IN THE UNITED STATES COURT OF
FEDERAL CLAIMS
__________________________________________
KLAMATH IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 01-591 L
)
)
Defendant.
)
__________________________________________)
MEMORANDUM SUPPORTING
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
INTRODUCTION AND SUMMARY OF ARGUMENT
This case arises from restrictions imposed by the federal government under the Endangered Species Act (ESA), 16 U.S.C. §§1531-1544 (2003). The key question presented for review has been asked and answered in many different contexts and by many different decision makers: Do the Klamath Project water users have a vested property right (water right appurtenant to their land), which the federal government cannot take from them, without payment of just compensation?
The United States Supreme Court has repeatedly held that the water users who put the water to beneficial use in a Reclamation Project have a property right. See, e.g., Ickes v. Fox, 300 U.S. 82, 95 (1937) (“[B]y the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works.”); Nevada v. United States, 463 U.S. 110, 126 (1983) (“[T]he Government is completely mistaken if it believes that the water rights confirmed to it . . . were like so many bushels of wheat, to be bartered, sold, or shifted about as the Government might see fit. Once these lands were acquired by settlers in the Project, the Government’s ‘ownership’ of the water rights was at most nominal; the beneficial interest in the rights confirmed to the Government resided in the owners of the land within the Project to which these water rights became appurtenant upon the application of Project water to the land.”).
The Supreme Court
and this Court have also held that the federal government cannot take vested
water rights, without payment of just compensation. See, e.g., Tulare Lake
Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 319 (2001)
(“The federal government is certainly free to preserve the fish; it must
simply pay for the water it takes to do so.”); see also Hage v.
Defendant
Finally, in 1957,
Congress consented to the Klamath River Basin Compact, thereby recognizing the
vested property rights of the beneficial users of the project water.
In the face of such overwhelming precedent to the contrary, defendant claims no obligation to pay plaintiffs for the Klamath Project water it refused to release to them in 2001,[1] claiming that this water was necessary to protect three species of fish listed as threatened or endangered under the Endangered Species Act.
Accordingly,
plaintiffs, fourteen government agencies in the
PROCEDURAL BACKGROUND
Plaintiffs filed their complaint on
FACTUAL AND STATUTORY BACKGROUND
The Klamath Project, which straddles the southern
Oregon and northern California borders, supplies irrigation water for beneficial
use on farms and ranches located in Klamath River Basin, Historic
Operation at 5, Ex. 3; see also
Map and Factual Data on the Klamath Project (Bureau of Reclamation Sept.
2000) (hereinafter “Map and Factual Data
”) (attached as Ex. 4). The
Klamath Project area includes 240,000 acres of irrigable lands.
(There are also national wildlife refuge lands within the Klamath Project
area.) Historic Operation at 1, 6,
Ex. 3. 176,000 of the 240,000
total irrigable lands within the Klamath Project receive their water from the
“Gross crop value for 1999 was estimated at over 104 million dollars. Principal crops raised on the Project include alfalfa, irrigated pasture, small grains, potatoes, onions, sugar beets, and miscellaneous crops. Wildlife benefits derived from Project operations include over 20,000 acres of seasonal and permanent marsh.” Historic Operation at 6-7, Ex. 3.
Under the
direction of the U.S. Bureau of Reclamation (Bureau),
Upper Klamath River water in stored in the Upper Klamath Lake
behind the Link River Dam. The Link
River Dam a concrete structure that holds water in the lake, located at the head
of the
Although the ESA
contemplates that the federal government will “acquire by purchase, donation
or otherwise, lands, waters, or other interests therein” to protect endangered
species 16 U.S.C. §1534 (a)(2) (West 1985 & Supp. 1998), in this case in
2001, in order to provide water to three species of fish it deemed threatened or
endangered, the Bureau physically restrained the delivery of the Klamath Project
water to the water users. There was
ample water in the
I.
The Klamath Project, Bought And Paid For By The
Constructed By The Federal Government In Order To Provide Irrigation Water For
Klamath
Authorized in 1905, the Klamath Project was one of the
first water projects constructed under the Reclamation Act of 1902. In the
Reclamation Act, “Congress set forth on a massive program to construct and
operate dams, reservoirs, and canals for the reclamation of the arid lands in 17
Western states.”
