IN THE UNITED STATES COURT OF FEDERAL CLAIMS

 

 

KLAMATH IRRIGATION DISTRICT, et al.,            )

)

Plaintiffs,                                                        )           No. 01-591 L

)

            v.                                                                               )

)           Judge Diane Gilbert Sypolt

UNITED STATES OF AMERICA                            )

)

Defendant.                                                     )

__________________________ ___________)

 

 

MOTION OF NATURAL RESOURCES DEFENSE COUNCIL FOR LEAVE TO FILE

MEMORANDUM AMICUS CURIAE IN SUPPORT OF THE UNITED STATES=

OPPOSITION TO PLAINTIFFS= MOTION FOR PARTIAL SUMMARY JUDGMENT

 

The Natural Resources Defense Council, Inc. (ANRDC@) respectfully moves for leave to file the accompanying memorandum amicus curiae in support of the United States= opposition to plaintiffs= motion for partial summary judgment.  The grounds for this motion are as follows:

 

1.  Amicus NRDC is a not-for-profit conservation organization with more than 460,000 members nationwide.  More than 100,000 NRDC members live in Oregon and California, and more than 180,000 members live in western states affected by federal reclamation projects and facilities.  NRDC members use and enjoy natural resources affected by the Klamath project as well as other facilities operated by the Bureau of Reclamation.

 

2.  Through its scientific, litigation, and other programs, NRDC has long been active in efforts to promote sustainable agriculture, to encourage water conservation, and to protect endangered species.   NRDC has participated, either as a direct party or as an amicus curiae, in many cases addressing the validity and scope of alleged private property and/or contractual rights in water supplied by Bureau of Reclamation projects, including, for example, Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir.1998); Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir., 2003) (application for rehearing en banc pending); and Orff v. United States, No. 00-16922 (9th Cir.) (appeal pending).   NRDC believes that its substantial experience and significant expertise in western water law issues can be of assistance to the Court in this case.

3.   NRDC is also represented in this case by an attorney with significant expertise in regulatory takings law.  He has filed numerous briefs amicus curiae on behalf of various environmental, consumer protection, and other public interest organizations in many cases in this Court and the U.S. Court of Appeals for the Federal Circuit.  NRDC believes that this takings expertise also can be of significant assistance to the Court. 

 

4.  The United States has consented to the filing of the proposed memorandum amicus curiae.  Plaintiffs have declined to grant their consent to the filing of the proposed amicus memorandum.  Counsel for NRDC has consulted with Carl Ullman, counsel for the Klamath Tribes, which also are planning to file a brief amicus curiae in support of the United States= opposition to plaintiffs= motion for partial summary judgment.  NRDC believes that its memorandum amicus curiae will complement and not overlap with the amicus submission by the tribes. 

 

5.  NRDC=s memorandum amicus curiae addresses several questions related to the issue of who owns Klamath project water and to the issue of whether the Court should stay this case pending resolution of the Klamath river adjudication.   NRDC agrees with plaintiffs that it is unnecessary to stay this case in order to resolve who owns Klamath project water, but for an opposite reason than that presented by plaintiffs.   Plaintiffs contend that a stay is unnecessary to resolve the ownership issue because it is clear that the irrigators served by the Klamath project own the project water.  By contrast, NRDC submits that a stay is unnecessary to resolve the water ownership issue because it is clear that the United States, not the irrigators served by the Klamath project, is the owner of Klamath project water.   At the same time, NRDC takes no position on whether a stay might be warranted on other grounds.  For example, NRDC recognizes that the Klamath adjudication might establish that the quantity of water to which the Klamath Tribes are entitled pursuant to their senior water rights is so large that plaintiffs might be prevented from claiming, under any theory, that application of the Endangered Species Act in the Klamath basin has deprived them of any water rights.