Takings: Plaintiffs' Repsonse to Devendant's Proposed Findings of Uncontroverted Fact

Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within this State, shall file in the office of the State Engineer a written notice that the United States intends to utilize certain specified waters, the waters described in such notice and unappropriated at the time of the filing thereof shall not be subject to further appropriation under the laws of this State, but shall be deemed to have been appropriated by the United States. . . . No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this State except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the United States thereunto duly authorized, which release shall also be filed in the office of the State Engineer. In case of failure of the United States to file such plans or authorized construction of such works within the respective periods herein provided, the waters specified in such notices, filed by the United States , shall become subject to appropriation by other parties.

Ore. Gen. Laws, 1905, Chap. 228, section 2, p. 401 (Def. Ex. 2). See also Def. Ex. 1 (KBA Facts at 47).

Plaintiffs’ Response: Plaintiffs do not dispute that the Oregon legislature enacted this statute. In fact, this Oregon statute is similar to that enacted by the State of Washington relating to the Yakima Project, as discussed in Ickes v. Fox, 300 U.S. 82 (1937). Compare Or. Gen. Laws, 1905, Ch. 228, section 2, p. 401, Pls.’ Ex. 40, Supp. App. at 227 with 8 Remington’s Rev. Stat. of Washington, Title 48, §§ 7408-7413 (Wash. Sess. L. 1905, C. 88, pp. 180-183), Pls.’ Ex. 41, Supp. App. at 279.

5. At the same 1905 session, the Oregon legislature enacted another statutory providing, “[t]hat for the purpose of aiding in the operations of irrigation and reclamation, conducted by the Reclamation Service of the United States, . . . the United States is hereby authorized to lower the water level of Upper Klamath Lake, . . . and to lower the water level of, or to drain any or all of the following lakes: Lower or Little Klamath Lake, and the Tule or Rhett Lake, . . . and to use any part or all of the beds of said lakes for the storage of water in connection with such operations.” General Laws of Oregon , 1905, p. 63. See also Def. Ex. 1 (KBA Facts at 45-46). This 1905 Oregon statute also “ceded to the United States all the right, title, interest, or claim of this State to any land uncovered by the lowering of water levels, or by the drainage of any or all of said lakes not already disposed of by the State. . . .” General Laws of Oregon , 1905, p. 63. See also Def. Ex. 1 (KBA Facts at 46).

Plaintiffs’ Response: Plaintiffs do not dispute that the Oregon legislature enacted this provision “for the purpose of aiding in the operations of irrigation and reclamation.”

6. On February 3, 1905 , California enacted a statute similar to that enacted in Oregon and cited in Proposed Fact No. 5. The California statute provided “[t]hat for the purpose of aiding in the operations of irrigation and reclamation conducted by the Reclamation Service [predecessor to the Bureau of Reclamation] of the United States. . . the United States is hereby authorized to lower the water levels of any or all of the following lakes: Lower or Little Klamath Lake, Tule or Rhett Lake, Goose Lake, and Clear Lake, . . . and to use any part of all of the beds of said lakes for the storage of water in connection with such operations.” This California statute also “ceded to the United States all the right, title, interest, or claim of this State to any lands uncovered by the lowering of the water levels of any or all of said lakes not already disposed of by this State. . . .” Cal. Stats. 1905, p. 4. See also Def. Ex. 1 (KBA Facts at 46).

Plaintiffs’ Response: Plaintiffs do not dispute that the California legislature enacted this provision “for the purpose of aiding in the operations of irrigation and reclamation.”

7. On May 19, 1905 , pursuant to the authorizations referenced in Proposed Findings Nos. 2-6, supra, Reclamation filed a “Notice of Intention to Utilize All Waters of the Klamath Basin ” in the Office of the State Engineer of Oregon, stating that:

Notice is hereby given that the United States intends to utilize certain specified waters, as follows, towit:

All of the waters of the Klamath Basin in Oregon , constituting the entire drainage basins of the Klamath River and Lost River , and all of the lakes, streams, and rivers supplying water thereto or receiving water therefrom. . . .

Pls.’ Ex. 30. See also Def. Ex. 1 (KBA Facts at 70-71). The United States posted also posted its notice at locations along the Klamath River and the Link River . See Pls.’ Ex. 31-32. Similar postings were made in California for the waters originating in California . See Def. Ex. 5 (Klamath Project Historic Operation (“KP Historic Op.”), Appendix C at C-6).

Plaintiffs’ Response: Plaintiffs do not dispute that this is a partial quotation from a notice that Reclamation filed a “Notice of Intention to Utilize All Waters of the Klamath Basin ,” on May 19, 1905 , with the Office of the State Engineer of Oregon. As defendant admitted in its Klamath Basin Adjudication filing discussing this notice, “[t]he purposes for which water is used and claimed, as stated in the May 19, 1905 ‘Notice of Intention to Utilize All Waters of the Klamath Basin,’ are those provided for by the . . . Reclamation Act, . . including irrigation, reclamation, domestic and other authorized uses.” See Statement and Proof of Claim to Waters of the Klamath River and Its Tributaries, Pls.’ Ex. 29, Supp. App. at 223 (citing Notice of Intention to Utilize All Waters of the Klamath Basin (May 19, 1905)).

8. Through its compliance with the applicable state and federal laws, cited in Defendant’s Proposed Findings Nos. 2–7, the United States “appropriated all available water rights in the Klamath River and Lost River and their tributaries in Oregon and began constructing a series of water diversion projects.” Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1209 (9th Cir.), opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000), cert. denied, 531 U.S. 812 (2000).

Plaintiffs’ Response: Plaintiffs agree that this is an accurate quotation from Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1209 (9th Cir. 2000). Defendant’s appropriation was inchoate until, and unless, the water was put to beneficial use, at which point it becomes appurtenant to and the property of the landowner under both state and federal law. See Broughton v. Stricklin, 30 P.2d 332, 334 (Or. 1934) (holding an inchoate right “does not take effect until the water awarded is applied to a beneficial use, which is the basis, the measure and the limit to the use of all water in this state”), overruled on other grounds by Rencken v. Young, 711 P.2d 954 (Or. 1985); Ickes v. Fox, 300 U.S. 82, 95 (1937) (“Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners.”); Nebraska v. Wyoming, 325 U.S. 589, 614-615 (1945) (holding the property right in the water right confirmed to individual water users “is appurtenant to the land, the owner of which is the appropriator”).

9. Once the United States appropriated all available water rights in the Klamath River , these waters were not subject to further appropriation under Oregon law by plaintiffs or anyone else unless the United States formally released such water, or a portion thereof, in writing. See Def. Ex. 2 (“No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this State except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the United States thereunto duly authorized, which release shall also be filed in the office of the State Engineer.”). There has been no such release in this case. See Def. Ex. 22 (Declaration of Cecil H. Lesley, ¶ 6).

