IN
THE UNITED STATES COURT OF FEDERAL CLAIMS
KLAMATH
IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 01-591 L
)
Judge Diane Gilbert Sypolt
)
Defendant. )
_____________________________________)
MOTION OF PLAINTIFFS, KLAMATH IRRIGATION DISTRICT ET AL.,
FOR
LEAVE TO AMEND COMPLAINT
Plaintiffs, Klamath Irrigation District et al., move for leave to file an Amended Complaint, adding a third claim for relief for breach of contract resulting from the same transaction that is the subject of the pending action. See Rule 15(a) of the Rules of the Court of Federal Claims (RCFC ).
This
motion for leave to amend the complaint reflects events that have occurred
subsequent to the filing of the original complaint relating to the same facts
that form the basis of the original complaint. Specifically, on
Reclamation does not have discretion under the terms of its SJC and MRG Project water delivery contracts to reduce deliveries that it is required to make under the contracts and reallocate that water instead as part of an RPA in order to avoid jeopardy to the minnow. The ESA requires agencies to consider taking actions “in which there is discretionary federal involvement or control” in order to avoid jeopardy. . . . Because Reclamation did not retain the discretion under the contract to deliver less water if doing so would be beneficial to endangered species, reducing the amount of contract deliveries is not an “action” that can be an RPA under the ESA’s implementing regulations. . . . Neither the ESA nor any other statue gives Reclamation legal authority to short contract deliveries out of storage at the SJC and MRG Projects and Use Project water for instream flows for purposes of benefiting the minnow.
Brief for Federal Appellants at 16-17, Rio Grande Silvery Minnow v. John W. Keys, III, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (Sept. 23, 2002).
The water delivery contracts at issue in the Silvery Minnow case are almost identical to the water delivery contracts of the plaintiffs in this case. In Silvery Minnow, the federal government’s stated its legal position as one in which it is obliged to provide the water to the contracting water users except in instances of water shortages resulting from “drought and other causes.” Brief for Federal Appellants at 11, Rio Grande Silvery Minnow, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (Sept. 23, 2002). The government further explains that “[w]hile the shortages clauses protect the United States from liability for water shortages caused either by natural causes or by Reclamation’s duty to comply with mandatory statutory directives, those clauses do not provide Reclamation with authority or discretion to create a shortage by reallocating water from contract releases to releases for endangered species.” Brief for Federal Appellants at 20, Rio Grande Silvery Minnow, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (Sept. 23, 2002).
Likewise, in this case, the water delivery contracts between the federal government and plaintiffs equally obligate the Bureau to deliver the water except in instances of water shortages. See, e.g., Amendatory Contract Between United States and Klamath Irrigation District, 1954 and Agreement between the United States and Klamath Water Users Association (now Klamath Irrigation District), 1905, Ex. 1. The government, however, in this case did not fulfill its contractual obligation to deliver the water to plaintiffs, but instead chose to retain or divert plaintiffs’ water in order to benefit two species of endangered fish.
Accordingly, and for all of the further reasons set forth in the attached supporting memorandum, plaintiffs seek the leave of this Court to amend their complaint to add a breach of contract claim reflecting defendant’s legal position regarding its obligations under these water delivery contracts. Plaintiffs’ respectfully request oral argument on their motion for leave to amend complaint.
Respectfully submitted,
____________________________
Roger J. Marzulla
Nancie G. Marzulla
MARZULLA & MARZULLA
202-822-6760
202-822-6774 (fax)
Counsel for Plaintiffs
Dated: January ___, 2003