Significant Unit (ESU)
of Coho Salmon, 62 Fed. Reg. 24588 (May 6, 1997). The Lost River and shortnose
suckers reside in Upper Klamath Lake and nearby waters, while the SONCC coho salmon
use the mainstream and tributaries of the Klamath River downstream from the Upper
Klamath Lake and the Link River Dam.
B. Importance of the Fish to the Tribes
Evidence was presented at trial regarding the importance of the Lost River and
short nose suckers and of the SONCC coho salmon to Native American tribes living in
the Klamath basin. Dr. Ronald Larson, a retired FWS biologist, who had served for
fourteen years as the lead biologist for consultations dealing with the endangered suckers
in FWS’s Klamath Falls office, testified that the two species of suckers are considered
tribal trust species for the Klamath Tribes because of their long history with the fish. In the
Klamath language the Lost River suckers are known as “c’waam” and the shortnose
suckers as “qapdo.” According to Dr. Larson, prior to the beginning of the Klamath Project,
the Klamath and Modoc Indians would harvest suckers during the spring time when the
fish were spawning. An April 5, 2001 Biological Opinion issued by FWS for the Klamath
Project, discussed in more detail below, similarly noted that the suckers were once
abundant and important seasonal foods for Native Americans in the upper Klamath basin.
The July 25, 1995 memorandum prepared by the Regional Solicitor for the Pacific
Southwest Region of the Department of the Interior regarding the rights and obligations
related to the Klamath Project noted that the Klamath Tribes held treaty-based rights to
fish, hunt, and gather on the lands that were formerly part of their reservation along the
Upper Klamath Lake and its tributaries. The memorandum also noted that “[t]he Tribes’
primary interest is in the operation of Upper Klamath Lake because it serves as habitat
for fish protected by their treaty rights, including two endangered species of fish, the Lost
River and shortnose suckers. These fish are a traditional food source for the Tribes.”
Don Reck, at the time of the trial, a fisheries biologist at NMFS, whose primary
responsibility was to implement the Endangered Species Act, and who has worked on
Klamath Basin fishery issues since 1994, testified that the Yurok Tribe and Hoopa Valley
Tribes, both located downstream of the Iron Gate Dam along the Klamath River, have a
federally-recognized reserve fishery right for SONCC coho salmon and other fish species.
The July 25, 1995 Department of the Interior Solicitor’s Office memorandum similarly
stated that the Yurok and Hoopa Valley Tribes held “federal Indian reserved fishing rights
to take anadromous fish within their reservations in California.” Mr. Reck noted that, when
he had previously served as NMFS’s area manager for the Klamath Basin office from
1996 to 2001, he had dealt with both the Yurok and Hoopa Valley Tribes and that they
were “very interested in project operations” and were concerned that the Bureau of
Reclamation pay sufficient attention to their reserved water rights and water level issues.
Consistent with this concern, the Yurok Tribe sent the NMFS a letter on March 23, 2001
with extensive comments on NMFS’ draft 2001 Biological Opinion in which they stated
that they “concur[red] with NMFS that despite the presence of other factors that have
17
contributed to the decline of the Klamath River’s coho and other anadromous resources,
the Klamath Project was and continues to be a major factor in the decline of these
resources.” The final April 6, 2001 Biological Opinion prepared by NMFS regarding the
SONCC coho salmon, discussed in more detail below, noted that “Indian tribes in the
Klamath River Basin . . . have a profound interest in water management” and that
“[d]ownstream tribal reserved water rights consist of an instream flow sufficient to protect
the right to take fish within their reservations.”
C. The Revised 2001 Operations Plan
Prior to 2001, the Klamath Project had been through wet and dry years, including
two recent dry years, 1992 and 1994, that were even drier than was 2001. Numerous
plaintiff water users, including Lonny Baley, Frank Anderson, Keith Buckingham, Michael
Byrne, John Frank, Harold Hartman, Luther Horsley, Edwin Stastny, Jr., and Robert
Unruh, testified at trial, however, that even during those earlier, severe drought years
Klamath Project water users still received all of the water they needed. As the Bureau of
Reclamation developed its operating plan for the 2001 water year, water supply forecasts
indicated that it would be a “critical dry” year due to drought conditions. See Kandra v.
United States, 145 F. Supp. 2d 1192, 1198 (D. Or. 2001). In response, the Bureau of
Reclamation performed a biological assessment of the Klamath Project’s operations on
the Lost River sucker and the shortnose sucker, and a similar assessment regarding the
SONCC coho salmon. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504, 513
(2005) (citing Kandra v. United States, 145 F. Supp. 2d at 1198). “Both assessments
concluded that operation of the Project was likely to affect adversely the three species in
violation of the ESA, 16 U.S.C. § 1531, et seq.” Id. On January 22, 2001, the Bureau of
Reclamation forwarded its biological assessment regarding the SONCC coho salmon to
NMFS and requested the initiation of a formal consultation with the NMFS pursuant to
section 7(a)(2) of the Endangered Species Act. On February 13, 2001, the Bureau of
Reclamation similarly forwarded its biological assessment regarding the Lost River sucker
and the shortnose sucker to the FWS and requested the initiation of a formal consultation
with the FWS.
On March 2, 2001, the Bureau of Reclamation sent out a letter, signed by Karl
Wirkus, to the Irrigation Districts in the Klamath Project notifying them of the status of the
Endangered Species Act consultation process and that no water was to be diverted or
used until a revised operations plan for 2001 was finalized. In relevant part, the March 2,
2001 letter stated:
Reclamation is in the process of developing the 2001 Annual Operations
Plan. Biological opinions resulting from current consultations will be a critical
part of the plan's formulation. While it is possible that there may be drastic
reductions in project agriculture and refuge deliveries in 2001, Reclamation
is working diligently to avoid such an outcome. However, until Reclamation
completes the consultation process, no diversion of Project water may occur
that would result in a violation of Section 7(d) of the ESA which prohibits
“. . . any irreversible or irretrievable commitment of resources . . .” pending
completion of consultation. To date, Reclamation has not made a
18
determination as to whether and to what extent Project water could be
delivered in advance of completed consultations. Thus, until such a
determination is made or the consultations are completed, no Project water
may be diverted or used unless expressly authorized by Reclamation.
(emphasis in original).
On March 30, 2001, the Bureau of Reclamation sent out a similar letter to the
Irrigation Districts, also signed by Mr. Wirkus, updating Klamath Project water users on
the status of the Endangered Species Act consultation process. The March 30, 2001 letter
stated, in relevant part:
We had previously indicated that a new Annual Operations Plan would be
announced on April 1, 2001. We will not be announcing any new Operating
Plan at that time. We anticipate announcing such a plan by April 6, 2001.
We will continue to keep everyone advised of our progress in this regard.
Once again, however, until such a determination is made or the
consultations are completed, no Project water shall be diverted or
used unless expressly authorized by Reclamation.
(emphasis in original).
On April 5, 2001, the FWS, acting in furtherance of its statutory duties under the
Endangered Species Act, issued a final Biological Opinion (the FWS Biological Opinion),
concluding that the Bureau of Reclamation’s proposed 2001 operation plan for the
Klamath Project was “likely to jeopardize the continued existence of the LRS [Lost River
sucker] and SNS [shortnose sucker] and adversely modify their proposed critical habitat.”
On the next day, April 6, 2001, NMFS issued its final Biological Opinion (the NMFS
Biological Opinion) concluding that the proposed operation plan was “likely to jeopardize
the continued existence of SONCC coho salmon” and “to adversely modify critical habitat
for the SONCC coho salmon.” As required by the Endangered Species Act, 16 U.S.C.
§ 1536(b)(3)(A), the Biological Opinions of both agencies included “reasonable and
prudent alternatives” to address the threat to the three species. FWS’ reasonable and
prudent alternatives required, among other actions, that the Bureau of Reclamation
maintain “not divert water from UKL [Upper Klamath Lake] for irrigation purposes if
surface elevations are anticipated to go below [certain minimum levels], regardless of
inflow year type.” The FWS Biological Opinion determined that “[i]mplementation of the
[Klamath] Project with these minimum elevations is necessary to avoid jeopardy and
adverse modification of proposed critical habitat” for the Lost River and short nose
suckers. The NMFS’ only reasonable and prudent alternative required the Bureau of
Reclamation to operate the Klamath Project in such a way so as to provide certain levels
of “minimum IGD [Iron Gate Dam, a dam downstream from the Link River Dam,] water
releases” into the Klamath River between April and September 2001. The NMFS
Biological Opinion stated that this reasonable and prudent alternative was “intended to
19
prevent further decline of the listed fish . . . while longer-term protections can be
implemented to affect the recovery of the species.” 9
On April 6, 2001, the Bureau of Reclamation issued a revised 2001 operations plan
for the Klamath Project (the Revised 2001 Operations Plan) that incorporated the
reasonable and prudent alternatives proposed by the FWS and the NMFS Biological
Opinions. The Revised 2001 Operations Plan listed four “Guiding Principles and
Objectives” which it stated were “described” in the July 25, 1995 memorandum from the
Department of the Interior’s Regional Solicitor for the Pacific Southwest Region, and
“further addressed” in a second memorandum, dated January 9, 1997, prepared by the
Department of the Interior’s Regional Solicitors for the Pacific Northwest and Pacific
Southwest Regions. (emphasis in original). The principles and objectives were: “Meeting
the Requirements of the Endangered Species Act”; “Trust Responsibility of the United
States to Federally Recognized Tribes Within the Klamath River Basin”; “Providing
Deliveries of Project Water”; and “Conserving Wetland and Wildlife Values.” With regard
to the Endangered Species Act, the Revised 2001 Operations Plan stated: “The Lost
River and shortnose suckers, coho salmon, and bald eagles are listed under the ESA.
Reclamation will manage Project water supplies in accordance with the April, 2001, [sic]
biological opinions issued by NMFS and the U.S. Fish and Wildlife Service (FWS) for this
year’s Project operation. . . .” With regard to the tribal trust responsibilities, the Revised
2001 Operations Plan stated, in full:
The trust responsibility to the Klamath Basin Tribes is shared by all federal
agencies that undertake activities in the Klamath Basin. Fishery and other
resources in the Klamath River, Upper Klamath Lake (UKL), and nearby
lakes and streams are important tribal trust resources to the Klamath Basin
tribes. Reclamation's Plan provides flow regimes and lake levels for
protection of tribal trust resources within the limitations of the available
water supply.
With regard to deliveries to Klamath Project water users, the Revised 2001 Operations
Plan stated: “Due to the requirements of the biological opinions and the ESA [Endangered
Species Act] and the current drought conditions, only limited deliveries of Project water
will be made for irrigation.” The Revised 2001 Operations Plan summarized its ultimate
decisions regarding operation of the Klamath Project, as follows:
9 “In addition, at this time, the Bureau was subject to a preliminary injunction order issued
by the U.S. District Court for the Northern District of California in the Pacific Coast
[Federation of Fishermen's Associations v. United States Bureau of Reclamation, 138 F.
Supp. 2d 1228 (N.D. Cal. 2001)] case.” Klamath Irr. Dist. v. United States, 635 F.3d at
509. “The order barred the delivery of Klamath Project water for irrigation purposes when
water flow was below certain minimum levels, until the Bureau complied with ESA
consultation requirements.” Id. (citing Pac. Coast Fed'n of Fishermen's Ass'ns v. United
States Bureau of Reclamation, 138 F. Supp. 2d at 1251).
20
Reclamation prepared the 2001 Plan . . . for certain UKL [Upper Klamath
Lake] levels and Klamath River flows at Iron Gate Dam consistent with the
guiding principles and objectives. . . .
Prior to listing of endangered and threatened species and the increased
scientific understanding of the needs of ESA-listed species and tribal trust
resources, the Project was operated to optimize irrigation diversions, with
UKL releases and resulting flows at Iron Gate Dam (IGD) targeted to meet
Federal Energy Regulatory Commission (FERC) minimums. Lake
elevations were the result of hydropower releases judged against irrigation
demand.
Minimum UKL levels and Klamath River flows have been specified as a
result of ESA consultation on listed species. . . . As a result, current
conditions indicate water deliveries to farms and refuges within the Project
service area will be severely limited. Under the current hydrology, the UKL
levels and river flows under this Plan are consistent with requirements of
the ESA and Reclamation's obligation to protect Tribal trust resources.
At trial, Karl Wirkus, the Area Manager of the Bureau of Reclamation’s Klamath Basin
area office and the author of the Revised 2001 Operations Plan, testified that as he put
the Revised 2001 Operations Plan together and “ran the numbers,” he determined that
meeting the minimum Upper Klamath Lake levels and Klamath River flows set forth in the
FWS and NMFS Biological Opinions would require all available Klamath Project water
and that there would not be any additional quantity of water available to meet other
obligations.
On the same day the Revised 2001 Operations Plan was released, April 6, 2001,
the Department of the Interior issued a news release stating that, based on the FWS and
NMFS Biological Opinions “and the requirements of [the] Endangered Species Act, the
Bureau of Reclamation announced today that no water will be available from Upper
Klamath Lake to supply the farmers of the Klamath Project.” The news release continued:
To provide some assistance to farmers affected by what is expected to be
one of the driest years since the Project began in 1907, the United States
Department of Agriculture (USDA) announces that most crops in the
affected area are eligible for Federal crop insurance (if it had been
purchased before the sales closing date) or other assistance. . . . For
producers carrying coverage, a portion of their otherwise irrigated crop
losses resulting from the determination announced by the Bureau of
Reclamation may be eligible for prevented planting payments. . . .
Assistance is also provided through the Non-insured Crop Disaster
Assistance Program (NAP) to producers growing crops that are currently
uninsurable.
After the issuance of the Revised 2001 Operations Plan, on April 9, 2001, a group
of Klamath Project water users, including the Klamath and Tulelake Irrigation Districts,
21
filed a lawsuit in the United States District Court for the District of Oregon seeking to enjoin
the Bureau of Reclamation from implementing the Revised 2001 Operations Plan and an
order requiring the Bureau of Reclamation “to release unspecified ‘historic’ amounts of
irrigation water.” See Kandra v. United States, 145 F. Supp. 2d 1192, 1195-96 (D. Or.
2001). Plaintiffs alleged that the Revised 2001 Irrigation Plan “breache[d] their contractual
rights to irrigation water and [was] arbitrary and capricious under the Administrative
Procedure Act (‘APA’), 5 U.S.C. § 706, in that its implementation violate[d] the National
Environmental Policy Act (‘NEPA’), 42 U.S.C. § 4321, et seq., and the Endangered
Species Act (‘ESA’), 16 U.S.C. § 1531, et seq.” Id. at 1196. With respect to their
allegations regarding the Endangered Species Act, the Kandra plaintiffs alleged that a
number of provisions of the FWS and NMFS Biological Opinions violated the Endangered
Species Act, and therefore, that the adoption of the findings of the Biological Opinions as
part of the Revised 2001 Operation Plan rendered the Revised 2001 Operations Plan
arbitrary and capricious. See id. at 1206. The Kandra plaintiffs’ alleged issues with the
Biological Opinions included that “FWS failed to consider scientific evidence of variable
lake elevations and the impact on sucker fish populations” and that “NMFS relied on a
lack of relevant information about the effects of variable flow regimes on salmon and the
salmon's utilization of the Klamath River.” Id. The District Court rejected the Kandra
plaintiffs’ request for a preliminary injunction, holding that they had failed to show a
likelihood of success on the merits of their claims or that they were entitled to injunctive
relief. See id. at 1211. On October 15, 2017, the Kandra plaintiffs filed a notice to
voluntarily dismiss their claims, and the District Court dismissed the case on October 27,
2017. See Notice of Dismissal, Kandra v. United States, No. 01-6124 (D. Or. Oct. 15,
2017); Order of Dismissal, Kandra v. United States, No. 01-6124 (D. Or. Oct. 27, 2017).
D. Effect on Farmers in the Klamath Basin
Ultimately, the delivery of irrigation water from Upper Klamath Lake to the plaintiffs
in the above-captioned cases was totally terminated following the issue of the Revised
2001 Operations Plan in April 2001 until July 2001, when the Bureau of Reclamation
released approximately 70,000 acre-feet of water. At trial, plaintiffs consistently testified
that this late release of water was of very little, or more often, no use. Moreover, some
individual plaintiffs testified that they never received any of this water. For example,
farmer David Cacka testified that the water was of no use to him in July because his crops
had already died due to lack of water. Similarly, Mark Stuntenbeck, the assistant manager
of Klamath Irrigation District in 2001, testified that, in his District, “there were an awful lot
of farmers that had no need for the water at that point” because, “[s]ince they were denied
water early in the irrigation season, a lot of farmers did not plant any crops. And those
that unfortunately did, the crops did not survive without any water.” Even those who
received some water, such as Malin Irrigation District manager Harold Hartman, whose
District received 10% of its normal delivery, described the amount as “not overall
beneficial” because it was “[v]ery difficult to wet the system,” which had dried out due to
lack of water deliveries. At best, in the words of Don Russell, a ditch rider for over forty
years in the Klamath Project, who served the farmers of the Enterprise Irrigation District
22
and the Pine Grove Irrigation District in 2001, 10 for the farmers of the Klamath Basin, the
July 2001 water deliveries were “too little, too late.”
Evidence introduced at trial also indicated that at least some of the plaintiffs
received payments from various federal government programs after water deliveries were
cut off in 2001. Many of the plaintiffs testified that they applied for funds from the Klamath
Basin Water Conservation Program, a federal program administered by the Farm Service
Agency which paid farmers $129.00 per irrigable acre for which no water was received.
Several plaintiffs testified that they received payments under the Klamath Basin
Emergency Operation and Maintenance Act of 2001, Pub. L. No. 107-349, 116 Stat. 2973(2002), which reimbursed farmers for the operation and maintenance costs they had paid
for water deliveries in 2001. Other plaintiffs testified that they received payments from the
federal government’s crop disaster program, the federal government’s non-insured
assistance program, and for placing cover crops on fields through the Emergency
Conservation Program. Finally, some plaintiffs also received payments from the Risk
Management Agency’s crop insurance program.
III. Procedural History
A. Lonny Baley, et al., v. United States
The procedural history of the above-captioned cases is long and complicated,
including assignment to and review by multiple judges in the United States Court of
Federal Claims and review by the United States Court of Appeals for the Federal Circuit,
which resulted in a remand, and reassignment after the remand, to the undersigned
judge. The plaintiffs in Lonny Baley, et al., v. United States, case number 1-591L, were
initially a mixture of Irrigation Districts and individual water users. The Baley plaintiffs filed
their initial complaint on October 11, 2001, an amended complaint on March 24, 2003,
and a second amended complaint on January 31, 2005. In their second amended
complaint, plaintiffs alleged that the government’s actions in terminating their water
deliveries through the Klamath Project in 2001 constituted a taking of their water rights
without just compensation in violation of the Fifth Amendment to the United States
Constitution, an impairment of their water rights in violation of the Klamath Compact, and
a breach of certain contracts between the Bureau of Reclamation and the named
plaintiffs.
The case was initially assigned to Judge Diane G. Sypolt. On May 10, 2002,
defendant filed a motion requesting that the case be stayed pending completion of the
Klamath Adjudication, discussed above. In its motion, defendant argued that
because a number of the core elements of Plaintiffs’ takings claims turn on
state law – and because these state law issues are presently the subject of
10As Mr. Russell explained, a ditch rider takes water requests from farmers and other
water users and inspects the conditions in canals and other works to ensure that they will
not prevent the delivery of water.
23
the ongoing Klamath Basin Adjudication, in which both sides are
participating – a stay of this case pending final resolution of the Adjudication
is fully justified . . . .
On June 14, 2002, plaintiffs filed a response opposing defendant’s motion in which they
argued that “plaintiffs’ water rights are vested under Oregon law and do not depend upon
the adjudication for recognition.”
To resolve this issue, on May 12, 2003, Judge Sypolt, ordered plaintiffs to
file a motion for summary judgment on the question of whether their water
rights . . . are property that is compensable under the Fifth Amendment . . .
notwithstanding any adverse determination, including a retroactive one,
regarding the existence, extent, or character of such rights by the Hearing
Officer Panel in Case No. 003 of the State of Oregon’s ongoing Klamath
Basin Adjudication.
