IN
THE UNITED STATES COURT OF FEDERAL CLAIMS
_____________________________________
)
KLAMATH
IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 01-591 L
)
UNITED STATES OF AMERICA
,
)
Judge Francis M. Allegra
)
Defendant.
)
______________________________________)
MEMORANDUM
IN SUPPORT OF PLAINTIFFS MOTION FOR
PARTIAL
SUMMARY JUDGMENT ON THE STANDING OF THE DISTRICTS
TO
BRING THESE CLAIMS ON BEHALF OF THEIR WATER USERS
Roger
J. Marzulla
Nancie
G. Marzulla
MARZULLA
& MARZULLA
1350 Connecticut Ave., N.W.
Suite
410
Washington
,
DC
20036
202-822-6760
202-822-6774
(facsimile)
Dated:
March 14, 2005
I
TABLE
OF CONTENTS
TABLE
OF
AUTHORITIES...................................................................
.......ii
QUESTION
PRESENTED..
................v
FACTUAL
AND PROCEDURAL
BACKGROUND............................................
..
.......
.2
ARGUMENT
..
....
3
I.
RCFC 17 Governs the Standing of the Districts in This
Case
...3
II. The Plaintiff Districts Have Standing Under RCFC 17 Because Their
Enabling
Statutes
Authorize Them to Bring Suit on Behalf of Their Water Users
,
....7
1.
Oregon Irrigation
Districts
7
2.
California Irrigation
Districts
8
3.
Oregon Drainage
District
..9
4.
Oregon Water Improvement
Districts
...9
5.
Oregon
Water
Corporations
10
III.
The Districts Also Have Standing as Trustees for Their Water
Users
.15
IV.
The Districts Further Have Associational Standing to Sue for Damages
Collectively
on Behalf of Their Members
..
..16
V.
The Districts Also Possess Parens Patriae Standing to Assert This
Claim
..
...17
CONCLUSION...............................................................................................
..
20
INDEX
TO APPENDIX AND EXHIBITS Page(s)
Ex.
A Transcript, Orff v.
United States
, No. 03-1566 (
S. Ct.
Feb. 23, 2005
)
.
....1-2
Ii
TABLE
OF AUTHORITIES
Cases
Page(s)
Aldridge
v.
United States
, 59 Fed. Cl. 387
(2004)
...5
Alfred
L. Snapp & Son, Inc. v.
Puerto Rico
, 458
U.S.
592
(1982)
...17-18
Allegheny
Intl, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416 (3d Cir.
1994)
..
..6
Butler
& Thompson Co. v. City of
Ashland
, 222 P. 346 (Or.
1924)
..7,
13
California
v. Fed. Power Commn, 296 F.2d 348 (D.C. Cir. 1961), revd on
other
grounds,
369 U.S. 482
(1962)
..
....
20
California
v.
United States
, 438
U.S.
645
(1978)
............
..19
Caviness
v. La Grande Irr.
Co.
, 119 P. 731 (Or.
1911)
..
.16
Cent.
Delta Water Agency v. State Water Res. Control Bd.,
21
Cal.Rptr.2d 453 (Cal. Ct. App.
1993)
.
...
12,
14
City
of
Chino
v.
Superior
Court
of
Orange
County
,
63
Cal.Rptr. 532 (Cal. Ct. App.
1967)
..
..
.12
Coachella
Valley County Water Dist. v. Stevens, 274 P. 538 (
Cal.
1929)
.10-11,
12
Guam
v. Fed. Mar. Commn, 329 F.2d 251 (D.C. Cir.
1964)
..
.
..19
Harney
Valley Irrigation Dist. v. Weittenhiller, 198 P. 1093 (Or.
1921)
..
12-13
H.F.
Allen Orchards v.
United States
, 749 F.2d 1571 (Fed Cir. 1984)
..
13
Hunt
v.
Washington
State
Apple Adver. Commn, 432
U.S.
333
(1977)
..
..16-17
Ivanhoe
Irrigation Dist. v. All Parties, 306 P.2d 824 (
Cal.
1957), revd on other
grounds,
357 U.S. 275
(1958)
..
...
.15
Kansas
v.
Colorado
, 533
U.S.
1
(2001)
...
.
..18
Lans
v. Digital Equip. Corp., 252 F.3d 1320 (Fed. Cir.
2001)
.
4
Marina
Mgmt. Servs., Inc. v. Vessel My Girls, 202 F.3d 315 (D.C. Cir.
2000)
..
...4
New York
v.
United States
, 331
U.S.
284
(1947)
...19
Iii
Orange
County Water Dist. v. City of
Riverside
, 343 P.2d 450
(Cal.
Ct.
App.1959)
...11-12,
14-15
Oregon
Const. Co. v. Allen Ditch Co., 69 P. 455 (Or.
1902)
13
Pennsylvania
by Shapp v. Kleppe, 533 F.2d 668 (D.C. Cir.
1976)
18
Phillips
Petroleum Co. v.
Wisconsin
, 347
U.S.
672
(1954)
...19
Prevor-Mayorsohn
Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc.,
620
F.2d 1 (1st Cir.
1980)
..
6
Puerto Rico
v. Fed. Mar. Bd., 288 F.2d 419 (D.C. Cir.
1961)
.
...19
River
Road Water Dist. v. City of
Eugene
, 492 P.2d 812
(1972)
...12
Rogers
v. Samedan Oil Corp., 308 F.3d 477 (5th Cir.
2002)
..5
Smith
v.
Enterprise
Irr. Dist., 85 P.2d 1021 (Or.
1939)
.....................................................................
15-16
Standard
Fed. Bank v.
