Takings Case: What Now?  

By Bill Ganong  

Next week, the Takings Litigation Committee, made up of one representative from each of the irrigation districts that are participating in the takings suit, Klamath Irrigation District; et al., v. The United States of America, in the Court of Federal Claims, will meet to decide “what now?”  

On August 31, 2005 , Court of Claims Judge Francis M. Allegra issued an Opinion on cross-motions for partial summary judgment filed by the irrigation districts and the United States in the takings litigation suit.  The suit seeks compensation from the United States for the taking in 2001 of irrigation water that otherwise would have been delivered by the irrigation districts to the land served by the districts.  The Bureau of Reclamation, acting in response to Biological Opinions issued by the U. S. Fish & Wildlife Service and the National Marine Fisheries Service, and employing federal marshals and park service police, barred the irrigation districts from operating their head gates to deliver water to their patrons.  As a result, many acres of land in the Klamath Project went without irrigation water resulting in the loss of annual and perennial crops and many millions of dollars in damages to the farmers.   

In his Opinion, Judge Allegra, citing Section 2 of Chapter 228 of Oregon Laws 1905, held that the United States holds title to all of the water of the Klamath Basin that was unappropriated as of 1905.  Judge Allegra ruled that the United States will continue to hold title to that water until the United States elects to release any or all of the water.  Judge Allegra finds that because the United States holds title to the water, which he relates to ownership, the irrigators in the Klamath Project have no property right in the water.  Judge Allegra ruled that the irrigators are beneficiaries of the contracts for delivery of irrigation water between the districts and the United States , but that it is unlikely the irrigators or districts will prevail on a breach of contract action against the United States .  

Judge Allegra’s Opinion is contrary to an Opinion of the Oregon Attorney General issued in 1950 and is contrary to the legal position of the Oregon Department of Water Resources in the Klamath River Adjudication where the Department, through the Attorney General’s office, filed its Closing Brief in which it describes the beneficial user of the water, the person who applies the water to the land, as holding or owning an interest in the water right for the purpose of beneficial use.  

Although Judge Allegra’s Opinion contains lengthy descriptions of the contracts and contract-interests of the various parties and includes some conclusions, the rights or interests of the parties arising under the contracts had not been briefed and was not properly before the court for any kind of ruling or decision.  

On or before October 1, 2005 , the United States and the irrigation districts must file a status report with the judge describing how the case should go forward from this point. The alternatives that the Takings Litigation Committee will consider include asking the judge to reconsider his Opinion.  A Motion to Reconsider would set out argument detailing why we believe the Opinion is in error.  For example, Judge Allegra relied on Section 2, Chapter 228, Oregon Laws for the proposition that title to the water delivered to the Klamath Project is vested in the United States and that the United States may use whatever amount of water at whatever time it desires for whatever purpose. The Judge ignored other sections of the same law, including Sections 3, 4, and 5, which provide for the adjudication of the rights claimed under the act, which provide, in part, for the entry of the decree that:  

“shall in every case declare, as to the water right adjudicated to each party, whether riparian or by appropriation, the extent, the priority, amount, purpose, place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurtenant, together with such other conditions as may be necessary to define the right and its priority.”  

Clearly, when the Oregon Legislature adopted Chapter 228 in 1905, it contemplated that a Water Right Application from the United States would be quantified in the manner provided for all other water rights and that it would have specific limits, including the purposes or uses to which the water can be applied, a description of the land to which the water would be applied, the season of use, and the amount of water that can be applied under the water right.  Although Judge Allegra’s finding that the United States has no obligation under the law to build its project in a diligent manner, it is clear the State intended to put limits on the right, including limiting the use of the right for specific purposes and to specific land.  The quantification of the right is the purpose of the Adjudication and will be the result of the Adjudication.  

Although there has been discussion about appealing this initial determination, there are issues on which the court has not ruled, and the decision cannot be appealed at this time.