Accordingly, on September 22, 2003, plaintiffs filed a motion for partial summary
judgment seeking a finding that the property rights determination in the Klamath
Adjudication was irrelevant to plaintiffs’ interest in the litigation, in support of which
plaintiffs stated that, “regardless of the outcome of the Adjudication, plaintiffs will retain
the beneficial interest in the Klamath Project water because plaintiff water users, not the
government, put the water to beneficial use.” On November 3, 2003, defendant filed an
opposition to plaintiffs’ motion for partial summary judgment.
On November 13, 2003, Judge Sypolt, in a very brief and somewhat unclear
motion, granted plaintiffs’ revised motion for partial summary judgment and denied
defendant’s motion to stay, stating that:
It appears from their motion for partial summary judgment that plaintiffs not
only assert no property interest determinable in the Adjudication, but also
concede that they claim no legal title to, but only “vested beneficial interests”
in, the Klamath Basin Project water. Defendant, far from disputing this
assertion, makes it the basis for its cross-motion for summary judgment,
that these beneficial interests consist of contract rights that are not
compensable as takings.
Accordingly, plaintiffs’ motion for partial summary judgment that their water
interests are not property interests at issue in the Adjudication is granted
and defendant’s motion for a stay pending the outcome of the Adjudication
is denied. Based on plaintiffs’ assertion that no rights or interests in this
case are affected by the Adjudication, plaintiffs are barred from making any
claims or seeking any relief in this case based on rights, titles, or interests
that are or may be subject to determination in the Adjudication.
The Baley case was re-assigned to Judge Francis Allegra on December 9, 2004
after Judge Sypolt retired from the United States Court of Federal Claims. Subsequently,
on August 31, 2005, Judge Allegra entered summary judgment in favor of the defendant
24
on the takings and Klamath Compact claims, see Klamath Irr. Dist. v. United States, 67
Fed. Cl. 504, and, on March 16, 2007, summary judgment in favor of the defendant on
the breach of contract claims. See Klamath Irr. Dist. v. United States, 75 Fed. Cl. 677(2007), rev’d, 635 F.3d 505 (2011). Plaintiffs filed a timely appeal with the United States
Court of Appeals for the Federal Circuit, which, on July 16, 2008, certified three questions
to the Oregon Supreme Court regarding the nature of plaintiffs’ alleged water rights under
Oregon law. 11 See Klamath Irr. Dist. v. United States, 532 F.3d 1376 (Fed. Cir. 2008).
The Oregon Supreme Court issued an opinion answering the certified questions on March
11, 2010. 12 See Klamath Irr. Dist. v. United States, 227 P.3d 1145 (Or. 2010). Thereafter,
11 The three questions certified by the Federal Circuit were:
1. Assuming that Klamath Basin water for the Klamath Reclamation Project
“may be deemed to have been appropriated by the United States” pursuant
to Oregon General Laws, Chapter 228, § 2 (1905), does that statute
preclude irrigation districts and landowners from acquiring a beneficial or
equitable property interest in the water right acquired by the United States?
2. In light of the statute, do the landowners who receive water from the
Klamath Basin Reclamation Project and put the water to beneficial use have
a beneficial or equitable property interest appurtenant to their land in the
water right acquired by the United States, and do the irrigation districts that
receive water from the Klamath Basin Reclamation Project have a beneficial
or equitable property interest in the water right acquired by the United
States?
3. With respect to surface water rights where appropriation was initiated
under Oregon law prior to February 24, 1909, and where such rights are not
within any previously adjudicated area of the Klamath Basin, does Oregon
State law recognize any property interest, whether legal or equitable, in the
use of Klamath Basin water that is not subject to adjudication in the Klamath
Basin Adjudication?
Klamath Irr. Dist. v. United States, 532 F.3d at 1377–78.
12 The Oregon Supreme Court answered the Federal Circuit’s three certified questions as
follows:
1. The 1905 Oregon act did not preclude plaintiffs from acquiring an
equitable or beneficial property interest in a water right to which the United
States holds legal title. Moreover, under the 1905 act, a formal written
release from the United States is not necessary for plaintiffs to have
acquired an equitable or beneficial property interest in the water right that
the United States appropriated.
2. Under Oregon law, whether plaintiffs acquired an equitable or beneficial
property interest in the water right turns on three factors: whether plaintiffs
25
on February 17, 2011, the United States Court of Appeals for the Federal Circuit issued
an opinion vacating Judge Allegra’s Court of Federal Claims decision and remanding the
case back to the Court of Federal Claims for further proceedings. See Klamath Irr. Dist.
v. United States, 635 F.3d 505. With regard to plaintiffs’ takings and Klamath Compact
claims, the Federal Circuit instructed that:
On remand, the Court of Federal Claims should proceed as follows: First, it
should determine, for purposes of plaintiffs' takings and Compact claims,
whether plaintiffs have asserted cognizable property interests. . . . To the
extent the Court of Federal Claims determines that one or more plaintiffs
have asserted cognizable property interests, it then should determine
whether, as far as the takings and Compact claims are concerned, those
interests were taken or impaired. That determination will turn on existing
takings law.
Id. at 519–20 (footnotes omitted). After the remand, on November 22, 2013, Judge Allegra
dismissed the breach of contract claims of three plaintiffs, the Klamath Irrigation District,
the Tulare Irrigation District, and Lonny Baley, on 28 U.S.C. § 1500 (2012) grounds. See
Klamath Irr. Dist. v. United States, 113 Fed. Cl. 688 (2013). On June 3, 2014, Judge
Allegra, at plaintiffs’ request, dismissed all remaining plaintiffs’ contract claims, without
prejudice.
B. John Anderson Farms, et al., v. United States
The plaintiffs in John Anderson Farms, et al. v. United States, case numbers 7-
194C, 7-19401C, 7-19402C, 7-19403C, 7-19404C, 7-19405C, 7-19406C, 7-19407C, 7-
put the water to beneficial use with the result that it became appurtenant to
their land, whether the United States acquired the water right for plaintiffs’
use and benefit, and, if it did, whether the contractual agreements between
the United States and plaintiffs somehow have altered that relationship. In
this case, the first two factors suggest that plaintiffs acquired a beneficial or
equitable property interest in the water right to which the United States
claims legal title, but we cannot provide a definitive answer to the court's
second question because all the agreements between the parties are not
before us.
3. To the extent that plaintiffs assert only an equitable or beneficial property
interest in the water right to which the United States claims legal title in the
Klamath Basin adjudication, plaintiffs are not “claimants” who must appear
in that adjudication or lose the right. As a general rule, equitable or
beneficial property interests in a water right to which someone else claims
legal title are not subject to determination in a state water rights
adjudication.
Klamath Irr. Dist. v. United States, 227 P.3d 1145, 1169 (Or. 2010).
26
19408C, 7-19409C, 7-19410C, 7-19411C, 7-19412C, 7-19413C, 7-19414C, 7-19415C,
7-19416C, 7-19417C, 7-19418C, 7-19419C, 7-19420C, who are all individual water
users, filed their original complaint on March 22, 2007. The cases were initially assigned
to Judge Allegra. Although, initially, the Baley and John Anderson Farms cases were
assigned to separate attorneys in different divisions of the United States Department of
Justice, reporting to different Assistant Attorney Generals, more recently, the Department
of Justice counsel of record responsibilities in both cases were assigned to the above-
listed attorney of record. On August 2, 2007, Judge Allegra stayed the John Anderson
Farms cases pending resolution of the appeal to the Federal Circuit in the then-named
Klamath Irrigation District, et al. v. United States case, number 1-591L. The stay was lifted
on August 25, 2011 and an amended complaint was filed on October 4, 2011. In their
2011 amended complaint, the John Anderson Farms plaintiffs alleged that the
government’s actions constituted breach of contracts between the government and the
plaintiffs and a taking of plaintiffs’ property, in the form of their water rights, without
compensation in violation of the Fifth Amendment to the United States Constitution. On
March 13, 2014, Judge Allegra granted plaintiffs’ motion to voluntarily dismiss all
remaining breach of contract claims with prejudice.
C. The Consolidated Cases Before the Undersigned Judge
On June 25, 2015, after a significant amount of discovery following the remand
had already occurred, the above-captioned cases were re-assigned to the undersigned
judge upon Judge Allegra’s illness and subsequent passing. On July 22, 2015, after
holding a status conference with the parties, the court issued an order, which modified a
previous May 7, 2015 order issued by Judge Allegra. The new order set a trial date and
set various pretrial deadlines. On January 12, 2016, after holding a status conference
with the parties, the court issued an order consolidating the Baley and John Anderson
Farms cases. The parties subsequently filed cross-motions in limine on the issue of
whether plaintiffs’ takings claims should be analyzed as regulatory or physical takings,
which, on December 21, 2016, the court decided. In its December 21, 2016 Opinion, the
court found in favor of the plaintiffs, holding that “the government's actions in the present
cases ‘should be analyzed under the physical takings rubric.’” Klamath Irr. Dist. v. United
States, 129 Fed. Cl. 722, 737 (2016) (quoting Casitas Mun. Water Dist. v. United States,
543 F.3d 1276, 1296 (Fed. Cir. 2008)). The court was careful to note, however, “that in
making this decision, it is in no way making any determinations as to the nature or scope
of plaintiffs' alleged property rights, which remain at issue in the above-captioned cases.”
Id.The parties subsequently finished discovery, submitted their pretrial filings, and
filed a series of additional motions in limine regarding various issues. The court ruled on
a number of these at a status hearing on January 4, 2017 and at the pretrial conference
on January 10, 2017. On January 5, 2017, plaintiffs filed a renewed motion for class
certification in both the consolidated Baley, case no. 1-591L, and John Anderson Farms,
case no. 7-194C and 7-19401-19419C, cases. Judge Allegra had previously denied,
without prejudice, a class certification request in the Baley case. This court granted the
27
consolidated class certification motion at the January 10, 2017 pretrial conference. 13 The
court granted the renewed motion for class certification in order to ensure that all parties
would be included in the event of a future appeal should either party choose to do so after
this court issues its current, trial opinion. As subsequently modified by the parties, and
approved by this court, the consolidated class in the above-captioned cases is comprised
of:
All owners (or their lessees) of agricultural land who claim an appurtenant
right to receive and put to beneficial use water from the Klamath Project in
2001, and allege a Fifth Amendment taking of their right to receive and use
such water in 2001 and impairment of their water right in violation of the
Klamath River Basin Compact. This includes owners or lessees of land
located within or receiving Klamath Project water from the following districts:
Enterprise Irrigation District
Klamath Basin Improvement District
Klamath Drainage District
Klamath Hills District Improvement Company
Klamath Irrigation District
Malin Irrigation District
13 The January 5, 2017 motion sought to renew an earlier motion to certify a class filed
by the plaintiffs in case number 1-591L on October, 11, 2001, along with their initial
complaint in case number 1-591L. In their October 11, 2001 motion, plaintiffs sought to
certify a class comprised of: “All landowners who possess appurtenant water rights in the
Klamath Basin and who receive their irrigation water from the Upper Klamath lake through
the Link River Dam.” On the same day, October 11, 2001, plaintiffs in case number 1-
591L filed a motion to hold their motion for class certification in abeyance until the issue
of liability was determined. On December 10, 2001, defendant filed an unopposed motion
requesting that the issue of class certification be addressed after the close of discovery.
The earlier motions relating to class certification before Judges Sypolt and Allegra were
apparently not addressed before Judge Allegra decided the issue of liability, the case was
appealed to the Federal Circuit, and then remanded to this court. On June 25, 2014,
plaintiffs filed a motion before Judge Allegra renewing their October 11, 2001 motion for
class certification in case number 1-591L. On October 2, 2014, Judge Allegra denied the
renewed motion for class certification, without prejudice, on the grounds that “such a
certification would require that discovery in this case be reopened, further delaying
resolution of this matter.” In the view of Judge Allegra, “the better course [was] to complete
discovery as to the plaintiffs currently before the court, with the hopes of bringing at least
some of the issues in this case to completion.”
28
Midland District Improvement Company
Pine Grove Irrigation District
Poe Valley Improvement District
Shasta View Irrigation District
Sunnyside Irrigation District
Tulelake Irrigation District
Van Brimmer Ditch Company
Westside Improvement District No. 4
Excluded from the class are landowners (or their lessees) located on the
east side of the Klamath Project who received Klamath Project water in
2001 from Gerber and Clear Lake Reservoirs.[ 14]
On January 10, 2017, plaintiffs filed a motion to amend their amended complaint in the
John Anderson Farms case to include a claim for a violation of the Klamath Compact, in
order to conform the allegations in the John Anderson Farms case with those in the Baley
case. The court granted plaintiffs motion on January 27, 2017.
A trial was held in the above-captioned cases in Washington, D.C. over the course
of ten days, which included an opportunity for a selection of the affected farmers to testify
and be heard. After a separate post-trial hearing on a pre-trial motion filed by defendant
to dismiss the Irrigation Districts as plaintiffs from the Baley case, plaintiffs filed a motion
to voluntarily dismiss the Irrigation Districts as plaintiffs. The court granted the motion,
and, because the previous lead plaintiff in case number 1-591L, Klamath Irrigation
District, was among those dismissed, also ordered that case number 1-591L be re-
captioned from Klamath Irrigation District, et al. v. United States to Lonny Baley, et al. v.
United States. Defendant filed a motion to dismiss, or in the alternative for summary
judgment, on the claims of any shareholders in the Van Brimmer Ditch Company,
including those of named plaintiffs James and Cheryl Moore, which was briefed by the
parties. The issue raised in this motion is addressed in the current opinion.
Just prior to trial, defendant and plaintiffs also filed cross-motions for partial
summary judgment on the nature of plaintiffs’ beneficial interest in the use of Klamath
Project water, and the possible effect of the contracts governing delivery on that interest.
In its motion, defendant asked the court to hold that “plaintiffs’ appurtenant right to receive
14 The class originally proposed by the plaintiffs and approved by the court on January
10, 2017 contained slightly different language. The parties subsequently modified the
class definition to the version quoted above as part of their joint proposed class notice
filed on February 27, 2017, which the court approved on the same day.
29
and use Klamath Project water is defined and limited by the contracts between the
districts and the United States and any individual Warren Act contracts that remain in
place” and that “plaintiffs’ interest in Project water, to the extent it may exist separately
from those contracts, cannot be severed from plaintiffs’ respective ownership of land for
the purposes of the Fifth Amendment.” In their cross-motions, plaintiffs asked the court to
hold that their alleged water rights were “property protected by the Fifth Amendment,
established under Oregon law, and that these property rights were unmodified by contract
in 2001 at the time of the taking.” This motion also is addressed in this opinion.
Defendant, plaintiffs, and third-party intervenor Pacific Coast Federation of
Fisherman’s Associations simultaneously filed post-trial briefs. The Klamath Tribes filed
a motion for leave to file a memorandum as amicus curiae, which was granted by the
court. Defendant, plaintiffs, and third-party intervenor subsequently filed their post-trial
reply briefs, with defendant filing a sur-reply on issues raised for the first time in plaintiffs’
reply brief. On May 22, 2017, plaintiffs filed a third amended complaint that reflected the
class certification approved by the court and the class notice plan subsequently approved
by the court. As noted above, in order to allow plaintiffs to begin the process of perfecting
the class in the event of a favorable decision or an appeal of this court’s decision, along
with their amended complaint, plaintiffs filed an entry of appearance list listing 1,151
landowners or lessees (or their representatives) who had submitted timely entry of
appearance forms. 15
DISCUSSION
As noted above, defendant’s motion to dismiss or for summary judgment as to the
claims of any shareholders of the Van Brimmer Ditch Company was deferred to trial and
remains outstanding. The court will turn to that motion first. The court will then proceed to
the merits of the case, plaintiffs’ claims that the government’s actions in 2001 constituted
takings under the Fifth Amendment to the United States Constitution or, as it relates to
some of the plaintiffs, a violation of the Klamath Compact.
15 At the request of the court, on September 8, 2017, defendant filed a status report
summarizing the initial results of its review of the entry of appearance forms. In its status
report, defendant states that its review of the entry of appearance forms indicates that
there are over 3,600 individual parcels of land identified by the claimants in their entry of
appearance forms. Defendant states that it has no objection to the claims based on 709
of these parcels. Defendant states that there are additional claims for which it does not
object to the initial eligibility of the claimant who submitted the form, but notes that there
is more than one landowner identified for the parcel on the relevant Irrigation District’s
assessment roll. For those claims, defendant states that additional information and
clarification will be required. Finally, defendant notes that it has stated objections to the
initial eligibility to claims based on hundreds of other parcels.
30
I. Claims of Van Brimmer Ditch Company Shareholders
Although defendant’s motion regarding the claims of the Van Brimmer Ditch
Company shareholders is titled as a motion to dismiss or alternatively for summary
judgment, the motion never cites the standard of review for a motion to dismiss under
Rule 12 of the Rules of the Rules of the United States Court of Federal Claims (RCFC)
(2017) or the particular provision of RCFC 12 under which defendant seeks to bring its
motion. Indeed, defendant’s motion never even mentions RCFC 12. Instead, the only
standard of review discussed by defendant in its motion is the standard for summary
judgment under RCFC 56. Moreover, certain evidence defendant cites in support of its
motion, such as a declaration submitted by former Van Brimmer Ditch Company
President Gary Orem, the 1909 contract between the Van Brimmer Ditch Company and
the United States, and even the trial testimony of James Moore, would generally be
inappropriate to consider under a motion to dismiss under RCFC 12. The court, therefore,
will treat defendant’s motion as one for summary judgment under RCFC 56.
RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language
and effect. Both rules provide that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” RCFC 56(a) (2017); Fed. R. Civ. P. 56(a) (2017); see
also Alabama v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S.
541, 549 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279,
1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States,
713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed.
Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);
Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620
F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United
States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010),
cert. denied, 131 S. Ct. 2990 (2011); 1st Home Liquidating Trust v. United States, 581
F.3d 1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,
1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283
(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.
Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.
United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,
317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United
States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610
(2011).
A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
31Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh'g denied, 361 U.S. 941 (1960).
When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment:
saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
useless. “Useless” in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.
Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
32
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group,
Inc. v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 131 S. Ct. 69 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.
The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
33
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, No. 12-527C, 2015 WL 170230, at *6 (Fed. Cl. Jan. 14,
2015). If the moving party makes such a showing, the burden shifts to the nonmoving
party to demonstrate that a genuine dispute regarding a material fact exists by presenting
evidence which establishes the existence of an element essential to its case upon which
it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also
Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long
Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v.
United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,
247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,
1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807;
Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, “a non-movant is
required to provide opposing evidence under Rule 56(e) only if the moving party has
provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA,
Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).
Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,
L.P. v. United States, 586 F.3d 962, 968–69 (Fed. Cir. 2009); B.F. Goodrich Co. v. U.S.
Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d
1030, 1037 n.5 (9th Cir. 2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v.
United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have
moved for summary judgment does not mean that the court must grant summary
judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed.
Cir. 1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey
v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H.
Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083(1969); Rogers v. United States, 90 Fed. Cl. 418, 427 (2009), subsequent determination,
93 Fed. Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387 (2009),
aff’d, 615 F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir. 2010),
cert. denied, 131 S. Ct. 2990 (2011); St. Christopher Assocs., L.P. v. United States, 75
Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.
United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion
on its own merits, taking care to draw all reasonable inferences against the party whose
motion is under consideration, or, otherwise stated, in favor of the non-moving party. See
First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g
en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d
1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338–39 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);
Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.
United States, 71 Fed. Cl. 114, 119 (2006).
34
Cross-motions are no more than a claim by each party that it alone is entitled to
summary judgment. The making of such inherently contradictory claims, however, does
not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich
Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d at 1148; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2;
Rogers v. United States, 90 Fed. Cl. at 427; Reading & Bates Corp. v. United States, 40
Fed. Cl. at 748.