United States
, 51 Fed. Cl. 695
(2002)
.4
Tulare
Lake
Basin
Water Storage Dist. v.
United States
,
49
Fed. Cl. 313
(2001)
..............................................................
.....
..3, 6
United
Health Care Corp. v. Am. Trade Ins. Co., 88 F.3d 563 (8th Cir.
1966)
..
.
..
...4
United States
v. W.R. Grace & Co.-Conn., 185 F.R.D. 184 (D.N.J.
1999)
...18
Wall
Industries, Inc. v. United States,
15 Cl. Ct.
796 (1988), affd, 883 F.2d 1027
(Fed.
Cir.
1989)
..
..
....4
Washington
Util. and Transp. Commn v. FCC, 513 F.2d 1142 (9th Cir.
1975)
.
..19
Westlands
Water Dist. v. United States, Dept of Interior, Bureau of Reclamation,
No.
93-5327, 1994
U.S.
Dist. LEXIS 6276 (E.D. Cal. Apr. 28,
1994)
..
.17
Wisconsin
v. FPC, 373
U.S.
294
(1963)
.
19
Statutes
Cal.
Civ. Pro. Code § 369
(2004).
11,
16
Cal.
Water Code § 22650 (1984 & Supp.
2005)
....8,
13
Cal.
Water Code §
22654
..
.8,
13
Iv
Cal.
Water Code §
22655
..
.8,
13
Cal.
Water Code §
23950
.8-9
Or.
Rev. Stat. § 30.310
(2003)
.
.9
Or.
Rev. Stat. § 545.225
(2003)
.
.8,
14
Or.
Rev. Stat. §
547.305
.
...9
Or.
Rev. Stat. §
552.305
..
...9-10,
14
Or.
Rev. Stat. §
554.080
.
.10
Reclamation
Act of 1902, ch. 1093 § 8, 32 Stat. 388
(1902)
..
...18-19
Rules
Or.
R. Civ. P.
26(A)
..
...16
RCFC
17
2, 3, 4, 5,
6, 7, 14, 15, 16
Other
Authorities
Transcript,
Orff v.
United States
, No. 03-1566 (
S. Ct.
Feb. 23, 2005
)
..
.1-2
Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, 6A Fed. Prac. & Proc.,
Civ.2d
§ 1543 (1990 & Supp.
2004)
.
6
Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, 6A Fed. Prac. & Proc.,
Civ.2d
§ 1548 (1990 & Supp.
2004)
.
6
Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, 6A Fed. Prac. & Proc.,
Civ.2d
§ 1550 (1990 & Supp.
2004)
.
6
Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, 6A Fed. Prac. & Proc.,
Civ.2d
§ 1552 (1990 & Supp.
2004)
.
6
V
QUESTION
PRESENTED
Whether
the plaintiff districts have standing to bring the claims in this case on
behalf
of their water users?
1
IN
THE UNITED STATES COURT OF FEDERAL CLAIMS
)
KLAMATH
IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
) No.
01-591 L
)
v. )
Judge
Francis M. Allegra
)
UNITED STATES OF AMERICA
, )
)
Defendant. )
)
MEMORANDUM
IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL
SUMMARY
JUDGMENT ON THE STANDING OF THE DISTRICTS TO
BRING
THESE CLAIMS ON BEHALF OF THEIR WATER USERS
The
fourteen district1 Plaintiffs in this case
are surrogates for their water users in
the
distribution of Klamath Project water, the collection and remission of payments
for
that
water, and in the defense of those water rights. The unique character of fluid
water,
particularly
when it derives from a single source, controlled by a single dam (which is in
turn
controlled by the Bureau of Reclamation), places these districts in a unique
position
to
represent their water users in this common claim for damages. The alternative, a
class
action,
might achieve a similar result, but through a much more cumbersome procedure
than
that provided by the well-established doctrine that districts may represent
their water
users
in defense of their common (albeit individual) water rights.
As
the Assistant to the Solicitor General told the Supreme Court in the oral
argument
in Orff v. United States in support of the governments position that
the water
district,
and not individual water users, was the proper party to prosecute a damages
______________________________
1
The term district is used here to
denominate the different types of district Plaintiffs in this case,
including:
Oregon and California irrigation districts (seven plaintiffs), an Oregon
drainage district (one
plaintiff),
Oregon and California Water Improvement Districts (three plaintiffs), and Oregon
corporations
for
irrigation, drainage, water supply or flood control (four plaintiffs).
2
claim
for water losses: Now, Westlands itself
is a governmental unit. It is comprised of
the
-- of the very farmers here, among others, who have brought this suit. And it
has the
authority
to act in a representative capacity on behalf of all its members. Transcript
at
28,
Orff v. United States, No. 03-1566 (S. Ct. Feb. 23, 2005) (relevant pages
attached as
Ex.
A).
The
standing of the districts to bring these claims in a representative capacity is
confirmed
by Rule 17 of the U.S. Court of Federal Claims: [A] party authorized by
statute
may sue in that persons one name without joining the party for whose benefit
the
action
is brought . . . . RCFC 17(a); see also RCFC 17(b) (In all other
cases capacity to
sue
or be sued shall be determined by the law of the applicable state . . . .).
The Plaintiff
districts
are statutorily authorized by the laws of
Oregon
and
California
, respectively, to
bring
suit to protect the rights of their water users. Alternatively, RCFC 17(a)
provides
that
a trustee of an express trust may also sue on behalf of the beneficiary of
the trust
without
the need to join the trust beneficiary. The Plaintiff water districts and
corporations
in this case are recognized as trustees of the water rights of the water users
under
California or Oregon law. Finally, the Plaintiff water districts and
corporations
have
standing to bring the collective damages claims of their members in this lawsuit
as
an
association and under the parens patriae doctrine. For all of these
reasons, this Court
need
not join the individual water users (whether by class action or individually) as
necessary
parties in this lawsuit.
