IN THE UNITED STATES
COURT OF FEDERAL CLAIMS
KLAMATH
IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
)
)
No. 01-591L
v.
)
)
Judge Francis Allegra
UNITED
STATES,
)
)
Defendant.
)
_____________________________________)
PLAINTIFFS’
MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL OR,
IN
THE ALTERNATIVE FOR ENTRY OF JUDGMENT UNDER RULE 54(B)
Plaintiffs respectfully move
this Court to amend its
Klamath Irrigation District v.
express findings required by 28
U.S.C. § 1292(d)(2), and to certify the Opinion for
interlocutory appeal, or, in the
alternative, to enter final judgment on the Plaintiffs’
takings claims under Rule 54(b)
of the Rules of the Court of Federal Claims (“RCFC”).
In Favell v. United
States, 22 Cl. Ct. 132 (1990), this Court identified the
following three factors that must
be present certify for an interlocutory appeal: 1) that the
order involves a controlling
question of law, 2) that a substantial ground for difference of
opinion concerning the question
exists, and 3) that an immediate appeal would materially
advance the disposition of the
litigation.
for appeal “while continuing to
find that its own resolution of that question was correct.”
Coast Fed. Bank v.
For reasons set forth fully
in the attached Memorandum, the Court’s August 31,
2005 Opinion presents issues that
meet the criteria set forth in 28 U.S.C. § 1292(d)(2).
This Court has acknowledged that
the question of whether Plaintiffs possess a
1
constitutionally protected
property right in the beneficial use of water from the Klamath
Project, and the effect of
Moreover, there is a substantial
ground for difference of opinion as there is also a conflict
in the Court of Federal Claims on
nature of water rights issue, and the proper
interpretation of the 1905
statute would be one of first impression for the Federal Circuit.
Indeed, the Federal Circuit may
wish to certify the statutory issue to the Oregon Supreme
Court for review. Finally,
certification of this issue will result in the material
advancement of the ultimate
termination of this litigation because an order reversing this
Court’s order may make further
proceedings on Plaintiffs’ contract claims unnecessary.
Accordingly, the Court should
amend its Opinion and certify the Opinion for
interlocutory appeal.
In the alternative,
Plaintiffs request that the Court enter final judgment, pursuant
to RCFC 54(b), with respect to
their claims for just compensation for their water rights
and just compensation for the
impairment of their water rights. RCFC 54(b) provides for
the “entry of a final judgment
as to one or more but fewer than all of the claims or parties
only upon an express
determination that there is no just reason for delay and upon
direction for the entry of
judgment.” RCFC 54(b). In this case, there is no just reason
why the Plaintiffs should have to
delay seeking review of the Court’s
Order, denying them relief on
their takings claims, while they await adjudication of the
remaining contract claims.
Respectfully
submitted,
2
_s/
Nancie G. Marzulla________
Nancie
G. Marzulla
Roger
J. Marzulla
MARZULLA
& MARZULLA
202-822-6760
202-822-6774
(fax)
Dated: