SUPPLEMENTAL APPENDIX OF EXHIBITS  

            This Supplemental Appendix of Exhibits begins with Exhibit 33, App. 236, and supplements the Appendix filed with Plaintiffs’ Motion for Partial Summary Judgment on July 21, 2003 (Pls.’ Exs. 1-26, App. 30-203) and the Supplemental Appendix filed with Plaintiffs’ Revised Motion for Partial Summary Judgment on August 29, 2003 (Pls.’ Ex. 26-32, App. 204-235).

Table of Authorities

Cases                                                                                                                           Pages

Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 849 F. Supp. 717

(E.D. Cal. 1993), aff’d sub nom. O’Neill v. United States , 50 F.3d 677 

(9th Cir. 1995) ...........................................................................................................12-13, 18

Beisell v. Wood, 185 P.2d 570 (Or. 1947)………………………………………………...8

California v. United States , 438 U.S. 645 (1978)…………………………………………7

Cienega Gardens v. United States , 331 F.3d 1319 (Fed. Cir. 2003)…………...12, 25

City of Los Angeles v. City of Glendale , 142 P. 2d 289 ( Cal. 1943)……...................13

Coventon v. Seufert, 32 P. 508 (Or. 1893)………………………………………………..7

D.H. Overmeyer Co. v. Frick Co., 405 U.S. 174 (1972)………………………………...26

Del Puerto Water District v. United States Bureau of Reclamation, 271 F. Supp.2d 1224 (E.D. Cal. 2003) ..........................................................................................................18

Dill v. Killip, 147 P.2d 896 (Or. 1944)……………………………………………………8

Dolan v. City of Tigard , 512 U.S. 374 (1994)…………………………………………...26

Federal Land Bank of Spokane v. Union Cent. Life Ins. Co., 29 P.2d 1009 ( Id. 1934)…………………………………………………………………….....………………13

First Nat’l Bank of Green River v. Ennis, 14 P.2d 201 ( Wyo. 1932)……….....................................................................................................………...13-14

Fox v. Ickes, 137 F.2d 30 (D.C. Cir. 1943)………………………………………………18

Fuentes v. Shevin, 407 U.S. 67 (1972)…………………………………………………..26

Ickes v. Fox, 300 U.S. 82 (1937)……………....………………………………………9, 17  

In re Hood River , 227 P. 1065 (Or. 1924)……………………………………………….16

In Re Water Rights of Deschutes River and Tributaries, 286 P. 563 (Or. 1930)…….........................................................................................................................……8

In Re Willow Creek, 144 P. 505 (Or. 1914)…………………..……………………………8

International Paper Co. v. United States , 282 U.S. 399 (1931)……………….............................................................................................…………12

Kandra v. United States , 145 F. Supp. 2d 1192 (D. Or. 2001)………………............................................................................................…………..19

Kinross Copper Corp. v. Oregon , 981 P.2d 833 (Or. App. 1999)………………….................................................................................................…….16

Klamath Water Users v. Patterson, 204 F.3d 1206 (9th Cir. 2000)……………......................................................................................................………19

Nevada v. United States , 463 U.S. 110 (1983)………………......……………….2, 9,  21

O’Neill v. United States , 50 F.3d 677 (9th Cir. 1995).  …………………………….18, 23

Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 (1922)…………………………………....................................................................................3

Sherred v. City of Baker , 125 P. 826 (Or. 1912)…………………………….......................................................................……………..8

Skinner v. Silver, 75 P.2d 21 (Or. 1938)…………………………………………………..7

Teel Irrigation Dist. v. Oregon Water Resources Dep’t, 919 P.2d 1172 (Or. 1996)……................................................................................................................................15

Tulare Lake Basin Water Storage Dist. v. United States , 49 Fed. Cl. 313 (2001)…..........................................................................................................................……13

United States v. Adair, 723 F.2d 1394, 1406 (9th Cir. 1983)………………...........................................................................................……………26

United States v. State Water Resources Control Bd., 227 Cal. Rptr. 161 (Cal. Ct. App. 1986)………………………….....…………………………………………………………..14

Winstar Corp. v. United States , 64 F.3d 1531 (Fed. Cir. 1995), aff’d & remanded, 518 U.S. 839 (1996)……………....……………………………………………………………..25

Wyoming v. United States , 933 F. Supp. 1030 (D. Wyo. 1996)…………………………...............................................................................................14

 Statutes

Klamath River Basin Compact, art. III(A), Pub. L. No. 85-222, 71 Stat. 497 (Aug. 30, 1957)…………………………………………………………………………….....……10, 28

Or. Rev. Stat. § 537.260 (2001)…………………………………………………………...16

Or. Rev. Stat. § 540.510 (2001)……………..……………………………………………...7

Reclamation Act of 1902, ch. 1093 § 8, 32 Stat. 388 (1902) (amended as codified in 43 U.S.C. § 372 (2003))………………………....………………………………………………5

43 U.S.C. § 390uu (2003)………...………………………………………………………..14

Regulations

43 C.F.R. § 230.59 (1993)…………………………………………………………….....5, 9

43 C.F.R. § 230.68 (1993)…………………...…………………………………………….10

43 C.F.R. § 230.70 (1993)………………...……………………………………………….10

Other Authorities

Filings of Claims for Water Rights in General Stream Adjudications, Op. Solicitor, Dep’t of Interior, 97 I.D. 21, 25; 1989 I.D. LEXIS 101 at *1, 13 

(July 6, 1989)…......................................................................................................9, 17, 21-22

Laws and Regulations Relating to Reclamation of Arid Lands by the United States , 45 I.D. 385, 402, 1916 I.D. LEXIS 101 at *1, 47 (May 18, 1916)…..……………………….10

Reclamation Water Charges-Irrigable Area-Practice, Williston Land Company, 39 I.D. 2, 4 (June 4, 1910)…………………...………………………………………………………6

Reclamation -- Water Right -- Proviso to Sec. 3, Act of August 9, 1912 , 43 I.D. 339, 341, 1914 I.D. LEXIS 135 at *1, 5-6 (July 1, 1914) .............................................................6

TABLE OF CONTENTS

TABLE OF AUTHORITIES..............................................................................................iii

INTRODUCTION ………………………………………..................................................1

I.   Plaintiffs Have Property Rights Protected By the Fifth Amendment………………………………………………………………………..3

    A.  Plaintiffs’ Appurtenant Water Rights (the Beneficial Interest in Klamath Project Water) Are Property Rights ……………………………………....………................3

1.  Although Defendant Discusses at Length Its Appropriation of Water for the Klamath Project, It Fails to Even Mention That It Confirmed the Property Interests in the Use of That Water to Plaintiffs by Patent Deed ………............................................……...3

 2.  Plaintiffs’ Patent Deeds Also Confirmed Appurtenant Water Rights Under Oregon State Law…………………………………………........................…………………..7

 3.  Defendant Simply Ignores the Abundance of Authority Holding That

      Plaintiffs’ Beneficial Interest in Reclamation Project Water Is a Property

      Right……………………............……………………………………………………...8

B.  Plaintiffs’ Contract Rights Are Also Property, Protected by the Fifth

            Amendment………………………………………………………………………11

     C.  Defendant Concedes That at Least Three Plaintiffs Hold Vested Water Rights, 

           Which Are Property Rights.....................................................................................14

    D.  Defendant’s Assertion That Plaintiffs’ Sole Right to Receive Water Derives

          from the Plaintiff Districts’ Contracts is Incorrect and Unsupported…………....16

II.  MOST OF DEFENDANT’S BRIEF IS DEVOTED TO RED HERRINGS AND IRRELEVANT ISSUES FAR BEYOND THE SCOPE OF THE LIMITED

MOTION THAT THE COURT ORDERED PLAINTIFFS TO FILE……....…………20

A.  The Interest of Defendant in Klamath Project Water Is “at Most Nominal”…..….20

B.  There Was No Shortage in the Quantity of Water Available in Project
Reservoirs in 2001, and This Issue Is Irrelevant to the Present Motion…………22

C.  The Possible Existence of Tribal Water Rights Is Irrelevant Because Plaintiffs’

            Property Rights Co-Exist With All Other Water Rights in the Klamath Basin …..26

D.  Whether Plaintiffs’ Claim Should Be Addressed as a Taking or Breach of

            Contract Is Outside the Scope of the Court’s Order………………………….…..27

       E.  Plaintiffs Are the Owners of “Vested Rights to the Use of Waters Originating
             in the Upper Klamath River Basin Validly Established and Subsisting” as of the

             Date of the Klamath Compact.................................................................................28

        F.   KDD and KHDIC Own a Perfected Right to Delivery of Water During the  

              Irrigation Season...............................................................  .....................................29

CONCLUSION..................................................................................     ................................29