Defendant moves for the dismissal of the claims of any plaintiffs who are
shareholders of the Van Brimmer Ditch Company on the grounds that such claims are
barred by Judge Sypolt’s November 13, 2003 Order. Among the named plaintiffs, only
James and Cheryl Moore were shareholders of the Van Brimmer Ditch Company,
although the decision on defendant’s motion applies to any and all plaintiff class members
who receive their water as shareholders of the Van Brimmer Ditch Company. According
to defendant, the November 13, 2003 Order remains in effect because it was not
challenged by plaintiffs on appeal and the Federal Circuit ultimately declined to rule on
defendant’s argument that Van Brimmer’s claim was barred by the November 2003 Order.
See Klamath Irr. Dist. v. United States, 635 F.3d at 519 n.10. Defendant argues that both
the claims in the present cases of plaintiffs who are shareholders in the Van Brimmer
Ditch Company and those that were at issue in case 003 of the Klamath Adjudication are
based on the right to use the 50 cfs of water identified in Van Brimmer’s 1909 contract
with the United States. Defendant argues that for plaintiffs who are shareholders of the
Van Brimmer Ditch Company, such as James and Cheryl Moore, their shares in Van
Brimmer Ditch Company stock are the source of their right to receive Klamath Project
water. According to defendant, this means that, unlike other plaintiffs in these cases, the
plaintiffs who are shareholders of the Van Brimmer Ditch Company do not claim a
beneficial interest in Klamath Project waters, but, instead, hold a proportionate share of
the 50 cfs of water that was the subject of the Van Brimmer Ditch Company’s 1909
contract with the United States. According to defendant, these rights are identical to the
rights asserted by the Van Brimmer Ditch Company in the Klamath Adjudication and,
therefore, barred by Judge Sypolt’s November 13, 2003 Order.
Plaintiffs reject defendant’s argument that the November 13, 2003 Order remains
valid and continue to argue that the rights asserted by the Van Brimmer shareholders are
not the same as those that were at issue in the Klamath Adjudication. Plaintiffs argue that
the Judge Sypolt’s November 13, 2003 Order “no longer serves any legitimate purpose”
because “[t]he reason for the 2003 order no longer exists.” According to the plaintiffs, the
purpose of Judge Sypolt’s November 13, 2003 Order was to address defendant’s May
10, 2002 motion to stay the then-titled Klamath Irrigation District case, now identified as
the Baley case, case number 1-591L, until the Klamath Adjudication was decided, and
because the Klamath Adjudication was completed on February 28, 2014, the Order is
“now moot.” Plaintiffs also argue that the claims of the Moores and other plaintiffs who
are Van Brimmer Ditch Company shareholders are not based on their ownership of Van
Brimmer Ditch Company stock, but, instead, are based on their beneficial interests in
Klamath Project waters just like all other plaintiffs in the above-captioned cases.
35
The court turns first to plaintiffs’ argument that Judge Sypolt’s November 13, 2003
Order is “now moot” because it was intended only to address defendant’s May 10, 2002
motion to stay case number 1-591L, pending the conclusion of the Klamath Adjudication.
Initially, the court notes that the plain language of the November 13, 2003 Order contains
no language describing its effects as temporary. Instead, the Order appears to impose,
without qualification, a permanent bar on the types of claims plaintiffs may bring, stating:
“plaintiffs are barred from making any claims or seeking any relief in this case based on
rights, titles, or interests that are or may be subject to determination in the Adjudication,”
clearly referring to the Klamath Adjudication.
Although Judge Sypolt’s Order is extremely short and not the clearest, the
language of the November 13, 2003 Order does not support plaintiffs’ argument that the
only purpose of the Order was to address defendant’s motion so stay. The November 13,
2003 Order decided both defendant’s May 10, 2002 motion to stay the case on the
grounds that issues relevant to the case were the subject of the then ongoing Klamath
Adjudication and plaintiffs’ September 22, 2003 motion for summary judgment that the
property rights determination in the Klamath Adjudication was irrelevant to plaintiffs’
interest in the then-titled Klamath Irrigation District case. After finding, in favor of plaintiffs,
that “it appear[ed]” that plaintiffs in Klamath Irrigation District “assert no property interest
determinable in the Adjudication” and, therefore, denying defendant’s motion to stay the
case and granting plaintiffs' summary judgment motion, the court added language barring
claims subject to the Klamath Adjudication, stating that it was doing so “[b]ased on
plaintiffs’ assertion that no rights or interests in this case are affected by the Adjudication.”
This language from Judge Sypolt’s November 13, 2003 Order indicates that a purpose of
the Order was to prevent plaintiffs from later disavowing their assertion that none of the
rights they asserted in the Klamath Irrigation District case would be affected by the
Klamath Adjudication, the basis on which Judge Sypolt made her decision. To hold now
that the November 13, 2003 Order is no longer binding on the parties would not only be
contrary to its plain language, but also would undermine its apparent intent of holding
plaintiffs accountable for the statements they made in order to receive the benefit of the
court’s decision and avoid the stay sought by defendant. The court, therefore, holds that
the November 13, 2003 Order remains in effect and continues to bar plaintiffs from “from
making any claims or seeking any relief in this case based on rights, titles, or interests
that are or may be subject to determination in the Adjudication.” 16
Having determined that the November 13, 2003 Order remains in effect, the court
now turns to the issue of whether the claims of the Van Brimmer Ditch Company’s
shareholders are “based on rights, titles, or interests that are or may be subject to
determination in the [Klamath] Adjudication” and, thus, are barred by the November 13,
2003 Order. In claims 298, 321-6, and 321-7 of case 003 of the Klamath Adjudication, the
Van Brimmer Ditch Company and the United States brought competing claims based on
16 The court notes that, although the November 13, 2003 Order was addressed only to
plaintiffs in the Klamath Irrigation District case (the John Anderson Farms had not yet
been filed on November 13, 2003), a single class has since been certified for all of the
consolidated cases, Baley and John Anderson Farms.
36
the water rights appropriated by the Van Brimmer brothers in 1883 and 1884, and
subsequently at issue in the 1909 contract between Van Brimmer and the United States.
The Klamath adjudicator granted the Van Brimmer Ditch Company’s claim and denied
the claim of the United States, finding that the Van Brimmer Ditch Company held
appropriative water rights to 50 cfs of water, with a priority date of September 4, 1883,
and that the 1909 agreement limited Van Brimmer’s water rights to 50 cfs, but did not
transfer these rights to the United States. In a July 16, 2003 declaration submitted in case
1-591L in this court, Van Brimmer Ditch Company President Gary D. Orem describes the
water rights held by the Van Brimmer Ditch Company as arising in a virtually identical way
to the water rights the Van Brimmer Ditch Company claimed and was awarded in the
Klamath Adjudication. In his declaration, Mr. Orem describes the Van Brimmer brothers’
1883 and 1884 notices of appropriation of water from Lower Klamath Lake, the
completion of an irrigation ditch and beginning of irrigation in 1886, the conveyance of the
Van Brimmer brothers’ water rights to the Van Brimmer Ditch Company in 1903, and the
1909 contract between the Van Brimmer Ditch Company and the United States, in which
the United States Agreed to deliver 50 cfs of water from Lower Klamath Lake to the Van
Brimmer Ditch Company for irrigation purposes. Mr. Orem alleges, consistent with the
Van Brimmer Ditch Company’s claims in the Klamath Adjudication, that in the 1909
contract the United States “recognized” the Van Brimmer Ditch Company’s “vested right
to the use of fifty second feet of water for irrigation purposed from the water of Lower
Klamath Lake” and that the Van Brimmer Ditch Company’s right to the 50 cfs of water
“was never owned by the United States.” Based on the declaration of its own president,
therefore, the Van Brimmer Ditch Company’s claims in the present case appear to be
based on the same water rights that were at issue in the Klamath Adjudication.
Despite this evidence, plaintiffs argue that plaintiffs who are Van Brimmer Ditch
Company shareholders claims in the present litigation differ from those that were before
the Klamath Adjudication because, in the present cases, these plaintiffs’ claims are based
solely on their beneficial rights to Klamath Project water, rather than on their shares in the
Van Brimmer Ditch Company. The evidence, however, demonstrates that any interests
that the Van Brimmer Ditch Company’s users may have in Klamath Project water are
simply derivative of the Van Brimmer Ditch Company’s water rights. The Van Brimmer
Ditch Company’s articles of incorporation state that its purpose was to use the waters of
Lower Klamath Lake “as has heretofore been appropriated and used” by the Van Brimmer
brothers for irrigation purposes, and that each share was to be distributed for one acre of
irrigable land dependent upon the Van Brimmer Ditch Company ditch for its water supply.
Today, the Van Brimmer Ditch Company continues to distribute water to its users based
on the number of shares they hold in the company, with each share corresponding to the
right to receive water for one acre of irrigable land. Thus, the water rights held by the Van
Brimmer Ditch Company’s users are to a portion of the water rights held by the Van
Brimmer Ditch Company, i.e., to a portion of the water that was at issue in claims 298,
321-6, and 321-7 of case 003 of the Klamath Adjudication. As such, any claims brought
by the Van Brimmer Ditch Company’s users in the present litigation would be based on
water rights that were at issue in the Klamath adjudication and barred by the Judge
Sypolt’s November 13, 2003 Order. Defendant’s motion for summary judgment is granted,
and plaintiffs who are shareholders of the Van Brimmer Ditch Company, such as James
and Cheryl Moore, therefore, are barred from bringing any claims based on their rights to
37
receive Klamath Project water based on these shares. The claims of such plaintiffs are
dismissed.
II. Plaintiffs’ Takings and Klamath Compact Claims
Turning to the merits of the takings and Klamath Compact claims, the remaining
plaintiffs in the class actions allege that the government’s actions in 2001 constituted a
taking under the Fifth Amendment to the United States Constitution of their beneficial
interest in Klamath Project water and an impairment of their right to receive Klamath
Project water in violation of the Klamath Compact, for which they are owed just
compensation. In its February 17, 2011 decision remanding case number 1-591 to this
court, the United States Court of Appeals for the Federal Circuit instructed this court to
proceed with plaintiffs’ takings and Klamath Compact claims using the following two-step
process:
First, it should determine, for purposes of plaintiffs' takings and Compact
claims, whether plaintiffs have asserted cognizable property interests. . . .
To the extent the Court of Federal Claims determines that one or more
plaintiffs have asserted cognizable property interests, it then should
determine whether, as far as the takings and Compact claims are
concerned, those interests were taken or impaired.
Klamath Irr. Dist. v. United States, 635 F.3d at 519-20.
A. Have Plaintiffs Asserted Cognizable Property Interests
The court turns first to the issue of “whether plaintiffs have asserted cognizable
property interests.” Id. at 519. In response to a certified question sent by the Federal
Circuit in case number 1-591, the Supreme Court of Oregon set forth the following three
factor test for determining, “[u]nder Oregon law, whether plaintiffs acquired an equitable
or beneficial property interest in the water right”:
whether plaintiffs put the water to beneficial use with the result that it
became appurtenant to their land, whether the United States acquired the
water right for plaintiffs’ use and benefit, and, if it did, whether the
contractual agreements between the United States and plaintiffs somehow
have altered that relationship. In this case, the first two factors suggest that
plaintiffs acquired a beneficial or equitable property interest in the water
right to which the United States claims legal title, but we cannot provide a
definitive answer to the court’s second question because all the agreements
between the parties are not before us.
Klamath Irr. Dist. v. United States, 635 F.3d at 515 (quoting Klamath Irr. Dist. v. United
States, 227 P.3d at 1169). In its February 17, 2011 decision, the Federal Circuit instructed
that, in determining whether plaintiffs have asserted cognizable property interests, this
court “should direct its attention to the third part of the three-part test set forth by the
Oregon Supreme Court in response to our certified question 2.” Id. at 519. The Federal
Circuit explained:
38
That is because it is not disputed that, in this case, the first two parts of the
three-part test have been met. Specifically, the parties do not dispute that
plaintiffs have put Klamath Project water to beneficial use and that the
United States acquired the pertinent water rights for plaintiffs' use and
benefit.
Id. With regard to the third part of the Oregon Supreme Court’s test, the Federal Circuit
instructed this court to “address whether contractual agreements between plaintiffs and
the government have clarified, redefined, or altered the foregoing beneficial relationship
so as to deprive plaintiffs of cognizable property interests for purposes of their takings
and Compact claims.” Id. The Federal Circuit specified that this court
should give the government the opportunity to demonstrate how plaintiffs’
beneficial/equitable rights to the use of Klamath Project water have been
clarified, redefined, or altered. In that context, it will be the government’s
burden to demonstrate with specificity how the beneficial/equitable rights of
one or more plaintiffs have been clarified, redefined, or altered. After the
government has come forward with its showing, plaintiffs will have the
opportunity to respond.
Id. at 519–20 (footnotes omitted).
As instructed by the Federal Circuit, the court turns to the issue of whether
“contractual agreements between plaintiffs and the government have clarified, redefined,
or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable
property interests for purposes of their takings and Compact claims.” Id. at 519.
Defendant argues that plaintiffs’ beneficial rights have been altered by language,
including the various shortage provisions, contained in the various contracts governing
delivery of Klamath Project water, in particular the Form A and B applications, the
repayment contracts with the Klamath Irrigation District and the Tulelake Irrigation District,
the Warren Act contracts, and the leases for lands in the National Wildlife Refuges.
Plaintiffs reject defendant’s assertion that the contracts have altered plaintiffs’ rights, on
the grounds that plaintiffs never signed any of the contracts that allegedly altered their
rights, nor are they in privity with anyone who did.
Initially, the court notes that, throughout its post-trial brief, defendant alleges that
the contracts governing the delivery of water from the Klamath Project “created” any
property rights in the Klamath Project water plaintiffs may have held. As a matter of law,
this is incorrect. Although it is unclear precisely what defendant means by this statement,
the Oregon Supreme Court explained in its March 11, 2010 decision that, “[u]nder Oregon
law, the water right became appurtenant to the land once the persons taking the water
from the Klamath Project applied it to their land and put it to beneficial use.” Klamath Irr.
Dist. v. United States, 227 P.3d at 1163. The Oregon Supreme Court went on to note that
any contractual agreements between plaintiffs and the United States could have “clarified,
redefined, or even altered” the relationship between the United States and the plaintiffs
on whose behalf the United States originally appropriated the waters of the Klamath
Project. Id. at 1165. For instance, such agreements could have caused plaintiffs to have
39
either acquired or lost rights to water that had also been put to beneficial use. See id.
(“For instance, we cannot foreclose the possibility that plaintiffs could have bargained
away any equitable or legal right to the water in return for a reduced payment schedule
or forgiveness of their debt. Conversely, the United States may have granted plaintiffs
either patents, water rights, or contractual rights that would be sufficient, as a matter of
state law, for plaintiffs to have acquired at a minimum an equitable property interest in the
water.”). The contracts, could not, however, by themselves create a right to beneficial use
in water. See id. at 1169 (setting forth the three factors that, under Oregon law, determine
“whether plaintiffs acquired an equitable or beneficial property interest in the water right”).
The court now turns to the specifics of each of the contracts governing the delivery of
Klamath Project water in order to determine if they clarified, redefined, or altered the rights
held by plaintiffs in Klamath Project water. Because the various agreements defendant
alleges affected plaintiffs’ rights differ significantly in history and language, the court
examines each set of contracts separately.
1. Form A and B Applications
The court first reviews the Form A and B applications. These applications for water
rights were used by the United States Department of the Interior in the early days of the
Klamath Project, prior to the establishment of Irrigation Districts. See Laws and
Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-8. The Form A
application was to be used by homesteaders settling into reclaimed lands, while the Form
B application was to be used by owners of private lands. Id. Defendant does not allege,
and there is no evidence in the record to suggest, that any of the plaintiffs signed any of
these applications. Instead, defendant argues that, because the terms and conditions of
the contracts continue to run with the land, the plaintiffs who are the successors-in-
interest to the signors of the Forms A and B applications remain bound by these terms
and conditions.
In support of its argument that the terms and conditions of Form A applications run
with the land, defendant points to the provision in the Form A applications which states:
“All of the within terms and conditions, in so far as they relate to said land, shall be a
charge upon said land to run with the title to same.” The meaning of the word “charge” in
this clause appears to be: “An encumbrance, lien, or claim.” Charge, Black’s Law
Dictionary 282 (10th ed. 2014) (“”). Thus, it would appear, based
on this provision, that all of the applications’ provisions, including the shortage provisions,
were intended to run with the lands the applications concerned, and, therefore, bind the
signors’ successors-in-interest in those lands.
In response to the evidence offered by the defendant, plaintiffs point out that after
homesteaders who signed Form A applications completed the homesteading process,
they were issued patent deeds giving them ownership over the lands they homesteaded.
Such patent deeds were issued for each of properties identified with each of the Form A
applications admitted during trial. These patent deeds conveyed to the homesteaders
the Tract above described [in the patent deed], together with the right to the
use of water from the Klamath Reclamation Project as an appurtenance to
40
the irrigable lands in said tract; TO HAVE AND TO HOLD the same,
together with all the rights, privileges, immunities, and appurtenances, of
whatsoever nature, thereunto belonging, unto the said [name] and to his
heirs and assigns forever . . . but excepting, nevertheless, and reserving
unto the United States, rights of way over, across, and through said lands
for canals and ditches constructed, or to be constructed, by its
authority . . . .
(capitalization in original). The patent deeds, thus, conveyed the land and an appurtenant
water right, while reserving the right of the United States to enter the lands for Klamath
Project purposes. Additionally, some of the patent deeds contained clauses reserving to
the United States any “fissionable” minerals contained in the lands or rights of way for the
maintenance of power transmission lines. The deeds make no mention, however, of any
other conditions on the property rights.
Although defendant argues that the “water right” conveyed by these patents “is the
water right described and defined by the Form A contract,” there is no indication in the
patent deeds that they were intended to incorporate the terms of the Form A applications.
“The general rule, long recognized in California, is that ‘“where a deed is executed in
pursuance of a contract for the sale of land, all prior proposals and stipulations are
merged, and the deed is deemed to express the final and entire contract between the
parties.”’” Ram's Gate Winery, LLC v. Roche, 235 Cal. App. 4th 1071, 1079, (Cal. App.
2015) (quoting Bryan v. Swain, 56 Cal. 616, 618 (1880); Riley v. North Star Mining Co.
93 P. 194 (Cal. 1907); Palos Verdes Corp. v. Housing Authority, 202 Cal. App. 2d 827,
836 (Cal. App. 1962)). Similarly, in Oregon, “[t]he general rule is that, when a deed to
property is delivered and accepted, that deed embodies the entire agreement of the
parties to a property sale. Any prior agreements or understandings regarding ‘title,
possession, quantity, or emblements of the land’ merge into the deed and are superseded
by the deed's terms.” Winters v. Cty. of Clatsop, 150 P.3d 1104, 1108 (Or. App. 2007)
(citing City of Bend v. Title & Trust Co., 134 Or. 119, 126-27 (1930); Archambault v. Ogier,
194 Or. App. 361, 369 (2004))). Thus, any obligations that encumbered the lands for
which Form A applications were signed were extinguished by the patent deeds unless
they also were included in the patent deeds. The Form A applications do not, therefore,
alter the plaintiffs’ equitable interests in Klamath Project water.
The Form B application does not contain a provision similar to the Form A
application stating that its conditions run with title to the lands. The only evidence
defendant offers in support of its contention that the provisions in the Form B applications
run with the land is that both the Form A and Form B applications were recorded in the
county records and that a Bureau of Reclamation senior water and land specialist, George
Driscol, testified at trial that the Bureau of Reclamation continues to refer to provisions of
the applications concerning the government’s rights to use the lands for constructing
Klamath Project facilities. It is not obvious why recording a contract with a county recorder
would bind anyone other than the signor of that contract to its terms, nor does defendant
offer an explanation. Further, general statements about the policies of the Bureau of
Reclamation regarding records are not evidence as to the legal significance of those
41
records. As such, the court holds that the Form B applications do not alter any plaintiffs’
beneficial interests in Klamath Project water.