Factual
and Procedural Background
In
its order of
February 15, 2005
, this Court required Plaintiffs to file a
memorandum
in support of their position that the irrigation districts have standing to
3
represent
the interests the individual farmers. Order (Feb. 15, 2005). Unlike the
jurisdictional
concept of constitutional standing, the prudential standing which
the
districts
claim is, at bottom, largely a tool of judicial administration. A favorable
ruling
on
this motion would obviate other, more cumbersome proceedings to certify and
administer
a class of water users by allowing the districts to act as their surrogate. In
short,
Rule 17 of the Court of Federal Claims clearly vests this Court with authority
to
make
this determination while the interests of judicial efficiency strongly support
it.
In
drafting their Complaint, Plaintiffs intentionally built redundancy into their
standing
by naming both the districts and individuals as parties to prosecute the claims.
They
did so, however, in the firm belief that the districts have the right and
authority to
prosecute
these claims on behalf of their water users, and that a class action is
superfluous
and wasteful.
Because
prudential standing is not jurisdictional, the parties here could (as they
did
in Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl.
313 (2001))
agree
that the districts have standing to represent their water users, obviating the
need to
retain
individual water users as plaintiffs, either individually or as a class. Even in
the
absence
of such agreement, however, the Court clearly has the authority to permit these
districts
to prosecute the claims of their water users within the terms of RCFC 17.
Argument
I.
RCFC 17 Governs the Standing of the Districts in This Case.
RCFC
Rule 17 states:
(a)
Real Party in Interest. Every action shall be prosecuted in the name of
the
real party in interest. An executor, administrator, guardian, bailee,
trustee
of an express trust, a party with whom or in whose name a contract
4
has
been made for the benefit of another, or a party authorized by statute
may
sue in that persons own name without joining the party for whose
benefit
the action is brought. . . .
RCFC
17(a) (2002); see also Standard Fed. Bank v. United States, 51 Fed. Cl.
695, 707
(2002)
(In pertinent part, RCFC 17(a) is identical to Rule 17(a) of the Federal
Rules of
Civil
Procedure.).
The
purpose of the real party in interest requirement is two-fold. First, the
rule
is
designed to insure that a lawsuit be initiated only by those persons whose
interests will
be
materially affected by the outcome. See, e.g., United Health Care Corp. v.
Am. Trade
Ins.
Co., 88 F.3d 563, 569 (8th Cir. 1966) (Rule 17(a) requires that the party
who brings
an
action actually possess, under the substantive law, the right sought to be
enforced);
Wall
Industries, Inc. v. United States, 15 Cl. Ct. 796, 803 (1988) (The term
real party in
interest
is often defined within the context of Fed. R. Civ. P. 17(a) as the party that
possesses
the substantive right under which suit is brought.), affd, 883 F.2d
1027 (Fed.
Cir.
1989). Second, the requirement insures that defendants will only have to face
one
suit
over the same interest. See, e.g., Marina Mgmt. Servs., Inc. v. Vessel My
Girls, 202
F.3d
315, 318 (D.C. Cir. 2000) (Rule 17(a) protects a defendant against a
subsequent
claim
for the same debt underlying a previously entered judgment.).
The
requirement set forth in RCFC 17 that the person bringing a lawsuit be the
real
party in interest is sometimes referred to as prudential standing. See Lans
v. Digital
Equip.
Corp., 252 F.3d 1320 (Fed. Cir. 2001) (Prudential standing requires,
among other
things,
that a plaintiff generally must assert his own legal rights and interests,
and cannot
rest
his claim to relief on the legal rights or interests of third parties.)
(quoting Warth v.
Seldin,
422 U.S. 490, 498 (1975)). As a prudential requirement, as opposed to a
5
jurisdictional
requirement, Rule 17 can be waived.2 See,
e.g.,
Rogers
v. Samedan Oil
Corp.,
308 F.3d 477, 483 (5th Cir. 2002) ([T]he defense is waived when it is not
timely
___________________________________
2
The real party in interest
requirement under RCFC 17, prudential standing, and the requirement for
constitutional
standing are not the same, as explained by this Court in Aldridge v. United
States, 59 Fed. Cl.
387,
388-390 (2004):
A
fundamental jurisdictional consideration for any federal court, including
Article I
courts,
is whether the plaintiff has constitutional standing. Glass v. United
States, 258
F.3d
1349, 1355-56 (Fed.Cir.2001); Sterling Savings v. United States, 57
Fed.Cl. 234,
236
(2003). The inquiry is a reflection of the concern that there be an actual
case or
controversy
before the court. See Arizonans For Official English v. Arizona, 520
U.S.
43,
64 (1997). The litigant must show, first and foremost, an invasion of a
legally
protected
interest that is concrete and particularized and actual or
imminent. Id.
(quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119
L.Ed.2d
351
(1992)). In the absence of standing the court has no jurisdiction to decide
the merits
of
a claim. See Arizonans For Official English, 520 U.S. at 67.
Three
elements must be present for a plaintiff to satisfy the case or
controversy
requirement
of constitutional standing. First, the plaintiff must demonstrate actual
injury.
Warth v. Seldin, 422 U.S. 490, 498 (1975). Second, the plaintiff must
establish a
causal
link between the injury and the challenged conduct. Lujan, 504
U.S.
at 560. Third,
it
must be likely, as opposed to merely speculative, that the injury will be
redressed by a
favorable
decision.