Index to SUPPLEMENTAL APPENDIX

Exhibit  (s)                                                                                                                    Page(s)

33.  Addendum.................................................................................................................236

34.  43 C.F.R. §§ 230.54-230.88 (1993).......................................................................244

35. Contract for the 2003 Klamath Basin Pilot Water Bank, Forbearance of 

Surface Water  Use..........................................................................................................247 

36. Contract for the 2003 Klamath Project Pilot Water Bank, Groundwater
Substitution...................................................................................................................251

37. Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research Council, National Academies, Endangered
and Threatened Fishes in the Klamath River Basin: Causes of Decline
and Strategies for Recovery, Summary (2003).......................................................255

38.  Brief for the Federal Appellants, Rio Grande Silvery Minnow v. Keys,
Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Nov. 19, 2002).......269

39.  Plaintiffs’ Reply in Support of Motion for Preliminary Injunction,
Kandra v. United States, No. 01-6124 (D. Or. Apr. 27, 2001 ).....................................275

40.  Or. Gen. Laws, 1905, Ch. 228, section 2, p. 401....................................................277

41.  Remington’s Rev. Stat. of Washington, Title 48, §§ 7408-7413 (Wash. Sess.
L. 1905, C. 88, pp. 180-183)..............................................................................................279

42.  Federal Appellants Petition for Rehearing, Rio Grande Silvery Minnow v. Keys,
Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Nov. 19, 2002).........283

43.  Letter from Stephen Sanders, Assistant Attorney General, Natural Resources
section, to Martha Pagel, Director, Oregon Water Resources Department
(OWRD) (March 18, 1996).................................................................................................286

ADDENDUM

1.  Ickes v. Fox, 300 U.S. 82 (1937):  

            Defendant attempts to distinguish this case on grounds that are factually incorrect, claiming “because the water rights at issue in Ickes were acquired in a different manner and pursuant to different contracts than in this case, Ickes does not establish that plaintiffs’ interest in this case is a property right for Fifth Amendment purposes.” Opposition at 37-38.  Defendant is wrong on both points.  

            This is because an examination of the histories of the Yakima Project and the Klamath Project reveal a strikingly similar history, both of which were constructed at about the same time.  See http://www.usbr.gov/dataweb/html/yakima.html and http://www.usbr.gov/dataweb/html/ klamath.html. For the Yakima Project, irrigation ditches were first constructed in 1864, the government initiated investigation into developing a federal Reclamation project on the lands in 1903, construction of the Reclamation facilities was authorized by the United States in 1905, construction began in 1906, and construction was not complete until the 1950s (although certain betterment work was still ongoing in the 1970s), well after water was first delivered in 1907. See http://www.usbr.gov/dataweb/html/yakima.html.  For the Klamath Project, irrigation ditches were first constructed in 1882, the government initiated investigation into developing a federal reclamation project for the lands in 1903, construction of the reclamation facilities for the project was authorized by the United States in 1905, construction began on the projects in 1906, and construction on the project was not complete until the 1960s, well after water was first delivered in 1907. See http://www.usbr.gov/dataweb/html/klamath.html.  

First, defendant is wrong in asserting that the landowners within the Yakima Project were required by their contracts to “initiate water rights under state law before construction of the Project began . . . .” Opposition at 36.  An examination of the Sunnyside Water Users Association (Sunnyside) contract, attached to defendant’s Opposition as Def.’s Ex. 20, reveals no provision requiring landowners to “initiate water rights under state law before construction of the Project began . . . .” Opposition at 36.  Likewise, in both the Yakima Project and the Klamath Project, the United States made the initial appropriation under very similar statutes. Compare Or. Gen. Laws, 1905, Ch. 228, section 2, p. 401, Pls.’ Ex. 40, Supp. App. at 277-78 with 8 Remington’s Rev. Stat. of Washington, Title 48, §§ 7408-7413 (Wash. Sess. L. 1905, C. 88, pp. 180-183), Pls.’ Ex. 41, Supp. App. at 279-82.  