2. Repayment Contracts with Klamath Irrigation District and Tulelake
Irrigation District
Defendant also argues that the provisions of the repayment contracts between the
United States and the Klamath Irrigation District and between the United States and
Tulelake Irrigation District, including their shortage provisions, alter the water rights of
plaintiffs who receive water from these Irrigation Districts. Defendant’s reasoning is
essentially identical with respect to both of these contracts. Initially, defendant concedes
that no landowners within the Klamath Irrigation District or the Tulelake Irrigation District
are signatories to the Districts’ contracts with the United States. With regard to
landowners within the Klamath Irrigation District, defendant notes that plaintiffs’
predecessors-in-interest, after filing their Form B applications, formed the Klamath
Irrigation District. Defendant then asserts that, when the Klamath Irrigation District
entered into a contract with the government on November 29, 1954, these landowners
lands, and their appurtenant water rights, became “subject to the terms and conditions
contained in the KID [Klamath Irrigation District] contract.” Similarly, with regards to those
plaintiffs within the Tulelake Irrigation District, defendant notes that plaintiffs’
predecessors-in-interest, after filing their Form A applications, subsequently formed the
Tulelake Irrigation District and included their lands within the Tulelake Irrigation District.
Defendant then asserts that, when the Tulelake Irrigation District entered into a contract
with the government in 1956, these landowners’ lands, and their appurtenant water rights,
became “subject to the terms and conditions contained in the TID [Tulelake Irrigation
District] contract.”
The November 28, 1954 contract between the Klamath Irrigation District and the
United States was signed by these two parties only, and does not purport to bind any third
parties. Similarly, the September 10, 1956 contract between the Tulelake Irrigation District
and the United States is signed by these two parties only, and does not purport to bind
any third parties. Further, the only purposes of the contracts appear to have been to have
the Irrigation Districts assume the costs of repaying the United States for the construction
of the Klamath Project and to transfer to the Irrigation Districts the operation of the
Klamath Project works delivering the water to the lands within the Irrigation Districts. The
preamble to the Klamath Irrigation District’s contract states that the District is
“obligated . . . to repay to the United States that part of the expenditures made by the
United States in the construction of the Project which is properly allocable to the District”
and that “the District . . . desires to enter into an amendatory contract with the United
States, which would provide for the District to take over the operation and maintenance
of certain of the Project works.” Similarly, the preamble to the Tulelake Irrigation District’s
contract states that it is entering into the contract for “furnishing by the United States of a
water supply from the [Klamath] Project works and for the repayment of the construction
charges” of the Klamath Project, and that because both parties wanted to provide “for the
transfer to the District of the operation and maintenance of works and properties used or
useful for the delivery of water to and protection of the lands within the District.” The
42
contracts then set forth the respective obligations of the Irrigation Districts and the United
States in operating these works.
Nowhere do the contracts purport to alter or otherwise impact any landowner’s
water rights, which defendant admits were already appurtenant to the lands within the
Klamath Irrigation District and the Tulelake Irrigation District prior to the creation of these
Irrigation Districts. Further, it is not correct to argue that the individual landowners within
the Klamath and Tulelake Irrigation Districts are subject to the terms of the contracts,
which are addressed directly to the Irrigation Districts and relate to activities the Irrigation
Districts would have to carry out in their corporate capacities. For instance, both contracts
require that, “[t]he District shall, at its expense . . . maintain all water measuring and
controlling devices and gauges as have been constructed or installed by the United States
or by the District in connection with the transferred works,” and that, “[t]he District shall,
at its own expense, keep a reasonably accurate record of all crops raised . . . on District
lands.” Nor does defendant provide alternative legal grounds arising outside of the
language of the contracts as to why individual landowners would be bound by their terms.
That the plaintiffs’ predecessors-in-interest created the Klamath Irrigation District and the
Tulelake Irrigation District, does not, as defendant asserts, imply that the plaintiffs’ lands
are “subject to the terms and conditions” of the contracts entered into between these
Irrigation Districts and the United States. Defendant has failed to meet its burden of
demonstrating that plaintiffs’ rights have been altered by the November 29, 1954 contract
between the Klamath Irrigation District and the United States or by the September 10,
1956 contract between the Tulelake Irrigation District and the United States.
3. Warren Act Contracts
Defendant also argues that the rights of plaintiffs who receive their water under
individual Warren Act contracts or from an Irrigation District receiving water pursuant to a
Warren Act contract, are altered by the terms of these contracts, including their shortage
provisions. Warren Act contracts governing the delivery of water to ten Irrigation districts,
the Enterprise Irrigation District, the Klamath Basin Improvement District, the Klamath
Drainage District, the Malin Irrigation District, the Midland District Improvement Company,
the Pine Grove Irrigation District, the Poe Valley Improvement District, the Shasta View
Irrigation District, the Sunnyside Irrigation District, and the Westside Improvement District,
were admitted into evidence at trial. Additionally, three Warren Act contracts governing
the delivery of water to the predecessors-in-interest of two named plaintiffs in the above-
captioned cases were also admitted into evidence at trial. With regard to both sets of
contracts, defendant argues that “the right of the landowner to receive water . . . is defined
and limited by the terms of the applicable Warren Act contract.” Plaintiffs argue that the
Warren Act contracts entered into by the Irrigation Districts cannot affect the rights of
individual plaintiffs because the plaintiffs themselves were not a party to these contracts.
Unlike the contracts entered into between the Klamath Irrigation District and the
Tulelake Irrigation District with the United States, the Warren Act contracts do not focus
only on repayment to the United States for the construction of Klamath Project works and
the operation of these works. Instead, the Warren Act contracts demonstrate an additional
desire of the Irrigation Districts to secure water for their members. For instance, the
43
contract with the Malin Irrigation District states that, “the District was organized for the
purpose of securing and distributing water for the irrigation of its lands, and desires the
United States to construct certain irrigation works and supply irrigation water from the
Klamath project for such district lands.” Further, unlike the Klamath Irrigation District and
Tulelake Irrigation District repayment contracts, the Warren Act contracts go beyond
describing the logistics of distributing water to define and set limits on the amount of water
that will be furnished by the United States to the Districts. For instance, the contract of
the Malin Irrigation District specifies the Klamath Project canal through which the United
States will release the water and sets three limits on the amounts that can be released,
stating that the amount: “shall not exceed the amount that can be furnished . . . at a cost
of Thirty-four Dollars ($34.00) per acre”; “nor shall it exceed two acre-feet per acre of
irrigable land during the usual irrigation season”; “and in no event shall it exceed 0.6 acre-
feet of water per irrigable acre in any one month.” Finally, the contracts set a priority for
the water vis-à-vis other Klamath Project appropriators, stating that the use rights
acquired by the contract are inferior to the rights of prior appropriators, such as the
Klamath Irrigation District, the Tulelake Irrigation District, and the Van Brimmer Ditch
Company. These contracts do not, therefore, simply alter the rights the United States was
appropriating on behalf of the Irrigation Districts or the individual contractors, they define
these rights. Because any right in Klamath Project water acquired by plaintiffs who
received water from an Irrigation District with a Warren Act contract could not have been
greater than the rights acquired by the Irrigation District, the water rights of such plaintiffs
are limited by the provisions of the Warren Act contracts.
The individual Warren Act contracts, like the Form A applications, and unlike the
Form B applications, make clear that their terms run with the land, stating: “The terms of
this contract shall inure to the benefit of and be binding upon the successors in interest
and assigns of the parties hereto.” The terms and obligations imposed by the individual
Warren Act contracts, thus, continue to bind the successors-in-interest of the signors of
the contract, including named plaintiffs Daniel G. and Delores Chin and Hill Land & Cattle
LLC. Similar to the Warren Act contracts entered into by Irrigation Districts, for which the
terms are identical or essentially identical to those included in the terms of the individual
Warren Act contracts, these individual Warren Act contracts do not just alter, but also
define, the water rights currently held by these successors-in-interest.
Defendant argues that the shortage provisions contained in the Warren Act
contracts mean that plaintiffs who receive water under an individual or Irrigation District
Warren Act contract “had no right to receive and use any water from the Klamath Project
in 2001.” 17 The shortage provisions in the Warren Act contracts appear in two separate
17Defendant also argues: “The Court should further hold that the ‘beneficial interest’ in
Klamath Project water resulting from the use of Project water delivered under these
Warren Act contracts is not a compensable property right separate and apart from
contracts and that plaintiffs’ claims sound in contract.” Such a conclusion would be
contrary to the Federal Circuit’s binding February 17, 2011 decision. In that decision, the
Federal Circuit quoted the Oregon Supreme Court’s three factor test for determining
whether plaintiffs had acquired a right of beneficial use in Klamath Project water:
44
forms. In the first, the United States is immune from liability resulting from water shortages
caused “[o]n account of drought, inaccuracy in distribution or other cause.” The other
contracts, however, do not include the phrase “other cause,” stating: “The United States
shall not be liable for failure to supply water under this contract caused by hostile
diversion, unusual drought, interruption of service made necessary by repairs, damages
caused by floods, unlawful acts or unavoidable accidents.”
In the circumstances of the present cases, the presence or absence of the two
words “other cause” in a Warren Act contract is dispositive. Although 2001 was a dry year,
the Bureau of Reclamation’s statements in 2001 make clear that the reason the Bureau
refused to supply water to the plaintiffs in 2001 was not because of drought, but because
of what it perceived as the requirements of the Endangered Species Act as set forth in
the FWS and NMFS Biological Opinions and of its tribal trust obligations towards the
Klamath, Yurok and Hoopa Valley Tribes. The Revised 2001 Operations Plan stated that
“water deliveries to farms and refuges within the Project service area” would be “severely
limited” as a result of the “Minimum UKL [Upper Klamath Lake] levels and Klamath River
flows [which] have been specified as a result of ESA consultation on listed species,” and
that these minimum Upper Klamath Lake levels and Klamath River flows “are consistent
with requirements of the ESA and Reclamation's obligation to protect Tribal trust
resources.” Similarly, the Department of the Interior news release announcing the
curtailment of water deliveries issued the same day as the release of the Revised 2001
Operations Plan, April 6, 2001, stated that no water was available for release to farmers
[W]hether plaintiffs put the water to beneficial use with the result that it
became appurtenant to their land, whether the United States acquired the
water right for plaintiffs' use and benefit, and, if it did, whether the
contractual agreements between the United States and plaintiffs somehow
have altered that relationship.
Klamath Irr. Dist. v. United States, 635 F.3d at 515 (quoting Klamath Irr. Dist. v. United
States, 227 P.3d at 1169). The Federal Circuit then concluded that in case 1-591 it was
undisputed that plaintiffs had met the first two parts of the test: “that plaintiffs have put
Klamath Project water to beneficial use and that the United States acquired the pertinent
water rights for plaintiffs' use and benefit.” Id. at 519. Given the undisputed testimony of
the plaintiffs regarding their prior use of Klamath Project water on their land and the
undisputed evidence that the purpose of the Klamath Project was to provide water to
farmers like the plaintiffs, the first two factors of the Oregon Supreme Court’s test remain
undisputed. That leaves only the third factor, “whether the contractual agreements
between the United States and plaintiffs somehow have altered that relationship.” Id.
While a contractual arrangement could certainly serve to entirely eliminate a parties’ right
to beneficial use of Klamath Project water, see Klamath Irr. Dist. v. United States, 227
P.3d at 1165, the Warren Act contracts display no such intent. Indeed, while the contracts
place limits and conditions upon plaintiffs’ water rights, their stated intent is for the United
States to furnish water to plaintiffs.
45
because of the FWS and NMFS Biological Opinions “and the requirements of [the]
Endangered Species Act.” With regard to the Endangered Species Act, the Revised 2001
Operations Plan states:
The Lost River and shortnose suckers, coho salmon, and bald eagles are
listed under the ESA. Reclamation will manage Project water supplies in
accordance with the April, 2001, [sic] biological opinions issued by NMFS
and the U.S. Fish and Wildlife Service (FWS) for this year’s Project
operation. . . .”
With regard to its tribal trust obligations, the Revised 2001 Operations Plan states that
“Reclamation's Plan provides flow regimes and lake levels for protection of tribal trust
resources within the limitations of the available water supply.” The statements in these
contemporary documents are consistent with the testimony heard at trial. Jason
Cameron, who at the time of the trial was the deputy area manager of the Bureau of
Reclamation’s Klamath Basin area office, and who, in 2001, served as a water quality
technician at the Bureau of Reclamation, monitoring water quality related to the
endangered sucker fish, testified that the Bureau of Reclamation’s drought plan for the
Klamath Project, which is triggered when there is “an insufficient water supply,” was not
implemented in 2001 because there was no water supply available. Although Mr.
Cameron did not explain why no water was available, Karl Wirkus, the Area Manager of
the Bureau of Reclamation’s Klamath Basin area office in 2001 and the author of the
Revised 2001 Operations Plan, testified that the reason no water was available in 2001
was because all Klamath Project water was needed to satisfy the satisfy the requirements
of the reasonable and prudent alternatives set forth in the FWS and NMFS Biological
Opinions.
The Bureau of Reclamations’ decision to curtail water deliveries to plaintiffs in
2001, therefore, was, according to its own statements, not caused by a “hostile diversion,
unusual drought, interruption of service made necessary by repairs, damages caused by
floods, unlawful acts or unavoidable accidents.” Therefore, the shortage provisions in the
Warren Act Contracts that do not contain the phrase “other cause” are inapplicable in the
present cases. As such, plaintiffs whose claims arise from water they receive from
Irrigation Districts whose contracts with the United States contain such shortage
provisions, including the Klamath Drainage District, the Malin Irrigation District, the
Klamath Basin Improvement District, the Shasta View Irrigation District, the Sunnyside
Irrigation District, and the Westside Improvement District, hold beneficial rights to receive
Klamath Project water for which they may seek compensation under the Fifth Amendment
or the Klamath Compact. Additionally, the claims of any class members that are based
on parcels for which plaintiffs or plaintiffs’ predecessors-in-interest signed such a Warren
Act contract also hold beneficial rights to receive Klamath Project water for which they
may seek compensation under the Fifth Amendment or the Klamath Compact.
By contrast, the court finds that the phrase “other cause” in certain Warren Act
shortage provisions is broad enough to encompass shortages caused by the United
States’ tribal trust and Endangered Species Act obligations. Therefore, the shortage
provisions in Warren Act contracts which immunize the United States from liability due to
46
“other causes” are applicable in the present case. As such, plaintiffs whose claims arise
from water they receive from Irrigation Districts whose contracts with the United States
contain such shortage provisions, including the Enterprise Irrigation District, the Midland
District Improvement Company, the Poe Valley Improvement District, and the Pine Grove
Irrigation District, have had their beneficial rights to receive Klamath Project water altered
in such a way that they are barred from seeking compensation for a taking under the Fifth
Amendment or an impairment under the Klamath Compact of those rights in 2001.
Additionally, the claims of any class members that are based on parcels for which plaintiffs
or plaintiffs’ predecessors-in-interest signed such a Warren Act contract, including at least
claims for two parcels owned by Daniel G. and Delores Chin and one parcel owned by
the Hill Land & Cattle LLC in 2001, also are barred from seeking compensation for a
taking under the Fifth Amendment or an impairment under the Klamath Compact of those
rights in 2001.
4. Leased Lands in the National Wildlife Refuges
Defendant also argues that the water rights of plaintiffs who received their water
through leases for lands in the National Wildlife Refuges that sit within the Klamath Project
have been altered by the provisions of these leases, including their shortage provisions. 18
Plaintiffs do not attempt to rebut this argument.
These leases entitle their leaseholder to lease a defined parcel of land, “with
privileges and appurtenances,” and, thus, include the water rights appurtenant to the land.
Unlike the Warren Act contracts, the leases do not include any language defining the
leaseholder’s water right. The leases, however, state that they are leases made between
the Bureau of Reclamation and the lessee, and, that “in consideration for the rents and
covenants” contained in the leases, the Bureau of Reclamation will provide deliveries of
water to the leased premises. The leases, thus, are clearly intended to define the
relationship between the plaintiff lessees and the United States regarding the
appropriation of Klamath Water. As such, the water rights of plaintiffs who hold such
leases were altered by and subject to the provisions of the leases.
18 Regarding the Warren Act contracts, defendant appears to argue that plaintiffs who
leased lands from the United States have no property right in their right to use Klamath
Project water and that the court should find that their claims “sound[] in contract.” For the
same reasons as for the Warren Act contracts, the court finds that such a holding would
contradict the instruction of the Federal Circuit’s February 17, 2011 decision in this case.
See generally Klamath Irrigation Dist. v. United States, 635 F.3d 505. It is undisputed that
plaintiffs on the leased lands had applied Klamath Project water to these lands for
beneficial use in the past and that the United States had appropriated water for plaintiffs’
benefit. While the leases defined the extent of these plaintiffs’ property rights, there is no
evidence that they were intended to totally eliminate plaintiffs’ rights to beneficial use of
Klamath Project water.
47
Among other provisions, the leases state that “the United States . . . shall not be
held liable for damages because irrigation water is not available.” The provision contains
no language requiring that water be unavailable due to specific causes. Because their
property right was subject to this provision and irrigation water was unavailable in 2001,
plaintiffs who leased lands in the National Wildlife Refuges are barred from recovering
damages based on the denial of water to those lands.
B. Were Plaintiffs’ Interests Taken or Impaired
There, therefore, are a group of class members who have asserted cognizable
property interests for which they may seek compensation from defendant, for which
reason, the court turns to the next step in the Federal Circuit’s instructions, “whether, as
far as the takings and Compact claims are concerned, those interests were taken or
impaired.” Klamath Irr. Dist. v. United States, 635 F.3d at 519-20. The parties have raised
a number of separate issues that impact this question: whether defendant’s actions
should be analyzed as either a regulatory or physical taking and, if as a physical taking,
then whether as a permanent or temporary taking, as well as the potential existence of
senior water rights to Klamath Project water held by the Klamath, Yurok, and Hoopa
Valley Tribes. The court examines each of these issues in turn.
1. Takings Framework
Initially, the parties dispute whether the government’s actions should be analyzed
as regulatory rather than physical takings, and, also that, if the court decides to analyze
the claims as physical, whether it should analyze the takings as temporary rather than
permanent physical takings. Plaintiffs argue that their claims should be analyzed as
permanent physical takings. The distinction is important because the framework for
analyzing each type of taking varies significantly. A permanent physical taking involves a
“permanent physical occupation of property” and is treated as a per se taking for which
the government must pay compensation regardless of the circumstances. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982). By contrast, the
standards for determining whether government actions constitute compensable
regulatory or temporary physical takings are more complex. Regulatory takings involve
“restrictions on the use of . . . property,” and determining whether such restrictions
constitute a compensable taking requires “balancing and ‘complex factual assessments,’
utilizing the so-called Penn Central test.” CRV Enterprises, Inc. v. United States, 626 F.3d
1241, 1246 (Fed. Cir. 2010) (quoting Tahoe–Sierra Pres. Council v. Tahoe Reg'l Planning
Agency, 535 U.S. 302, 322–23 (2002)); see also Penn Cent. Transp. Co. v. City of New
York, 438 U.S. 104, 105, 124 (1978). Similarly, temporary physical takings involve
“temporary invasions of property” which “‘are subject to a more complex balancing
process to determine whether they are a taking.’” Arkansas Game & Fish Comm'n v.
United States, 568 U.S. 23, 36 (2012) (quoting Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. at 435 n.12). The standard for identifying temporary physical takings was
recently summarized and clarified by the United States Supreme Court in the case of
Arkansas Game and Fish Commission v. United States, 568 U.S. at 38-39.
48
a. Physical or Regulatory Taking
The issue of whether plaintiffs’ claims should be analyzed as physical or regulatory
takings, although not whether they should be analyzed as permanent or temporary, was
briefed by the parties in motions in limine prior to the trial and decided by the court in its
December 21, 2016 Opinion. See Klamath Irrigation v. United States, 129 Fed. Cl. 722.
In that decision, the court held the government's actions in the present cases “should be
analyzed under the physical takings rubric.” Id. at 737 (quoting Casitas Mun. Water Dist.
v. United States, 543 F.3d at 1296). The court began its analysis in its December 21,
2016 Opinion by noting the distinctions between physical and regulatory takings and that
the Federal Circuit has held that, in distinguishing between the two “‘our focus should
primarily be on the character of the government action.’” Klamath Irrigation v. United
States, 129 Fed. Cl. at 730 (quoting Casitas Mun. Water Dist. v. United States, 543 F.3d
at 1289). The court then proceeded to summarize the “trilogy of cases, International
Paper Company v. United States, 282 U.S. 399, 51 S.Ct. 176, 75 L.Ed. 410 (1931), United
States v. Gerlach Live Stock Company, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950),
and Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963),” in which “the
Supreme Court ‘provides guidance on the demarcation between regulatory and physical
takings analysis with respect to [water] rights.’” Id. (quoting Casitas Mun. Water Dist. v.
