IN THE UNITED STATES COURT OF FEDERAL CLAIMS  

___________________________________

                                                                             )

KLAMATH IRRIGATION DISTRICT, et .al.,     )

                                                                             )                                                     

Plaintiffs,                                     )

                                                                             )

v.                                                              )      No. 01-591 L

                                                                             )     

     )       Judge Diane Gilbert Sypolt

UNITED STATES OF AMERICA,                    )

                                                                             )

Defendant.                                  )

__________________________________ )                 

 

 

 

BRIEF OF AMICUS CURIAE YUROK TRIBE AND KLAMATH TRIBES

IN OPPOSITION TO PLAINTIFFS’ REVISED MOTION

FOR PARTIAL SUMMARY JUDGMENT

TABLE OF CONTENTS

 

 

I.          INTEREST OF AMICI, INTRODUCTION AND SUMMARY ........................................ 1

 

II.         PLAINTIFFS’ CONTENTION THAT THE KBA IS IRRELEVANT

TO THESE PROCEEDINGS, IS MISLEADING BECAUSE THE

TRIBES’ WATER RIGHTS WERE NOT IRRELEVANT TO

DEFENDANT’S 2001 WATER MANAGEMENT  .......................................................... 3

 

III.       PLAINTIFFS’ DESCRIPTION OF AN “ADVERSE DETERMINATION”

IS MISLEADING BECAUSE IT IGNORES PLAINTIFFS’ STATUS AS

JUNIOR WATER RIGHTS HOLDERS VIS-A-VIS MANY OTHER

KLAMATH BASIN WATER USERS AND CLAIMANTS  ............................................. 8

 

IV.       CONCLUSION  .............................................................................................................. 10

TABLE OF AUTHORITIES

 

 

CASES

 

Kandra, Cacka, Klamath Irrigation District et al. vs. United States,

  Klamath Tribes, Yurok Tribe, et al.,

  145 F.Supp.2d 1192 (D.Or. 2001) .....................................................................................   1, 4, 5

 

Klamath Water Users Ass’n v. Patterson,

   15 F.Supp.2d 990 (D. Or. 1998), aff’d, 204 F.3d. 1206 (9^th Cir. 2000),

   cert. denied sub nom, Klamath Drainage District v. Patterson, 531 U.S. 812 (2000) ..  1, 4

 

Parravano v. Masten,

   70 F.3d 539 (9^th Cir. 1995), cert. denied, 518 U.S. 1016 (1996) ......................................   1

 

 Penn Central Transportation Co. v. City of New York,

   438 U.S. 104 (1978)  ................................................................................................................   9

 

Pyramid Lake Paiute Tribe v. Morton,

   354 F.Supp. 252 (D.Col. 1973) .................................................................................................   8

 

United States v. Adair,

   723 F.2d 1394 (9^th Cir. 1984) ...................................................................................................   1

 

 

 

STATUTES AND REGULATIONS

 

Treaty of 1864 with the Klamath, Moadoc, and Yahooskin Band

  of Snake Indians,16 Stat. 707 .....................................................................................................   1

 

Endangered Species Act , 16 U.S.C. §§ 1531-1544................................................... ............   1  

 

 

I. 

INTEREST OF AMICI, INTRODUCTION AND SUMMARY

 

Amici are federally recognized Indian tribes.  They have resided in the Klamath Basin for millennia, for most of that time making their living from the Basin’s resources, including its water and water-dependent resources.  Among these resources are fisheries protected to the tribes by Treaty and Executive Order.^[1]  Three species of these protected fish are also listed as threatened or endangered under the Endangered Species Act. 16 U.S.C. §§ 1531-1544 (“ESA”).  These tribal, ESA-protected fisheries compete for water with Plaintiffs’ irrigation demands and with other demands.  The fish are of enormous importance to the physical, economic, and spiritual well-being of the Tribes. See, Kandra, Cacka, Klamath Irrigation District et al. vs. United States, Klamath Tribes, Yurok Tribe, et al., 145 F.Supp.2d 1192, 1197 (D.Or. 2001).