Plaintiffs’ Response: Plaintiffs dispute this proposed finding of fact. As noted in plaintiffs’ response to defendant’s proposed finding 8, defendant initiated an appropriation that was inchoate until plaintiffs put the water to beneficial use upon their lands. At that time, the beneficial interest in the water right vested in plaintiffs (or their predecessors) as an appurtenance to their land, in accordance with state and federal law. The patent deeds, water right applications (contracts) and regulations confirm the beneficial interest to plaintiffs, and that beneficial interest is property under the Fifth Amendment. The United States is left with title, which is at most nominal. See Nevada v. United States, 463 U.S. 110, 126 (1983) (holding the Government’s ‘ownership’ of the water rights was at most nominal . . . .”); see also Response to Proposed Finding 8.

10. Prior to the development of the Klamath Project, private landowners in the area to be served by the Project had begun to divert water for irrigation purposes. See Def.’s Resp. to Pls.’ Proposed Finding No. 4. To the extent that any waters in the Klamath River Basin were “unavailable” because such water already had been appropriated under state law to be used on lands identified as part of the Klamath Project, Reclamation acquired these “pre-Project” water rights and integrated them into the Project, thereby eliminating potential conflict between these pre-Project water rights and Project water rights. See Def. Ex. 3 (KP Historic Op. at 34) (“It was necessary to purchase these [pre-Project rights to use water] from the entities involved so that Reclamation had full control of all the rights to the use of water in the basin to facilitate Project operation.”). See also KBA Facts at 50-58 (describing Reclamation’s acquisition of water rights acquired under state law prior to the development of the Klamath Project) (Def. Ex. 1).

Plaintiffs’ Response: Plaintiffs do not dispute the first sentence of this finding. As to the second sentence, in return for giving up pre-1905 rights, parties such as VAN BRIMMER DITCH COMPANY, Mike J. Byrne, Daniel W. Byrne, Deloris Chin, Daniel G. Chin, Cheryl M. Moore, and James L. Moore, received from defendant the perpetual right to receive water from the Klamath Project. See Pls.’ Ex. 20, App. at 135; Pls.’ Ex. 22, App. at 150; Pls.’ Ex. 25, App. at 194; Pls.’ Ex. 26, App. at 197.

11. The only pre-Project water rights that had been appropriated under state law and that Reclamation did not acquire outright were those held by the Van Brimmer Brothers. See Def. Ex. 1 (KBA Facts at 60-61). In 1909, the Van Brimmers’ transferred their existing water rights (as then held by the Van Brimmer Ditch Company) in exchange for a perpetual right – established by contract – to the annual delivery of 50 cfs of water from the Klamath Project. Id.

Plaintiffs’ Response: Plaintiffs dispute this proposed finding of fact. As stated in the declaration of Gary Orem:

7. In 1909, the United States proposed to change the water level of Lower Klamath Lake for purposes of the Klamath Project. VANBRIMMER DITCH COMPANY 1909 Contract (Pls.’ Amended Compl. App. at Ex. 13, pp. 346-348 ( Mar. 24, 2003 )). The change in water level was anticipated to (and did) completely destroy VANBRIMMER DITCH COMPANY’S source of water supply used for irrigation at the diversion point of Lower Klamath Lake. Id. Therefore, on November 6, 1909, VANBRIMMER DITCH COMPANY executed a water delivery and repayment contract with the United States under which the United States recognized VANBRIMMER DITCH COMPANY’S vested right to the use of fifty second feet of water for irrigation purposes from the water of Lower Klamath Lake and agreed to deliver to VANBRIMMER DITCH COMPANY “a quantity of water, not to exceed fifty second feet, in which the Company claims the right to the exclusive use to irrigate sufficiently” the lands within the boundaries of VANBRIMMER DITCH COMPANY, from the Klamath Project to VANBRIMMER DITCH COMPANY’S irrigation distribution system.” Pls. Findings of Fact ¶16 (citing VANBRIMMER DITCH COMPANY 1909 Contract at ¶¶2, 5, 15 (Pls.’ Amended Compl. App. at Ex. 13, pp. 346-348 ( Mar. 24, 2003 )). The United States agreed to pay the construction costs necessary to construct the facilities to deliver the water, however, VANBRIMMER DITCH COMPANY was responsible for operation and maintenance charges, which have been paid in full. Id. at ¶7, 11.

8. VANBRIMMER DITCH COMPANY is the only independent irrigation company, which receives its water from the Klamath Project. Its water rights to 50 cubic feet per second of water from the Klamath Project was never owned by the United States .

Pls.’ Ex. 20 at ¶¶ 7, 8, App. at 135.

12. The delivery of Klamath Project water is governed by contracts entered into pursuant to federal law between Reclamation and various individuals and irrigation districts and other entities organized under Oregon and California law. See Def. Ex. 3 (KP Historic Op. at 31-32); Def. Ex. 5 (KP Historic Op., Appendix C, pp. C-1 to C-2) (“The Klamath Project water users obtain their irrigation water supply from Project facilities pursuant to various contracts with Reclamation.”). See also Def. Ex. 1 (KBA Facts at 88-92) (describing contractual relationship between irrigators or irrigation districts and the United States ); See 1995 Reg. Sol. Mem. at 1 (Pls.’ Ex. 2, p. 40) (“The Klamath Project water users obtain their supply of water for irrigation purposes from the project facilities pursuant to various contracts with Reclamation. . . .”).

Plaintiffs Response: Plaintiffs agree that plaintiff districts entered into contracts with Reclamation for the delivery of water in accordance with plaintiffs’ appurtenant water rights, established under state and federal law. Those water rights, which are property rights, see Ickes v. Fox, 300 U.S. 82 (1937), Nevada v. United States, 463 U.S. 110 (1983), and Nebraska v. Wyoming, 325 U.S. 589 (1945), exist independently of whether or not the contracts exist, and are not altered or governed in any way by those contracts. Rather, the way in which defendant has chosen to deliver to plaintiffs the water to which they are entitled under state and federal law is through the delivery contracts, much as one might arrange with a freight carrier or pipeline company to deliver a product which has been bought and paid for. Such a delivery contract does not govern the property rights of the owner, but merely prescribes the method and terms of shipment.

13. All but one of the irrigation districts named as plaintiffs in this case have contracts with Reclamation for the delivery of Project water. See Amended Compl., Exs. 1-14.

