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.                                                     )

________________ _____________________)

SECOND DECLARATION OF GARY D. OREM

            I, Gary D. Orem, pursuant to 28 U.S.C. § 1746, declare:

            1.  I am, and have been since 2000, the President of the VanBrimmer Ditch Company.  I have firsthand knowledge of the operations of VanBrimmer Ditch Company, and am generally familiar with the Klamath Reclamation Project (Klamath Project).  I am responsible for overseeing all irrigation and drainage functions of VanBrimmer Ditch Company, and conducting meetings of VanBrimmer Ditch Company’s Board of Directors.  I am also the custodian of VanBrimmer Ditch Company’s records. 

2.      VanBrimmer Ditch Company is an Oregon business corporation,

organized under and Oregon Act of February 18, 1891.  This Act provided for the formation of corporations, commonly referred to as “ditch companies” for the purpose of appropriating water for irrigation, condemning land for the construction of ditches, and canals and reservoirs for the irrigation and domestic use. Each landowner in VanBrimmer Ditch Company holds one share of stock in VanBrimmer Ditch Company for each acre of land irrigated with water provided by VANBRIMMER DITCH COMPANY.  Each landowner pays a prorate portion of the costs of operating and maintaining the irrigation and drainage system owned by VANBRIMMER DITCH COMPANY.  VANBRIMMER DITCH COMPANY is managed by a Board of Directors elected by the landowner shareholders.  VANBRIMMER DITCH COMPANY operates in accordance with Oregon Revised Statutes, ch. 554.  VANBRIMMER DITCH COMPANY represents all landowner shareholders within it boundaries.

3.      The facilities of VANBRIMMER DITCH COMPANY are located in Klamath

County, Oregon, and consist of a headgate on the C Canal, a main canal and lateral canals.  These irrigation and drainage facilities convey irrigation water for beneficial use to water users on approximately 5,050 acres of high-value agricultural land           

4.  In the early 1870s, the VanBrimmer brothers, Daniel, Clinton, and Benjamin VanBrimmer moved to the Klamath Basin, and became interested in irrigation for the area, by diverting water from Lower Klamath Lake in Oregon to the lands between that lake and Tule Lake in California.  They determined the relative elevations of the two bodies of water, and concluded that the Lower Klamath Lake stood 28 feet higher in elevation than Tule Lake, making a gravity flow surface irrigation system possible. 

5.  The VanBrimmer brothers filed a Notice of Appropriation for 15,000 miner’s inches of water measured under four inches of pressure (3,000 cfs) from the Little or Lower Klamath Lake, in Siskiyou County, California, in 1883.  See Notice of Appropriation, attached as Ex. 1. The notices stated the intention to construct an irrigation ditch to supply water to 4,000 acres of land adjacent to the California-Oregon border between Lower Klamath Lake and Tule Lake, south of Lost River. Id.  On September 19, 1884, Clinton and Daniel VanBrimmer filed a second notice of appropriation in Klamath County, Oregon for the VanBrimmer Ditch, confirming their earlier filing in California. The VanBrimmer ditch was completed and irrigation practices started in 1886.  See Notice of Appropriation, attached Ex. 2. 

6.  Daniel VanBrimmer and W.P. Whitney incorporated the VANBRIMMER DITCH COMPANY, as an Oregon corporation, on May 22, 1903.  They set the capital stock of the corporation at $20,000, divided into 4,000 shares at $5.00 per share, and stated that the purpose of the new company was to use the waters of Lower Klamath Lake and White Lake “such thereof as has heretofore been appropriated and used through what is commonly known as the Van Brimmer [sic] Ditch” for irrigation, household, and domestic use, and watering livestock.”  Each share was to be distributed for one acre of irrigable land dependent upon VanBrimmer ditch for its water supply, thereby relegating an equal water right to each of the 5,000 acres within VanBrimmer Ditch Company.  See Articles of Incorporation, attached as Ex. 3.  The VanBrimmer brothers conveyed the VanBrimmer ditch and water rights to VANBRIMMER DITCH COMPANY in July of 1903. 

7.  In 1909, the United States proposed to change the water level of Lower Klamath Lake for purposes of the Klamath Project.  VANBRIMMER DITCH COMPANY 1909 Contract (Pls.’ Amended Compl. App. at Ex. 13, pp. 346-348 (Mar. 24, 2003)). The change in water level was anticipated to (and did) completely destroy VANBRIMMER DITCH COMPANY’S source of water supply used for irrigation at the diversion point of Lower Klamath Lake.  Id.  Therefore, on November 6, 1909, VANBRIMMER DITCH COMPANY executed a water delivery and repayment contract with the United States under which the United States recognized VANBRIMMER DITCH COMPANY’S vested right to the use of fifty second feet of water for irrigation purposes from the water of Lower Klamath Lake and agreed to deliver to VANBRIMMER DITCH COMPANY “a quantity of water, not to exceed fifty second feet, in which the Company claims the right to the exclusive use to irrigate sufficiently” the lands within the boundaries of VANBRIMMER DITCH COMPANY, from the Klamath Project to VANBRIMMER DITCH COMPANY’S irrigation distribution system.  VANBRIMMER DITCH COMPANY 1909 Contract at ¶¶2, 5, 15.  (Pls.’ Amended Compl. App. at Ex. 13, pp. 346-348 (Mar. 24, 2003)).  The United States agreed to pay the construction costs necessary to construct the facilities to deliver the water, however, VANBRIMMER DITCH COMPANY was responsible for operation and maintenance charges.  Id. at ¶7, 11.     

8.  VANBRIMMER DITCH COMPANY is the only independent irrigation company, which receives its water from the Klamath Project. Its water rights to 50 cubic feet per second of water from the Klamath Project was never owned by the United States. 

9.  Since 1884 VANBRIMMER DITCH COMPANY’s landowners have received all the water they could beneficially use, except in 2001.  On average, VANBRIMMER DITCH COMPANY’s farmers receive about three acre feet of Klamath Project water each year.

10.  As a result of the taking of VANBRIMMER DITCH COMPANY’s landowners water by the United States in 2001 as described in the Second Declaration of David A. Solem, VANBRIMMER DITCH COMPANY’s landowners did not receive any irrigation water in 2001 except a small amount in late summer that was too little, too late to allow our 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                              ______________________________

                                                                             Gary D. Orem, President

                                                                             VANBRIMMER DITCH COMPANY