Because of the Tribes’ nativity and longevity in the Basin, their water rights enjoy a “time immemorial” priority date, the most senior in the Basin.  See, e.g., United States v. Adair, 723 F.2d 1394, 1404 (9^th Cir. 1984); Klamath Water Users Ass’n v. Patterson, 204 F.3d. 1206, 1214 (9^th Cir. 2000), cert. denied sub nom, Klamath Drainage District v. Patterson, 531 U.S. 812 (2000).  Thus, the Tribes’ water rights “take precedence over any alleged rights of the Irrigators [Plaintiffs here],” and are independent of the ESA.  Patterson, supra, 204 F.3d at 1214.

The Tribes are intimately familiar with the Basin’s water resources, with current management of those resources by Defendants and others, and with the conflicts around those resources.  Because of the seniority of their water rights, and their dependence on Klamath Basin water, the Tribes have a profound interest in assuring that, as this Court disposes of the instant matters, the Court is fully informed of the factual and legal setting.

In particular, the Tribes are concerned that Plaintiffs currently present the issues in a vacuum – that is, despite repeated instruction from this court to address the full affects of the KBA on this proceeding, Plaintiffs persist in casting the case as though the only germane water rights are those of Plaintiffs and Defendant, and as though the Tribes’ rights are either non-existent or irrelevant.  This is incorrect and such a myopic view will not allow the court to engage in full and fair review.  Instead, the case must be viewed in its true context, which includes both the existence and seniority of the Tribes’ rights, as well as the rights of many other water claimants senior to Plaintiffs.

The vacuum results from Plaintiffs’ incomplete adherence to the Court’s instructions.  Orders filed May 12, 2003 (requiring parties to assume an “adverse determination” in the KBA) and August 22, 2003, at 2 (striking plaintiffs’ brief and allowing plaintiffs to provide support for “their contention that the property rights determination in the Klamath Basin Adjudication (KBA) is irrelevant to plaintiffs’ interests here.”)  Id. at 2.  Plaintiffs’ presentation is incomplete and misleading in two ways.

1.  Plaintiffs’ statement ( infra) that the Tribes’ water rights played no part in Defendant’s 2001 water management decisions is quite incorrect.  In fact, the Tribes’ water rights, senior to those of Plaintiffs here, and Defendant’s obligation to protect those rights, were very much a part of Defendant’s 2001 water management regime.  Plaintiffs’ claims to water rights are both overstated and speculative.  Presumably, the KBA will define and quantify Plaintiffs’ junior water rights.

 

2.  Plaintiffs ignore the many claims to water in the KBA that are senior to Plaintiffs’ asserted rights.  An “adverse determination” in the KBA would vindicate these senior claims over Plaintiffs’ claims.  Under western water law’s seniority system, then, Plaintiffs would receive no water until all these claims were satisfied.  As junior water rights holders, Plaintiffs’ junior claim to water in an extreme drought year like 2001 is wholly speculative.

 

Below we expand on these two topics, to assist the Court in correctly framing the issues for decision.  We leave to the parties the arguments on the Fifth Amendment compensability issues.

II. 

PLAINTIFFS’ CONTENTION THAT THE KBA IS IRRELEVANT TO THESE PROCEEDINGS, IS MISLEADING BECAUSE THE TRIBES’ WATER RIGHTS WERE NOT IRRELEVANT TO DEFENDANT’S 2001 WATER MANAGEMENT.

 

Plaintiffs assert that the Tribes’ water rights are irrelevant to the 2001 water management decisions of which Plaintiffs complain.  They say “defendant did not withhold plaintiffs’ water in 2001 because it believed that the Indian tribes had a superior claim to the water.”  Memorandum Supporting Plaintiffs’ Revised Motion for Partial Summary Judgment (“Plaintiff’s Memo”) at 3.  Based on this mistaken assertion, Plaintiffs ask the court to decide this case as though an “adverse determination” in the KBA would involve only Plaintiffs’ rights vis-a-vis Defendant, and then, only with respect to Defendant’s obligation to comply with the ESA.  This is demonstrably incorrect.  The Tribes’ rights, separate from and independent of the ESA, are a substantial factor in Klamath Basin water management, and were treated as such in 2001.  Ignoring this fact leads to an incorrect assessment of what an “adverse determination” in the KBA would mean for Plaintiffs.