Plaintiffs’ Response: Plaintiffs do not dispute that Klamath Irrigation District, Klamath Drainage District, Tulelake Irrigation District, Klamath Basin Improvement District, Enterprise Irrigation District, Malin Irrigation District, Midland District Improvement Company, Pine Grove Irrigation District, Poe Valley Improvement District, Shasta View Irrigation District, Sunnyside Irrigation District, Westside Improvement District, and VANBRIMMER DITCH COMPANY have contracts with reclamation for the delivery of water, pursuant to Section 9(d) of the Reclamation Act.

14. Reclamation entered into contracts with plaintiff Klamath Irrigation District pursuant to Section 9(d) of the Reclamation Act of 1939, 43 U.S.C. § 485h(d). Reclamation entered into contracts with plaintiff Tulelake Irrigation District under Section 7 of that same 1939 Act. See Def. Ex. 5 (KP Historic Op., Appendix C, p. C-1); Amended Compl., Exs. 1-2.

Plaintiffs’ Response: Plaintiffs agree that Klamath Irrigation District’s and Tulelake Irrigation District’s contracts with Reclamation are Section 9(d) contracts (repayment contracts), not Section 9(e) contracts (executory water-service contracts such as those in Del Puerto Water District v. United States Bureau of Reclamation, 271 F. Supp.2d 1224 (E.D. Cal. 2003) and Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 849 F. Supp. 717, 731 (E.D. Cal. 1993)). However, plaintiffs disagree that these contracts were first entered into pursuant to the Reclamation Act of 1939. For example, Klamath Irrigation District assumed Klamath Water Users Associations’ 1905 contract with Reclamation on July 6, 1918 , which has been amended over the years. See KID Contract (July 6, 1918), Pls.’ Amended Compl. App. at Ex. 1 at 2. Moreover, Tulelake Irrigation District entered into a contract with Reclamation on September 10, 1956, pursuant to the 1902 Reclamation Act and “acts amendatory thereof and supplementary thereto, particularly the Act of August 1, 1956 (Public Law 877, 84^th Congress, 2nd Session). See Pls.’ Amended Compl. App. at Ex. 2 at 40.

15. Reclamation entered into contracts with plaintiffs Klamath Drainage District, Sunnyside Irrigation District, Klamath Basin Improvement District, Malin Irrigation District, Westside Improvement District No. 4 (Colonial Realty Co.), Shasta View Irrigation District, Poe Valley Improvement District, Midland District Improvement Co., Enterprise Irrigation District, and Pine Grove Irrigation District pursuant to Section 2 of the Warren Act of 1911, 43 U.S.C. § 524. See Def. Ex. 4 (KP Historic Op., Appendix B, at B-2 to B-3); Def. Ex. 5 (KP Historic Op., Appendix C, at C-2). Copies of these contracts are attached to Plaintiffs’ Amended Complaint as Exhibits 3–14. See also Def. Ex. 1 (KBA Facts at 87-140).

Plaintiffs’ Response: Plaintiffs agree that Reclamation entered into contracts with Klamath Drainage District, Poe Valley Improvement District, Enterprise Irrigation District, Pine Grove Irrigation District, and Midland District Improvement Company pursuant to Section 2 of the Warren Act of 1911, 43 U.S.C.§ 524. Plaintiffs agree that Reclamation entered into contracts with Shasta View Irrigation District, Malin Irrigation District, Sunnyside Irrigation District, Klamath Basin Improvement District, and Westside Improvement District pursuant to the Warren Act of 1911, however, the contracts do not specify the section of the Warren Act. Moreover, Klamath Basin Improvement District’s contract was also entered into pursuant to the Small Reclamation Projects Act of 1956.

16. None of the individual plaintiffs named in this case have contracts with the United States for delivery of Project water. See Amended Compl., Exhibits 1-14. All of the individual plaintiffs named in this case receive water from one of the districts with such a contract. Id. ; Amended Compl., ¶¶ 16-23, 45.

Plaintiffs’ Response: Plaintiffs agree that Fred A. Robison, Albert J. Robison, Lonny E. Baley, Mark R. Trotman, Baley Trotman Farms, James L. Moore, Cheryl L. Moore, Deloris D. Chin, Daniel G. Chin, Wong Potatoes, Inc., Michael J. Byrne, and Daniel W. Bryne do not have individual contracts with the United States for delivery of Project water. However, some of the individual class plaintiffs represented in this case may have individual contracts with Reclamation for the delivery of project water. Plaintiffs agree that water is delivered to most plaintiffs, in accordance with their appurtenant water rights, through water delivery contracts between the districts and defendant.

17. Under the plaintiff irrigation districts’ contracts with Reclamation, the districts receive deliveries of water from the Project and in return are obligated to pay a proportionate share of the Project’s initial construction and annual operation and maintenance costs. See 43 U.S.C. § 485h(d); 43 U.S.C. § 524. See also Def. Ex. 1 (KBA facts at 86-87); Amended Compl. Exs. 1-14.

Plaintiffs’ Response: Plaintiffs dispute this proposed finding of fact. Plaintiffs have paid to Reclamation all of the outstanding construction costs of the Klamath Project, not just a portion.

18. The irrigation districts’ contracts with Reclamation generally specify an acreage for which water is to be delivered, but do not specify a particular quantity of water to be delivered, relying instead on the fundamental principle of beneficial use to determine the limit of the contractual entitlement. See Def. Ex. 5 (KP Historic Op., Appendix. C, at C-1); Amended Compl., Exhibits 1-14. See also Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 372.

Plaintiffs’ Response: Under state and federal law, plaintiffs have appurtenant water rights for all the water they can beneficially use. See Ickes v. Fox, 300 U.S. 82, 94-96 (1937) (“Under the Reclamation Act, supra, as well as under the law of Washington , ‘beneficial use’ was ‘the basis, the measure, and the limit of the right.’”). Defendant has chosen to deliver plaintiffs’ appurtenant water to them through contracts with districts, which generally provide beneficial use as the basis, the measure and the limit of the right. Even where contracts provide for delivery of a specified quantity, e.g., Sunnyside Irrigation District Contract at ¶ 5 ( Oct. 24, 1922 ), Pls.’ Amended Compl. App. at Ex. 5 at 159, and Malin Irrigation District Contract at ¶ 7 ( Sept. 9, 1922 ), Pls.’ Amended Compl. App. at Ex. 8 at 232 (both providing “[t]he water so delivered shall not exceed . . . two acre-feet per acre of irrigable land during the usual irrigation season as established on the Klamath project . . . .”), those contract provisions do not govern or limit plaintiffs’ right to receive all the water they can beneficially use. See Ickes v. Fox, 300 U.S. 82 (1937).

