IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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                                                                                    )

KLAMATH IRRIGATION DISTRICT et al.,              )

)

Plaintiffs,                                                        )

)

v.                                                                     )           No. 01-591 L

)          

UNITED STATES OF AMERICA,                         )           Judge Diane Gilbert Sypolt       

)

Defendant.                                                                 )

__________ ___________________________)

DECLARATION OF BILL MOORE

            I, Bill Moore, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

            1.  I am now and have been since [year], the President of Sunnyside Irrigation District (SID).  I am intimately familiar with the operations of SID and, generally, with the Klamath Reclamation Project.  My responsibilities include overseeing all irrigation and drainage functions of SID, supervising all of its employees, and reporting to and advising SID’s Board of Directors.  I am also the custodian of SID’s records.           

            2.  SID is an Oregon irrigation district, located in Klamath County , Oregon , organized and existing under Oregon Revised Statutes, ch. 545.  Under Oregon law, SID was established by and represents all landowners within its boundaries. 

            3.  SID was created on April 22, 1918 .  SID operates and maintains irrigation and drainage facilities which convey irrigation water for beneficial use to water users on approximately 675 acres of high-value agricultural land within the boundaries of SID.  SID farmers grow [list crops].

            4.  All of the lands presently within SID were in private ownership prior to commencement of the Klamath Project.  These lands began receiving Klamath Project water in 1918, when an electric pump was installed in the Van Brimmer ditch to divert water to them. 

5.  Once the Klamath Project construction had begun, SID landowners began filing water right applications for delivery of water from the Klamath Project.  These water-right applications read:  “I, . . . do hereby apply . . . for a water right for the irrigation of and to be appurtenant to . . . acres of irrigable land as shown on plats approved by the Secretary of the Interior within the tract described as follows . . . .” Form B, Water-Right Application for Lands in Private Ownership and Lands Other than Homesteads Under the Reclamation Act at ¶ 1 (Plfs.’ Mot. for Summ. J. App. at ___ (July ___, 2003)).  The measure of the water right was that quantity of water, which shall be beneficially used for the irrigation upon the land. Id. at ¶ 2.  In exchange for delivering this water, the landowners were required to pay their share of the construction cost of the Klamath Project, and operation and maintenance charges for the delivery of water through the Klamath Project. Id. at ¶ 3.

6. In October of 1922, SID entered into a contract with the United States under which SID took over responsibility for collecting Klamath Project charges from SID farmers and paying them over to Reclamation. See 1922 SID Contract (Pls.’ Amended Compl. App. at Ex. 5, pp. 157 ( Mar. 24, 2003 )).  SID has repaid all construction cost liabilities to the United States , and has also paid all annual operation and maintenance charges due under the contract.

 7.  Prior to 2001, SID landowners always received all the water they could beneficially use (with minor exceptions in the drought years of 1992 and 1994).  On average, SID farmers receive about ____ acre feet of Klamath Project water each year.

8.  SID farmers would, again, in 2001 have received all the water they could have beneficially used if Reclamation had been able to operate under historical practices as originally intended.  See Bureau of Reclamation Biological Assessment at 6-10 ( Feb. 19, 2001 ) (Plfs.’ Mot. for Summ. J. App. at _____).  

      9.  In February 2001, Reclamation issued a biological assessment with respect to the operation of the Klamath Project, proposing to deliver water to Klamath Project irrigators and wildlife refuges, in accordance with historical practice.  Reclamation, however, directed irrigation water users not to take water until the FWS and NMFS had completed their biological opinions.   

10. On April 6, 2001 , the NMFS and FWS issued their biological opinions with respect to the operation of the Klamath Project on coho salmon and suckers, respectively.  Each found that the proposed action of water delivery was likely to jeopardize the continued existence of the species. The agencies, however, identified “reasonable and prudent alternatives” (RPAs) that in their opinion would avoid jeopardy.   These RPAs included that Reclamation provide mainstream Klamath River flows and Upper Klamath Lake elevations much higher than would have resulted under Reclamation’s proposed operations plan.  Reclamation concluded that, to maintain both the river flow and Upper Klamath Lake elevations identified as RPAs under the ESA would result in no water delivery to plaintiffs.  Reclamation adopted these RPAs and on April 6, 2001 , announced that there would be zero water delivered to plaintiffs from Upper Klamath Lake .  Although, in late July and early August, Reclamation released approximately 70,000 acre feet of water to the Project, this was too little and too late to allow plaintiffs to produce crops.

11.  Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.  Constrained by the biological opinions, however, Reclamation always kept the Upper Klamath Lake level between 4,143.3 and 4,139.5 feet above sea level, rather than drawing it down to 4,137 feet above sea level or lower as in prior years. Further, Reclamation released flows down the Klamath River as required by the NMFS biological opinion much larger than the historical practice. Had Reclamation managed Lake levels and downstream flows according to historic practices, Klamath Project water users would have received sufficient water to grow their crops.

            12.  Plaintiffs repeatedly demanded release of this water from Upper Klamath Lake , but Reclamation refused.  Defendant physically prohibited plaintiffs from accessing Klamath Project irrigation water from Upper Klamath Lake throughout the spring and summer of 2001.   Defendant sent armed U.S. marshals and other law enforcement personnel to guard the headgates of Link River Dam, and constructed a security fence around the headgates, lighted with floodlights at night, and padlocked the mechanism itself.          

            I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on July ___, 2003                              ______________________________

                                                                             Bill Moore, President