IN
THE UNITED STATES COURT OF FEDERAL CLAIMS
KLAMATH
IRRIGATION DISTRICT et al..,
)
)
Plaintiffs,
)
)
No. 01-591L
v.
)
Judge Diane Gilbert Sypolt
UNITED
STATES OF AMERICA,
)
)
Defendant.
)
______________________________________)
JOINT PRELIMINARY STATUS REPORT
Pursuant to Appendix G of the Rules of this Court and this Court’s Special Procedures Order entered October 23, 2001, the parties submit the following Joint Preliminary Status Report:
a. Jurisdiction
1. Plaintiffs’ statement. This Court has jurisdiction over this case under 28 U.S.C. § 1491 (the Tucker Act) as a “claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department . . . .” Specifically, plaintiffs seek just compensation for the taking of their property (i.e., appurtenant water rights), as provided by the Fifth Amendment to the United States Constitution, and the impairment of their water rights as provided under the Klamath Compact. See U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”); Dugan v. Rank, 372 U.S. 609, 625 (1963) (“[W]hen the Government acted here ‘with the purpose and effect of subordinating’ the respondents’ water rights to the Project’s uses ‘whenever it saw fit,’ ‘with the result of depriving the owner of its profitable use (there was) the imposition of such a servitude [as] would constitute an appropriation of property for which compensation should be made.’”) (citations omitted) (alterations in original); Tulare Lake Water Storage District v. United States, 49 Fed. Cl. 313, 324 (2001) (holding “the federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so”); and, the Klamath River Basin Compact Art. XIII(B)(2), Pub. Law 85-222 (1957) (“The United States shall not, without payment of just compensation, impair any rights to the use of water for use [domestic] or [irrigation] within the Upper Klamath River Basin by the exercise of any powers or rights to use or control water . . . .”), Joint Ex. 1.
Each of the plaintiffs is either a landowner or legal representative of landowners in the Klamath River Basin, which straddles the border between Oregon and California. The class of plaintiffs consists of approximately 1,400 farm families owning approximately 230,000 acres of irrigated land, with appurtenant water rights. Plaintiffs have filed a motion to certify the class, but in the interest of judicial economy have asked this Court to hold that motion in abeyance until after the liability issue is resolved.
The principal reservoir for plaintiffs’ irrigation water, without which farming in the Klamath River Basin is impossible, is Upper Klamath Lake. Link River Dam, a concrete structure located at the head of the Klamath River, controls the majority of released waters of Upper Klamath Lake. Operation of the Link River Dam head gates is controlled by Defendant United States, acting by and through the Department of the Interior (“DOI”) and the Bureau of Reclamation (“BOR”).
On April 5, 2001, Defendant United States, acting by and through the DOI and the Fish and Wildlife Service (“FWS”), issued a biological opinion concluding that the proposed 2001 Operation Plan for Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities jeopardized the continued existence of the Shortnose and Lost River Sucker fish, an endangered fish species living in Upper Klamath Lake which is listed under the federal Endangered Species Act. See Biological/Conference Opinion Regarding the Effects of Operation of the Bureau of Reclamation’s Klamath Project On the Endangered Lost River Sucker, Endangered Shortnose Sucker, Threatened Bald Eagle, and Proposed Critical Habitat for the Lost River/Shortnose Suckers, Klamath Falls Fish & Wildlife Office (Fish and Wildlife Service Apr. 5, 2001), Pls.[’] Ex. 1.
On April 6, 2001, Defendant United States, acting by and through the Department of Commerce,National Marine Fisheries Service (“NMFS”), issued a biological opinion concluding that the proposed 2001 Operation Plan for Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities jeopardized the continued existence of the Coho salmon, a threatened fish species living in the lower Klamath River which is listed under the Endangered Species Act. See Biological Opinion, Ongoing Klamath Project Operations (National Marine Fisheries Service Apr. 6, 2001), Pls.[’] Ex. 2.
Together, these two biological opinions require appropriation of all of the water available for delivery to the Klamath Project water users in normal precipitation years, making farming impossible and destroying the water right in perpetuity - as well as the value of the land. See Gerlach Livestock Co. v. United States, 76 F. Supp. 87, 98 (Ct. Cl. 1948) (“In the language of Mr. Justice Holmes, writing for the Court in International Paper Co. v. United States, 282 U.S. 399, 407 (1931), Congress ‘proceeded on the footing of a full recognition of (riparians’) rights and the Government’s duty to pay for the taking that (it) purported to accomplish’”).
Plaintiffs’ second cause of action is predicated upon the Klamath Basin Compact, ratified by Congress and signed by President Eisenhower in 1957. The Compact, which is a statute of the United States, provides:
The United States shall not, without payment of just
compensation, impair
any rights to the use of water for use (a) [domestic]
or (b) [irrigation] within
the Upper Klamath River Basin by the exercise of any
powers or rights to use
or control water . . . .