19. Most of the irrigation districts’ contracts with Reclamation provide that the water is to be delivered only during the normal irrigation season, which in most of the contracts is defined as April 15 to September 30. See, e.g., Amended Compl., Ex. 3 (Contract between Klamath Irrigation Dist. and U.S. , at ¶ 14(a)); Amended Compl., Ex. 5 (Contract Between Sunnyside Irrigation Dist and U.S. at ¶ 5). See also Def. Ex. 3 (KP Historic Op. at 31-33); Def. Ex. 5 (KP Historic Op., Appendix. C, at C-1 to C-3).

Plaintiffs’ Response: Plaintiffs agree that some of the plaintiff districts’ contracts with Reclamation state: “The water so delivered shall not exceed . . . two acre-feet per acre of irrigable land during the usual irrigation season as established on the Klamath project, being approximately that period from April 15 to September 30, inclusive, of each year . . . .” See, e.g., Sunnyside Irrigation District Contract at ¶ 5 ( Oct. 24, 1922 ), Pls.’ Amended Compl. App. at Ex. 5 at 159; Malin Irrigation District Contract at ¶ 7 ( Sept. 9, 1922 ), Pls.’ Amended Compl. App. at Ex. 8 at 232. However, no provision states that the water is to be delivered only during the normal irrigation season. Moreover, even where there are specified “seasons” contracts, use is allowed outside that season as well. In fact, some plaintiffs pre-irrigate their crops. Moreover, other contracts, such as Tulelake Irrigation District’s contract that covers a large percentage of the plaintiffs land in this case, does not mention dates of delivery. In any event, regardless of what the contract may say, beneficial use is the measure and limit of the right to receive contract water. Reclamation Act of 1902, ch. 1093 § 8, 32 Stat. 388 (1902) (amended and codified in 43 U.S.C. § 372 (2003) (“Provided 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.”).

20. The contract between the United States and the Klamath Irrigation District (“KID”) includes the following provision:

On account of drought or other causes, there may occur at times a shortage in the quantity of water available in Project reservoirs and, while the United States will use all reasonable means to guard against such shortage, in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom and the payments to the United States provided for herein shall not be reduced because of any such shortages.

KID Contract, Art. 26, Nov. 29, 1954 (Amended Compl., Ex. 1) (excerpt also included as Def. Ex. 6).

Plaintiffs’ Response: Plaintiffs agree that the contract between Reclamation and KID contains this provision. However, this provision does not apply to 2001 circumstances, where water was available and the government did not use “reasonable means.” First, Reclamation has not duty to consult on a non-discretionary action. As the government has argued before the Tenth Circuit, the water delivery contracts create a legal obligation for the government to deliver the water to the users, and the Endangered Species Act (ESA) creates no legal authority to divert or retain that water for the benefit of the fish. See Brief for Federal Appellants at 16-17, Rio Grande Silvery Minnow v. John W. Keys, III, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (Sept. 23, 2002), Pls.’ Ex. 38, Supp. App. at 269-274. Therefore, this provision does not apply to shortages created by Reclamations compliance with the Endangered Species Act. As argued by the government:

Id. Again, the government in its petition for rehearing in Rio Grande Silvery Minnow v. Keys argues exactly the opposite of what defendant argues here:

Federal Appellants Petition for Rehearing at 7-8, Rio Grande Silvery Minnow v. Keys, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (10th Cir. Nov. 19, 2002) (citations omitted), Pls.’ Ex. 42, Supp. App. at 283-285.

Second, the reasonable and prudent alternatives imposed did not help the endangered fish. See generally Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research Council, National Academies, Endangered and Threatened Fishes in the Klamath River Basin: Causes of Decline and Strategies for Recovery, Summary at 6 (2003), available at http://www.nap.edu /catalog/10838.html (“There is no evidence of a causal connection between water level and water quality or fish mortality over the broad operating range in the 1990s, the period for which the most complete data are available for Upper Klamath Lake. Neither mass mortality of fish nor extremes of poor water quality shows any detectable relationship to water level.”), attached as Pls.’ Ex. 37, Supp. App. at 261.

21. Seven of the other contracts at issue in this case contain either the same or a substantially similar shortage provisions as the one found in the KID Contract. These seven contracts are Reclamation’s contracts with: Tulelake Irrigation Dist. (Art. 26) (1956-A), Klamath Drainage Dist. (Art. 24 modified) (1917:1943-B), Sunnyside Irrigation District (Art. 9) (1922-B), Klamath Basin Improvement Dis. (Art. 4 modified) (1962-B), Malin Irrigation Dist. (Art. 11) (1922-B), Westside Improvement Dist. No. 4 (Colonial Realty Co.) (Art. 13) (1936-B), and Shasta View Irrigation Dist. (Art. 18 modified) (1922:1948-B). See Def. Exs. 7-8, 10-11, 13, 16-17 (excerpts from these contracts); see also Amended Compl. Exs. 2, 3, 5, 6, 8, 11, and 12 (full contracts).

Plaintiffs’ Response: Plaintiffs object to this proposed finding as irrelevant because this provision does not apply to 2001 circumstances, where water was available and the government did not use “reasonable means.” However, plaintiffs agree that these contracts contain the same shortage provision (two words differ in Tulelake Irrigation District’s contract). Plaintiffs note that the first phrase of these provisions make clear that the causes of the water shortage contemplated must be either acts of God or other accidental causes, not causes directly attributable to actions of the defendant. See Response to Proposed Finding 20 above.

22. The contract between the United States and plaintiff Enterprise Irrigation District includes the following provision:

The United States shall not be liable for failure to supply water under this contract caused by hostile diversion, unusual drought, interruption of service made necessary by repairs, damages caused by floods, unlawful acts or unavoidable accidents.

Enterprise Irrigation Dist. Contract, Art. 10, Oct. 5, 1920 (Amended Compl., Ex. 9) (relevant excerpt also included as Def. Ex. 14).

Plaintiffs’ Response: Plaintiffs object to this proposed finding as irrelevant because this provision does not apply to 2001 circumstances, where water was available and the government did not use “reasonable means.” Plaintiffs further object to this findings as irrelevant because this provision does not apply to 2001 circumstances, there was no “hostile diversions, unusual drought, etc. See also Response to Propsosed Finding 20 & 21 above. However, plaintiffs agree that the contract contains this provision.

23. There are three other plaintiffs districts with contracts language similar to that found in the Enterprise Irrigation District contract, as quoted above in Proposed Finding No. 22. These contracts are: Poe Valley Improvement Dist. (Art. 11) (1953-B), Midland Dist. Improvement Co. (Art. 5) (1952-B), and Pine Grove Irrigation Dist. (Art. 10) (1918-B). See Def. Exs. 9, 12 and 15; see also Amended Compl., Exs. 4, 7, and 10. The Poe Valley and Midland contracts do not include the word “unusual” before “drought.” Id.