Id.
In
addition to constitutional considerations, however, standing also implicates
concerns
that
are prudential in nature. Prudential limitations involve the exercise of
"administrative
discretion"
by the court on whether to hear a case. First Hartford Corp. Pension Plan
&
Trust
v.
United States
, 194 F.3d 1279, 1290 (Fed. Cir. 1999). These
prudential
considerations
call for the courts to limit access to those litigants best suited to assert a
claim.
Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979); see
also First
Hartford,
194 F.3d at 1290. The judiciary should refrain from deciding issues involving:
1)
mere generalized grievances; 2) litigants who are not "within the zone of
interest to be
protected
or regulated"; and 3) plaintiffs who fail to assert their own legal rights
rather
than
those of third parties. See Gladstone, 441 U.S. at 99; see also Simon,
426 U.S. 26
(1976);
Warth, 422 U.S. at 498; Ass'n of Data Processing Serv. v. Camp,
397 U.S. 150,
153
(1970).
Lack
of real-party-in-interest status is not a jurisdictional defect. 4 MOORE'S
FEDERAL
PRACTICE,
§ 17.13 (3d ed.2000). The person before the court simply lacks a claim on
which
relief can be granted because that person does not own the claim. Indeed the
defect
is
curable by substituting the proper party. See RCFC 17(a)(1).
These
non-jurisdictional considerations make it unnecessary for the court to parse the
question
of whether such prudential concerns oust the court of the subject matter
jurisdiction
it otherwise would have under the Tucker Act to hear a statutory pay claim.
See
28 U.S.C. § 1491(a)(1) (2000). This is because not every party who meets
standing
requirements
is a real party in interest 4 MOORE'S FEDERAL PRACTICE, § 17.10 (3d
ed.2000).
This is reflected in RCFC 17(a), the court's real party in interest rule,
requiring
that
every action shall be prosecuted in the name of the real party in
interest.
Id.
at 388-90.
6
asserted.);
Allegheny Intl, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416,
1431 (3d
Cir.
1994) (approving denial of Rule 17 defense where party did not raise issue with
reasonable
promptness); see also Tulare Lake Basin Water Storage Dist. v. United States,
49 Fed. Cl. 313 (2001) (allowing water districts to sue as real party in
interest on behalf of their water users where Rule 17 not raised as a defense).
There
may be more than one real party in interest to a claim. For example, if the
applicable
substantive law gives the third-party beneficiary an enforceable right, he also
will
be a real party in interest and may bring an action on the contract on his own.
. . .
The
fact that an absent person could bring the action as a real party in interest
does not of
itself
make that person a necessary or indispensable party. Charles Alan Wright,
Arthur
R.
Miller & Mary Kay Kane, 6A Fed. Prac. & Proc., Civ.2d § 1543 (1990
& Supp. 2004);
see
also Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Management, Inc.,
620
F.2d 1, 4 (1st Cir. 1980). RCFC 17(a) lists several examples of parties who may
sue
in
their own name without joining the party for whose benefit the action is
brought.
RCFC
17(a). One example of such a party is the trustee of an express trust. See Wright
&
Miller,
6A Fed. Prac. & Proc., Civ. 2d § 1548, or a party authorized by
statute to bring
suit
on behalf of others may be the real party in interest. Id. § 1550. In
either instance,
the
real party in interest is suing in a representative capacity on behalf of some
others.
Wright
& Miller, 6A Fed. Prac. & Proc., Civ. 2d § 1548. Likewise, if an
incorporated or
unincorporated
association has the capacity to sue or be sued as provided under RCFC
17(b),
it is considered the real party in interest for purposes of enforcing any right
it has
as
an entity.
Id.
§ 1552.
7
II.
The Plaintiff Districts Have Standing Under RCFC 17 Because Their
Enabling
Statutes Authorize Them to Bring Suit on Behalf of Their Water
Users.
Rule
17 affords real party in interest status to a party authorized by
statute.
RCFC
17(a). The law of Oregon and California, in turn, confers on these districts the
authorization
to act as real party in interest in a suit to protect the water rights of their
constituents.
Although
the enabling statutes for the various classes of district vary to some
degree,
the courts of California and Oregon (which follows California law, see Butler
&
Thompson
Co. v. City of Ashland, 222 P. 346, 348 (Or. 1924)) have left no doubt that
protection
of the water supply for their users is the sine qua non for which these
districts
were
organized, and that this protection includes bringing suit in a representative
capacity
on
behalf of their water users.
The
Plaintiff districts in this case include irrigation districts, drainage
districts,
water
improvement districts, water control districts, and corporations for irrigation,
drainage,
water supply or flood control established under California or Oregon law. Each
district
is entitled under state law to sue on behalf of its water users to protect their
water
rights.
1.
Oregon Irrigation Districts
The
Klamath Irrigation District, Sunnyside Irrigation District, Shasta View
Irrigation
District, Malin Irrigation District, Enterprise Irrigation District, and Pine
Grove
Irrigation
District are all irrigation districts established pursuant to, and governed by,
Chapter
545 of Oregon Revised Statutes, which explicitly states that these irrigation
districts
may: . . . (b) Institute and maintain all actions and proceedings, suits at
law or in
8
equity
necessary or proper in order to fully carry out the Irrigation District Law, or
to
enforce,
maintain, protect or preserve rights, privileges and immunities created by the
Irrigation
District Law, or acquired in pursuance of the Irrigation District Law. Or.
Rev.
Stat.
§ 545.225 (2003).
2.