United States, 543 F.3d at 1289). The court noted that “[a]ccording to the Federal Circuit,
in each of these cases: ‘the United States physically diverted the water, or caused water
to be diverted away from the plaintiffs’ property’; ‘the diverted water was dedicated to
government use or third party use which served a public purpose’; and ‘the Supreme
Court analyzed the government action . . . as a per se taking.’” Id. (quoting Casitas Mun.
Water Dist. v. United States, 543 F.3d at 1289).
After summarizing the parties’ arguments, the court proceeded to summarize the
Federal Circuit’s decision in Casitas Municipal Water District v. United States, “a binding
precedent on this court.” Id. at 732. The court then found that the “[t]he facts in the present
cases are very similar to those in Casitas.” Id. at 733. In particular, the government had
“taken an action that had the effect of preventing plaintiffs from enjoying the right to use
water provided by an irrigation project,” “plaintiffs in the present cases had been able to
use these water rights more or less fully for years prior to the government’s action,” the
government’s action was “implemented by a similar physical means,” and the water was
used for “‘the preservation of the habitat of an endangered species,’” a “‘government and
third party use.’” Id. (quoting Casitas Mun. Water Dist. v. United States, 543 F.3d at 1292).
After rejecting defendant’s attempts to distinguish Casitas and the trilogy of Supreme
Court water rights cases, see id. at 733-34 & 734 n.5, the court held that “Casitas
Municipal Water District v. United States, 543 F.3d 1276, and the United States Supreme
Court decisions on which Casitas relies, are controlling in the cases presently before the
court. As in Casitas, the government's actions in the present cases ‘should be analyzed
under the physical takings rubric.’” Id. at 737 (quoting Casitas Mun. Water Dist. v. United
States, 543 F.3d at 1296). The undersigned was careful to note, however, “that in making
this decision, it is in no way making any determinations as to the nature or scope of
plaintiffs' alleged property rights, which remain[ed] at issue in the above-captioned
cases.” Id.49
Both defendant and defendant-intervenor, after trial, now request that this court
reconsider its December 21, 2016 Opinion and hold that the government’s actions in the
present cases are properly analyzed as regulatory rather than physical takings.
Defendant argues that the court’s decision was wrong because plaintiffs failed to prove
at trial that the government actually took any physical actions that resulted in the
deprivation of Klamath Project water that plaintiffs allege constituted the taking at issue
Defendant-intervenor makes a different argument, asserting that impairments on a use
right, such as plaintiffs’ water rights in the present cases, can never constitute a physical
taking, regardless of the nature of government action.
Neither defendant nor defendant-intervenor discuss the standard to be applied to
for motions for reconsideration. Pursuant to RCFC 59:
The court may, on motion, grant a new trial or a motion for reconsideration
on all or some of the issues—and to any party—as follows:
(A) for any reason for which a new trial has heretofore been granted in an
action at law in federal court;
(B) for any reason for which a rehearing has heretofore been granted in a
suit in equity in federal court; or
(C) upon the showing of satisfactory evidence, cumulative or otherwise, that
any fraud, wrong, or injustice has been done to the United States.
RCFC 59(a)(1) (2017). The United States Court of Appeals for the Federal Circuit has
stated that: “The decision whether to grant reconsideration lies largely within the
discretion of the [trial] court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577,
1583 (Fed. Cir.), reh’g denied (Fed. Cir. 1990); see also Carter v. United States, 207 Ct.
Cl. 316, 318, 518 F.2d 1199, 1199 (1975), cert. denied, 423 U.S. 1076, reh’g denied, 424
U.S. 950 (1976); Osage Tribe of Indians of Okla., 97 Fed. Cl. 345, 348 (2011) (discussing
RCFC 59(a) and 60(b)); Oenga v. United States, 97 Fed. Cl. 80, 83 (2011) (discussing
RCFC 59(a)); Webster v. United States, 92 Fed. Cl. 321, 324, recons. denied, 93 Fed. Cl.
676 (2010) (discussing RCFC 60(b)); Alpha I, L.P. ex rel. Sands v. United States, 86 Fed.
Cl. 126, 129 (2009) (discussing RCFC 54(b) and 59(a)); Banks v. United States, 84 Fed.
Cl. 288, 291-92 (2008) (discussing RCFC 54(b) and 59(a)); Corrigan v. United States, 70
Fed. Cl. 665, 667-68 (2006) (discussing RCFC 59(a)); Tritek Techs., Inc. v. United States,
63 Fed. Cl. 740, 752 (2005); Keeton Corr., Inc. v. United States, 60 Fed. Cl. 251, 253
(2004) (discussing RCFC 59(a)); Paalan v. United States, 58 Fed. Cl. 99, 105 (2003),
aff’d, 120 F. App’x 817 (Fed. Cir.), cert. denied, 546 U.S. 844 (2005); Citizens Fed. Bank,
FSB v. United States, 53 Fed. Cl. 793, 794 (2002) (discussing RCFC 59(a)).
“Motions for reconsideration must be supported ‘by a showing of extraordinary
circumstances which justify relief.’” Caldwell v. United States, 391 F.3d 1226, 1235 (Fed.
Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999)),
reh’g en banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005) (discussing RCFC
59(a)); see also Oenga v. United States, 97 Fed. Cl. at 83; Seldovia Native Ass’n Inc. v.
50
United States, 36 Fed. Cl. 593, 594 (1996), aff’d, 144 F.3d 769 (Fed. Cir. 1998)
(discussing RCFC 59(a)).
Courts must address reconsideration motions with “exceptional care.” Carter v.
United States, 207 Ct. Cl. at 318, 518 F.2d at 1199; see also Global Computer Enters. v.
United States, 88 Fed. Cl. 466, 468 (2009) (discussing RCFC 59(a)). “The three primary
grounds that justify reconsideration are: ‘(1) an intervening change in the controlling law;
(2) the availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice.’” Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, 597 F.3d
1374, 1383 (Fed. Cir. 2010); see also Griffin v. United States, 96 Fed. Cl. 1, 7 (2010),
mot. to amend denied, appeal dismissed, 454 F. App’x 899 (Fed. Cir. 2011) (discussing
RCFC 59(a)); Totolo/King Joint Venture v. United States, 89 Fed. Cl. 442, 444 (2009)
(quoting Stockton E. Water Dist. v. United States, 76 Fed. Cl. 497, 499 (2007), aff’d in
part, vacated in part, rev’d in part on other grounds, 583 F.3d 1344 (2009) (citation
omitted) (discussing RCFC 59(a))) appeal dismissed, 431 F. App’x 895 (Fed. Cir.), reh’g
denied (2011) (discussing RCFC 59(a)); Dairyland Power Coop. v. United States, 90 Fed.
Cl. 615, 652 (2009), recons. denied, No. 04-106C, 2010 WL 637793 (Fed. Cl. Feb. 22,
2010), aff’d in part, vacated in part on other grounds, 2011 WL 2519519 (Fed. Cir. June
24, 2011) (discussing RCFC 59(a)); Matthews v. United States, 73 Fed. Cl. 524, 526
(2006) (citations omitted) (discussing RCFC 59); Prati v. United States, 82 Fed. Cl. at 376
(discussing RCFC 59(a)); Tritek Techs., Inc. v. United States, 63 Fed. Cl. at 752; Bannum,
Inc. v. United States, 59 Fed. Cl. 241, 243 (2003) (discussing RCFC 59(a)); Citizens Fed.
Bank, FSB v. United States, 53 Fed. Cl. at 794; Strickland v. United States, 36 Fed. Cl.
651, 657, recons. denied (1996) (discussing RCFC 59(a)). “Manifest,” as in “manifest
injustice,” is defined as “clearly apparent or obvious.” Ammex, Inc. v. United States, 52
Fed. Cl. 555, 557 (2002), aff’d, 384 F.3d 1368 (Fed. Cir. 2004), cert. denied, 544 U.S.
948 (2005) (discussing RCFC 59). “Where a party seeks reconsideration on the ground
of manifest injustice, it cannot prevail unless it demonstrates that any injustice is ‘apparent
to the point of being almost indisputable.’” Griffin v. United States, 96 Fed. Cl. at 7 (quoting
Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (2006), aff’d in part, rev’d in
part on other grounds, 536 F.3d 1282 (Fed. Cir. 2008)). “A court, therefore, will not grant
a motion for reconsideration if the movant ‘merely reasserts . . . arguments previously
made . . . all of which were carefully considered by the court.’” Ammex, Inc. v. United
States, 52 Fed. Cl. at 557 (quoting Principal Mut. Life Ins. Co. v. United States, 29 Fed.
Cl. 157, 164 (1993), aff’d, 50 F.3d 1021 (Fed. Cir.), reh’g denied, en banc suggestion
declined (Fed. Cir. 1995)) (emphasis in original); see also Griffin v. United States, 96 Fed.
Cl. at 7; Bowling v. United States, 93 Fed. Cl. 551, 562, recons. denied (2010) (discussing
RCFC 59(a) and 60(b)); Webster v. United States, 92 Fed. Cl. at 324 (discussing RCFC
59(a) and 60(b)); Pinckney v. United States, 90 Fed. Cl. 550, 555 (2009); Tritek Techs.,
Inc. v. United States, 63 Fed. Cl. at 752.
In sum, it is logical and well established that, “‘[t]he litigation process rests on the
assumption that both parties present their case once, to their best advantage;’ a motion
for reconsideration, thus, should not be based on evidence that was readily available at
the time the motion was heard.” Seldovia Native Ass’n Inc. v. United States, 36 Fed. Cl.
at 594 (quoting Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 376, aff’d, 39
F.3d 1198 (Fed. Cir. 1994) (table)).
51
Defendant argues that the court should revisit its earlier decision because plaintiffs
failed to prove at trial that the government “took any physical action with regard to” any of
the “points of diversion” from Upper Klamath Lake or the Klamath river to the Klamath
Project works supplying water to the plaintiffs’ lands. 19 With respect to Upper Klamath
Lake, defendant argues that evidence at trial demonstrated that although the Bureau of
Reclamation, through its March 2, 2001 letter to the Irrigation Districts and Revised 2001
Operations Plan, instructed that no Klamath Project water be diverted without its
authorization, it was the Klamath Irrigation District, which, under contract with the United
States, operates the A Canal through which water is diverted from Upper Klamath Lake,
that ultimately declined to physically open the headgates releasing water out of Upper
Klamath Lake. According to defendant, the same was true with regard to diversions from
the Klamath River, such as the North Canal, operated by the Klamath Drainage District,
whose board member Luther Horsely testified at trial that “probably we were instructed to
close those [diversion] gates [on the North Canal], and Joe, our manager at that time,
would have went and closed them because the Bureau of Reclamation did not do it.”
According to defendant, these facts show that no physical taking by the government
occurred because “instructions are not physical actions.”
Initially, the court notes that its December 21, 2016 Opinion did not assume or
make any factual finding that Bureau of Reclamation personnel physically operated the
Klamath Project works diversion points from Upper Klamath Lake or the Klamath River.
See Klamath Irr. Dist. v. United States, 129 Fed. Cl. at 726 (finding that, under the Revised
2001 Operations Plan, “only limited deliveries of Project water” would be made and then
that “delivery of irrigation water from Upper Klamath Lake to the plaintiffs in the above-
captioned cases was totally terminated until July 2001,” but making no findings as to the
details of how the delivery termination was carried out); id. at 736 (“Further, in both
Casitas and the present cases, the government's action was implemented by a similar
physical means, . . . in the present cases, by using the Klamath Project works to prevent
water from travelling out of Upper Klamath Lake and the Klamath River and into project
canals used by the plaintiffs.”). The court did indicate that the Klamath Project system
was “ultimately controlled by the government,” id. at 735, a conclusion that was consistent
with the timing of the termination of water deliveries immediately after the Revised 2001
Operations Plan was issued and the Bureau of Reclamation’s decision to release 70,000
acre-feet of water in July 2001. See id. at 726. The court’s finding that the release of water
from the Klamath Project was ultimately controlled by the government is bolstered by the
March 2, 1001 and March 30, 2001 letters from the Bureau of Reclamation to the Irrigation
Districts telling the Irrigation Districts that no Klamath Project water could be diverted or
used prior to the issuance of the Revised 2001 Operations Plan without the Bureau of
19 Defendant also argues that the court’s earlier decision “assume[d], without deciding
that plaintiffs’ rights to use of the water was exactly as they alleged” and now that it has
allegedly been show that plaintiffs “did not hold legal title and had no right to divert water
from UKL or the Klamath River” the government’s actions “cannot be regarded as a
seizure or physical taking” of the water or plaintiffs’ right to use the water. As discussed
above, the court has found that plaintiffs hold rights to use Klamath Project water from
Upper Klamath Lake and/or the Klamath River.
52
Reclamation’s express authorization. The court’s finding is also bolstered by the trial
testimony cited by defendant which establishes that the various Irrigation Districts either
closed or refrained from opening the diversion points they were contractually obligated to
operate only after the government ordered them to do so.
Further, defendant’s argument that “instructions” from the government that result
in the diversion of water cannot result in a physical taking because they are not “physical
actions” is incorrect as a matter of law. In language quoted in this courts’ December 21,
2016 Opinion, the Federal Circuit in Casitas stated that, in the three United States
Supreme Court cases involving physical takings of water rights, International Paper Co.
v. United States, 282 U.S. 399 (1931), United States v. Gerlach Live Stock Co., 339 U.S.
725 (1950), Dugan v. Rank, 372 U.S. 609 (1963), “the United States physically diverted
the water, or caused water to be diverted away from the plaintiffs' property.” Casitas Mun.
Water Dist. v. United States, 543 F.3d 1276, 1290 (Fed. Cir. 2008) (emphasis added).
Causing water to be diverted away from the plaintiffs’ property is exactly what the
government did in the present cases. By invoking the various Irrigation Districts’
contractual obligations towards the United States and requiring them to close or keep
closed the various diversion points in the Klamath Project, the Bureau of Reclamation
caused Klamath Project water to be diverted away from plaintiffs’ lands and towards
Upper Klamath Lake and the Klamath River. The circumstances in the present cases are
actually quite analogous to International Paper Co., in which the United States Secretary
of War wrote to a New York power company requisitioning all the electricity it could
produce and ordering it to use “all waters diverted or capable of being diverted through
your intake canal” to produce electricity, which the power company interpreted as
requiring it to deny the plaintiff paper mill its right to divert 730 cubic feet per second of
water from the its intake canal to which it was entitled under New York Law. Int’l Paper
Co. v. United States, 282 U.S. at 405. Despite the fact that it was the power company,
rather than the United States government, that took the physical action that actually
deprived the paper mill of its water right, Justice Holmes held that the government’s
actions amounted to a taking of the paper mill’s right to use the water:
The petitioner’s right was to the use of the water; and when all the water
that it used was withdrawn from the petitioner’s mill and turned elsewhere
by government requisition for the production of power it is hard to see what
more the Government could do to take the use.
Id. at 407. Just as in International Paper Co., the government’s actions in the present
cases caused the withdrawal of water used by plaintiffs and, thereby, deprived them of
their right to use that water.
Defendant-intervenor, Pacific Coast Federation of Fisherman’s Associations,
makes a different argument, that “[a] takings claim based on an alleged impairment of the
right to use property must be analyzed as a potential regulatory taking, regardless of what
caused the restriction.” (emphasis in original). As it relates to water law, this proposed
bright line rule is obviously incorrect. Each of the three Supreme Court cases which found
a physical taking of water, as well as Casitas, involved a right to use water. See id. at 407(“The petitioner's right was to the use of the water . . . .”); United States v. Gerlach Live
53
Stock Co., 339 U.S. at 752 (noting that plaintiffs riparian rights entitled them to “so much
of the flow of the San Joaquin as may be put to beneficial use consistently” with
California’s water law); Dugan v. Rank, 372 U.S. at 614 (“The named plaintiffs claimed to
represent a class of owners of riparian as well as other types of water rights.”); Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1294 (“When the government diverted the
water to the fish ladder, it took Casitas' water. The water, and Casitas’ right to use that
water, is forever gone.”). 20
20 Defendant-intervenor argues that Casitas is distinguishable from the present cases
because it involved “an unusual set of facts where the court assumed the plaintiff owned
the water it had diverted into a private canal.” (emphasis in original). This court rejected
this precise argument in its December 21, 2016 Opinion, writing:
[D]efendant notes that the government in Casitas conceded, for the purpose
of appeal, that Casitas held not only a right to use water, but also a right to
divert water from the Ventura River Project, and, therefore, argues that the
Federal Circuit's holding was premised on a finding that Casitas's right to
divert water, rather than its right merely to use water, had been taken. This
argument finds no support in the text of the Casitas opinion, which, after
mentioning that Casitas held a right to divert 107,800 acre-feet of water from
the Ventura River Project, see [Casitas Mun. Water Dist. v. United States,
543 F.3d] at 1288, never describes the government's actions as having
interfered with Casitas' right to divert water. By contrast, the opinion does
state that, as a result of the government's actions, “[t]he water [diverted by
the government], and Casitas' right to use that water, is forever gone.” Id.
at 1296 (emphasis added). Moreover, after quoting a statement from the
Supreme Court's opinion in International Paper that:
[t]he petitioner's right was to the use of the water; and when
all the water that it used was withdrawn from the petitioner's
mill and turned elsewhere by government requisition for the
production of power it is hard to see what more the
Government could do to take the use,
the Federal Circuit stated “[s]imilar to the petitioner in International Paper,
Casitas' right was to the use of the water, and its water was withdrawn from
the Robles–Casitas Canal and turned elsewhere (to the fish ladder) by the
government.” Id. at 1292 (emphasis added) (quoting Int'l Paper Co. v.
United States, 282 U.S. at 407, 51 S.Ct. 176). At the very least, these
statements demonstrate that the United States Court of Appeals for the
Federal Circuit concluded that the government's water diversions in Casitas
resulted in a permanent taking of Casitas' right to use the diverted water.
See also CRV Enters., Inc. v. United States, 626 F.3d at 1247 (“Thus, the
prior water rights cases finding a physical taking involved instances where
the ‘United States physically diverted the water, or caused water to be
diverted away from the plaintiffs' property’ such that water was removed
54
In support of this proposed bright line rule, defendant-intervenor cites to a single
case, CRV Enterprises, Inc. v. United States, 626 F.3d 1241 (Fed. Cir. 2010), which it
alleges demonstrates that “the fact that the government implemented the requirements
of the Endangered Species Act, at least in part, through physical operation of the Klamath
Project does not change the fact that the government action merely resulted in a
restriction on the plaintiffs’ ability to use water.” 21 The plaintiffs in CRV Enterprises held
entirely and the plaintiffs ‘right to use that water, [was] forever gone.’”
(alteration in original) (emphasis added) (quoting Casitas v. United States,
543 F.3d at 1290, 1296)).
Klamath Irr. Dist. v. United States, 129 Fed. Cl. at 733. Nothing in defendant-intervenor’s
present argument even addresses the reasoning of the court’s December 21, 2016
Opinion, let alone supports that it was made in clear error.
21 Defendant-intervenor also criticizes the court’s December 21, 2016 Opinion for
“suggest[ing] that the facts of this case are comparable to the facts of Casitas because
the regulatory mandate that required water not to be diverted from the river for irrigation
purposes altered the ‘status quo ante.’” In the portion of the opinion defendant-intervenor
is apparently referencing (no citation is provided by defendant-intervenor), the court
rejected defendant’s attempt in its motion in limine to distinguish the present cases from
Casitas on the grounds that “the Bureau of Reclamation’s actions did not amount to a
physical diversion of Klamath Project water, but instead constituted only regulatory
restrictions prohibiting the removal of water by plaintiffs from Upper Klamath Lake, the
equivalent of what the court in Casitas termed ‘merely requir[ing] some water to remain
in stream’ as opposed to ‘actively caus[ing] the physical diversion of water.’” Klamath Irr.