Klamath River Basin Compact Art. XIII(B)(2), Pub. Law 85-222 (1957), Joint Ex. 1. Even if defendant’s actions do not rise to the level of a taking, they clearly impair plaintiffs’ water rights, entitling plaintiffs to just compensation under the Compact.
Plaintiffs disagree with
defendant’s assertion that this Court lacks jurisdiction over this monetary
claim by reason of the ongoing stream adjudication in Oregon state court.
This identical argument was rejected in Hage
v. United States, 35 Fed. Cl. 147 (1996), where the court held:
Determining
whether the defendant has taken property, as one of this court’s
jurisdictional
mandates, is not adjudicating water rights as defendant asserts.
This
court agrees with defendant that the U.S. Court of Federal Claims should
not
engage in stream adjudications. [However,] “[t]his court has jurisdiction to
determine
title to real property as a preliminary matter when addressing a taking
claim.
Similarly, this court may determine whether plaintiffs have title to a
property
interest in water as a preliminary matter before addressing whether
that property interest has been taken by the
government. Therefore, the concurrent adjudication . . . has no bearing on the
ripeness of the claims before this court.
To hold otherwise would be to deny citizens of the
United States the protection
of the federal Constitution’s guarantees and make
those guarantees solely dependant upon state law.
Id. (citing Bourgeois v. United States, 545 F.2d 727 (Ct. Cl. 1976) (stating that in a suit seeking compensation, the court is not denied jurisdiction simply because there is a quite title issue involved in determining compensation); Yaist v. United States, 656 F.2d 616 (Ct. Cl. 1981) (holding the court had jurisdiction over the claim for just compensation although a title dispute existed)).
The Colorado River doctrine applies only where state and federal courts have concurrent jurisdiction over the same res (i.e., allocation of the waters of an interstate stream). This Court lacks jurisdiction to adjudicate water rights in Oregon and the Oregon courts certainly cannot maintain a just compensation action against the United States, therefore, the Colorado River doctrine has no application. See Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 559-60 (1983) (“[I]t is also clear in this case, as it was in Colorado River, that a dismissal or stay of the federal suits would have been improper if there was no jurisdiction in the concurrent state actions to adjudicate the claims at issue in the federal suits.”).
To avoid the unnecessary waste of judicial resources on this issue, plaintiffs respectfully request that this Court set a briefing schedule as promptly as possible if the Court or the defendant has any question about this Court’s jurisdiction to hear this case. Since plaintiffs do not assert a breach of contract claim in this action, defendant’s discussion in its statement of that issue is irrelevant.
2. Defendant’s statement
Defendant believes that this Court lacks jurisdiction over Plaintiffs’ complaint for the following reasons. In this case there are jurisdictional defenses and jurisprudential considerations that either require the Court to dismiss Plaintiffs’ claims or to abstain from hearing the claims at this time. To the extent that Plaintiffs claim to “own” the water rights they assert have been taken through the United States’ actions, the Plaintiffs’ claimed ownership of those water rights is currently the subject of an ongoing general stream adjudication conducted pursuant to Oregon law in the Oregon state courts. See The McCarran Amendment, 43 U.S.C. § 666. In fact, Plaintiffs and the United States have filed competing claims in the adjudication. See Def.’s Ex. 1. Under the rationale set forth in United States v. Alpine Land & Reservoir Co., 174 F.3d 1007, 1013 (9th Cir. 1999) and Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922), the Oregon state court has exclusive jurisdiction to determine the validity of Plaintiffs’ claims to the ownership of the water rights at issue, and this Court can not assert jurisdiction to determine whether those currently unadjudicated water rights have been taken.
In the alternative, prudential considerations and comity require that this Court abstain from asserting jurisdiction. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). Until the Plaintiffs’ claimed water rights have been determined pursuant to state law and the state adjudication process is complete, their alleged ownership of the water at issue here has neither been judicially recognized nor quantified. To the extent that Plaintiffs have not perfected their alleged property rights through the State process, Plaintiffs’ claims before this Court are not ripe. Finally, if Plaintiffs’ alleged property rights are recognized in the state system, there are other water rights’ holders with priority dates that precede Plaintiffs’ earliest claimed priority. United States v. Adair, 723 F.2d 1394, 1408-1417 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984).