Irrigation
districts were created under state law as governmental agencies to assume the
delivery obligations to individuals who had contracted directly with the United
States for Klamath Project water and to distribute water to all eligible
landowners within their borders, and to collect and pay to the United States the
operation and maintenance expenses incurred by the Bureau in operating the
Klamath Project facilities that the Bureau operates (e.g., Clear Lake Dam,
Malone Dam, the Klamath Straits Drains). See
The contracts specify an acreage to be covered by the water right granted, and in most cases, do not specify an amount of water relying on beneficial use for the amount of water used. The contracts are all written in perpetuity.
In all, over 250 contracts for water service are administered either directly or through irrigation districts on the Klamath Project. Contracts also cover the operation of the facilities owned by the United States that were transferred to the water users for operational responsibility. Irrigation Districts that fall into this category are Klamath Irrigation District, Tule Lake Irrigation District . . . .
Historic
Operation at 31; see also Historic
Operation at App. C at C-1―C-2, Ex. 3. [check accuracy of
quote—add brackets if necessary to include the language not in original quote]
The
majority of the water repayment and delivery contracts in this case state:
“The
In this case, all plaintiffs have long since repaid
their portion of the allocated cost of constructing the Klamath Project
facilities. Only Plaintiffs Klamath
Irrigation District and Tulelake Irrigation District operate and maintain
facilities owned by the
II. Plaintiffs
Were Entitled To Delivery Of All The Klamath Project Water They Could
Beneficially Use In 2001
Plaintiffs all hold water rights that entitle them to receive all the water from the Klamath Project that they can beneficially use. (In 2001, plaintiffs were entitled to an ascertainable quantity of water.) In western water law, any right to the use surface water for irrigation water is appurtenant to the land, subject to beneficial use. See Nevada v. United States, cite and quote. Likewise, the Reclamation Act states that the water rights in a Reclamation project are appurtenant to the land:
[block quote and cite Section 8 of the Reclamation Act]
In this case, plaintiffs have vested water rights appurtenant to their land, and they are thus entitled to all the water in the Klamath Project that they can beneficially use. [cite to all of the relevant declarations.
III. To Protect Three Species Of Listed Fish, Defendants Took The Klamath Project Water That Plaintiffs Were Entitled To In 2001
The purpose of
the Endangered Species Act (ESA), 16 U.S.C. §§1531-1544 (West 1985 & Supp.
1985, is to protect and recover fish, wildlife, and plant species that are
threatened with extinction. See 16 U.S.C § 1531(b) (2003).
The Act provides a mechanism for designating (or listing) species as
either endangered or threatened.
Section 4 of the
ESA provides that the Secretary “is authorized to acquire by purchase,
donation, or otherwise, lands, water, or interest therein . . . .”
16 U.S.C. § 1534 (Supp. 2003). Section
7 of the ESA imposes a duty upon all federal agencies to consult with FWS and
NMFS to ensure that their actions are “not likely to jeopardize the continued
existence of any endangered species or threatened species . . . .”
The ESA grants defendant broad authority to regulate activities that could affect species of animals listed as endangered or threatened. [cite] For purposes of this motion, plaintiffs concede that defendant had the authority to retain water in the Link River Dam or to release water to the [ ] if defendant deemed it necessary to protected species protected by the ESA. [cite]
In this case, exercising its authority under the ESA, in February 2001, Reclamation issued a biological assessment with respect to the operation of the Klamath Project, proposing that water would be available for delivery to Klamath Project irrigators and wildlife refuges, in accordance with historical practice. [cite BA.,] Reclamation, however, directed irrigation water users not to take water until the FWS and NMFS had completed their biological opinions. [Decs]. On April 5, 2001 FWS and on April 6, 2001, NMFS issued biological opinions with respect to the operation of the Klamath Project on coho salmon and suckers, respectively. Each agency 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. 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 & Wildlife Service Apr. 5, 2001); Biological Opinion, Ongoing Klamath Project Operations (National Marine Fisheries Service Apr. 6, 2001). 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.
As a result,
Reclamation concluded that, to maintain both the river flow and
STANDARD OF REVIEW
“[A]
motion for summary judgment will be granted if, after drawing all reasonable
inferences in favor of the non-movant, there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Charter
FSB v.
ISSUES PRESENTED
REASONS FOR GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
I.
