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.                                       )

_________________________ ________  )                

                                                                                   

DEFENDANT’S PROPOSED FINDINGS OF UNCONTROVERTED FACT

 

            Pursuant to RCFC 56(h)(1), Defendant United States of America submits the following proposed findings of fact in support of its opposition to plaintiffs’ motion for partial summary judgment and in support of its cross-motion for partial summary judgment.  Defendant believes that each of these facts is uncontroverted and material to resolution of plaintiffs’ pending motion and defendant’s cross-motion.  

1.         The claimants in Case 003 of the Klamath Basin Adjudication include all but one of the irrigation district plaintiffs in this action.  On August 4, 2003 , the claimants in Case 003  filed a Statement of Stipulated Facts Re: Claims and Contests Consolidated for Hearing in Case 003.  This Statement of Stipulated Facts was agreed to by the claimants who are parties to this case, but remains subject to comment by the other parties to Case 003 and must be approved by the Administrative Law Judge.  See Statement of Stipulated Facts (hereinafter “KBA Facts”) (Def. Ex. 1).  

2.         This case involves the operation of the Klamath Project, a Federal Reclamation project authorized in 1905 by the following Act of Congress:

The Secretary of the Interior is hereby authorized in carrying out any irrigation project that may be undertaken by him under the terms and conditions of the national reclamation act and which may involve the changing of the levels of Lower or Little Klamath Lake, Tule or Rhett Lake, and Goose Lake, or any river or other body of water connected therewith, in the States of Oregon and California, to raise or lower the level of said lakes as may be necessary and to dispose of any lands which may come into the possession of the United States as a result thereof by cession of any State or otherwise under the terms and conditions of the national reclamation act.  

Act of February 9, 1905 , ch. 567, 33 Stat. 714 (43 U.S.C. § 601).  See also Def. Ex. 1 (KBA Facts at 47).  

3.         The Reclamation Act of June 17, 1902 , 32 Stat. 388, 43 U.S.C. § 371, et seq., provided general authorization and guidance for the construction of federal reclamation projects.  Under Section 8 of the 1902 Reclamation Act, the United States is required to comply with state law regarding the appropriation of water for project purposes except when state law is inconsistent with clear congressional directives.  See California v. United States , 438 U.S. 645, 668 (1978).  

4.         On February 22, 1905 , the Oregon legislature enacted the following legislation related to the development of the Klamath Project:

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).    

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).   

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).   

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, to-wit:

 

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).   

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).  

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).   

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).    

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.   

1.         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. . . .”).  

2.         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.   

3.         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.   

4.         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).  

5.         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.  

6.         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.  

7.         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.   

8.         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).  

9.         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).  

10.       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).  

11.       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).  

12.       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.   

13.       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. 

14.       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.”).   

15.       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.   

16.       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).  

17.       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/.   

18.       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).  

19.       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.  

            Id. at 11.  

 

20.       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.    

            Id.   

21.       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).   

22.       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.

            Id. (Drought Plan, p. B-1).    

23.       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.   

24.       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.   

25.       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).  

26.       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).    

27.       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).   

28.       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.   

29.       The “major purposes” of the Compact are, inter alia,  

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.

            Pls.’ Ex. 1 at 33 (Compact, Art. I).   

30.       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.  

31.       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).  

32.       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.  

            Compact, Art. XI (Pls.’ Ex. 1, p. 38).  

33.       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)).  

34.       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.        

35.       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 doe not give KHDIC any contractual or other right to receive Klamath Project water.  Pls.’ Ex. 19.   

Dated:  October 3, 2003

                                                                                    Respectfully submitted,

 

                                                           

                                                                             

____________________________________

                                                                                    KRISTINE S. TARDIFF

                                                                                    Attorney of Record for the Defendant

                                                                                    JOANNA B. GOGER

                                                                                    United States Department of Justice

                                                                                    Environment & Natural Resources Division

                                                                                    General Litigation Section

                                                                                    P.O. Box 663

                                                                                    Washington, D.C.  20044-0663

                                                                                    Tel: (202) 305-0481

                                                                                    Fax: (202) 305-0506               

 

                                                                                    REGINALD T. BLADES, JR.

                                                                                    Senior Trial Counsel

Commercial Litigation Branch

Civil Division

Department of Justice

Attn:  Classification Unit

8th Floor, 1100 L Street, N.W.

                                                                                    Washington, D.C.   20530

                                                                                    Telephone:  (202) 514-7300

                                                                                    Facsimile:  (202) 307-0972