To the extent that plaintiffs’ claims are premised on their contracts with the BOR for the provision of Klamath Project water, any claim for reduced water deliveries would be in the nature of a breach of contract claim, rather than a claim for a Fifth Amendment taking of property rights. Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060, 1070 (Fed. Cir. 2001); Sun Oil Co. v. United States, 215 Ct. Cl. 716, 572 F.2d 786, 818 (Ct. Cl. 1978); Sunrise Village Mobile Home Park, L.C. v. United States, 42 Fed. Cl. 392, 404 (1998). Under existing law, BOR is not liable to the plaintiffs for a reduction of water deliveries if those reductions are necessary to comply with legal obligations. See Klamath Water Users Assoc. v. Patterson, 204 F.3d 1206, 1212-14, opinion amended on denial of rehearing, 203 F.3d 1175 (9th Cir. 2000), cert. denied, 531 U.S. 812 (2000); O’Neill v. United States, 50 F.3d 677, 689 (9th Cir. 1995).
Defendant renews its request that the class certification issue be held in abeyance, but only until the parties have had the opportunity to complete discovery related to certification and the related issue of whether the irrigation districts themselves have standing or are authorized to sue on behalf of the putative class members. Defendant submits that discovery on the class certification issue should proceed along with discovery on the liability issues and that Defendant be allowed to address Plaintiffs’ Motion within thirty days of the completion of discovery.
b. Consolidation. The parties are unaware of any other case with which this case should be consolidated.
c. Bifurcation. Plaintiffs’ request that this Court determine the question of liability first and thereafter permit the parties a reasonable period of time within which to perform discovery on the issues of class certification and damages. This will avoid unnecessary time at the liability stage devoted to class certification and damages, believing that the liability issue can be decided on summary judgment.
Defendant requests that the Court determine the class certification and liability issues before proceeding with a damages phase, if necessary.
d. Deferral of further proceedings. The parties are unaware of any reason to defer any proceedings in this case based on other pending cases. The parties are unaware of any basis for transferring this case to another tribunal, or of any related case pending in another tribunal. The parties further advise this Court that Tulare Lake Basin Water Storage District v. United States, No. 98-101 L, a case involving related factual and legal issues, is currently pending before Judge Wiese. However, the parties agree that the pendency of Tulare should not require the deferral of this Court’s consideration of this case.
e. Remand
or suspension. This is a
claim for just compensation, and, therefore,
no
remand or suspension is appropriate in this case.
f. Additional parties.
The existing parties do not intend to join any other parties
at
this time.
g. Dispositive motions. The parties agree that liability can be resolved through joint motions for summary judgment. The plaintiffs request that this Court set a schedule as soon as possible for the briefing of any jurisdictional issues. Defendant continues to believe that the issues in this case may be resolved through alternative dispute resolution (ADR), but if that is not possible, through cross motions for summary judgment.
h.
Relevant Issues.
1. Plaintiffs’ statement. Each of the plaintiffs is either a landowner or legal representative of landowners in the Klamath River basin, which straddles the border between Oregon and California. The class of plaintiffs consists of approximately 1,400 farm families owning approximately 230,000 acres of irrigated land, with appurtenant water rights. Plaintiffs have filed a motion to certify the class, but in the interest of judicial economy have asked this Court to hold that motion in abeyance until after the liability issue is resolved.
Operation of the Link River Dam head gates is controlled by Defendant United States, acting by and through the DOI and the BOR. On April 5, 2001, Defendant United States, acting by and through the DOI and the FWS issued a biological opinion concluding that the proposed 2001 Operation Plan for Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities jeopardized the continued existence of the Shortnose and Lost River Sucker fish, an endangered fish species living in Upper Klamath Lake which is listed under the federal Endangered Species Act. See Biological/Conference Opinion Regarding the Effects of Operation of the Bureau of Reclamation’s Klamath Project On the Endangered Lost River Sucker, Endangered Shortnose Sucker, Threatened Bald Eagle, and Proposed Critical Habitat for the Lost River/Shortnose Suckers, Klamath Falls Fish & Wildlife Office (Fish and Wildlife Service Apr. 5, 2001), Pls.[’] Ex. 1.
On April 6, 2001, Defendant United States, acting by and through the NMFS, issued a biological opinion concluding that the proposed 2001 Operation Plan for Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities jeopardized the continued existence of the Coho salmon, a threatened fish species living in the lower Klamath River which is listed under the Endangered Species Act. See Biological Opinion, Ongoing Klamath Project Operations (National Marine Fisheries Service Apr. 6, 2001), Pls.[’] Ex. 2; see also Letter from Kirk C. Rodgers to Irma Lagomarisino of Aug. 17, 2001, Pls.[’] Ex. 4; Memorandum from Kirk C. Rodgers to Acting Manager, California/Nevada Operations Office, U.S. Fish and Wildlife Service of Aug. 17, 2001, Pls.[’] Ex. 5. Together, these two biological opinions require appropriation of all of the water available for delivery to the Klamath Project water users in normal precipitation years making farming impossible and destroying the water right in perpetuity-as well as the value of the land.