Second, both the Sunnyside contract and the Klamath Water Users Association (KWUA)’s contract are virtually identical, both of which were entered into at about the same time. Compare Def.’s Ex. 20 with Pls.’ Amended Compl. App. at Ex. 1 at 1.  According to the Supreme Court, under the Sunnyside contract, the water rights, once acquired, “‘shall be, and thereafter continue to be, forever appurtenant to designated lands owned by such shareholders.’” Ickes v. Fox, 300 U.S. 82, 89 (1937).  The provision referred to by the Court, which is virtually identical to the contemporaneous KWUA contract,^[1] merely requires landowners to comply with the Secretary of the Interior’s procedures for acquiring a right to the use of project water, which right will forever be appurtenant to their land.^[2]  

Contrary to defendant’s characterization of Ickes’ holding, it is not dictum, but essential to the outcome of the case.  In Ickes, the defendant Secretary of Interior moved to dismiss on the ground that the landowners’ right to receive project water was defined and limited by their repayment contract with the United States and the United States could not (under the law at that time) be joined as a defendant.  Rejecting the contract argument, the Supreme Court held that the United States was not an indispensable party because plaintiff had a vested and appurtenant right to the water not a mere contract right against the United States :  

Respondents had made all stipulated payments and complied with all obligations by which they were bound to the government, and, long prior to the issue of the notices and orders here assailed, had acquired a vested right to the perpetual use of the waters as appurtenant to their lands.  Under the Reclamation Act, supra, as well as under the law of Washington , “beneficial use” was “the basis, the measure, and the limit of the right.” 

                                                            *  *  *

The fallacy of the contention is apparent, because the thus‑far undenied allegations of the bill, as already appears, demonstrate that respondents have fully discharged all their contractual obligations; that their water-rights have become vested; and that ownership is in them and not in the United States.

Id. at 94, 96.  

Subsequent cases have cited and relied upon this ruling as stare decisis, see, e.g., Nebraska v. Wyoming , 325 U.S. 589 (1945), and Nevada v. United States, 463 U.S. 110 (1983), and no court (to plaintiffs’ knowledge) has referred to this holding as dictum.  Defendant has previously referred to and relied upon Ickes v. Fox as a rule of law. See Filings of Claims for Water Rights in General Stream Adjudications, Op. Solicitor, Dep’t of Interior, 97 I.D. 21, 26; 1989 I.D. LEXIS 101 at *1, 14 (July 6, 1989) (citing and quoting the “oft-quoted” language in Ickes v. Fox).  

2.  Nebraska v. Wyoming , 325 U.S. 589 (1945):  

As with Ickes v. Fox, defendant incorrectly asserts that “unlike in Nebraska , the initial appropriation for the Klamath Project was made by the United States in accordance with Oregon law . . . .” Opposition at 38.  In truth, according to the Supreme Court, the United States filed for the Reclamation project water rights at issue in Nebraska, just as it did for the Klamath Project:  “Initiation of both projects was accompanied by filings made pursuant to § 8 in the name of the Secretary of the Interior for and on behalf of the United States. Those filings were accepted by the state officials as adequate under state law.  They established the priority dates for the projects.” Nebraska v. Wyoming , 325 U.S. 589, 613 (1945).  

Defendant also states: “ Nebraska and Wyoming authorities then provided certificates to the landowners upon receiving proof of beneficial use from the irrigation districts, and named as appropriators the individual landowners, all prior to construction of the Project.” Opposition at 38.  However, nothing in the opinion supports the assertion that proof of beneficial use and issuance of certificates occurred prior to construction of these projects, and it is difficult to imagine how irrigators could have put project waters to beneficial use on their lands (and submitted proof thereof to the states) before these projects had even been constructed.  It is far more likely that these projects were constructed, the landowners put the water to beneficial use, and then submitted proof of that beneficial use to the state – just as they did in the Klamath Project.  It is worth noting, moreover, that the Klamath, Yakima , and the North Platte projects were all constructed at about the same time.  

Thus, the Reclamation project water rights at issue in Nebraska , like those of the Klamath and Yakima projects, were originally appropriated by the United States , in conformity with state law as the Reclamation Act requires.  Under both the Reclamation Act and state law in both cases, application of that water to beneficial use created a vested property right appurtenant to the irrigators’ land:

All of these steps make plain that those projects were designed, constructed and completed according to the pattern of state law as provided in the Reclamation Act. We can say here what was said in Ickes v. Fox, supra, pp. 94-95: “Although the government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water-rights became vested in the United States is not well founded.  Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners; and by the terms of the law and of the contract already referred to, the water-rights became the property of the land owners, wholly distinct from the property right of the government in the irrigation works. Compare Murphy v. Kerr, 296 Fed. 536, 544, 545. The government was and remained simply a carrier and distributor of the water (ibid.), with the right to receive the sums stipulated in the contracts as reimbursement for the cost of construction and annual charges for operation and maintenance of the works.”