Dist. v. United States, 129 Fed. Cl. at 733–34 (quoting Casitas v. United States, 543 F.3d
at 1291). In rebutting this argument, this court applied the Federal Circuit’s determination
in Casitas that “‘the appropriate reference point in time to determine whether the United
States caused a physical diversion’ is the ‘status quo’ before the challenged government
action” to find that the government’s actions amounted to a physical diversion because
they “prevented water that would have, under the status quo ante [i.e., the status quo
before], flowed into the Klamath Project canals and to the plaintiffs” from doing so. Id. at
734 (quoting Casitas Mun. Water Dist. v. United States, 543 F.3d at 1291 n.13). In arguing
that the court’s reasoning “contradicts” Casitas, defendant-intervenor cites to the same
language from Casitas that defendant did in its motion in limine, but fails in any way to
discuss or even recognize the other portions of Casitas that formed the basis for the
court’s reasoning. Defendant-intervenor, thus, has failed to demonstrate that the court’s
reasoning was in clear error.
Defendant-intervenor also claims that the court’s reasoning amounts to “the idea
that the imposition of a new regulatory constraint on the use of land, water, or any other
resource should be regarded as a physical taking simply because it changes the status
quo ante.” The court finds no support for such a proposition in its December 21, 2016
Opinion. Nor does defendant-intervenor’s argument, again, made without specific
55
riparian rights, which, among other considerations, entitled them to access the navigable
portions of a man-made waterway adjacent to their property. See CRV Enterprises, Inc.
v. United States, 626 F.3d at 1243-44. In CRV Enterprises, as part of an environmental
remediation effort, the United States Environmental Protection Agency installed a log
boom that prevented plaintiffs from navigating a portion of the waterway, which the
plaintiffs alleged amounted to a physical taking of their riparian rights. See id. at 1245.
The Federal Circuit ultimately held that the government’s actions did not amount to a
physical taking because “plaintiffs cannot show that the government has physically
appropriated its water rights by removing water entirely.” Id. at 1248. In doing so, the
Federal Circuit noted that “the prior water rights cases finding a physical taking involved
instances where the ‘United States physically diverted the water, or caused water to be
diverted away from the plaintiffs’ property’ such that water was removed entirely and the
plaintiffs ‘right to use that water, [was] forever gone.’” Id. at 1247 (quoting Casitas Mun.
Water Dist. v. United States, 543 F.3d at 1290, 1296). This is precisely the approach
adopted by this court in its December 21, 2016 Opinion, which based its decision in large
part on the finding that “the government's retention of water in Upper Klamath Lake and
Klamath River did amount to a physical diversion of water according to the standards set
by the United States Court of Appeals for the Federal Circuit and the United States
Supreme Court.” Klamath Irr. Dist. v. United States, 129 Fed. Cl. at 734 (citing Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1289–90). Thus, CRV Enterprises actually
bolsters the court’s December 21, 2016 Opinion, rather than showing it amounted to a
clear error.
b. Permanent or Temporary Taking
The issue of whether the government’s actions should be analyzed as a permanent
or temporary taking was not briefed in the parties’ motions in limine and, therefore, not
discussed in the court’s December 21, 2016 Opinion. In their post-trial briefs, defendant
and defendant-intervenor argue that, if the court declines to reconsider its December 21,
2016 Opinion holding that the government’s actions be analyzed as physical takings, it
should analyze the actions as temporary, rather than permanent takings, applying the
framework set forth in Arkansas Game and Fish, 568 U.S. 23. By contrast, plaintiffs argue
that the government should treat them as permanent, per se takings for which
compensation is due regardless of the circumstances.
Defendant argues that the government’s actions must be analyzed as a temporary
taking because plaintiffs’ water rights are appurtenant to their properties and are of
permanent duration in time. With regard to the appurtenant nature of plaintiffs’ water
rights, defendant argues that “black letter law” requires the court to evaluate the effect of
the government’s actions on their property as a whole, including fee ownership of the
lands to which the property rights are appurtenant. With regard to the permanent nature
citations to the court’s opinion, provide any such support. Defendant-intervenor’s
argument, thus, fails.
56
of plaintiffs’ water rights, defendant argues that, even if the court finds that “appurtenancy
can be severed from the fee for the purposes of this claim, because the appurtenant ‘right’
to receive [Klamath] Project water is a permanent right, and plaintiffs are only alleging a
taking of that right in 2001, that claim must be analyzed as a temporary taking.”
Defendant-intervenor similarly argues that it is “apparent” that the government’s actions
should be analyzed as a temporary taking because the government’s water restrictions
were in place for less than a year.
It is undisputed that plaintiffs’ water rights were appurtenant to their land. This fact
was pled in plaintiffs’ second amended complaint, and a number of plaintiffs testified to it
at trial during questioning by defendant, including Frank Anderson, John Frank, Donald
Russel, Harold Hartman, Edwin Stastny, Jr., James Moore, Gary Wright, Claude Hagerty,
Steven L. Kandra, and David A. Cacka. Defendant’s argument that the court should
analyze the effect of the government’s actions on plaintiffs’ property as a whole, including
the fee estates to which their water rights were appurtenant, rather than the effect on their
water rights alone, however, is incorrect as a matter of law. This court has determined
that the government’s actions should be analyzed as a physical rather than regulatory
taking, and with regard to physical takings, the Federal Circuit has held that “[t]he size
and scope of a physical invasion is immaterial to the analysis; even if the government
only appropriates a tiny slice of a person's holdings, a taking has occurred, and the owner
must be provided just compensation.” Casitas Mun. Water Dist. v. United States, 543 F.3d
at 1288 (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S.
302, 322 (2002)); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)
(“In general (at least with regard to permanent invasions), no matter how minute the
intrusion, and no matter how weighty the public purpose behind it, we have required
compensation.”). The two cases cited by defendant in support of its argument, Tahoe-
Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, and
Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), are not to
the contrary because, unlike the present cases both involved regulatory, rather than
physical, takings. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency,
535 U.S. at 331 (“Petitioners' ‘conceptual severance’ argument is unavailing because it
ignores Penn Central's admonition that in regulatory takings cases we must focus on ‘the
parcel as a whole.’” (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. at130–131)); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. at 493(“[P]etitioners have not shown any deprivation significant enough to satisfy the heavy
burden placed upon one alleging a regulatory taking. For this reason, their takings claim
must fail.”). The standards and precedents to be used in the context of regulatory takings
are inapplicable in the context of potential physical takings. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. at 323 (“This longstanding
distinction between acquisitions of property for public use, on the one hand, and
regulations prohibiting private uses, on the other, makes it inappropriate to treat cases
involving physical takings as controlling precedents for the evaluation of a claim that there
has been a ‘regulatory taking,’ and vice versa.” (footnote omitted)). Thus, in the present
cases, the fact that the government’s actions may have deprived plaintiffs of only a portion
of their entire property rights is simply irrelevant to the issue of whether a taking occurred.
See id. at 322 (“When the government physically takes possession of an interest in
property for some public purpose, it has a categorical duty to compensate the former
57
owner, regardless of whether the interest that is taken constitutes an entire parcel or
merely a part thereof. (citation omitted)); Casitas Mun. Water Dist. v. United States, 543
F.3d at 1292 (“Although Casitas’ right was only partially impaired, in the physical taking
jurisprudence any impairment is sufficient.” (citing Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, 535 U.S. at 322)).
That plaintiffs’ water rights are permanent in duration also is undisputed and
supported by substantial evidence admitted at trial. For instance, the 1905 KWUA
contract, the rights and obligations of which were incorporated into Klamath Irrigation
District’s contracts with the United States, states that the KWUA members right to use
Klamath Project water “shall be . . . forever appurtenant to designated lands owned by
[KWUA’s] share-holders.” Similarly, the Warren Act contracts state an amount of water
that the United States shall furnish each year to the contractor from the various works of
the Klamath Project. Defendant’s argument (and defendant-intervenor’s related
argument) that the government’s actions should be analyzed as a temporary taking
because they only affected plaintiffs’ water rights for one year, while plaintiffs’ water rights
are perpetual, is, however, in direct contradiction with the Federal Circuit’s decision in
Casitas. In Casitas the Federal Circuit, addressing whether the government’s actions
should be treated like the temporary moratorium at issue in Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, held that the
government’s water diversions were “not temporary” and had “permanently taken that
water away from Casitas” because “[t]he water, and Casitas’ right to use that water, is
forever gone.” Casitas Mun. Water Dist. v. United States, 543 F.3d at 1296. In an earlier
footnote, the Federal Circuit explained why it had found that “[t]he water, and Casitas'
right to use that water, is forever gone,” stating:
The California license governing Casitas' use of water for the Project
permits Casitas to divert up to 107,800 acre-feet per year from the Ventura
River and to put to beneficial use each year 28,500 acre-feet of the diverted
water. The water diverted to the fish ladder facility is gone forever, as the
license does not allow Casitas to make up this amount in subsequent years.
Casitas Mun. Water Dist. v. United States, 543 F.3d at 1294 & 1294 n.15. This language
demonstrates that the Federal Circuit viewed the relevant property right for the purposes
of a takings analysis as the water that the Casitas plaintiff was entitled to in a single year
because, once the opportunity to use that water had passed, it was “gone forever.” Id.This was true despite the fact that, as in the present cases, Casitas’ water right was
permanent. See id. at 1281–82 (“Additionally, the contract [between the United States
and Casitas] provided in Article 4 that Casitas ‘shall have the perpetual right to use all
water that becomes available through the construction and operation of the Project.’”).
The United States Supreme Court took a similar view in International Paper Co., in which
Justice Holmes found that the government had effected a taking by depriving plaintiffs of
their right to take the water at issue for ten months, between February 7, 1918 and
November 30, 1918, despite the fact the plaintiffs’ right to the water was perpetual, “a
58
corporeal hereditament[ 22] and real estate,” under New York law. Int'l Paper Co. v. United
States, 282 U.S. at 405-06. 23
Similar to the facts in Casitas, in the present cases, the plaintiffs held rights to
receive the amount of Klamath Project water they could put to beneficial use each year,
which in some cases was capped at a specific amount in terms of acre-feet per second.
Neither Oregon or California law, nor the various contracts plaintiffs and Irrigation Districts
entered into with the Bureau of Reclamation, allowed them to make up the amounts they
were deprived of in 2001 in subsequent years. Therefore, as in Casitas, the water plaintiffs
were deprived of in 2001 is “gone forever.” Casitas Mun. Water Dist. v. United States,
543 F.3d at 1294 n.15. As such, the government’s diversion of water away from the
plaintiffs in 2001 was not temporary and should be analyzed as a permanent physical
taking. See id. at 1296.
22A corporeal hereditament is defined as a “tangible item of property, such as land, a
building, or a fixture.” Corporeal hereditament, Black’s Law Dictionary 842 (10th ed.
2014).
23 Defendant argues that Casitas should be discounted because it predates the Supreme
Court’s decision in Arkansas Game and Fish Commission v. United States, 568 U.S. 23,
and that International Paper Co. should be discounted because it predates both Arkansas
Game and Fish and Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419. While
Arkansas Game and Fish clarified the test to be applied to determine whether temporary
physical invasions constitute temporary takings, the decision recognized that it was
Loretto that had “distinguished permanent physical occupations from temporary invasions
of property, expressly including flooding cases, and said that ‘temporary limitations are
subject to a more complex balancing process to determine whether they are a taking.’”
Arkansas Game and Fish Comm'n v. United States, 568 U.S. at 36 (quoting Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. at 436 n.12). Further, while Loretto was
the first case in which the Supreme Court explicitly stated that temporary and permanent
limitations on property are subject to different tests to determine whether they constitute
takings, Loretto identified that it was not creating a new rule, but merely recognizing a
distinction that Supreme Court cases had drawn since at least the beginning of the
twentieth century. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at 428(“Since these early cases, this Court has consistently distinguished between flooding
cases involving a permanent physical occupation, on the one hand, and cases involving
a more temporary invasion, or government action outside the owner's property that
causes consequential damages within, on the other. A taking has always been found only
in the former situation.” (citing United States v. Lynah, 188 U.S. 445, 468–470 (1903);
Bedford v. United States, 192 U.S. 217, 225 (1904); United States v. Cress, 243 U.S.
316, 327–328 (1917); Sanguinetti v. United States, 264 U.S. 146, 149 (1924); United
States v. Kansas City Life Ins. Co., 339 U.S. 799, 809–810 (1950)). Thus, both Casitas
and International Paper Co., were decided at times when the distinction between
permanent and temporary takings was understood and, as such, remain good law for the
purpose of determining the type of taking which exists.
59
2. Effect of Tribal Rights
The parties also dispute the effect of any rights the Tribes may have to Klamath
Project water on plaintiffs’ claims. Defendant argues that the government’s actions did
not constitute a taking of the plaintiffs’ water rights because the plaintiffs’ water rights
were subordinate to those of the Klamath, Yurok, and Hoopa Valley Indian Tribes.
According to defendant, the amount of Klamath Project water needed to satisfy the Tribes’
rights was at least equal to the quantity needed to satisfy the requirements of the
Endangered Species Act with respect to the Lost River and shortnose suckers and the
SONCC coho salmon in 2001. Defendant also argues that the Bureau of Reclamation’s
Revised 2001 Operations Plan indicates that its decision regarding water availability in
2001 was based, at least in part, on the government’s obligation to satisfy its trust
obligation towards the Tribes to supply the water needed to meet their senior water rights.
According to defendant, because there was not even enough water to fully satisfy the
Tribes’ senior water rights in 2001, plaintiffs, as junior rights holders, were not entitled to
receive any water and, thus, no taking occurred. In their amicus brief filed with this court,
the Klamath Tribes, similarly argue that, to satisfy the Klamath Tribes’ rights, “the amount
of water required to remain in the [Upper Klamath] Lake, although unquantified in 2001,
could not have been less than that required by the ESA [Endangered Species Act], as the
ESA only seeks to avoid extinction whereas the Tribal water right is needed to promote
species populations that can support tribal harvest.”
Plaintiffs argue that defendant has not shown that the 2001 curtailment of water
deliveries was necessary to protect the Tribes’ water rights because those rights are
unquantified, making such proof impossible, and because post-2001 evidence shows that
the water curtailment did not actually protect the threatened and endangered fish.
Plaintiffs also argue that the evidence offered at trial shows that the Bureau of
Reclamation’s decision to withhold water deliveries from the plaintiffs’ in 2001 was based
entirely on its obligations under the Endangered Species Act, rather than to comply with
its trust obligations to satisfy the Tribes’ water rights. Plaintiffs further argue that the
Bureau of Reclamation had trust obligations towards not only to the Tribes, but also to
the plaintiff water users and that, under the Supreme Court’s opinion in Nevada v. United
States, 463 U.S. 110 (1983), the Bureau of Reclamation was not free to favor the Tribes
over the plaintiffs.
Both Oregon, where the Klamath Tribe is based, and California, where the Yurok
and Hoopa Valley Tribes are based, follow the doctrine of prior appropriation for water
rights. See Irwin v. Phillips, 5 Cal. 140, 143 (1855) (establishing the doctrine of prior
appropriation in California); Teel Irr. Dist. v. Water Res. Dep't of State of Or., 919 P.2d
1172, 1174 (Or. 1996) (“Oregon's current scheme of ground and surface water allocation
is rooted in the doctrine of prior appropriation for a beneficial use.”). “The doctrine
provides that rights to water for irrigation are perfected and enforced in order of seniority,
starting with the first person to divert water from a natural stream and apply it to a
beneficial use (or to begin such a project, if diligently completed).” Montana v. Wyoming,
563 U.S. 368, 375–76 (2011) (citing Hinderlider v. La Plata River & Cherry Creek Ditch
Co., 304 U.S. 92, 98 (1938); Arizona v. California, 298 U.S. 558, 565–66 (1936); Wyo.
Const., Art. 8, § 3); see also United States v. State Water Res. Control Bd., 182 Cal. App.
603d 82, 101 (Cal. Ct. App. 1986) (“The appropriation doctrine confers upon one who
actually diverts and uses water the right to do so provided that the water is used for
reasonable and beneficial uses and is surplus to that used by riparians or earlier
appropriators.”). “In periods of shortage, priority among confirmed rights is determined
according to the date of initial diversion,” which is referred to as a priority date. Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 805 (1976). Essentially,
the rule of priority is that “as between appropriators the one first in time is the first in right.”
Wishon v. Globe Light & Power Co., 110 P. 290, 292 (Cal. 1910); see also Teel Irr. Dist.
v. Water Res. Dep't of State of Or., 919 P.2d at 1174 (“Under this doctrine, a person may
acquire an appropriative right on a ‘first come, first served’ basis by diverting water and
applying it to a beneficial use.”). The result is that “[a] junior appropriator's water right
cannot be exercised until the senior appropriator's right has been satisfied.” Benz v. Water
Res. Comm’n, 764 P.2d 594, 599 (Or. 1988); see also United States v. State Water Res.
Control Bd., 182 Cal. App. 3d at 101–02 (“The senior appropriator is entitled to fulfill his
needs before a junior appropriator is entitled to use any water.”).
The water rights held by the Klamath, Yurok and Hoopa Valley Tribes are reserved
federal rights. “[W]hen the Federal Government withdraws its land from the public domain
and reserves it for a federal purpose, the Government, by implication, reserves
appurtenant water then unappropriated to the extent needed to accomplish the purpose
of the reservation.” Cappaert v. United States, 426 U.S. at 138; see also United States v.
New Mexico, 438 U.S. 696, 702 (1978) (“Where water is necessary to fulfill the very
purposes for which a federal reservation was created, it is reasonable to conclude, even
in the face of Congress’ express deference to state water law in other areas, that the
United States intended to reserve the necessary water.”). “In so doing the United States
acquires a reserved right in unappropriated water which vests on the date of the
reservation and is superior to the rights of future appropriators.” Cappaert v. United
States, 426 U.S. at 138. Reserved rights are “[f]ederal water rights,” which “are not
dependent upon state law or state procedures.” Id. at 145. “Thus, reserved rights
represent an exception to the general rule that allocation of water is the province of the
states.” F. Cohen, Handbook of Federal Indian Law 19.01[1] at 1204 (2012) (citing
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800; Winters v.
United States, 207 U.S. 564, 577 (1908)). Although “[i]t is appropriate to look to state law
for guidance . . . the ‘volume and scope of particular reserved rights . . . [remain] federal
questions.’” Colville Confederated Tribes v. Walton, 752 F.2d 397, 400 (9th Cir. 1985)
(quoting Colorado River Water Conservation District v. United States, 424 U.S. at 813)
(citing Colorado v. New Mexico, 459 U.S. 176, 184 (1982)) (second omission and second
alteration in original). Reserved rights “need not be adjudicated only in state courts.”
Cappaert v. United States, 426 U.S. at 145. Instead, “federal courts have jurisdiction
under 28 U.S.C. s 1345 to adjudicate the water rights claims of the United States.” Id.“An implied reservation of water for an Indian reservation will be found where it is
necessary to fulfill the purposes of the reservation.” Colville Confederated Tribes v.
Walton, 647 F.2d 42, 46 (9th Cir. 1981) Although Indian reservations were generally
created by treaties prior to 1871 and through executive orders after 1871, the reserved
water rights resulting from treaties and executive orders “are substantively the same, at
least with respect to non-federal interests.” Parravano v. Babbitt, 70 F.3d at 545. The
61
priority date of reserved rights is “no later than the date on which a reservation was
established, which, in the case of most Indian reservations in the West, is earlier than the
priority of most non-Indian water rights.” F. Cohen, Handbook of Federal Indian Law
19.01[1] at 1206. In certain cases, however, courts have recognized that “uninterrupted
use and occupation of land and water created in the Tribe aboriginal or ‘Indian title’ to all
of its vast holdings.” United States v. Adair, 723 F.2d at 1413 (citing United States v.
Santa Fe Pacific R. Co., 314 U.S. 339, 345 (1941); United States v. Klamath and Modoc
Tribes, 304 U.S. 119, 122–23 (1938); Holden v. Joy, 84 U.S. (17 Wall.) 211, 244 (1872)).