Plaintiffs’ Response: Plaintiffs do not dispute that the contract language identical, except that Poe Valley Improvement District’s and Midland Irrigation District’s contracts do not include the word “unusual” before “drought.” However, see Response to Proposed Findings 20 through 22 above.

24. One of the plaintiff irrigation companies, Van Brimmer, has a contract with Reclamation that does not have a water shortage provision. In this contract, Van Brimmer waived and renounced all of its riparian rights and the United States recognized that Van Brimmer has a contractual right to the perpetual use of a specified quantity of water (50 cfs), subject to any prior right other than one claimed by the United States. See Amended Compl., Ex. 13; Def. Ex. 1 (KBA Facts at 59-61). See also Def.’s Proposed Fact No. 11.

Plaintiffs’ Response: Plaintiffs agree that VAN BRIMMER DITCH COMPANY’s contract with Reclamation does not have a water shortage provision. Plaintiffs dispute the second sentence, however, because the contract contains no provision stating that VAN BRIMMER DITCH COMPANY’S right is a contract right. As stated in the declaration of Gary Orem:

25. The “water rights applications” filed by some private landowners or homesteaders with Reclamation are contracts for the delivery of Project water. See Pls.’ Ex. 4-5 (copies of water rights applications); Def. Ex. 23 (“The water right application constitutes a contract between the United States and the applicant and gives the Government a lien upon the applicant’s land for non-payment of charges and also the right to withhold water until the same are paid.”).

Plaintiffs’ Response: Plaintiffs dispute this finding. The water rights applications clearly provide that “application is hereby made to the United States . . . for a permanent water right for the irrigation of and to be appurtenant to all of the irrigable area now or hereunder developed under the above-named [Klamath] project within the tract of land described . . . .” Pls. Ex. 4, at ¶1, App. 52; see also Pls. Ex. 5, at ¶1, App. 53 (I, . . . do hereby apply . . . for a water right for the irrigation of and to be appurtenant to . . . acres of irrigable land . . . .”). In fact, the regulations in effect at the time of those conveyances stated unambiguously that the “patent in each of such cases carries with it the water right to which the lands patented are entitled.” 43 C.F.R. § 230.59 (1993); see also 43 C.F.R. § 230.70 (1993) (Plaintiffs’ beneficial interest defined as “a vested right . . . allowing the continued flowing of the water covered by the right through the works constructed by the Government under appropriate regulations and charges,” attached as Pls.’ Ex. 34, Supp. App. at 244-246.

Moreover, the second page of defendant’s exhibit 23 does not appear to belong to the first page. The document has numbered paragraphs and skips from number 3 to number 4. Plaintiffs request that defendant provide to the Court and plaintiffs a complete copy of both documents.

26. The “Application for Permanent Water Right,” Form A, attached to Plaintiffs’ Memorandum at Ex. 4, is an example of the applications filed by homesteaders within what is now Tulelake Irrigation District. This Form A application limits the applicants’ water supply to that which is “actually available,” and includes a shortage provision that uses the “other cause” language similar to that found in many of the irrigation districts’ contracts with Reclamation. See Pls.’ Ex. 4 at 52 (¶3); Def.’s Proposed Finding of Fact Nos. 20–21.

Plaintiffs’ Response: Plaintiffs object to this findings as irrelevant because this provision does not apply to 2001 circumstances, where there was no shortage of water. See Pls.’ Ex. 8, at ¶ 14, App. at 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). However, plaintiffs state that the “Application for Permanent Water Right,” Form A provides:

Form A, Application for Permanent Water Right at ¶3, Pls.’ Ex. 4, App. at 52. Moreover, this provision does not apply to shortages created by Reclamations compliance with the Endangered Species Act. See Response to Proposed Finding 20 (discussing Silvery Minnow).

27. The “Water-Right Application for Lands in Private Ownership,” Form B, attached to Plaintiffs’ Memorandum at Ex. 5, is an example of the applications filed by existing landowners within the Project. See Def. Ex. 1 (KBA Facts at 89) (“Each such land owner desiring to receive water through Project facilities also entered into a Water-Right Application for Land in Private Ownership with the Department of the Interior, agreeing to pay that land owner’s pro rata share of the costs of construction and operation of the Klamath Project facilities.”). This Form B application limits the applicants’ water supply to that which is “actually available.” Pls.’ Ex. 5 at 53 (¶ 2).

Plaintiffs’ Response: Plaintiffs object to this findings as irrelevant because this provision does not apply to 2001 circumstances, where there was no shortage of water. See Pls.’ Ex. 8, at ¶ 14, App. at 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). However, plaintiffs agree that the “Water-Right Application for Lands in Private Ownership,” Form B states:

Form B, Water-Right Application for Lands in Private Ownership and Lands Other than Homesteads Under the Reclamation Act at ¶2, Pls.’ Ex. 5, App. at 53.

28. The Klamath Basin suffered a severe drought in 2001. On March 28, 2001 , the Governor of Oregon declared a drought emergency for the Klamath Basin . See Def. Ex. 28 (Governor’s Press Release); see also http://www.usbr.gov/mp/kbao/.

Plaintiffs’ Response: Plaintiffs object to this finding as irrelevant because water was available in 2001. See Pls.’ Ex. 8, at ¶ 14, App. at 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). Moreover, the governor’s declaration of a drought emergency in the Klamath Basin has nothing to do with plaintiffs’ water right or the availability of water.

29. Unlike federal reclamation projects elsewhere in the arid West, the Klamath Project does not have a major water storage reservoir backed up behind a large dam. The Upper Klamath Lake (“UKL”), which is the principal water supply feature of the Project, is relatively shallow, and its 1917 dam is too small to capture and store large quantities of spring run-off. Def. Ex. 3 (KP Historic Op. at 30); Pacific Coast Federation of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1231 (N.D. Cal. 2001). See also Pls.’ Proposed Finding of Fact No. 3; Def. Ex. 22 (Lesley Decl. ¶¶ 2-3).

Plaintiffs’ Response: Plaintiffs object to this finding as irrelevant because water was available in 2001. See Pls.’ Ex. 8, at ¶ 14, App. at 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). Moreover, this finding is inaccurate. See Pls. Ex. 8, at ¶9-10, App. 63-64.

30. Reclamation’s obligations in managing and operating the Klamath Project pending completion of the Adjudication are discussed in a 1997 memorandum from two Department of the Interior Regional Solicitors’ offices. See Pls.’ Ex. 28. This 1997 memorandum “reaffirms long-standing positions of the United States regarding management of water projects for irrigation, wildlife protection, and Indian rights, and builds on the July 25, 1995 , memorandum from the Regional Solicitor, Pacific Southwest Region, to the Regional Director, Bureau of Reclamation, Mid-Pacific Region (July 25 memorandum).” 1997 Reg. Solicitor’s Memo. at 2 (Pls.’ Ex. 28). The 1997 memorandum describes Reclamation’s obligations in managing and operating the Klamath Project as follows:

[p]ending completion of the adjudication, Reclamation is authorized and obligated to manage and operate the Klamath Project consistent with all of Reclamation’s responsibilities and obligations concerning senior water rights, tribal trust resources, Project water users’ contractual rights, the Endangered Species Act and other requirements mandated by law and within the authority of the Secretary. These obligations may be clarified or otherwise affected by the pending adjudication; however, Reclamation will continue to have authority to manage and operate the Project consistent with its obligations after completion of the adjudication.

Plaintiffs’ Response: Plaintiffs agree that this is an accurate quotation from the 1997 Regional Solicitor’s memorandum. Plaintiff further note this 1997 Regional Solicitor’s memorandum provides comments on a letter from Stephen Sanders, Assistant Attorney General, Natural Resources section, to Martha Pagel, Director, Oregon Water Resources Department (OWRD), dated March 18, 1996, which stated:

Id. at 8, Pls. Ex. 43, Supp. App. 286. This 1997 Region Solicitors memorandum marks a decided change of position from Interior Solicitor Tarr’s 1989 opinion, discussing the reclamation projects, where he underscored that Reclamation’s title to Project water does not give it the right to divert water to non-project uses but, to the contrary, is imposed with the legal obligation to deliver that water to project water users, such as plaintiffs. See Interior Solicitor Op. at 28, 1989 I.D. LEXIS 101 at *20-21. Moreover, the defendant has recently taken this same position in a Tenth Circuit case, Rio Grande Silvery Minnow v. Keys. See Response to Proposed Finding 20 above.

31. The 1995 Regional Solicitor’s memorandum that is referenced in the 1997 memorandum cited in Proposed Finding No. 30 also discusses Reclamation’s obligations with respect to Klamath Project water users, the wildlife refuges, the tribes, and under the Endangered Species Act (“ESA”). See 1995 Reg. Solicitor’s Mem. at 7-9 (Pls.’ Ex. 2 at 46-48). With respect to the rights of the Klamath Project water users, the 1995 memorandum states that the users’ rights are “subject to the availability of water.” Id. at 7 (Pls.’ Ex. 2 at 46). The 1995 memorandum further explains that:

[w]ater would not be available, for example, due to drought, a need to forego diversions to satisfy prior existing rights, or compliance with other federal laws such as the Endangered Species Act. Water lawfully stored in the project’s reservoirs can be used for domestic and irrigation purposes to the extent the water is applied to beneficial use within the project. Reclamation cannot store or divert water for project purposes that is needed to satisfy prior existing rights.

Plaintiffs’ Response: Plaintiffs agree that this is an accurate quotation. However, plaintiffs dispute the contention that water was not available for delivery in 2001. See Pls. Ex. 8, at ¶14, App. 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). Moreover, as defendant itself has admitted “the shortage provisions do not give Reclamation the right to create a shortage by making releases of water for purposes of avoiding jeopardy to an endangered species.” Pls.’ Ex. 38, Supp. App. at 272. See Response to Finding 20 above.

32. The 1995 memorandum also states that “Reclamation is obligated to ensure that project operations not interfere with the Tribes’ senior water rights. This is dictated by the doctrine of prior appropriation as well as Reclamation’s trust responsibility to protect tribal trust resources.” 1995 Reg. Sol. Memorandum at 8 (Pls.’ Ex. 2 at 47).

Plaintiffs’ Response: Plaintiffs agree that this is an accurate quote. However, plaintiffs dispute the contention that water was not available for delivery in 2001. See Pls. Ex. 8, at ¶14, App. 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”).

Further, as was held by the Supreme Court in Nevada v. United States, the government’s duty to the Indian tribes does not relieve the government of its duty under the Reclamation Act:

33. Pending the outcome of the Adjudication, Reclamation has established a “Priority and Execution Plan for Administration of Water Rights and Water Delivery on the Klamath Project in the Event of a Drought.” See Def. Ex. 4 (Drought Plan, KP Historic Op., Appendix B). In the event of a drought, this plan provides that the limited supply of Project water would be allocated on a priority basis according to the existing contracts:

[o]ne of the key themes in any prioritization of water rights on the Project is that [Reclamation] claim[s] a 1905 right for all Project lands regardless of the type of contract that the water users may have. However, within the Project we can prioritize use by date of contract and type of contract.

Plaintiffs’ Response: This finding is irrelevant since there was enough water for all Klamath Project landowners in 2001. See Pls.’ Ex. 8, at ¶ 14, App. at 65 (“Throughout the 2001 irrigation season, Upper Klamath Lake contained large quantities of water that should have been released to Klamath Project water users.”). The validity of the “Priority and Execution” plan is not ripe and thus, plaintiffs can make no concession as to its validity.

34. Under Oregon state law, “[a]ll water within the State of Oregon from all sources of water supply belongs to the public.” Rencken v. Young, 711 P.2d 954, 960 (Or. 1985) (citing ORS § 537.110). See also Oregon ’s Amicus Curiae Brief (July 30, 2002) at 10. Although persons can acquire a right to such water under a state’s prior appropriation system, such rights are rights to the use of water, or usufructuary rights, not rights of ownership of the water itself. Rencken, 711 P.2d at 960 n. 9.

Plaintiffs’ Response: Plaintiffs agree to this proposition of law (although note that a conclusion of law is improper in proposed findings of fact), and further assert that under Oregon law, all rights to the use of water are appurtenant to the land. See Or. Rev. Stat. § 540.510 (2001) (“[A]ll water used in this state for any purpose shall remain appurtenant to the premises upon which it is used and no change in use or place of use of any water for any purpose may be made . . . .”); Dill v. Killip, 147 P.2d 896, 898 (Or. 1944) (“‘A water-right is incidental or appurtenant to land when by right used with the land for its benefit.”) (quoting 1 Wiel on Water Rights in the Western States 587, § 550 (3rd ed.)); In Re Water Rights of Deschutes River and Tributaries, 286 P. 563, 574 (Or. 1930) (“Water for irrigation purposes is appurtenant to the land for which it is appropriated and applied.”).