The primacy of tribal water rights in the Basin has been made clear in recent litigation brought by these Plaintiffs themselves.^[2]  In Klamath Water Users Ass’n v. Patterson, 15 F.Supp.2d 990, 996 (D. Or. 1998), the court held that Plaintiffs’ water rights are “subservient to senior tribal water rights.”  On review, the Plaintiffs argued (as, by omission, they do here) that the Klamath Basin tribes’ “senior water rights” were “irrelevant” to the irrigators’ claimed contractual rights to water.  The Ninth Circuit affirmed both the relevance, and the seniority of tribal water rights, saying “the Tribes’ rights . . . take precedence over any alleged rights of the Irrigators.”  Klamath Water Users Protective Ass’n v. Patterson, supra, 204 F.3d at 1214.

In 2001, Plaintiffs sued to enjoin implementation of Defendant’s water management plan of which they complain today.  Kandra, Cacka, Klamath Irrigation District, et al. v. United States, 145 F.Supp.2d 1192 (D. Or. 2001).  In denying the injunction the court emphasized that the United States’ water management must protect tribal water rights, even if it comes at the expense of Plaintiffs’ access to water.

[T]he United States, as a trustee for the Tribes, is obligated to protect the Tribes’ rights and resources.  Water rights of the Klamath Basin Tribes carry a priority date of time immemorial.  These rights take precedence over any alleged rights of the Irrigators.  Reclamation, therefore, has a responsibility to divert the water and resources needed to fulfill the Tribes’ rights.

 

Id., at 1204 (internal citations and quotations marks omitted).

Plaintiffs’ assertion that tribal rights are irrelevant is made with complete disregard of these judicial instructions that tribal water rights take precedence over Plaintiffs’ claims to water.  Indeed, the judicial instructions are directly reflected in Defendant’s 2001 water management at issue here.  The management document on which Plaintiffs sued in Kandra is the “Klamath Reclamation Project 2001 Annual Operations Plan” (“Annual Plan”).^[3]  Kandra, at 1195-96.  The Annual Plan sets out Reclamation’s plan for water allocation among competing demands, including demands by Plaintiffs, the Tribes, and the ESA.

The Annual Plan directly belies Plaintiffs’ statement that tribal rights were irrelevant to Defendant’s 2001 water allocation decisions. The Plan lists among the “guiding principles and objectives” of its “legal framework” not only meeting the “requirements of the Endangered Species Act,” but also discharge of the “trust responsibility of the United States to federally recognized Tribes within the Klamath River Basin.”  Annual Plan at 1-2.  That trust responsibility includes the tribal “fishery and other resources in the Klamath River, [and] Upper Klamath Lake . . .”  Id. at 1.  The Annual Plan sets forth the government’s acknowledgment of its obligation to continue consultation with “tribal governments, project water users, . . [and others]” concerning 2001 operations.  Id. at 2-3.^[4]

The Kandra file often manifests Defendant’s 2001 acknowledgment of responsibility to base its water management on its obligations to tribal water rights.^[5]  Equally obvious is Plaintiffs’ awareness thereof, because Plaintiffs were arguing the illegality of Defendant’s action.  A few examples illustrate these facts.

 

1.  Plaintiffs argued that Defendant had “reprioritize[d] and reallocate[d] water” to meet both ESA and tribal obligations.  They complained that Defendant’s water management was no longer “based on primarily serving irrigation needs” because of this allegedly new priority assigned to ESA and tribal trust obligations. Williams Declaration, Attachment 1, at 11.

 

2.  Plaintiffs submitted summaries of several meetings between the Tribes and Reclamation summarizing Reclamation’s acknowledgment of its trust obligation to protect tribal water resources.  Williams Declaration at ¶ 3.C., Attachments 3 and 6.

 

3.  Plaintiffs submitted the Annual Plans for other years (1997 and 2000) which, like the 2001 Annual Plan, stated that a “guiding principle and objective” was the “federal trust responsibility to federally recognized tribes within the Klamath Basin.”  Williams Declaration, Attachments 7,9.^[6]

4.  Plaintiffs prepared their own analysis of the Upper Klamath Lake fishery in which they admitted that the Klamath Project had been operated in “recent years” so as to provide higher lake levels, and lower irrigation deliveries, in consequence of Reclamation’s obligations under the ESA and its “trust responsibilities to the Klamath Tribes.”  (Attachment 16). 

