IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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                                                                                    )

KLAMATH IRRIGATION DISTRICT et al.,              )

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Plaintiffs,                                                        )

)

v.                                                                     )           No. 01-591 L

)          

UNITED STATES OF AMERICA,                         )           Judge Diane Gilbert Sypolt       

)

Defendant.                                                                 )

__________ ___________________________)

SECOND DECLARATION OF JAMES L. MOORE

            I, James L. Moore, pursuant to 28 U.S.C. § 1746, make this declaration on my own behalf and on behalf of the Van Brimmer Ditch Company, and declare as follows:   1.  I am now and have been since 2000, the President of Van Brimmer Ditch Company (Van Brimmer).   [What does this mean?  What does such a corporation do?  What are its characteristics?  Does it have stock?  Profits?  Public obligations?  How does it function?]         

            2.  Van Brimmer is an Oregon corporation for use and control of water, organized and existing under Oregon Revised Statutes, ch. 554.  Under Oregon law, Van Brimmer was established by and represents all landowners within its boundaries. 

            3.  The facilities of Van Brimmer are located in Klamath County , Oregon , and consist of [insert].  These irrigation and drainage facilities convey irrigation water for beneficial use to water users on approximately 5,050 acres of high-value agricultural land served by the corporation.

4.  Van Brimmer was originally formed by three brothers: Daniel, Clinton, and Benjamin Van Brimmer who moved to the Klamath Basin in the early 1870s.  Interested in the irrigation potential of the area, the Van Brimmers began to investigate the possibility of diverting water from Lower Klamath Lake in Oregon to the lands between that lake and Tule Lake in California .  The brothers 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. 

4.      The Van Brimmers and another homesteader, J. Frank Adams, started to file for various public lands in the area between these two lakes, with Adams filing on property east of Lost River , and the Van Brimmers claiming land west of Lost River .  They ordered scrapers and other ditch-building equipment, and in 1882, the Van Brimmers began work on an irrigation ditch that originated in White Lake on the margins of Lower Klamath Lake .

5.      Clinton Van Brimmer filed, in Siskiyou County , California , 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 on September 4, 1883 . In the notice, he stated his 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 .  [Need Copy of the notice.] 

6.      On September 19, 1884 , Clinton and Daniel Van Brimmer filed a second notice of appropriation in Klamath County , Oregon for the Van Brimmer Ditch, confirming their earlier filing in California . The Van Brimmer ditch was completed and irrigation practices started in 1886.  [Need Copy of the notice.] 

7.      Daniel Van Brimmer and W.P. Whitney incorporated the Van Brimmer Ditch Company (Van Brimmer), 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 Van Brimmer for its water supply, thereby relegating an equal water right to each of the 5,000 acres within Van Brimmer.  [Need Copy of articles?  Who owned the 5,000 acres?]

8.      The Van Brimmer brothers and their wives conveyed the Van Brimmer ditch property and water rights to Van Brimmer in July of 1903.  Within two years of incorporation, 4,500 shares of Van Brimmer had been subscribed. 

9.      On November 6, 1909 , because the United States intended to change the course of Lower Klamath Lake , thereby completely destroying Van Brimmers present source of water supply, the United States agreed to provide Van Brimmer a perpetual delivery of fifty cubic second feet of water through the South Branch Canal (now the C Canal).  See Pls.’ Amended Compl. App. at Ex. 13, pp. 346-348 ( Mar. 24, 2003 ).

10.  Van Brimmer is in the unique position within the Klamath Project of being an independent irrigation company which receives its water from the Klamath Project. It was a recognized water right to 50 cubic feet per second of water from the Klamath Project which was never owned by Reclamation.

11.   Moreover, I own, jointly with my wife, Cheryl M. Moore, 170 acres of high-value agricultural land with appurtenant water rights in Klamath County , California , and I am an individually-named plaintiff in this case.  We began farming this property when we obtained our first deed in 1976.  We have grown alfalfa, potatoes, sugar beets and various other vegetables on this property, including broccoli, cauliflower, and cabbage.

12.    My wife and I obtained title to these 170 acres from my parents, Georgia and Luster Moore through three separate deeds dated between 1976 and 1999. See Deeds (attached as Ex. 1).  My parents had obtained title from my grandparents.  This land was in private ownership prior to the construction of the Klamath Project.   

            13.  In 1903, when the Van Brimmer Ditch Company was incorporated, my grandparents purchased shares of stock in the company for each acre that was irrigated. After the Reclamation Act was passed and water appropriated from the property for reclamation purposes, my grandparents continued to receive its water through the Van Brimmer irrigation system, surrendering their riparian water rights for a guaranteed amount of water delivered by the Klamath Project. See 1903 Van Brimmer Contract (Pls.’ Amended Compl. App. at Ex. 13, pp. 346 ( Mar. 24, 2003 )).  

            14.   Our water is delivered through Canal “D” by Klamath Irrigation District for Van Brimmer.  Every year since 1978 and, for so long as I can remember growing up on the farm, we and my parents before us have always received all the water we could beneficially use, (with minor exceptions in the drought years of 1992 and 1994).  We receive irrigation water each year from Van Brimmer to farm 140 of the 170 acres we own.

            15.  Then in 2001, for the first time, Reclamation announced there would be no water for the farmers.  We in fact received no water at all in 2001. 

      16.  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.   

17. 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.

18.  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.

            19.  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.

[We need a paragraph or two about the lack of water, how it was needed, how it affected James and his family, etc.  Also, what happened to Van Brimmer Company as a result?  In short, add some detail and some color.]

            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                              ______________________________

                                                                             James L. Moore, President