California Irrigation Districts
Tulelake
Irrigation District was established and is governed by Division 11 of the
California
Water Code, which states under Section 22650 that a California irrigation
district
has the power to commence and maintain any actions and proceedings to carry
out
its purposes or protect its interests and may defend in any action or proceeding
brought
against it. Cal. Water Code § 22650 (1984 & Supp. 2005). Under Section
22654,
Tulelake Irrigation District may commence, maintain, intervene in,
compromise,
and
assume the costs of any action or proceeding involving or affecting the
ownership or
use
of waters or water rights within the district used or useful for any purpose of
the
district
or of benefit to any land. Cal. Water Code § 22654. Section 22655 also gives
the
district the power to commence, maintain, intervene in, defend, and
compromise
actions
and proceedings to prevent interference with or diminution of the natural flow
of
any
stream or natural or artificially created subterranean supply of waters which
may: (a)
be
used or be useful for any purpose of the district. (b) be of common benefit to
the land
or
its inhabitants. (c) endanger the inhabitants or the land. Cal. Water Code §
22655.
Plaintiff
Westside Improvement District, within the Tulelake Irrigation District, is
governed
by these same provisions. Division 11, Part 7 of the
California
Water Code,
Section
23950, states that [i]n a district containing an improvement district the
board
and
all of the officers of the district each respectively has all the rights,
powers, and
9
privileges
as to the improvement district, its land, and the proceedings in relation to the
improvement
district that each respectively has for the district of which the improvement
district
is a part, including the right of the district to acquire, own, and hold
property.
Cal.
Water Code § 23950.
3.
Oregon Drainage District
Klamath
Drainage District was established and is governed by Chapters 547 and
548
of
Oregon
Revised Statutes. Section 547.305(c) states that in the acquisition of
property
or rights by condemnation, these drainage districts shall have the power to
bring
proceedings
in the name of the district. Or. Rev. Stat. § 547.305(c). Also, as a
governmental
entity, these drainage districts have a right to sue under Section 30.310 of
the
Oregon Revised Statutes. See Or. Rev. Stat. § 30.310 (2003) (A suit
or action may
be
maintained by the State of Oregon or any county, incorporated city, school
district or
other
public corporation of like character in this state, in its corporate name, upon
a cause
of
suit or action accruing to it in its corporate character, and not otherwise, in
the
following
cases: (1) Upon a contract made with the public corporation, (2) Upon a
liability
prescribed by law in favor of the public corporation, . . . (4) To recover
damages
for
injury to the corporate rights or property of the public corporation.).
4.
Oregon Water Improvement Districts
Klamath
Basin Improvement District and Poe Valley Improvement District are
governed
by Chapter 552 of Oregon Revised Statutes, which provides that their Board of
Directors
may sue or be sued in its own name . . . . Or. Rev. Stat. § 552.305.
Section
552.305
further states that the Board of Directors has the power to [d]o such other
acts
10
or
things as may be necessary for the proper exercise of the powers granted to make
the
greatest
beneficial use of the waters of the district.
Id.
5.
Oregon
Water Corporations
Four
of the plaintiffs in this case (Klamath Hills District Improvement Company,
VANBRIMMER
DITCH COMPANY, Midland District Improvement Company and Poe
Valley
Improvement District) are corporations for irrigation, drainage, water supply
or
flood
control organized under Chapter 554 of the Oregon Revised Statutes.3
Section
554.080 of the Oregon Revised Statutes explicitly authorizes these
corporations
to sue on behalf of their water users: When the articles of incorporation are
filed
by the Secretary of State, the persons appointed in the articles as directors,
and their
successors
in office, associates and assigns, by the name assumed in such articles, shall
thereafter
be deemed a body corporate with power: (1) To sue and be sued. Or. Rev.
Stat.
§ 554.080.
Even
in the absence of explicit sue or be sued language,
California
courts have
consistently
held that water districts are real parties in interest, entitled to sue to
protect
the
water rights of their constituent water users. In Coachella Valley County
Water Dist.
v.
Stevens, 274 P. 538 (Cal. 1929), the Coachella Valley County Water District
filed suit
on
behalf of the landowners within its jurisdiction seeking injunctive relief for
the taking
of
water to which it claimed they were legally entitled. Holding that the district
was a
_________________________________
3
Poe Valley Improvement District (PVID) is
both an
Oregon
corporation for irrigation, drainage, water
supply
or flood control and an
Oregon
water improvement district.
11
real
party in interest under section 369 of the California Code of Civil Procedure,4
the
California
Supreme Court stated:
[W]hen
the statute provides for the organization and government of such
public
corporations, the power to sue and be sued need not be expressed in
the
title, for the reason that such power is incidental to the general
purposes
of the act. It is but natural to assume that, when the creation of
such
a corporation is provided for and the general purpose is expressed in
the
title, the corporate body should possess the right to have recourse to
the
courts for the protection of its rights and the redress of wrongs
committed
in violation of those rights. . . . Furthermore, we find no
objection
in providing in the body of the act without specific mention
thereof
in the title for the prosecution of proceedings to prevent
interference
with or diminution of the natural flow of any stream or
subterranean
water supply used or useful for any purpose of the district or
a
common benefit to the lands within the district or its inhabitants. One of
the
express purposes of the act is to conserve water for future use and to
preserve
water and water rights.
Id.
at 542.
That
the water right is held by the landowner (who makes beneficial use of the
water)
and not the district, said the court, is immaterial: [t]he fact that the
district as
such
does not assert title in itself to any of such rights is of no consequence . . .
. Id. The
court
noted that no good reason has been suggested why, under the authority of the
statute,
the landowners and other water users in the district may not set up such a
governmental
agency to act in a representative capacity in their behalf. In our opinion,
they
have done so and having done so they will necessarily be bound by the result of
the
litigation.