When recognized by a treaty, “[s]uch water rights necessarily carry a priority date of time
immemorial.” Id. at 1414.
The Tribes’ reserved rights are senior to those of any of the plaintiff users of the
Klamath Project water. The Klamath Tribes’ rights hold a priority date of “time
immemorial,” meaning they are senior to any other possible rights holder. See United
States v. Adair, 723 F.2d at 1414; see also F. Cohen, Handbook of Federal Indian Law
19.03[3] at 1216 (“[T]ime immemorial rights are always first in priority.”). Although the
Yurok and Hoopa Valley Tribes’ reserved rights have not previously been assigned a
priority date, the rights must hold a priority date of at least 1891, the year of the last
executive order creating their reservation, and possibly even earlier. See Parravano v.
Babbitt, 70 F.3d at 547 (“The 1876 and 1891 executive orders that created the extended
Hoopa Valley Reservation and the 1988 Hoopa–Yurok Settlement Act vested the Tribes
with federally reserved fishing rights . . . .”). By contrast, under Oregon law, because the
United States did not post notice that it was appropriating the waters of the Klamath
Project until 1905, the priority dates for the rights to use Klamath Project water held by
the remaining plaintiffs, on whose behalf the United States appropriated the water, must
be 1905 or later. Klamath Irr. Dist. v. United States, 227 P.3d at 1152 (“[U]nder Oregon
law, the persons who used water that another person had appropriated had the same
priority date (the date of the notice) as long as the later user put the water to beneficial
use within a reasonable time and the use came within the scope of the original plan set
out in the appropriator's notice.” (citing Nevada Ditch Co. v. Bennett, et al. 45 P. 472 (Or.
1896)). Thus, the priority dates of the remaining plaintiffs’ water rights must be at least a
decade or more later than the latest possible priority date for any of the Tribes’ water
rights at issue in the present cases. See Klamath Water Users Protective Ass'n v.
Patterson, 204 F.3d at 1214 (holding that the water rights of the Klamath, Yurok and
Hoopa Valley Tribes “take precedence over any alleged rights of the Irrigators,” who use
Klamath project water).
The Klamath Tribes hold a “non-consumptive” right in the waters of Upper Klamath
Lake and its tributaries entitling them to prevent other appropriators from depleting these
waters below levels that would prevent them from “support[ing] game and fish adequate
to the needs of Indian hunters and fishers.” United States v. Adair, 723 F.2d at 1410-11.
The Lost River and short nose suckers are tribal resources of the Klamath Tribes and
uncontested evidence presented at trial demonstrated that the fish have played an
important role in the Klamath Tribes’ history. While the court does not have sufficient
evidence in front of it to determine the minimum amount of Lost River and shortnose
suckers that would be “adequate to the needs” of the Klamath Tribes, see id. at 1410, at
the very least it must be some number greater than zero. Thus, the Klamath Tribes’
62
aboriginal right to take fish entitles them to prevent junior appropriators from withdrawing
water from Upper Klamath Lake and its tributaries in amounts that would cause the
extinction of the Lost River and short nose suckers. See United States v. Anderson, 591
F. Supp. 1, 5-6 (E.D. Wash. 1982) (holding that, because “one of the purposes for creating
the Spokane Indian Reservation was to insure the Spokane Indians access to fishing
areas and to fish for food,” the tribe was entitled to a flow of water in a creek sufficient
“sufficient to maintain the water temperature at 68°F or below,” the temperature needed
to preserve their fisheries), aff'd in part, rev’d in part, 736 F.2d 1358 (9th Cir. 1984).
The Yurok and Hoopa Valley Tribes hold the right “to take fish from the Klamath
River . . . for ceremonial, subsistence, and commercial purposes.” United States v.
Eberhardt, 789 F.2d at 1359. The SONCC coho salmon is a tribal trust resource for the
Yurok and Hoopa Valley Tribes and evidence presented at trial demonstrated that the fish
have played an important part in the Yurok and Hoopa Valley Tribes’ history. Indeed,
other courts have found that, at the time the Yurok and Hoopa Valley Tribes’ reservation
was created, “the [Yurok and Hoopa Valley] Tribes’ salmon fishery was ‘not much less
necessary to [their existence] than the atmosphere they breathed.’” Parravano v. Babbitt,
70 F.3d at 542 (quoting Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981)) (alteration in
original). Although previous courts have not been confronted with the issue of whether
the Yurok and Hoopa Valley Tribes reserved fishing rights include a commensurate water
right, reserved rights include a sufficient quantity of water to accomplish the purpose of
the reservation. See United States v. New Mexico, 438 U.S. 696, 698–700 (1978); see
also United States v. Adair, 723 F.2d at 1410 (“[A]t the time the Klamath Reservation was
established, the Government and the [Klamath] Tribe intended to reserve a quantity of
the water flowing through the reservation not only for the purpose of supporting Klamath
agriculture,[ 24] but also for the purpose of maintaining the Tribe's treaty right to hunt and
fish on reservation lands.”). As the Ninth Circuit held in Adair, regarding the Klamath
Tribes’ water rights, because “[a] water right to support game and fish adequate to the
needs of Indian hunters and fishers,” such as that held by the Yurok and Hoopa Valley
Tribes, is “basically non-consumptive,” such a water right “consists of the right to prevent
other appropriators from depleting the streams[’] waters below a protected level.” United
States v. Adair, 723 F.2d at 1410-11 (citing Cappaert v. United States, 426 U.S. at 143);
see also Cappaert v. United States, 426 U.S. at 143 (“Thus, since the implied-reservation-
of-water-rights doctrine is based on the necessity of water for the purpose of the federal
reservation, we hold that the United States can protect its water from subsequent
diversion, whether the diversion is of surface or groundwater.”); Joint Bd. of Control of
Flathead, Mission & Jocko Irr. Districts v. United States, 832 F.2d 1127, 1132 (9th Cir.
1987) (“To the extent that the Tribes enjoy treaty-protected aboriginal fishing rights, they
24 The court notes that the existence and extent of any possible federal reserved water
rights that may be held by the Tribes for the purposes of supporting agriculture are not
dispositive in the present cases. Such reserved water rights for agricultural purposes are
distinct from water rights held for the purpose of maintaining their fishing rights and their
extent is determined according to the so-called “practicably irrigable acreage” standard
set forth by the Supreme Court in Arizona v. California. See Arizona v. California, 373
U.S. 546, 600-601 (1963).
63
can ‘prevent other appropriators from depleting the streams (sic) waters below a
protected level.’” (quoting United States v. Adair, 723 F.2d at 1411) (citing Montana v.
Confederated Salish and Kootenai Tribes, 712 P.2d 754, 764 (Mont. 1985))). In Adair, the
“protected level” of waters that the Klamath Tribes were entitled to enforce was the stream
flow “required to support the fish and game that the Klamath Tribe take in exercise of their
treaty rights.” United States v. Adair, 723 F.2d at 1411. As holders of federal reserved
rights to take fish from the Klamath River, the Yurok and Hoopa Valley Tribes, like the
Klamath Tribes, also hold a non-consumptive water right, which entitles them to prevent
other appropriators from depleting the flows of the Klamath River below levels required
to support the fish they take in exercise of their treaty rights. Similar to the Klamath Tribes,
the Yurok and Hoopa Valley Tribes’ non-consumptive water rights must, therefore, entitle
them, at a minimum, to prevent junior appropriators from withdrawing water from Klamath
River and its tributaries in amounts that would cause the endangerment and extinction of
their tribal trust resource, the SONCC coho salmon.
Defendant and amicus Klamath Tribes argue that the quantity of water needed to
protect these water rights held by the Tribes in 2001 was, at a minimum equal to the
quantity needed to satisfy the Bureau of Reclamations’ obligations under Section 7 of the
Endangered Species Act. In 2001, as in the present day, Section 7 of the Endangered
Species Act required federal agencies to, “in consultation with and with the assistance of
the Secretary [of the Interior], insure that any action authorized, funded, or carried out by
such agency . . . is not likely to jeopardize the continued existence of any endangered
species or threatened species . . . .” 16 U.S.C. § 1536(a)(2) (2000). In 2001, as in the
present day, under the regulations implementing Section 7, to “jeopardize the continued
existence” of a species meant “to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery
of a listed species in the wild by reducing the reproduction, numbers, or distribution of
that species.” 50 C.F.R. § 402.02 (2000). In the cases presently before the court, the
Bureau of Reclamation, pursuant to its obligations under Section 7, initiated formal
consultations with the NMFS regarding the SONCC coho salmon on January 22, 2001
and with the FWS regarding the Lost River and shortnose suckers on February 13, 2001.
The results of these consultations were the biological assessments issued by the NMFS
and the FWS, which found that the Bureau of Reclamation’s proposed 2001 operations
plan for the Klamath Project, which would have provided the plaintiffs with water deliveries
in line with historic practices, was “likely to jeopardize the continued existence” of the Lost
River and shortnose suckers and the SONCC coho salmon. To avoid jeopardizing the
fish, the NMFS and FWS determined it would be necessary to implement certain
“reasonable and prudent alternatives,” including not releasing water for irrigation
purposes from Upper Klamath Lake in order to maintain certain minimum elevations and
releasing additional water into Klamath River to maintain certain flow rates. The Bureau
of Reclamation subsequently implemented the reasonable and prudent alternatives
proposed in the NMFS and FWS Biological Opinions in its Revised 2001 Operations Plan,
resulting in the total denial of water deliveries to plaintiffs until July 2001.
The Bureau of Reclamation, thus, withheld water from plaintiffs in order to retain
what it believed was the amount of water in Upper Klamath Lake and the Klamath River
needed to avoid “jeopardiz[ing] the continued existence,” that is “reduc[ing] appreciably
64
the likelihood of . . . the survival,” of the Lost River and shortnose suckers and the SONCC
coho salmon. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. The quantity of water that
would have been necessary to retain in Upper Klamath Lake and in the Klamath River in
order to prevent the extinction of the Lost River and shortnose suckers and the SONCC
coho salmon cannot have been any less than the quantity that would have been needed
to avoid “reduc[ing] appreciably the likelihood of . . . the survival” of these same fish, which
is essentially a similar standard. The Tribes’ water rights, therefore, entitled the Bureau
of Reclamation to prevent the diversion of least as much water from Upper Klamath Lake
and the Klamath River as was necessary to fulfill the Bureau of Reclamation’s
Endangered Species Act obligations in 2001.
Plaintiffs do not directly challenge defendant’s conclusions regarding the priority
dates and extent of the Tribes’ water rights. Instead, plaintiffs argue that that the
government has failed to prove that the Tribes’ senior water rights precluded deliveries to
the plaintiffs in 2001. In support of this argument, plaintiffs point to the lack of
quantification of the Tribes’ water rights, arguing that “[w]ithout knowing how much water
the Tribes are entitled to, the Government cannot show that all (or any portion) of the
water in Upper Klamath Lake belonged to the Tribes—and not the Klamath farmers.”
Initially, the court notes that unquantified reserved rights are not automatically
unenforceable. See Winters v. United States, 207 U.S. 564 (affirming injunction
restraining appellants from diverting water away from Fort Belknap Indian Reservation
based on the unquantified tribal reserved rights); Kittitas Reclamation Dist. v. Sunnyside
Valley Irr. Dist., 763 F.2d 1032, 1034-35 (9th Cir. 1985) (affirming district court’s order
requiring that water be released from a reservoir in order to preserve nests of salmon
eggs based on unquantified tribal fishing rights). That being said, in order for the court to
find that satisfaction of the Tribes’ water rights required a denial of all water to plaintiffs
for most of the 2001 irrigation season, the court must understand the quantity of water to
which the Tribes were entitled.
The court has concluded that the Tribes’ water right entitled them to keep at least
as much water in Upper Klamath Lake and the Klamath River as was necessary to
prevent jeopardizing the continued existence of the Lost River and shortnose suckers and
the SONCC coho salmon. Determinations as to the minimum elevation in Upper Klamath
Lake and the minimum flows into the Klamath River that would be necessary to avoid
jeopardizing the continued existence of these fish were set forth in the NMFS and FWS
Biological Opinions. Plaintiffs, however, challenge the accuracy of the determinations set
forth in at least the NMFS Biological Opinion, pointing to a summary of a government
report contained in an unpublished 2006 United States District Court opinion, Pac. Coast
Fed’n of Fisherman’s Ass’ns v. United States Bureau of Reclamation, No. C 02-2006,
2006 WL 1469390, at *3-4 (N.D. Cal. May 25, 2006), aff’d, 226 F. App’x 715 (9th Cir.
2007), that they claim is evidence that the government’s actions in 2001 actually “did not
protect the tribal fish resources.” 25 Defendant rejects plaintiffs’ argument as an “invitation
to conduct an improper, hindsight inquiry into the validity of the government’s actions in
25The court notes that plaintiffs raised this argument for the first time in their post-trial
reply brief and failed to present evidence at trial to support the argument.
65
2001 in this case.” According to defendant, because plaintiffs have elected to bring a
takings claim, they are barred from challenging the validity of government actions such
as the conclusions in the NMFS and FWS Biological Opinions and the Revised 2001
Operations Plan.
“[A]n uncompensated taking and an unlawful government action constitute ‘two
separate wrongs [that] give rise to two separate causes of action,’ and . . . a property
owner is free either to sue in district court for asserted improprieties committed in the
course of the challenged action or to sue for an uncompensated taking in the Court of
Federal Claims.” Rith Energy, Inc. v. United States, 247 F.3d 1355, 1365 (Fed. Cir. 2001)
(quoting Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1364
(Fed.Cir.1998)). The users of Klamath Project water, including the Klamath and Tulelake
Irrigation Districts, have already had an opportunity to challenge the reasonableness of
the Bureau of Reclamation’s decision to implement the determinations of the NMFS and
FWS Biological Opinions in the Revised 2001 Operations Plan before the United States
District Court in the District of Oregon in Kandra v. United States, 145 F. Supp. 2d 1192.
Because plaintiffs have chosen to bring the present cases as takings actions before the
United States Court of Federal Claims, they are “required to litigate [their] takings claim[s]
on the assumption that the administrative action was both authorized and lawful.” Rith
Energy, Inc. v. United States, 247 F.3d at 1366; see also Tabb Lakes, Ltd. v. United
States, 10 F.3d 796, 802 (Fed. Cir. 1993) (“[C]laimant must concede the validity of the
government action which is the basis of the taking claim to bring suit under the Tucker
Act, 28 U.S.C. § 1491.” (citing Florida Rock Indus., Inc. v. United States, 791 F.2d 893,
899 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987); Deltona Corp. v. United States,
228 Ct. Cl. 476 (1981), cert. denied, 455 U.S. 1017 (1982))).
Plaintiffs, thus, must assume the lawfulness of the Bureau of Reclamation’s actions
in 2001. This means that plaintiffs must assume that the Bureau of Reclamation acted
reasonably when it determined that it was required under the Endangered Species Act to
implement the determinations of the NMFS and FWS Biological Opinions in the Revised
2001 Operations Plan, as the United States District Court for the District of Oregon
determined in Kandra v. United States, 145 F. Supp. 2d at 1211. It does not follow,
however, that plaintiffs must assume that the Bureau of Reclamation’s determination, or
those contained in the FWS and NMFS Biological Opinions, were completely factually
correct. See Cebe Farms, Ind. v. United States, 83 Fed. Cl. 491, 497 (2008) (“Defendant
cannot circumvent this bedrock constitutional provision [the Just Compensation Clause
of the Fifth Amendment to the United States Constitution] by resorting to the circular logic
that by conceding the legality of the government's action in order to maintain a takings
claim, plaintiffs must also concede that the government was correct in all of its
determinations . . . .”). Plaintiffs, therefore, are free to point out how the elevation levels
and minimum release flows set forth in the FWS and NMFS Biological Opinions were not,
in fact, correct and necessary to prevent jeopardizing the existence of the Lost River and
shortnose suckers and the SONCC coho salmon, as implemented by the Bureau of
Reclamation.
The FWS Biological Opinion begins with a 43 page description of the historical
operation of the Klamath Project and the Bureau of Reclamation’s proposed actions for
66
the Klamath Project in 2001, including summaries of historic elevations in Upper Klamath
Lake and other reservoirs in above average water years, below average water years, dry
years, critical dry years, detailed descriptions of how the Bureau of Reclamation
historically operated the various Klamath Project works and facilities and how it intended
to operate them in 2001, and summaries of the various contractual relationships between
the Bureau of Reclamation and water users. The FWS Biological Opinion then moves to
a 167 page section titled “Biological/Conference Opinions Regarding Operation of the
Bureau of Reclamation’s Klamath Project and its Effects on the Endangered Lost River
Sucker, Endangered Shortnose Sucker, and Proposed Critical Habitat for the Suckers.” 26
This section contains a 58 page summary on the status of the fish and their habitats, a
39 page “Environmental Baseline,” describing the effects of past and ongoing human and
natural factors leading to the current status of the fish, a 36 page analysis of the expected
effects of the Bureau of Reclamation’s proposed Klamath Project operations on the fish,
an 8 page analysis of the cumulative effect of other human activities on the fish, and a 10
page discussion of FWS’ proposed reasonable and prudent alternatives to the Bureau of
Reclamation’s proposed operations of the Klamath Project in 2001. A bibliography at the
end of the FWS Biological Opinion lists 225 pieces of literature and 19 personal
communications the FWS used to formulate the conclusions set forth in the FWS
Biological Opinion. Among the conclusions of the FWS Biological Opinion was that the
maintenance of certain minimum elevations in Upper Klamath Lake were necessary “to
avoid jeopardy and adverse modification of proposed critical habitat” for the Lost River
and short nose suckers. These were the minimum elevations in Upper Klamath Lake that
were, subsequently, implemented by the Bureau of Reclamation in 2001. Recognizing of
course that length alone or the number of references consulted is not, in itself, validation
of a study, the FWS Biological Opinion is a thorough review of the subject matter.
The NMFS Biological Opinion is not as lengthy as the FWS Biological Opinion,
which is likely due, at least in part, to the fact that, unlike the FWS Biological Opinion, the
NMFS Biological Opinion concerns only one species of fish. The NMFS Biological Opinion
contains 3 pages of background on the Klamath Project and description of the Bureau of
Reclamation’s proposed plans for operating the Klamath Project in 2001, 7 pages
describing the life cycle, population trends, and current status of the SONCC coho
salmon, a 9 page “Environmental Baseline” describing the effects of past and ongoing
human and natural factors leading to the current status of the fish, an 11 page analysis
of the expected effects of the Bureau of Reclamation’s proposed Klamath Project
operations on the fish, a 1 page analysis of the cumulative effect of other human activities
on the fish, and a 6 page discussion of NMFS’ proposed reasonable and prudent
alternative to the Bureau of Reclamation’s proposed operations of the Klamath Project in
2001. The NMFS Biological Opinion ends with 14 charts and graphs summarizing the
average flows and temperatures at various points in the Klamath River, as well as the
effect of various levels of water discharges from the Klamath Project on the SONCC coho
and other species of salmon. A bibliography in the NMFS Biological Opinion lists 74
26The FWS Biological Opinion also contains a separate analysis on the effect of the
Bureau of Reclamation’s proposed operations of the Klamath Project on the Bald Eagle,
which is not relevant to the present cases.
67
pieces of literature the NMFS used to formulate the opinions set forth in the NMFS
Biological Opinion. Among the conclusions of the NMFS Biological Opinion was that
continued operation of the Klamath Project according to historic standards was likely to
“jeopardize the continued existence of [the] SONCC coho salmon” and that certain
minimum flows of water released from the Klamath Project were necessary “to prevent
further decline” of the fish. These were the minimum flows of water into the Klamath River
that were, subsequently, implemented by the Bureau of Reclamation in 2001.
