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.                                                                 )

_____________ ________________________)

SECOND DECLARATION OF STEVEN L. KANDRA

            I, Steven. L. Kandra, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

            1.  I am now and have been since 1985, the President of Westside Improvement District (Westside).  I am intimately familiar with the operations of Westside and, generally, with the Klamath Reclamation Project.  My responsibilities include overseeing all irrigation and drainage functions of Westside, supervising all of its employees, and reporting to and advising Westside’s Board of Directors.  I am also the custodian of Westside’s records.        

            2.  Westside is a California improvement district, located in Siskiyou County , California , organized and existing under California Water Code § 23647. 

            3.  Westside was created in [insert].  Westside receives water from facilities operated and maintained by TID, which convey irrigation water for beneficial use to water users on approximately 1,190 acres of high-value agricultural land within the boundaries of Westside.  Westside’s farmers grow [list crops].

            4.  All of the lands presently within Westside were part of lake bottom ceded to the United States by the State of California in 1905 for the construction of the Klamath Project.  On October 20, 1936 these lands were conveyed to the Colonial Realty Company (Colonial) by patent as part of a land exchange between Colonial and the United States .  See An Act Providing for an Exchange of Lands Between Colonial Realty Company and the United States and for Other Purposes, 73 Cong. Sess. I, ch. 7 ( Mar. 23, 1933 ).  Colonial thereafter sold this land to farmers.

            5.  Once the Klamath Project construction had begun, Westside landowners began filing water right applications for delivery of water from the Klamath Project.  These water-right applications read: “[A]pplication is hereby made to the United States of America . . . for a permanent water right for the irrigation of and to be appurtenant to all of the irrigable area now or hereafter developed under the above-named project within the tract of land described in paragraph 2, as shown by plats now or hereafter approved by the Secretary of Interior.” Form A, Application for Permanent Water Right (Nov. 29, 1951) (Plfs.’ Mot. for Summ. J. App. at ___ (July ___, 2003)). 

6. Today, Tulelake Irrigation District (TID) delivers water to lands within the Westside that are also within TID. 

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

            8.  Westside 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                              ______________________________

                                                                              Steven L. Kandra, President