In direct response to these biological opinions, on April 6, 2001, Defendant United States, acting by and through its agent, the BOR, issued its revised 2001 Operation Plan for the Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities. See Bureau of Reclamation’s Klamath Project Operation Plan for the Upper Klamath Lake, Link River Dam, Tulelake and the related irrigation delivery facilities (April 6, 2001), Pls[’] Ex. 3. Pursuant to that Plan, plaintiffs received no irrigation water from Upper Klamath Lake, the Klamath River, Lake Ewauna, Tulelake and the related irrigation facilities in 2001. These actions deprived plaintiffs of their appurtenant water right without just compensation in violation of the Fifth Amendment to the Constitution. See Tulare Lake Water Storage District v. United States, 49 Fed. Cl. 313, 324 (2001) (holding “the federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so”); Dugan v. Rank, 372 U.S. 619, 625 (1963) (“[W]hen the Government acted ‘with the purpose and effect of subordinating’ the respondents’ water rights to the Project’s uses ‘whenever it saw fit,’ ‘with the result of depriving the owner of its profitable use (there was) the imposition of such a servitude (as) would constitute an appropriation of property for which compensation should be made.’”) (citations omitted) (alterations in original).
On February 5, 2002, the National Academy of Science (NAS) announced its findings of its scientific peer review of the science used to formulate the 2001 Biological Opinions. The NAS report concluded that “there is no substantial scientific foundation at this time for changing the operation of the Klamath Project to maintain higher water levels in the Upper Klamath Lake for the endangered sucker populations or higher minimum flows in the Klamath River main stem for the threatened coho population.” See Interim Report from the Committee on Endangered and Threatened Fishes in the Klamath River Basin, Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin (February 2002), Pls.[’] Ex. 8. The report further concluded that the best year ever recorded for sucker survival was a low-water year. Id. at 3 (“[T]he highest recorded recruitment of new individuals into the adult populations occurred through reproduction in a year of low water level.). The report further concluded that:
The
NRC Committee on Endangered and Threatened Fish Species in the Upper Klamath
River Basin has studied the USBR biological assessment on the shortnose and Lost
River suckers, the USFWS biological opinion with its reasonable and prudent
alternative (RPA) on these same species, and supporting documentation and has
heard oral presentations and open public comment on the issues related to these
endangered fishes in the Klamath River Basin.
Extensive field data on the fish and environmental conditions in Upper
Klamath Lake do not provide scientific support for the underlying premise of the
RPA that higher lake levels will help maintain or lead to the recovery of these
two species. The committee does not
find scientific support for the proposed minimum flows as a means of enhancing
the maintenance and recovery of the coho population.
The proposal of the USBR, however, as given in its biological assessment,
could lead to more extreme suppression of flows than has been seen in the past,
and cannot be justified either. On
the whole, there is no convincing scientific justification at present for
deviating from flows derived from operational practices in place between 1990
and 2000.
Id.
at 21.
Additionally, in 1957, Congress ratified the adoption of the Klamath Basin Compact (“Compact”) between the State of California and the State of Oregon. Under the Compact, Defendant, United States agreed not to impair, without just compensation, water rights for domestic or irrigation uses issued in the Upper Klamath River Basin. See Klamath River Basin Compact Art. XIII (B)(2) (1957), Joint Ex. 1. However, pursuant to the 2001 Operation Plan, Defendant United States did not deliver to plaintiffs, in 2001, the water to which they were entitled and, therefore, has impaired the irrigation water rights of the plaintiffs or landowners they represent. Furthermore, as previously stated, the two biological opinions require appropriation of all of the water available for delivery to the Klamath Project water users in normal precipitation years making farming impossible and destroying the water right in perpetuity-as well as the value of the land. Accordingly, plaintiffs’ water rights have been impaired; therefore, plaintiffs are entitled to just compensation for their appurtenant water rights so impaired.
The
issues of law in this case should be resolved through summary judgment.
They are:
1. Whether defendant’s decision (i.e., 2001 Operation Plan for the Klamath Project) regarding water allocation based on biological opinions and the requirements of the Endangered Species Act resulted in a taking of plaintiffs’ appurtenant water rights without just compensation in violation of the Just Compensation Clause of the Fifth Amendment; and,
2. Whether defendant’s decision (i.e., 2001 Operation Plan for the Klamath Project) regarding water allocation based on biological opinions and the requirements of the Endangered Species Act resulted in an impairment of plaintiffs’ water rights in violation of the Klamath Basin Compact as ratified by Congress.
As to Issue 1, plaintiffs note that the Supreme Court has confirmed that:
“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