Plaintiffs present nothing to challenge the conclusions of the FWS Biological
Opinion. The only offer plaintiffs make to show that the conclusions in the NMFS
Biological Opinion were flawed are passages from a 2006 unpublished decision of the
United States District Court for the Northern District of California in the case of Pacific
Coast Federation of Fisherman’s Associations v. United States Bureau of Reclamation,
which summarize portions of an after the fact February 6, 2002 report by the National
Research Council, an arm of the National Academy of Sciences, titled: “Prepublication
Copy, Interim Report, Scientific Evaluation of Biological Opinions on Endangered and
Threatened Fishes in the Klamath River Basin (2002).” Pac. Coast Fed’n of Fisherman’s
Ass’ns v. United States Bureau of Reclamation, 2006 WL 1469390, at *3-4. The District
Court summarized the February 6, 2002 National Research Council report as follows:
The NRC [National Research Council] Report recognized that “the
reduction in stocks of native coho salmon in the Klamath River Basin has
been caused by multiple interactive factors.” Changes in the physical habitat
associated with inadequate flows and water temperature were cited as
examples. However, the NRC Report found that there was not a sufficient
basis to support the proposed flows in the 2001 NMFS Biological Opinion.
The NRC Report also found that higher flows might disadvantage the young
coho salmon between July and September because the additional flows
would include water that had been warmed in retention lakes. High water
temperature was found to be one of the reasons for the decline of coho
salmon. The NRC Report also questioned whether the increased flows
might have a detrimental effect upon thermal refugia, which was determined
to be critical to the coho salmon's habitat.
While the NRC Report did not find scientific support for the minimum flows
proposed by NMFS, the NRC Report also found that the BOR's proposal in
its 2001 biological assessment could not be justified. The NRC Report
concluded that the BOR's 2001 biological assessment “could lead to more
extreme suppression of flows than has been seen in the past, and cannot
be justified either.” Overall, the report concluded that “there is no convincing
scientific justification at present for deviating from flows derived from
operational practices in place between 1990 and 2000.”
Id. The District Court opinion does not say whether the National Research Council report
drew any similar conclusions regarding the Upper Klamath Lake elevation levels
proposed in the 2001 FWS Biological Opinion.
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The court considers the FWS and NMFS Biological Opinions relied upon by the
Bureau of Reclamation in 2001, thoughtfully researched, clearly presented, credible
decision-making documents, which drew on a wide body of scientific literature and
displayed a strong grasp of the history and operation of the Klamath Project, the biological
needs of the threatened and endangered fish, and the effects of the Klamath Project and
other human activities on the lifecycles of the fish. Each of the Biological Opinions
marshals its findings on these topics to explain, in depth, why the reasonable and prudent
alternatives they set forth, including minimum elevation levels in Upper Klamath Lake and
minimum water flows into the Klamath River, were necessary to avoid jeopardizing the
continued existence of the Lost River and shortnose suckers and the SONCC coho
salmon.
Plaintiffs have failed to offer or identify any specific evidence in the record which
casts doubt on the scientific conclusions of the FWS Biological Opinion. Therefore,
because the court finds the FWS Biological Opinion was reasoned and highly credible,
the court accepts the conclusions of the FWS Biological Opinion, including that the
elevation levels for Upper Klamath Lake set forth in the FWS Biological Opinion, which
were subsequently adopted by the Bureau of Reclamation, were necessary to avoid
jeopardizing the continued existence of the Lost River and shortnose suckers.
With regard to the NMFS Biological Opinion, plaintiffs offer only the summary of
the February 6, 2002 National Research Council report in the unpublished opinion from
the United States District Court for the Northern District of California in support of its
allegations that the conclusions of the NMFS Biological Opinion are flawed. The District
Court opinion states, without elaboration, that “the NRC Report found that there was not
a sufficient basis to support the proposed flows in the 2001 NMFS Biological Opinion”
and that the Klamath River flows proposed by the 2001 NMFS Biological Opinion “might
disadvantage the young coho salmon between July and September” and “might have a
detrimental effect upon thermal refugia, which was determined to be critical to the coho
salmon's habitat.” Pac. Coast Fed’n of Fisherman’s Ass’ns v. United States Bureau of
Reclamation, 2006 WL 1469390, at *3-4 (emphasis added). At best, the summary of the
National Research Council report contained in the District Court’s opinion demonstrates
that a different government agency disagreed, in some, although perhaps not all,
respects, with the conclusion in the NMFS Biological Opinion that the minimum flows set
forth in the NMFS Biological Opinion were necessary to avoid jeopardizing the existence
of the SONCC coho salmon. Because, however, the District Court’s opinion contains only
a brief summary of the National Research Council’s conclusions and no description of the
evidence or scientific research the National Research Council drew on to reach its
conclusions, and because the National Research Council report itself has not been
entered into evidence in this case, the court has no way of judging the validity of the
criticisms of the NMFS Biological Opinion. The court, therefore, finds that the summary
of the National Research Council report contained in the District Court’s unpublished
opinion is not sufficient to put into question the ultimate conclusions set forth in the NMFS
Biological Opinion. Because the court finds the NMFS Biological Opinion reasoned and
credible, and plaintiffs have offered no evidence casting doubt on its conclusions, the
court accepts the conclusions of the NMFS Biological Opinion, including that the release
of certain minimum flows of Klamath Project water set forth in the NMFS Biological
69
Opinion into the Klamath River, which were subsequently adopted by the Bureau of
Reclamation in 2001, were necessary to avoid jeopardizing the continued existence of
the SONCC coho salmon. 27
27 Although plaintiffs failed to present any evidence at trial concerning the Tribes’ water
rights or the conclusions of the FWS and NMFS Biological Opinions, the importance of
these issues should not have come as a surprise to plaintiffs. With regard to the Tribes’
water rights, defendant, in an earlier motion for summary judgment regarding the nature
of plaintiffs’ beneficial interest in the use of Klamath Project water and the subject
contracts and its supporting memorandum, which were deferred to trial, argued:
In 2001, as today, the Project’s water right was junior in priority to the federal
reserved water rights of the Klamath Tribes, and Reclamation’s
management of Project operations was further subject to its trust obligations
to protect senior fishing rights of two tribes in the California portion of the
Klamath River basin – the Yurok and Hoopa Valley Tribes.
Defendant further argued: “Reclamation’s ESA Section 7 obligations overlapped with its
trust obligations given that the Klamath Tribes hold water rights with a priority date senior
to the Klamath Project’s 1905 priority and the Hoopa Valley and Yurok Tribes hold fishing
rights which also have senior priority dates.” Based on these arguments, defendant
requested:
The Court should conclude here, as a matter of law, that because the
plaintiffs’ beneficial interest is derivative of the water rights appropriated by
the United States for the Klamath Project, any ‘right’ to receive and use
Project water is junior in priority to the senior tribal rights described above.
Plaintiffs responded to defendant’s argument by arguing that the existence of the Tribes’
water rights was irrelevant to the existence of plaintiffs’ water rights and that “the
Government’s argument that the Endangered Species Act (ESA) is coextensive with
Indian water rights or that ESA constraints somehow constitute a tribal right, unsupported
by any authority, is simply bizarre.” (footnote omitted). At the close of trial, the court
informed the parties of certain issues that should be among the issues the parties ought
to address in their post-trial briefs. The court specifically mentioned “the role of tribal water
rights in any ultimate liability or damages calculation” and how the Tribes’ water rights
“impact the water rights at issue.” The court also stated that “the tribal rights issue” needed
to be “very clear” in the parties’ post-trial submissions.
With regard to the conclusions of the FWS and NMFS Biological Opinions, prior to
trial, on December 16, 2016, in a motion in limine, defendant argued to
exclude from trial any written evidence or testimony that seeks to challenge,
directly or indirectly, the conclusions reached by FWS and NMFS in their
70
Next, plaintiffs argue that the evidence presented at trial demonstrates that the
Bureau of Reclamation’s actions in 2001 were not intended to satisfy the Bureau of
Reclamation’s obligations to protect the Tribes’ trust resources, but instead, solely to meet
its obligations under the Endangered Species Act. In support of their argument, plaintiffs
point to the following evidence: the testimony of a former Reclamation official, Jason
Phillips that “the existence of the United States[‘] trust obligations to the Indians did not
affect how the water was managed by the Bureau of Reclamation in 2001”; the testimony
of Karl Wirkus that he did not release any more water into Klamath River than was
required by the NMFS Biological Opinion or retain any more water in Upper Klamath Lake
than was required by the FWS Biological Opinion; a statement in the July 25, 1995
memorandum prepared by the Department of the Interior Regional Solicitor for the Pacific
Southwest Region that “[t]he standard to be applied in determining the quantity of water
secured by this [the Tribes’ reserved water] right has not been determined as of the date
of this memorandum”; and the absence of any discussion or consideration of any tribal
rights in the FWS and NMFS Biological Opinions.
Defendant, in its briefs before this court, rejects plaintiffs’ argument and argues
instead that the Tribes’ reserved rights were a factor in the Bureau of Reclamations’
decision to withhold water in 2001. In support of its argument, defendant points to the
following evidence in the record: the statement in the Revised 2001 Operations Plan that
“the UKL [Upper Klamath Lake] levels and river flows under this Plan are consistent with
requirements of the ESA [Endangered Species Act] and Reclamation’s obligation to
protect Tribal trust resources”; the testimony of Jason Phillips that the Bureau of
Reclamation would “go through the process to comply with the Endangered Species Act,
and by complying with the Endangered Species Act, Reclamation would -- would then
determine that its trust obligations to the fishery was also met”; and the testimony of Karl
Wirkus that there was a “direct relationship” between protecting the endangered species
and operating the Klamath Project to be protective of the tribal trust resources. In their
respective Biological Opinions regarding the proposed operation of the
Klamath Project in 2001, and the determination by the Bureau of
Reclamation regarding the operation of the Klamath Project in 2001,
including its determination regarding the availability of Project water.
Defendant’s argument in support of its motion in limine was similar to the one it makes in
its post-trial brief, specifically, that “it is well-settled that a plaintiff may not challenge [a]
government decision in the context of a Fifth Amendment takings claim.” In a response
to defendant’s motion, filed January 3, 2017, plaintiffs argued that defendant’s motion
should be denied as moot. Plaintiff’s stated that they conceded the validity of the
government’s actions and “agree[d] that the Bureau of Reclamation’s action constituting
the taking—its withholding of Klamath’s water in 2001—was authorized by the
Endangered Species Act (as were the biological opinions).” Plaintiffs, however, argued
that this was “all Klamath is required to concede” and that “plaintiffs in this taking case
are not required to concede every factual assertion the Government makes in support of
its action.”
71
amicus brief submitted to the court, the Klamath Tribes reject plaintiffs’ argument, but on
different grounds from defendant. According to the Klamath Tribes, the Bureau of
Reclamation’s motives for withholding water from the plaintiffs in 2001 are irrelevant for
the purposes of this case because the plaintiffs, as junior water rights holders, had no
right to receive any Klamath Project water before the water rights of the Tribes were fully
satisfied. According to the Tribes, in 2001, because the quantity of water needed to fulfill
the Tribes water rights was greater than that required by the Endangered Species Act,
the Tribes water rights were not fully satisfied in 2001, and, thus, plaintiffs had no
entitlement to receive any water.
The court agrees with the Klamath Tribes that the Bureau of Reclamation’s motives
are not dispositive in the present cases. It is a fundamental principle of water law in prior
appropriation states that a senior water right “may be fulfilled entirely before . . . junior
appropriators get any water at all.” Montana v. Wyoming, 563 U.S. at 376; see also Joint
Bd. of Control of Flathead, Mission & Jocko Irr. Dists v. United States, 832 F.2d 1127,
1131–32 (9th Cir. 1987) (“This contention ignores one of the fundamental principles of
the appropriative system of water rights. . . . Montana water law requires that senior rights
be fully protected, even though more economic uses could be made by junior
appropriators.” (citation omitted)). In the present cases, defendant has demonstrated that
the Klamath, Yurok and Hoopa Valley Tribes held water rights to Klamath Project water
that were senior to those of all plaintiff class members. Defendant also has demonstrated
that the quantity of water necessary to satisfy the Tribes’ senior rights was at least equal
to the quantity of water the Bureau of Reclamation believed to be necessary to satisfy its
obligations to avoid jeopardizing the existence of the Lost River and shortnose suckers
and the SONCC coho salmon in conformance with the requirements of the Endangered
Species Act in 2001. Ultimately, the Bureau of Reclamation’s implementation of its
obligations under the Endangered Species Act required all available project water and
none was left over to deliver to plaintiffs. Because the Tribes, as senior rights holders,
were entitled to have their water rights fully satisfied prior to any junior appropriators, and
the entire quantity of Klamath Project water was necessary to satisfy these rights in 2001,
plaintiffs, as junior rights holders, were not entitled to receive any water. 28 See Benz v.
28
In support of its argument that the Bureau of Reclamations actions in 2001 were not
motivated by existence of the Tribes’ reserved rights, plaintiffs also make the related
argument that “[u]nder its historic practice before 2001, even in the driest years,
Reclamation was able to provide full deliveries to Klamath farmers without violating any
senior water rights or tribal trust responsibilities.” The court need not draw any
conclusions about the actions of the Bureau of Reclamation in years other than the one
at issue in the cases currently before the court. The past history of the enforcement or
non-enforcement of the Tribes’ reserved rights is irrelevant to the legal status of those
rights in 2001. This is because, “[u]nlike appropriation rights, reserved rights are not
based on diversion and actual beneficial use.” F. Cohen, Handbook of Federal Indian Law
19.01[1] at 1205. “Instead, sufficient water is reserved to fulfill the purposes for which a
reservation was established.” Id. at 19.01[1] at 1205-06. Thus, any potential failure of the
Tribes to exercise their reserved rights prior to 2001, or any potential failure by the Bureau
of Reclamation to enforce those rights prior to 2001, would have no impact on the
existence and nature of the Tribes reserved rights in this case. See id. at 19.01[2] at 1206
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Water Res. Comm’n, 764 P.2d 594, 599 (Or. 1988) (“A junior appropriator's water right
cannot be exercised until the senior appropriator's right has been satisfied.”).
Plaintiffs also challenge the existence of the Yurok and Hoopa Valley Tribes’ water
rights, arguing that “[t]here is no Oregon water right for undetermined Hoopa Valley Tribe
or Yurok Tribe use in California, and there never will be as no claim was filed by those
Tribes or the Government in the Klamath River Adjudication for any Oregon water, and
particularly for water stored in Upper Klamath Lake.” Plaintiffs’ argument regarding the
nature of the Tribes’ federal reserved rights fails. The absence of having made a timely
submission in the Klamath Adjudication might have waived any water rights a claimant
might have had arising out of Oregon state law and in that adjudication. The water rights
held by the Yurok and Hoopa Valley Tribes, however, are federal reserved rights, arising
out of federal, rather than state, law. See Cappaert v. United States, 426 U.S. at 139(describing the process used by the federal government to reserve water rights and noting
that the reservation of water rights “is empowered by the Commerce Clause, Art. I, s 8,
which permits federal regulation of navigable streams, and the Property Clause, Art. IV,
s 3, which permits federal regulation of federal lands”); Winters v. United States, 207 U.S.
at 577 (“The power of the government to reserve the waters and exempt them from
appropriation under the state laws is not denied, and could not be.”). “Federal water rights
are not dependent upon state law or state procedures and need not be adjudicated only
in state courts . . . .” Cappaert v. United States, 426 U.S. 12 at 145. Although reserved
rights can be adjudicated by state bodies, and the Yurok and Hoopa Valley Tribes could
have submitted claims to the Klamath Basin Adjudication, as the Klamath Tribes
apparently did for their reserved rights, their failure to do so did not affect the existence
or nature of their federal reserved rights. See id. at 145-46 (rejecting the argument that
the Federal Government must “perfect its water rights in the state forum like all other land
owners”).
Plaintiffs further argue that, in managing Klamath Project water, the Bureau of
Reclamation was not free to favor the Tribes over the plaintiffs. In support of this
argument, plaintiffs quote language from the Supreme Court’s opinion in Nevada v.
United States holding that, in managing reclamation projects, the United States must
balance its fiduciary obligations to both Native American tribes and other water users.
See Nevada v. United States, 463 U.S. at 128 (“[I]t may well appear that Congress was
requiring the Secretary of the Interior to carry water on at least two shoulders when it
delegated to him both the responsibility for the supervision of the Indian tribes and the
commencement of reclamation projects in areas adjacent to reservation lands. But
Congress chose to do this . . . .”). With regard to the laws of takings and the property at
issue in the present cases, however, these principles are irrelevant. The fact is that the
Tribes’ reserved water rights are senior to the water rights held by the plaintiffs and,
(“Thus, a reservation established in 1865 that starts putting water to use in 1981 under
its reserved rights has, in times of shortage, a priority that is superior to any non-Indian
water right with a state-law priority acquired after 1865.”).
73
therefore, plaintiffs had no entitlement to receive any water until the Tribes senior rights
were fully satisfied. Any obligations the government had or might have had towards other
users cannot effect the extent or nature of the Tribes’ reserved rights. See Colville
Confederated Tribes v. Walton, 752 F.2d at 405 (“Where reserved rights are properly
implied, they arise without regard to equities that may favor competing water users.”
(citing Cappaert v. United States, 426 U.S. at 138–39)). While the result may seem unfair
to the plaintiffs, who have perfected their water rights under state law and relied upon
those rights, “[t]his merely reflects the tension between the doctrines of prior appropriation
and Indian reserved rights.” Id.; see also F. Cohen, Handbook of Federal Indian Law
19.03[1] at 1211 (“Because tribal reserved rights arise under federal law, and because
they are often put to actual use long after appropriation rights are established, the
exercise of tribal water rights has the potential to disrupt non-Indian water uses. The
impact on junior state appropriators, however, cannot operate to divest tribes of their
federal water rights.”).
The court, therefore, holds that, because the Tribes held water rights to Klamath
Project water that were senior to those held by all remaining plaintiff class members, and
because the Tribes water rights were at least co-extensive to the amount of water that
was required by defendant to satisfy its obligations under the Endangered Species Act
concerning the Lost River and shortnose suckers and the coho salmon in 2001, plaintiffs
had no entitlement to receive any water before the government had satisfied what it
determined to be its obligations under the Endangered Species Act and its Tribal Trust
responsibilities. Although the court recognizes that many plaintiffs, including those who
testified before the court, were severely and negatively impacted by the government’s
actions, the government’s decision in 2001 to withhold water from plaintiffs in order to
satisfy its Endangered Species Act and Tribal Trust obligations did not constitute an
improper taking of plaintiffs’ water rights or an impairment of plaintiffs’ water rights
because plaintiffs junior water rights did not entitle them to receive any Klamath Project
water in 2001. For the same reason, the government’s actions did not improperly impair
plaintiffs’ right to Klamath Project water in violation of the Klamath Compact. See 71 Stat.
497, 507.
CONCLUSION
For the reasons discussed above, defendant’s motion to exclude the claims of any
plaintiffs deriving water rights from the Van Brimmer Ditch Company is GRANTED. The
claims of any class members whose alleged beneficial right to Klamath Project Water is
derived from their ownership of shares held in the Van Brimmer Ditch Company are
DISMISSED.
Regarding the remaining claims of the remaining class members, the court
recognizes the hardships encountered by many plaintiffs as a result of the actions taken
in 2001. The court also recognizes the unfortunate amount of time it has taken to resolve
these claims, with two previous judges of this court assigned, followed by an appeal to
the United States Court of Appeals for the Federal Circuit, and a remand to this court,
some time after which the above-captioned cases were assigned to the undersigned.
After the trial, the court now finds that all of the remaining class members, who can
74
ultimately prove they are properly in the class, held beneficial interests in receiving water
from the Klamath Project in 2001. The issues are, however, more complicated. With
regard to those class members, either individually or through an Irrigation District, who
received water based on Warren Act contracts containing language immunizing the
government from liability resulting from water shortages caused “[o]n account of drought,
inaccuracy in distribution, or other cause” and for those class members who received
water based on lease agreements to lease lands in the National Wildlife Refuges within
the boundaries of the Klamath Project, the interests of such class members have been
altered by contract in such a way that plaintiffs are barred from seeking compensation
from the United States based on either a taking or impairment of such a claim. All other
class members have asserted cognizable property interests. Based on the superior water
rights held by the Klamath, Yurok, and Hoopa Valley Tribes, however, the remaining class
members were not entitled to receive water in 2001. The government’s actions in 2001,
did not, therefore, constitute a taking of these plaintiffs’ property under the Fifth
Amendment to the United States Constitution or effect an impairment of their rights under
the Klamath Compact.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
75