35. Three tribes in the Klamath River basin – the Klamath, Yurok, and Hoopa Valley Tribes – have treaty-based or otherwise federally reserved fishing and water rights that are “senior” in priority to the Klamath Project water rights (whether those rights are controlled by the United States or by the plaintiffs) under Oregon’s prior appropriation system. See, e.g., Pacific Coast Federation of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1231 n.3 (N.D. Cal. 2001). See also Pls.’ Ex. 2 at 43-47; Pls.’ Ex. 28 at 210-15.

Plaintiffs’ Response: This finding is irrelevant to the issue of whether plaintiffs have a property right, which is the only issue to be addressed in the present summary judgment motions; thus, plaintiffs need not respond. Moreover, plaintiffs dispute this proposed findings because claims on behalf of the Klamath Tribes have also been filed in the Klamath Basin Adjudication. See Summary Report of Bureau of Indian Affairs Claims at http://www.wrd.state.or.us/publication/pdfs/kba_v.pdf (last visited Oct. 17, 2003 ). And, their priority has yet to be determined.

36. The Klamath Tribes have an implied water right with a priority date of time immemorial to support their right to hunt, gather, and fish that was guaranteed by an 1864 treaty. United States v. Adair, 723 F.2d 1394, 1408-15 (9^th Cir. 1983), cert. denied sub nom, Oregon v. United States, 467 U.S. 1252 (1984). The Klamath Tribes’ water right also includes “the right to prevent other appropriators from depleting the streams[’] waters below a protected level in any area where the non-consumptive right applies.” Adair, 723 F.2d at 1411. The Klamath Project water rights are subordinate to these tribal water rights, and that Reclamation must operate the Klamath Project consistent with these tribal rights. See Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1214 (9th Cir.), opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000), cert. denied, 531 U.S. 812 (2000).

Plaintiffs’ Response: This finding is irrelevant to the issue of whether plaintiffs have a property right, which is the only issue to be addressed in the present summary judgment motions; thus, plaintiffs need not respond. Also, plaintiffs note that this finding amounts to a conclusion of law, which is improper in proposed findings of fact. Moreover, plaintiffs dispute this proposed findings because claims on behalf of the Klamath Tribes have also been filed in the Klamath Basin Adjudication. See Summary Report of Bureau of Indian Affairs Claims at http://www.wrd.state.or.us/publication/pdfs/kba_v.pdf (last visited Oct. 17, 2003 ). And, their priority has yet to be determined.

37. The Yurok and Hoopa Tribes in California also hold rights to take fish within their reservations through a series of nineteenth century executive orders and as confirmed to them by the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. § 1300i, et seq. See United States v. Eberhardt, 789 F.2d 1354, 1359 (9^th Cir. 1986); Parravano v. Babbitt, 70 F.3d 539, 547 (9^th Cir. 1995), cert. denied, 518

U.S.

1016 (1996). Although there currently is no process pending to quantify the water rights of the Yurok and Hoopa Valley Tribes, Reclamation must operate the Klamath Project in a way that does not interfere with these senior tribal fishing rights. See, e.g., Kittitas Reclamation Dist. v. United States, 763 F.2d 1032 (9^th Cir. 1985), cert. denied, 474

U.S.

1032 (1985) (district court did not abuse its discretion in ordering Reclamation to make water available to protect treaty-based rights).

38. There are also other claimants in the Adjudication who may have priority dates senior to the Project water rights claimed by Reclamation and by plaintiffs. See Ex. 14 to Def.’s Reply Brief in Support of Mot. to Stay at ¶¶ 6-9 (Declaration of David W. Harder).

Plaintiffs’ Response: This finding is irrelevant to the issue of whether plaintiffs have a property right, which is the only issue to be addressed in the present summary judgment motions; thus, plaintiffs need not respond. Moreover, the priority and extent of any such water rights, if they exist, has yet to be determined in the Klamath Basin Adjudication. Moreover, as defendant itself has stated:

Memorandum from Regional Solicitor, Pacific Southwest Region to Regional Director, Bureau of Reclamation, Mid-Pacific Region at 7 ( July 25, 1995 ), Pls.’ Ex. 2, App. at 40.

39. The Klamath River Basin Compact (“Compact”) is a 1957 agreement entered into between the states of Oregon and California , and ratified by the United States Congress. Pls.’ Ex. 1, pp. 30-33.

Plaintiffs’ Response: Plaintiffs dispute this proposed finding of fact. The Klamath River Basin Compact is more than agreement; it is a United States statute, and also has the status of statute under Oregon and California law. See New Jersey v. New York , 523 U.S. 767, 811 (1998) (“Indeed, congressional consent “transforms an interstate compact within [the Compact] Clause into a law of the United States.”); see also Or. Rev. Stat. § 542.610 (2001) (“The Legislative Assembly of the State of Oregon hereby ratifies the Klamath River Basin Compact set forth in ORS 542.620, and the provisions of such compact hereby are declared to be the law of this state . . . .”); Cal. Water Code § 5900 (2003) (“[T]he provisions of said compact shall become the law of this State. . . .”).

To facilitate and promote the orderly, integrated and comprehensive development, use, conservation and control [of the water resources of the Klamath River Basin] for various purposes, including, among others: the use of water for domestic purposes; the development of lands by irrigation and other means; the protection and enhancement of fish, wildlife and recreational resources; the use of water for industrial purposes and hydroelectric power production; and the use and control of water for navigation and flood prevention.

Plaintiffs’ Response: The Klamath River Basin Compact speaks for itself. There were certainly other purposes for entering into the Compact, including protection of vested rights in the Klamath Project against possible transfer of water, and payment of just compensation for water rights so taken. See Pls.’ Ex. 1 at art. I, App. at 33.

41. Article III of the Compact is captioned “Distribution and Use of Water.” Pls.’ Ex. 1 at 34. Under Article III, the Compact distinguishes between water rights established before the Compact, and rights that might be established to any unappropriated waters originating within the Upper Klamath River Basin after the effective date of the Compact. With respect to pre-Compact water rights, Article III states that,

[t]here are hereby recognized vested rights to the use of waters originating in the Upper Klamath River Basin validly established and subsisting as of the effective date of this compact under the laws of the state in which the use or diversion is made, including rights to the use of waters for domestic and irrigation uses within the Klamath Project. There are also hereby recognized rights to the use of all waters reasonably required for domestic and irrigation uses which may hereafter be made within the Klamath Project.

Id. at 34 (Compact, Art. III.A.). Although this provision recognizes “vested” water rights that were “validly established and subsisting” under applicable state law as of the effective date of the Compact, it does not further define such rights nor does it attempt to identify who holds such rights. Id.