Id.; see also Orange County Water Dist. v. City of Riverside, 343
P.2d 450,
466
(Cal. Ct. App.1959) (holding that the water district could sue on behalf of the
private
water
users of the district in an action for declaration and definition of
respective rights
of
cities to take water and stating [t]hat the District is empowered to
represent the
____________________________________
4
Cal.
Civ. Pro. Code § 369 (2004) (The following
persons may sue without joining as parties the persons
for
whose benefit the action is prosecuted: . . [a]ny other person expressly
authorized by statute.).
12
rights
of its overlying water users does not, we think admit of a doubt.);5
City of
Chino
v.
Superior Court of Orange County, 63 Cal.Rptr. 532 (Cal. Ct. App. 1967)
(upholding
denial
of a motion to dismiss for improper plaintiffs where Orange County Water
District
had
sued on behalf of its water users for general adjudication of water rights); Cent.
Delta
Water
Agency v. State Water Res. Control Bd., 21 Cal.Rptr.2d 453, 456 (Cal. Ct.
App.
1993)
(holding that [w]here a water district or agency is expressly authorized
under its
enabling
statute to sue on behalf of its constituent water users, it may do so even
without
naming
any of those users as party plaintiffs)
Oregon
courts, too, have left no doubt that
Oregon
districts likewise have standing
to
represent their constituent water users in water rights litigation. The Oregon
Supreme
Court
views irrigation and water districts as quasi-municipal corporations that
have
been
given corporate powers by the legislature, including the powers to sue and be
sued;
to
buy, hold and dispose of property; to enter contracts; to make necessary rules
and
regulations;
and to tax. River Road Water Dist. v. City of Eugene, 492 P.2d 812,
819
(1972);
see also Harney Valley Irrigation Dist. v. Weittenhiller, 198 P. 1093,
1096 (Or.
1921)
(When an irrigation district is organized, it is authorized through its board
of
directors
to acquire property for the purposes of its organization, to sue and be sued, to
enforce
and maintain its rights, privileges, and immunities, and the court in all acts,
suits,
_______________________________
5
The court further stated: The power of
the State or its duly authorized public agencies to undertake the
representation
in the courts of interests common to great numbers of its inhabitants, though
the particular
character
and extent of their water rights may greatly differ as between themselves, is
generally
recognized.
Id. at 467. The court held that the title of the statute provided
sufficient authority to allow the
representative
suit. Id. at 468 (We think it sufficiently evident, however, from the
title itself of the Orange
County
Water District Act, that the overriding purpose of the Act was to insure an
adequate water supply
for
the whole area within the District and that everything else contained, either in
the title or the body of the
Act,
amounts merely to spelling out some of the means for accomplishing that
result.). The court also
quoted
with approval the Coachella courts holding that the district proceeding as a
representative need not
assert
title itself. Id. at 469 (quoting Coachella Valley County Water Dist.
v. Stevens, 274 P. 538 (Cal.
1929)).
13
or
other proceedings shall take judicial knowledge of the organization and
boundaries of
such
district.); cf. Oregon Const. Co. v. Allen Ditch Co., 69 P. 455 (Or.
1902) (All of
the
original owners concur in their testimony that in the formation of the Allen
Ditch
Company
none of them surrendered their water rights previously acquired to the
company,
and that it was organized merely to facilitate the distribution of the water
among
those entitled thereto; that they have been selling the use of some water when
not
employed
by those entitled to it, and that the recompense has been expended in keeping
the
ditch in repair, and not as a matter of profit to the concern. These conditions
show
such
a privity between the Allen Ditch Company and the farmers, or original
claimants,
as
to enable the former to maintain its defense in their behalf.).
Consistent
with the
California
and
Oregon
courts, the Federal Circuit has also
observed:
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.
H.F.
Allen Orchards v.
United States
, 749 F.2d 1571, 1576 (Fed Cir. 1984).
Oregon
has modeled its irrigation district law on that of
California
. See Butler &
Thompson
Co. v. City of Ashland, 222 P. 346, 348 (Or. 1924) (The original act
providing
for the organization of irrigation districts is a substantial copy of the Wright
Act
of California.); compare Cal. Water Code §§ 22650, 22654, 22655
(granting an
irrigation
district the power to commence and maintain any actions and proceedings to
carry
out its purposes or protect its interests, commence, maintain, intervene
in,
compromise,
and assume the costs of any action or proceeding involving or affecting the
ownership
or use of waters or water rights within the district used or useful for any
14
purpose
of the district or of benefit to any land, and commence, maintain,
intervene in,
defend,
and compromise actions and proceedings to prevent interference with or
diminution
of the natural flow of any stream or natural or artificially created
subterranean
supply
of waters which may: (a) be used or be useful for any purpose of the district.
(b)
be
of common benefit to the land or its inhabitants. (c) endanger the inhabitants
or the
land)
with Or. Rev. Stat. § 545.225 (granting irrigation districts power to
[i]nstitute and
maintain
all actions and proceedings, suits at law or in equity necessary or proper in
order
to
fully carry out the Irrigation District Law, or to enforce, maintain, protect or
preserve
rights,
privileges and immunities created by the Irrigation District Law, or acquired in
pursuance
of the Irrigation District Law) and Or. Rev. Stat. § 552.305
(granting water
improvement
districts Boards of Directors power to sue or be sued in its own name,
and
[d]o such other acts or things as may be necessary for the proper exercise of
the
powers
granted to make the greatest beneficial use of the waters of the district).