Plaintiff Irrigation Districts Have Standing To Bring These Claims
Rule 17 of the Rules of this Court provides:
Every action shall be prosecuted in the name of the real
party in interest. An executor,
guardian, bailee, trustee of an express trust, a party with whom or in whose
name a contract has been made for the benefit of another, or a party authorized
by statute may sue in that person’s own name without joining the party for
whose benefit the action is brought.
RCFC 17(a). Plaintiff irrigation districts are entitled to bring this suit in three capacities: (1) as government agencies authorized by state law to bring such suits; (2) as trustees for their water users; and, (3) as parties to contracts with Reclamation made for the benefit of their water users.
First, the
plaintiff districts are government agencies specifically authorized under
Second,
the courts of
As trustee for its water users, the irrigation district may bring suit to defend their right to receive water:
[W]here individual appropriators do not surrender their rights to a corporation which is organized merely to facilitate distribution of the water among them, there exists such a privity of estate as to enable it to defend in their behalf in litigation affecting their rights to the use of the water. The reason for this holding is found by analogy in the provision of our statute allowing a trustee of an express trust to sue without joining with him his cestui que trust.
Caviness v. La Grande Irr.
Finally, the
Federal Circuit has held that the water users are the intended third party
beneficiaries of these reclamation contracts.
In H.F. Allen Orchards v. United States, 749 F.2d 1571 (Fed Cir.
1984), at issue was a term of a consent decree that had been entered as
settlement of a suit brought by irrigation districts for declaratory relief to
determine the obligation of the Bureau to deliver water to the Sunnyside
Irrigation District and to determine the respective waters of all the users of
the Yakima River. Following a drought year during which the Bureau delivered
only 70 percent of the water users irrigation water to them, the farmers sued
the
The major fallacy in the plaintiffs’ reasoning is that
it ignores the fact that in incorporating the districts to contract on behalf of
their members collectively with respect to their water rights, the members
exchanged their rights to enforce and protect their individual interests for
interests in the public corporations, in the same way that members or
shareholders generally do when they combine their interests in to membership or
business corporation. . . . if each
member were entitled to sue individually for
an alleged breach affecting all, irrespective of whether the corporation
or a majority of the members thought there was such a breach, it would authorize
multitudinous litigation . . . .
H.F. Allen Orchards v.
The Federal
Circuit disagreed, concluding that both the irrigation districts, which “act
as a surrogate for the aggregation of farmers,” and the farmer, as third-party
beneficiaries of the contracts, have standing to sue the
It is undisputed that appellants have a
property right in the water to the extent of their beneficial use thereof. The
irrigation districts, which contracted with the Bureau, act as a surrogate for
the aggregation of farmers. They use no water themselves.
The farmers ultimately pay for all the services which the government
supplies. It is clear that the
appellants, owners of the property at issue, the water, also are intended
third-party beneficiaries of the 1945 Consent Decree. Under the rules of the
H.F. Allen Orchards v. United States, 749 F.2d 1571, 1576 (Fed Cir. 1984) (citations omitted).[3]
Thus,
the plaintiff irrigation districts thus have triple standing to bring this claim
on behalf of their water users: as
trustees for the water users, as contractors for the benefit of the water users,
and as parties specifically authorized by statute to bring suit on behalf of
their water users. Any of these
three statuses suffices to grant standing to the irrigation districts in this
case, mooting the need to join the individual water users (whether by class
action or individually), thereby avoiding multitudinous litigation.
II.
Plaintiffs
Have a Constitutionally Protected Property Right in the Klamath Project Water
Even defendant
agrees that plaintiffs have a beneficial interest in the right to use of water
from the Klamath Basin Project.[4] See, e.g.,
Joint Status Report at 24 (
A. The Supreme Court Has Consistently Held That Reclamation Act Water Users, Such as Plaintiffs, Have Vested, Constitutionally Protected Property Rights, Appurtenant To Their Land.
In a string of
cases beginning in 1937, the United States Supreme Court has established that,
even where title to Reclamation project water rights is vested in the
In the seminal
case of Ickes v. Fox, 300 U.S. 82 (1937), Reclamation Project water users
sued to enjoin the Secretary of Interior from refusing to deliver more than
three acre feet of water unless they paid an additional charge over the sum
stated in their reclamation contracts. The
Secretary moved to dismiss on the ground that the
Although a stream
water rights adjudication was then underway in
Respondents
had made all stipulated payments and complied with all obligations by which they
were bound to the government, and, long prior to the issue of the notices and
orders here assailed, had acquired a vested right to the perpetual use of the
waters as appurtenant to their lands. Under
the Reclamation Act, as well as under the law of
* * *
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
The court noted that the
Reclamation water right was appurtenant to the land:
[I]t
long has been established law that the right to the use of water can be acquired
only by prior appropriation for a beneficial use; and that such right when thus
obtained is a property right, which, when acquired for irrigation, becomes, by
state law and here by express provision of
the Reclamation Act as well, part and parcel of the land upon which it is
applied.
Finally, the court concluded that
the water users’ property right was vested:
The
fallacy of the contention is apparent, because the thus‑far undenied
allegations of the bill, as already appears, demonstrate that respondents have
fully discharged all their contractual obligations; that their water rights have
become vested; and that ownership is in them and not in the United States.
In Nebraska v.
Wyoming, 325 U.S. 589 (1945), which was an original proceeding in the
Supreme Court to apportion the waters of the Platt River among Nebraska, Wyoming
and Colorado, the United States intervened to claim title to water rights
allegedly appropriated for the North Platt and Kendrick Reclamation Projects.
Rejecting the
The property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i.e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. Indeed [Section] 8 of the Reclamation Act provides as we have seen that “the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.”
* * *
Though we assume arguendo that the
* * *
The rights of the
In Nevada v. United States, 463 U.S. 110 (1983), the
United States sued 3,800 water users in the Newlands Reclamation Project to
establish water rights for the Paiute tribe of Indians.
The district court dismissed on res judicata grounds, since the
We
are bound to say that the Government’s position, if accepted, would do away
with half a century of decided case law relating to the Reclamation Act of 1902
and water rights in the public domain of the West.
The Supreme Court concluded that, “[i]t is undisputed that the primary
purpose of the Government in bringing the
Orr Ditch suit [a judicial water adjudication] in 1913 was to secure water
rights for the irrigation of land that would be contained in the Newlands
Project, and that the Government was acting under the aegis of the Reclamation
Act of 1902 in bringing that action.”
In
the light of these cases, we conclude that the Government is completely mistaken
if it believes that the water rights confirmed to it by the
Orr Ditch decree in 1944 for use in irrigating lands within the Newlands
Reclamation Project were like so many bushels of wheat, to be bartered, sold, or
shifted about as the Government might see fit. Once these lands were acquired by
settlers in the Project, the Government’s “ownership” of the water rights
was at most nominal; the beneficial interest in the rights confirmed to the
Government resided in the owners of the land within the Project to which these
water rights became appurtenant upon the application of Project water to the
land.
Any contention of defendant that plaintiffs lack a property right in the
use of Klamath Project water is thus foreclosed by more than half a century of
Supreme Court precedent, not to mention the Federal Circuit’s holding that
“[i]t is undisputed that appellants have a property right in the water to the
extent of their beneficial use thereof.” H.
F. Allen Orchards v.
These
interpretations of the Reclamation Act, issued by the agency charged by Congress
with administering that statute, are entitled to deference by this Court. According
to the U.S. Supreme Court, “[c]onsiderable weight must be accorded to these
interpretations of the Reclamation Act by the agency charged with its
operation.” California v. United States, 438
In 1956, the
Comptroller General of the
At the outset, it is clear that the United States by filing with the state of Oregon notices of intent to appropriate and thereafter impounding the waters did not--- as appears to be contended by the Bureau--- become the owner of the water in its own right. That is recognized in the Reclamation Act itself.
Dec. of Comptroller General, No.
B-125866, 1956
In 1989, the
Solicitor for the U.S. Department of Interior wrote a legal opinion to the
Secretary of the Interior concluding that “[t]he Supreme Court has determined
that for water rights obtained by the Bureau in the name of the United States,
the water user who puts the project water to beneficial use obtains a vested
property interest in the water right.” Interior
Solicitor Op. at 25, Ex. ___. The
Solicitor’s 1989 opinion
comprehensively analyzes the property right in the water user arising from
beneficial use of the water:
The
Supreme Court has determined that for water rights obtained by the Bureau in the
name of the
*
* *
Since
Ickes v. Fox, the principal that the proprietary interest in the project
water right is in the project water users who put the water to beneficial use
has been reaffirmed by the Supreme Court on two occasions. In Nebraska v.