The property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i.e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. See Murphy v. Kerr, 296 F. 536, 542, 544, 545; Commonwealth Power Co. v. State Board, 94 Neb. 613, 143 N. W. 937; Kersenbrock v. Boyes, 95 Neb. 407, 145 N. W. 837. Indeed § 8 of the Reclamation Act provides as we have seen 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.”

We have then a direction by Congress to the Secretary of the Interior to proceed in conformity with state laws in appropriating water for irrigation purposes.  We have a compliance with that direction.  Pursuant to that procedure individual landowners have become the appropriators of the water rights, the United States being the storer and the carrier. We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. 

Nebraska , 325 U.S. at 613.^[3]  

3.  Nevada v. United States , 463 U.S. 110 (1983):  

Defendant makes little attempt to distinguish this case, in which the Supreme Court decided that Reclamation project irrigators have vested and appurtenant rights to the use of water, even where those water rights are held in the name of the United States .  Rejecting the United States ’ effort to reallocate those water rights to benefit fish and Indian tribes, the court reaffirmed the holdings of Ickes v. Fox and Nebraska v. Wyoming:   

In California v. United States, 438 U.S. 645 (1978), we described in greater detail the history and structure of the Reclamation Act of 1902, and stated:

The projects would be built on federal land and the actual construction and operation of the projects would be in the hands of the Secretary of the Interior.   But the Act clearly provided that state water law would control in the appropriation and later distribution of the water. 

In two leading cases, Ickes v. Fox, 300 U.S. 82 (1937), and Nebraska v. Wyoming, 325 U.S. 589 (1945), this Court has discussed the beneficial ownership of water rights in irrigation projects built pursuant to the Reclamation Act.^[4] 

Nevada v. United States, 463 U.S. 110, 122-23 (1983) (other citations omitted).

            After quoting extensively from those two cases (as plaintiffs have done), the court went on to state:  

In the light of these cases, we conclude that the Government is completely mistaken if it believes that the water rights confirmed to it by the Orr Ditch decree in 1944 for use in irrigating lands within the Newlands Reclamation Project were like so many bushels of wheat, to be bartered, sold, or shifted about as the Government might see fit.   Once these lands were acquired by settlers in the Project, the Government’s “ownership” of the water rights was at most nominal;  the beneficial interest in the rights confirmed to the Government resided in the owners of the land within the Project to which these water rights became appurtenant upon the application of Project water to the land.  As in Ickes v. Fox and Nebraska v. Wyoming, the law of the relevant State and the contracts entered into by the landowners and the United States make this point very clear.

Id. at 126.  

            Defendant itself states, after quoting extensively from the Nevada decision, that “[w]ith the issuance of Nevada v. United States, the Supreme Court, conclusively reaffirmed the concept that beneficial ownership of reclamation project water right is in the water users who put the water to beneficial use.” Filings of Claims for Water Rights in General Stream Adjudications, Op. Solicitor, Dep’t of Interior, 97 I.D. 21, 27; 1989 I.D. LEXIS 101 at *1, 16-17 (July 6, 1989).  

            Defendant’s feeble attempt to distinguish the Nevada case fails, for plaintiffs in this case, like those in Nevada, have contracts (not to mention patent deeds and appurtenant water rights) allocating to them water out of the block which defendant originally appropriated in 1905, and plaintiffs have put this water to beneficial use for many decades.^[5]   

4.  H.F. Allen Orchards v. United States , 749 F.2d 1571 (Fed. Cir. 1984):  

Defendant identifies no way in which H.F. Allen Orchards v. United States differs from the present case.  First, as noted above in our discussion of Ickes v. Fox, the Sunnyside contract is (contrary to defendant’s assertion) virtually identical to the KWUA contract. Compare Def.’s  Ex. 20 with Pls.’ Amended Compl. App. at Ex. 1 at 1.  

Second, in its decision on appeal, the Federal Circuit does not state or imply that its holding that the farmers were the owners of a property right in the Project water was predicated on the 1945 Consent Decree – quite the opposite. The court stated:  

Finally, we disagree with the Claims Court ’s determination that appellants were not correct parties to sue under the consent decree and subsequent alleged implied contracts.  It is undisputed that appellants have a property right in the water to the extent of their beneficial use thereof. Fox v. Ickes, supra. The irrigation districts, which contracted with the Bureau, act as a surrogate for the aggregation of farmers. They use no water themselves.  The farmers ultimately pay for all the services which the government supplies.  It is clear that the appellants, owners of the property at issue, the water, also are intended third-party beneficiaries of the 1945 Consent Decree. Under the rules of the Claims Court “every action shall be prosecuted in the name of the real party in interest.” Claims Court R. 17(a).  Here the farmers, owners of the water and beneficiaries of the irrigation projects, are the true parties in interest.

H.F. Allen Orchards v. United States , 749 F.2d 1571, 1576 (Fed. Cir. 1984); see id. at 1575 (“The case was settled following the decision of Fox v. Ickes, 78 U.S. App. D.C. 84, 137 F.2d 30 (D.C. Cir. 1943), where the court held that the water users had property rights and that the Bureau was obligated to distribute the available water according to priorities established under State of Washington law.”).  The Court did not cite any language from the Consent Decree on this issue, much less hold, as defendant argues, that it “effectuated a court order that the water users held property rights in the water.”^[6]

5.  Israel v. Morton, 549 F.2d 128 (9th Cir. 1977):  

Defendant misplaces its reliance on Israel v. Morton, 549 F.2d 128 (9th Cir. 1977), for the proposition that “[w]hen that Project water became available for use, the United States employed contracts to define the terms of use, as contemplated by Israel v. Morton.” Opposition at 19.  In Israel, which was decided before the Supreme Court’s significant decision in Nevada v. United States, the property at issue was subject to a contract that provided: “All rights of the landowner to receive water for the subject lands from, through or by means of the project works shall be subject to all the provisions of any contract between the United States and the Quincy-Columbia Basin Irrigation District, including the contract of October 9, 1945 . . . .” Id. at 133.  By sleight of hand, the government argues that the contract referred to was a water delivery contract, but, in fact, the contract was an excess land contract. Id. at 131.  Thus, in Israel , the plaintiffs did not have the same rights to project irrigation waters as the plaintiffs do with respect to Klamath Project water in this case: “The Federal Reclamation Laws have long restricted the rights of owners of land in excess of 160 acres to receive water developed by a federal reclamation project. . . . Under the Project Act excess land could not, under any circumstances, carry a right to project water. Under the Reclamation Laws it could if a recordable contract was executed.” Id. at 129, 132.   

6.  O’Neill v. United States , 50 F.3d 677 (9th Cir. 1995):  

O’Neill v. United States is also distinguishable from this case.  The contracts in O’Neill were governed by the Central Valley Project Improvement Act (CVPIA), which is irrelevant to this case.  The CVPIA states: “The Secretary, immediately upon the enactment of this title, shall operate the Central Valley Project to meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. § 1531 . . . .” Central Valley Project Improvement Act § 3406(b)(2), Pub. L. No. 102‑575, 106 Stat. 4706, 4715 (1992). No such statute governs operation of the Klamath Project. 

Indeed, the defendant itself has conceded that O’Neill is distinguishable from cases involving Reclamation projects not governed by the CVIPA.  In its appellate brief in the Tenth Circuit case, Rio Grande Silvery Minnow v. Keys, defendant stated:  

The Ninth Circuit’s rulings in O’Neill and Patterson of course are not controlling in this Circuit.  Regardless, those cases do not directly address the issue presented in this appeal.  In O’Neill, the court expressly did not decide whether the ESA actually imposed a mandatory duty to devote irrigation water to avoiding jeopardy to an endangered species, . . . . Moreover, in O’Neill and Patterson, the court of appeals was presented with a situation where obligations independent of the ESA required Reclamation to alter its operation plans. As the court recognized in O’Neill, the CVPIA ‘modif[ied] the priority of water uses,’ and expressly required Reclamation to use 800,000 af of water per year to benefit fish and wildlife. . . . In the present case, Reclamation has no similar duty that provides it with authority to short contract deliveries.  

Brief for the Federal Appellants at 25, Rio Grande Silvery Minnow v. Keys, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Nov. 19, 2002) (citations omitted), Pls.’ Ex. 38, Supp. App. at 274.^[7]         

            Finally, O’Neill is also distinguishable from the present case since the contracts in that case were not repayment contracts (such as those under Section 9(d) of the Reclamation Act), such as plaintiffs in this case hold.  Instead, the water users in O’Neill held executory “water service” contracts under Section 9(e) of the Reclamation Act, and thus, the plaintiffs in that case may not have the same vested rights that plaintiffs have in this case.