Thus,
this Court may with some comfort accept the guidance of the
California
courts
which, under a provision virtually identical to RCFC 17, see supra note
5, have
concluded
that a political subdivision of the state may challenge the constitutionality
of
a
statute or regulation on behalf of its constituents where the constituents
rights under
the
challenged provision are inextricably bound up with the subdivisions
duties under
its
enabling statutes. Cent. Delta Water Agency v. State Water Res. Control
Bd., 21
Cal.Rptr.2d
453, 456 (Cal. Ct. App. 1993). For, [u]nder the statutes cited by the
agencies,
it is clear that the agencies duties are bound up with a determination
whether
the
challenged provisions violate the rights of the agencies constituent water
users. We
conclude
the agencies have standing to pursue their claims. Id.; see also Orange
County
15
Water
Dist. v. City of Riverside, 343 P.2d 450, 469 (Cal. Ct. App.1959) ([W]e
hold,
then,
both (1) that a cause of action has been stated and (2) that the plaintiff
District has
the
necessary standing in court to maintain it.).6
III.
The Districts Also Have Standing as Trustees for Their Water Users.
RCFC
17 also provides standing to a trustee of an express trust to sue in
that
persons
own name without joining the party for whose benefit the action is brought.
RCFC
17(a). The courts of
California
and
Oregon
have long held that a district is trustee
of
the water rights (and other property) for the express benefit of its water
users,
affording
the district standing to assert claims for water loss on behalf of those water
users.
See Ivanhoe Irrigation Dist. v. All Parties, 306 P.2d 824, 840 (
Cal.
1957) (It has
long
been the established law of the state that an irrigation district is trustee for
the
landowners
within the district . . . .), revd on other grounds, 357 U.S. 275
(1958); Smith
v.
Enterprise Irr. Dist., 85 P.2d 1021, 1024 (Or. 1939) (The relationship
between an
irrigation
district and its constituent landowners as to the water rights and other
property
of
such district is that of trustee and cestuis que trustent.)7
(citing Jenison v. Redfield, 87
P.
62, 64 (Cal. 1906) (quoting California Irrigation Act (Wright Act) of 1897, St.
1897 §
29
p. 263 c. 1890) (The ultimate purpose of a district organized under the
irrigation act
is
the improvement, by irrigation, of lands within the district. . . . Such
district holds all
__________________________________
6
A few of the plaintiff districts hold
water rights in their own name, providing additional support for
finding
that they are real parties in interest in this case. Klamath Drainage District
and Klamath Hills
District
Improvement Company hold post-1909 permits to appropriate public water from the
State of
Oregon
in the districts names, entitling these two districts to receive identifiable
quantities of water from
the
Klamath Project. (Rev. Pls. Findings 14, 15 (Aug. 29, 2003).) VANBRIMMER
DITCH COMPANYs
contract
with the United States expressly gives VANBRIMMER the right to the use of 50
cubic feet per
second
of water from the Klamath Project. (Rev. Pls. Finding 16 (August 29, 2003).)
7
The Enterprise Irrigation District named
as defendant in the Smith case is the same Enterprise Irrigation
District
that is named as one of the plaintiff districts in this case.
16
property
acquired by it solely in trust for such ultimate purposes, and can divert it to
no
other
use.).
As
trustee for its water users, the district is a real party in interest, entitled
to bring
suit
on behalf of its water users without joining them individually:
[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. Co., 119 P. 731, 736-37 (Or. 1911); see also Cal.
Civ. Code §
369
(The following persons may sue without joining as parties the persons for
whose
benefit
the action is prosecuted: . . . (2) A trustee of an express trust.); Or. R.
Civ. P.
26(A)
([A] trustee of an express trust . . . may sue in that partys own name
without
joining
the party for whose benefit the action is brought.).
Under
Oregon
and
California
law, the plaintiff districts hold water rights in an
express
trust for the benefit of their water users. Thus, alternatively, under RCFC 17,
the
district
plaintiffs are the real parties in interest in this case as the trustees of an
express
trust
on behalf of their water users.
IV.
The Districts Further Have Associational Standing to Sue for Damages
Collectively
on Behalf of Their Members.
An
association may also have standing to assert claims on behalf of its members.
In
Hunt v. Washington State Apple Adver. Commn, 432 U.S. 333 (1977), the
Supreme
Court
set out the requirements for such associational standing:
We
have recognized that an association has standing to bring suit on
behalf
of its members when: (a) its members would otherwise have
standing
to sue in their own right; (b) the interests it seeks to protect are
germane
to the organizations purpose; and (c) neither the claim asserted
17
nor
the relief requested requires the participation of individual members in
the
lawsuit.
Id.
at 343.
Applying
the associational standing rule to a water district in a suit against the
Bureau
of Reclamation, the federal court in California found that the districts
relationship
to its water users afforded standing to assert the claim under FRCP 17:
Water
districts exist for the most part to serve the needs of their members
for
water supply and drainage. Unlike the circumstances discussed in
Warren
County, the water districts are advocates to preserve the quantity
and
quality of water sources for district users. Analogous to facts found
relevant
in Hunt, only district members serve as directors, and district
officers
are elected by the landowner members, according to assessment
amounts
paid or acreage owned within the district. Cal. Water Code §§
34700;
35003. District operations are funded directly by landowner paid
assessments.
For all practical purposes, water districts are similar to a
traditional
trade organization of water users, serving a specialized segment
of
the states economic community, farmers, who import water to their
lands
and benefit from District activities. Districts may prosecute litigation
to
protect district members water rights.
Westlands
Water Dist. v.
United States
, Dept of Interior, Bureau of Reclamation, No.
93-5327,
1994
U.S.