Wyoming, 325 U.S. 589 (1945), the Court, after quoting the passage from Ickes
v. Fox quoted above, found that individual landowners who had put the
project water to beneficial use, thereby “perfecting” the water right
obtained by the United States, had “become the appropriators of the water
rights, the United States being the storer and the carrier.” 325
* * *
Finally,
in Nevada v. United States, [463 U.S. 110 (1983)], the Supreme
Court addressed Government arguments that water decreed to the United States for
the Newlands reclamation project in Nevada could be reallocated to an Indian
reservation:
In
the light of these cases, we conclude that the Government is completely mistaken
if it believes that the water rights confirmed to it by the Orr Ditch decree in
1944 for use in irrigating lands within the Newlands Reclamation Project were
like so many bushels of wheat, to be bartered, sold, or shifted about as the
Government might see fit. Once these lands were acquired by settlers in the
Project, the Government’s “ownership” of the water rights was most
nominal; the beneficial interest in the rights confirmed to the Government
resided in the owners or the land within the Project to which these water rights
became appurtenant upon the application of Project water to the land. 463
*
* *
With
the issuance of Nevada v. United States, the Supreme Court, conclusively
reaffirmed the concept that beneficial ownership of reclamation project water
right is in the water users who put the water to beneficial use.
Interior Solicitor Op. at 25-27, Ex. ___.
In a 1995 legal opinion, the Regional Solicitor for the Department of Interior likewise concluded that Reclamation has an obligation to deliver the Klamath Project water to the water users:
Reclamation
has an obligation to deliver water to the project water users in accordance with
the project water rights and the contracts between Reclamation and the water
user (which may be through a water district) subject to the availability of
water. Reclamation must protect the rights of the users of project water, see
Filing of Claims for Water Rights in General Stream Adjudications, M-36966, 97
I.D. 21 (July 6, 1989), and cannot “ignore . . . the obligations that
necessarily devolve upon it from having mere title to water rights for the
[project], when the beneficial ownership of these water rights resides
elsewhere.”
1995 Regional Solicitor Op. at 7, Ex. ___.
Most recently, Reclamation stated in its 2002 Biological Assessment for the Klamath Project:
The
beneficial interest in the Project water right is in the water users who put the
water to beneficial use.
Final Biological Assessment, The Effect of Proposed Actions
Related to Klamath Project Operation (
Congress, in ratifying the Klamath Basin Compact, also recognized and agreed to be bound by the vested property rights of plaintiffs. The Klamath River Basin Compact, consented to by Congress and signed by President Eisenhower in 1957, provides that:
There
are hereby recognized vested rights to the use of waters originating in the
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 . . . .
II.
The
Taking of Plaintiffs’ Vested Water Rights in 2001, Without Payment of Just
Compensation, Constitutes a Per Se Violation of the Just Compensation
Clause
The taking of water rights is analyzed for Fifth Amendment purposes as
a physical appropriation, or as a per se
taking:
In the context of
water rights, a mere restriction on use—the hallmark of a regulatory
action—completely eviscerates the right itself since plaintiff’s sole
entitlement is to the use of the water. See
Eddy v. Simpson, 3
* * *
To
the extent, then, that the federal government, by preventing plaintiffs from
using the water to which they would otherwise have been entitled, have rendered
the usufructuary right to that water valueless, they have thus effected a
physical taking.
Tulare
Lake Basin Water Storage District v.
In this case, for almost 100 years, except in the drought years of 1992 and 1994, plaintiffs received all of the irrigation water they could be beneficially used. In February 2001, Reclamation issued a biological assessment with respect to the operation of the Klamath Project, proposing the release to plaintiffs of all the water they could beneficially use. [cite] Reclamation, however, directed irrigation water users not to take water until after the FWS and NMFS had completed their biological opinions. [Solem Declaration]
On
Throughout the 2001
irrigation season,
Defendant physically
prohibited plaintiffs from accessing Klamath Project irrigation water from the
The Supreme Court has left no doubt that when water is taken by the federal government, just compensation must be paid to the owner. In Dugan v. Rank, 372 U.S. 609 (1963), the plaintiffs’ water rights were taken by virtue of the federal government’s construction of a dam as part of the Central Valley Project. Plaintiffs filed a complaint for trespass in state court. That case was ultimately dismissed but upon review, the Supreme Court noted:
[T]he
[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.”
