IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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KLAMATH IRRIGATION DISTRICT et al.,              )

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Plaintiffs,                                                        )

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v.                                                                     )           No. 01-591 L

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UNITED STATES OF AMERICA ,                       )           Judge Diane Gilbert Sypolt       

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           Defendant.                                                      )

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DECLARATION OF BILL ESSIG

            I, Bill Essig, pursuant to 28 U.S.C. § 1746, declare:

            1.  I am, and have been since 1998, the President of the Board of Directors of Enterprise Irrigation District (EID), which is located in Klamath County , Oregon . I have first hand knowledge of the operations of EID and, generally, am familiar with the Klamath Reclamation Project (Klamath Project).  As a board member, I am responsible for overseeing all irrigation and drainage functions of EID, supervising its manager, and conducting meetings of EID’s Board of Directors.  I am also the custodian of EID’s records.     

            2.  EID is an Oregon municipal corporation, located in Klamath County , Oregon , organized on March 25, 1918 , and existing under Oregon Revised Statutes, ch. 545. Under Oregon law, EID was established by and represents all landowners within its boundaries.  EID was organized for and engages in the distributing of water for irrigation purposes. 

            3.  EID operates and maintains irrigation and drainage facilities which convey irrigation water for beneficial use to water users on approximately 1,835 acres of high-value agricultural land within the boundaries of EID.  See Klamath Project Map (Plfs.’ Mot. for Summ. J. App. at ___ ( July  21, 2003 )).  EID farmers grow primarily potatoes, grain, and alfalfa hay.  All of the lands presently within EID were in private ownership prior to commencement of the Klamath Project in 1905.  Because the Klamath Project would provide a more dependable source of irrigation water, these landowners elected to obtain Klamath Project water rights under the Reclamation Act, and to repay the federal government their pro rata share of the costs of constructing and operating the Project.   

            4.  Accordingly, soon after construction of the Klamath Project began, EID landowners filed with the Bureau of Reclamation (Reclamation) water right applications to secure Klamath Project water rights certificates for their lands.  These so-called Form B Water Rights Applications, filed by all EID landowners, read in part: “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 21, 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.

5.      In 1920, EID executed a water delivery and repayment contract with the

United States under which the United States agreed to deliver Klamath Project water to EID’s landowners in accordance with the requirements of the Reclamation Act and EID’s landowners water rights, through the Main Canal of the Klamath Project.  See EID Contract (Pls.’ Amended Compl. App. at Ex. 9, pp. 243 ( Mar. 24, 2003 ).  The contract provided that “beneficial use shall be the basis and limit” of those water rights, and strictly limited Project water use within the District to “irrigation and domestic” purposes in compliance with the Reclamation Act. Id. at ¶¶ 4, 5.  As its pro rata share of Klamath Project construction costs, EID was obligated to pay  $ 44, 712.00 over twenty years, together with annual operations and maintenance costs throughout the life of the contract. Id. at ¶¶ 7, 8.  EID also obligated itself, at its own expense, to construct and maintain all the facilities necessary to deliver the water to its landowners from the Klamath Project’s Main Canal .  Id. at ¶ 3.  EID has complied with all of the terms of this contract, including repayment to the United States of all of the sums due as EID’s share of Klamath Project construction costs, as well as EID’s share of annual operation and maintenance costs since 1920.  All of these sums have been collected from EID landowners.

            6. Every year, EID’s landowners have received all the water they could beneficially use, (with minor exceptions in the drought years of 1992 and 1994).  On average, EID farmers receive about three acre feet per acre of Klamath Project water each year. 

7.  As a result of the taking of EID’s landowners irrigation water by the United States in 2001 as described in David A. Solem’s declaration, EID did not receive any irrigation water in 2001 except a small amount in late summer that was too little, too late to allow EID’s members to produce crops with water from Upper Klamath Lake and the Klamath River.  

            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 Essig, President

                                                                   Enterprise Irrigation District