Dist. LEXIS 6276 at *1, 13-15 (E.D. Cal. Apr. 28, 1994).
V.
The Districts Also Possess Parens Patriae Standing to Assert This Claim.
Finally,
a district (like a state, of which it is a political subdivision) may assert a
claim
on behalf of its constituency where the districts quasi-sovereign interests
are
implicated.
As the Supreme Court explained the rule:
In
order to maintain such an action, the State must articulate an interest
apart
from the interests of particular private parties, i.e., the State must be
more
than a nominal party. The State must express a quasi-sovereign
interest.
Although the articulation of such interests is a matter for case-bycase
development
-- neither an exhaustive formal definition nor a
definitive
list of qualifying interests can be presented in the abstract --
certain
characteristics of such interests are so far evident. These
characteristics
fall into two general categories. First, a State has a quasisovereign
interest
in the health and well-being -- both physical and
economic
-- of its residents in general. Second, a State has a quasi-
18
sovereign
interest in not being discriminatorily denied its rightful status
within
the federal system.
Alfred
L. Snapp & Son, Inc. v.
Puerto Rico
, 458
U.S.
592, 607 (1982).
As
the D.C. Circuit has explained, the parens patriae doctrine finds its
roots in
the
states interest in protection of its land and natural resources:
The
earliest cases allowing a state to sue as representative of its citizenry
involved
the protection or preservation of land or other natural resources.
The
states concern did not arise from a direct property interest of its own,
but
from its sovereignty over all territory within its boundaries. While the
state
thus lacked standing to sue in its own right, it was found to be a
proper
party to bring suit because of its residual interest independent of
and
behind the titles of its citizens, in all the earth and air within its
domain.
On this theory of quasi-sovereignty, state actions were allowed
contesting
diversion of interstate waters and various types of interstate
pollution.
Pennsylvania
by Shapp v. Kleppe, 533 F.2d 668, 673-74 (D.C. Cir. 1976).
Thus,
a state may recover damages parens patriae for the losses its farmers
suffer
when
an upstream state wrongfully withholds irrigation water. See, e.g., Kansas v.
Colorado,
533 U.S. 1, 9 (2001) (holding that Kansas could seek damages incurred by
individual
farmers and the courts jurisdiction to order a damages remedy would not
be
affected
by Kansas postjudgment decisions concerning the use of the money recovered
from
Colorado. . . . [I]t is the States prerogative either to deposit the proceeds
of any
judgment
in the general coffers of the State or to use them to benefit those who
were
hurt).
Parens patriae standing exists not only in the state, but in its
political
subdivisions
as well. as long as the plaintiff has interests congruent with the interests of
its
constituents, such as the irrigation districts do here. United States v. W.R.
Grace &
Co.-Conn.,
185 F.R.D. 184, 190 (D.N.J. 1999) (The doctrine of parens patriae does
not
extend
to municipalities, except to the extent that a municipalitys own rights are
congruent
with those of its residents.) Here, the Reclamation Act itself identifies the
19
quasi-sovereign
interests of the districts. Section 8 of the Act states: [N]othing in this
Act
shall be construed as affecting or intended to affect or to in any way interfere
with
the
laws of any State or Territory relating to the control, appropriation, use, or
distribution
of water used in irrigation, or any vested right acquired thereunder, and the
Secretary
of the Interior, in carrying out the provisions of this Act, shall proceed in
conformity
with such laws, and nothing herein shall in any way affect any right of any
State
. . . in, to, or from any interstate stream or the waters thereof . . . .
Reclamation Act
of
1902, ch. 1093 § 8, 32 Stat. 388 (1902); see also
California
v.
United States
, 438
U.S.
645
(1978) (affirming states right to place conditions on water permit issued to
Bureau
of
Reclamation). Thus, although parens patriae claims against the federal
government
do
raise federalism concerns, the particular division of governmental power over
water
allocation
places this case within the line of authorities allowing such suits against the
federal
government. See, e.g., New York v. United States, 331 U.S. 284 (1947)
(allowing
states
to sue
United States
to enjoin and set aside orders of the Interstate Commerce
Commission
requiring increase in rates charged by railroads);
Washington
Util. and
Transp.
Commn v. FCC, 513 F.2d 1142 (9th Cir. 1975) (holding state agency had
standing
to sue federal government for review of FCC order);
Guam
v. Fed. Mar.
Commn,
329 F.2d 251 (D.C. Cir. 1964) (allowing Guam to sue federal government to
review
an order of the Federal Maritime Commission approving rate increase);
Puerto
Rico
v. Fed. Mar. Bd., 288 F.2d 419 (D.C. Cir. 1961) (allowing Puerto Rico to sue
federal
government to review Federal Maritime Board ruling); Wisconsin v. FPC,
373
U.S.
294 (1963) (allowing state to sue federal government to review order of Federal
Power
Commission); Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954)
(same);
20
California
v. Fed. Power Commn, 296 F.2d 348 (D.C. Cir. 1961) (same), revd
on other
grounds,
369 U.S. 482 (1962).
Conclusion
For
all of these reasons, Plaintiffs urge this Court to grant their motion for
partial
summary
judgment, holding that the Plaintiff water districts can sue on behalf of their
water
users in this lawsuit either in a representative capacity, as the trustee of the
water
users,
or as an association on behalf of its member water users.
Respectfully
submitted,
s/
Nancie G. Marzulla
Roger
J. Marzulla
Nancie
G. Marzulla
MARZULLA
& MARZULLA
1350 Connecticut Ave., N.W.
Suite
410
Washington
,
D.C.
20036
202-822-6760
202-822-6774
(facsimile)
Dated:
March 14, 2005
Counsel for Plaintiffs