In Int’l Paper Co. v. United
States, 282 U.S. 399 (1931), the government condemned the electricity output
of a hydroelectric power company. In order to increase the production of the
facility, the government took the water to which the downstream International
Paper Company had the right to receive. International Paper sued in the Court of
Claims under the Tucker Act for compensation under the Fifth Amendment but was
denied relief. See Int’l Paper Co. v.
The petitioner’s right was to the use of the water; and when all the water that it used was withdrawn from the petitioner’s mill and turned elsewhere by government requisition for the production of power it is hard to see what more the Government could do to take the use . . . . [T]he Government purported to be using its power of eminent domain to acquire rights that did not belong to it and for which it was bound by the Constitution to pay.
Int’l Paper Co. v. United States, 282 U.S. at 407.
Finally, in United States v.
Gerlach Live Stock Co., 339 U.S. 725 (1950), the Supreme Court upheld the Claims Court’s award of
compensation under the 1902 Reclamation Act for the taking of water rights
occasioned by construction of the Central Valley Project.
The Court flatly rejected the government’s argument that the government
possessed the authority to divert water from the Central Valley Project without
payment of just compensation simply by virtue of its status as dominant tenant
of the navigation servitude:
[W]e need not ponder whether, by virtue of a highly fictional navigation purpose, the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them. We have never held that or anything like it . . . .
Id. at 737.
CONCLUSION
For all of these reasons, plaintiffs ask this Court to grant their motion for partial summary judgment on liability.
Respectfully submitted,
__________________________
Nancie G. Marzulla
MARZULLA
& MARZULLA
1350
Connecticut Ave., N.W.
Suite 410
Washington, DC 20036
202-822-6760
202-822-6774 (fax)
Dated: July 7, 2003
[1] For
purposes of this motion, plaintiffs limit their taking claim to their water
rights taken in 2001.
[2] Pursuant to this Court’s Order of May 12, 2003, the parties conferred in an effort to reach an agreement on a stipulation as to the standing of the irrigation districts to sue on behalf of the individual water users in this case. No agreement has been reached.
[3] Should the Court rule that the irrigation districts do not have standing to bring this suit on behalf of their water users, a class of individual water users themselves has been named as plaintiffs in this action.
[4] In its order of May 12, 2003, this Court required that plaintiffs assume, for purposes of this motion, that legal title to the Klamath Project water be awarded to the United States (rather than plaintiffs). The beneficial interest in the Klamath Project water right will remain with the Klamath Project water users, regardless of the outcome of the Adjudication. See 1956 Comptroller General Op.;Tulare Lake Water Storage District v. United States, 49 Fed. Cl. 313 (2001) (holding the government took the right to receive water although water right had not been confirmed by certificate or adjudicated).
[5] It is worth noting that neither plaintiffs nor the United States own any water, for the public in general is the owner of the water. See Or. Rev. Stat. § 537.110 (2001 & Supp. 2002) (“All water within the state from all sources of water supply belongs to the public.”). What plaintiffs do own is the usufruct—i.e., the right to use a certain quantity of water―since they have put the water to beneficial use. See Washoe County v. United States, 319 F.3d 1320, 1322 (Fed. Cir. 2003) (“Although a water right is property subject to constitutional protection, it is usufructuary in nature, meaning that it is a ‘right to use’ water in conformance with applicable laws and regulations.”); Renken v. Young, 711 P.2d 954, 960 n.9 (Or. 1985) (“‘[I]t is the use of water, and not the water itself, in which one acquires property in general.’”) (citations omitted).
[6] Defendant
appears to equate title to the Oregon water right (now the subject of the
Klamath Basin Adjudication) with the concept of “property” under the
Fifth Amendment. While the
Klamath Basin Adjudication is a creature of Oregon State law and governed by
it, the definition of property is an issue of federal constitutional law,
which looks to background principles of law (both state and federal).
See Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1030 (1992) (holding that the Court had made “traditional resort to
‘existing rules or understandings that stem from an independent source
such as state law’ to define the range of interests that qualify for
protection as ‘property’ under the Fifth and Fourteenth Amendments . . .
.”); Hage v. United States, 35 Fed. Cl. 147, 159-60 (1996) (holding
that this Court may determine if plaintiffs have a property interest in
water although stream water adjudication was underway in state court).
[7] An acre foot is the traditional measurement used for irrigation water, and is the amount of water necessary to cover an acre of ground (43,560 square feet) one-foot deep.