Plaintiffs’ Response: Plaintiffs object that this finding is a legal argument rather than a proposed finding of fact. Plaintiffs admit the accuracy of the quotation from the Compact. However, plaintiffs dispute the defendant’s interpretation of this Compact language. Defendant fails to offer a suggestion as to who might own the Congressionally recognized “rights to the use of waters for domestic and irrigation uses within the Klamath Project” other than landowners who live on and irrigate Klamath Project lands. The only reasonable construction of this statute is that plaintiffs are the owners of those vested rights. Defendant is clearly not the owner of those water rights, since the compact obligates defendant’s to pay just compensation to the owner, if it impairs those water rights. See Klamath River Basin Compact, art. XIII(B)(2), Pls.’ Ex. 1, App. at 30.

42. The Compact expressly acknowledges the existence and status of Indian water rights, and provides that nothing in the Compact shall be deemed to affect adversely such rights. Compact, Art. X (Pls.’ Ex. 1, p. 38).

Plaintiffs’ Response: The Compact speaks for itself concerning Indian rights. Plaintiffs object, however, that any such provision of the compact is irrelevant to the issue before this Court: Whether plaintiffs possess a property right? The Indian tribes may well possess some rights, and plaintiffs would still also possess their property rights in Klamath Project water.

43. The Compact also expressly recognizes federal rights in and to the waters of the Klamath River Basin, stating that nothing in the Compact shall be deemed to, inter alia,

impair or affect any rights, powers or jurisdictions of the United States, its agencies or those acting by or under its authority, in, over and to the waters of the Klamath River Basin, nor to impair or affect the capacity of the United States, its agencies or those acting by or under its authority in any manner whatsoever, except as otherwise provided by the federal legislation enacted for the implementation of this compact as specified in Article XIII.

Plaintiffs’ Response: Plaintiffs dispute that the Compact states that the United States has any recognized vested rights in the water; it merely states that if the United States has any rights, powers or jurisdictions, they are not intended to be impaired. Further, this finding is irrelevant to the issue of whether plaintiffs have a property right, which is the only issue to be addressed in the present summary judgment motions.

44. The Biological Assessment, dated Feb. 25, 2002 , expressly references certain limitations on plaintiffs’ beneficial interest relating to compliance with the Endangered Species Act and tribal trust responsibilities. See Feb. 25, 2002 Biological Assessment at 4 (citing Klamath Water Users v. Patterson, 204 F.3d 1206 (9^th Cir. 2000), and Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001)).

Plaintiffs’ Response: This finding is irrelevant to the issue of whether plaintiffs have a property right, which is the only issue to be addressed in the present summary judgment motions. Furthermore, the 2002 Biological Assessment speaks for itself. Moreover, as defendant itself has stated to the Tenth Circuit “the ESA does not by itself provide Reclamation with discretion to deliver less than the full contracted amount of water to contractors.” Pls.’ Ex. 38, Supp. App. at 272.

45. KDD holds a permit to appropriate water from the Klamath River that was issued by the State of Oregon . See Pls.’ Ex. 10, pp. 89-90; Def. Ex. 25. However, the priority date of this permit is April 25, 1977, meaning that any rights granted by this permit are junior to certain senior tribal water rights (see Def.’s Brief, Section IV.C.4.), and to the Project water rights presumably held by the United States. See Pls.’ Ex. 10, p. 89; Def. Ex. 25. KDD’s rights under this permit are not “perfected” under Oregon law until the state issues a water rights certificate, which the state has not done. See Def.’s Resp. to Pls.’ Proposed Fact No. 14; Def. Ex. 24-25. The rights granted by this permit limit KDD’s use of water from the Klamath River to the “time between October 1 and March 1.” Pls.’ Ex. 10, p. 89. KDD had no right under this permit to receive water during the April to September irrigation season when the alleged taking in 2001 occurred. Id. This state issued permit doe not give KDD a contractual or other right to receive Klamath Project water. Id.

Plaintiffs Response: Plaintiffs agree that KDD holds a permit, issued by the State of Oregon , to appropriate water from the Klamath River . Plaintiffs further agree that the priority date of this permit is April 25, 1977 . However, Defendant’s statement that the rights granted by this permit limit KDD’s use of the water from the Klamath River to the “time between October 1 and March 1,” is incorrect and misleads this Court. The permit is for preirrigation and normal irrigation. In fact, the permit states:

Pls.’ Ex. 10, p. 90. This permit gives KDD the right to receive water from the Klamath River , and the defendant prohibited KDD’s from taking and using its water in 2001. See Pls.’ Ex. 10, at ¶14-16, App. 74-75; Pls. Ex. 8, at ¶15, App. 65.

Defendants also incorrectly states that KDD do not have “perfected” water rights because they have not been issued a water right certificate by OWRD. Once these plaintiffs obtained their permit to appropriate and put the water to beneficial use, as they have done, their water rights were perfected and vested. See Teel Irrigation Dist. v. Oregon Water Resources Dep’t, 919 P.2d 1172, 1174 (Or. 1996) (“The water right is perfected when the water actually is put fully to a beneficial use.”) (citing Janet C. Neuman, “ Oregon ,” 6 Waters and Water Rights, 704 (2d ed 1994)).

46. Klamath Hills District Improvement Company (“KHDIC”) has a permit from the State of Oregon to appropriate water from the Klamath River . Pls.’ Ex. 19, pp. 120-24; Def. Ex. 26. The priority date of the right granted to KHDIC by this permit is October 10, 1983 , making this “right” subordinate to both the senior tribal water rights and the senior Project rights that are at issue in the Adjudication and presumably held by the United States in this briefing. Pls.’ Ex. 19, p. 123; Def. Ex. 26. KHDIC’s rights under this permit are not yet “perfected” under state law because Oregon has not yet issued a water rights certificate to KHDIC. See Def’s Resp. to Pls.’ Proposed Fact No. 15; Def. Ex. 24. In years when there is a water shortage, all senior water rights must be satisfied before KHDIC has the right to divert and use any water under this permit, including the senior tribal water rights and the Project water rights. This state issued permit does not give KHDIC any contractual or other right to receive Klamath Project water. Pls.’ Ex. 19.

Plaintiffs’ Response: Plaintiffs agree that KHDIC holds a permit, issued by the State of Oregon , to appropriate water from the Klamath River . Plaintiffs further agree that the priority date of this permit is October 10, 1983 . This permit gives KHDIC the right to receive water from the Klamath River , and the defendant prohibited KDD’s from taking and using its water in 2001. See Pls. Ex. 19, at ¶ 4-5, App. 118. Plaintiffs dispute the remainder of this finding. because claims on behalf of the Klamath Tribes have also been filed in the Klamath Basin Adjudication. See Summary Report of Bureau of Indian Affairs Claims at http://www.wrd.state.or.us/publication/pdfs/kba_v.pdf (last visited Oct. 17, 2003 ). And, their priority has yet to be determined.