 

For its part, the United States defended by pointing to the federal obligation to provide water for tribal purposes “before being used to satisfy [Plaintiffs’] water delivery contracts with [Reclamation].”  The Government stated that Reclamation “is appropriately managing the Project pursuant to multiple legal obligations including those defined by the ESA, [tribal] trust obligations owed to federally recognized Indian tribes, and Reclamation law.”  Williams Declaration at Attachment 11.

 

In sum, Plaintiffs in Kandra told the district court that Defendant’s water management was illegal exactly because it was based in part on Defendant’s trust obligations to the Tribes.  Plaintiffs now, incorrectly, represent to this court that Defendant’s management was not so based.  This is not arguing in the alternative; it is denying reality.  Duplicitous reasoning cannot be allowed to affect this Court’s analysis of the instant case.  In contending that the KBA is irrelevant to their takings claims, the plaintiffs should not be permitted to ignore the fundamental principle that their water rights are junior to those of the tribes. 

III.

PLAINTIFFS’ DESCRIPTION OF AN “ADVERSE DETERMINATION”

IS MISLEADING BECAUSE IT IGNORES PLAINTIFFS’ STATUS

 AS JUNIOR WATER RIGHTS HOLDERS VIS-A-VIS MANY OTHER

 KLAMATH BASIN WATER USERS AND CLAIMANTS.

 

The Court instructed the parties to assume an “adverse determination . . .regarding the existence, extent or character of [Plaintiff’s water rights] by the Hearing Officer Panel in Case No. 003 of the State of Oregon’s ongoing Klamath Basin Adjudication.”  Order of May 12, 2003, at 1. Plaintiffs execute this instruction by assuming that an “adverse determination” includes only their rights vis-a-vis Defendant’s rights.  This is incorrectly narrow and presents the Court with an erroneous description of the case.

Plaintiffs and Defendant are not, of course, the only participants in the KBA.  Hundreds of claims have been filed by other parties including the Klamath Tribes.^[7]  The points elided by Plaintiffs are not only the existence of these claims, but that many of these claims are for water uses senior to Plaintiffs.  So an “adverse outcome” for Plaintiffs would mean these senior claims are vindicated as against Plaintiffs.  As a result, Plaintiffs are far from the top of the priority list for access to water.  In a drought year like 2001, this is an extremely important, and misleading, oversight by Plaintiffs.

The number of claims for water that are senior to Plaintiffs is already a matter of record in this case, as is the amount of water associated with those claims.^[8]  For present purposes, these can be grouped into two categories.

First, there are 199 such claims for non-tribal irrigation water use, claiming water for 101,079 irrigated acres.  An “adverse determination” for Plaintiffs means all these claims would be adjudicated as having priority over Plaintiffs.  This means that at the standard water duty applied by the Oregon Water Resources Department of 3.5 acre-feet/acre, there are 353,777 acre-feet of water that must be delivered to others before Plaintiffs receive any water at all.

Second, there are the Tribes’ claims which, with a “time immemorial” priority date, are also senior to Plaintiffs’ claims.^[9]  Vindication of these, too, would be part of an “adverse determination” for Plaintiffs in the KBA.  As the record makes clear, in a drought year like 2001, these claims would receive a quantity of water that calls into serious question whether Plaintiffs would receive the water for which they claim compensation before this Court.^[10]

The contention by Plaintiffs that the KBA is “irrelevant to plaintiffs’ interests here” (Order, August 22, 2003, at 2) is set forth in a false light.  A reading of the plaintiffs’ revised motion for partial summary judgment leaves one with the impression that there are no senior tribal water interests; that there are no non-tribal interests with rights senior to those of these Plaintiffs; and that the only issue to be addressed in the KBA which is pertinent to these proceedings, has to do with these Plaintiffs and Reclamation.  That construct is manifestly inaccurate.  An “adverse determination” in the KBA leaves Plaintiffs far down the priority list for access to water.  The amici Tribes believe that the determination of whether the plaintiffs possessed, and then suffered a taking of, a compensable property right, must take into account the government’s obligations to provide water to Indian tribes and others before releasing water to the plaintiffs.  See, Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978)(determination of a “taking” involves an intense factual evaluation of sometimes complex circumstances; “government may execute laws or programs that adversely affect” economic values without that action constituting a “taking”).

 

IV.

CONCLUSION