IN THE UNITED STATES COURT OF FEDERAL CLAIMS
__________________________________________
KLAMATH IRRIGATION DISTRICT et
al.,
)
)
Plaintiffs,
)
)
v.
) No. 01-591 L
)
UNITED STATES OF
AMERICA,
) Judge Diane Gilbert Sypolt
)
Defendant.
)
__________________________________________ )
DEFENDANT'S RESPONSE TO PLAINTIFFS' REVISED
PROPOSED FINDINGS OF UNCONTROVERTED FACT
Pursuant to RCFC 56(h)(2), defendant hereby responds to plaintiffs' proposed findings of uncontroverted fact. As required by RCFC 56(h)(1), plaintiffs' proposed findings of uncontroverted fact must contain "concise, separately numbered paragraphs setting forth all of the material facts upon which the party bases its motion and as to which the party believes there is no genuine dispute." In addition, each proposed finding of fact is required to "contain citations to the opposing party's pleadings or to documentary evidence, such as affidavits or exhibits, filed with the motion or otherwise part of the record in the case." RCFC 56(h)(1).
Plaintiffs' Proposed Finding #1: The Klamath Reclamation Project (Klamath Project), which straddles the southern Oregon and northern California borders, supplies irrigation water for beneficial use on farms and ranches located in Klamath River Basin. The Klamath Project area includes 240,000 acres of irrigable lands. (There are also national wildlife refuge lands within the Klamath Project area.). 200,000 of the 240,000 total irrigable lands within the Klamath Project receive their water from the Klamath River system that is stored in the Upper Klamath Lake. The remaining 40,000 acres are irrigated with water stored in Clear Lake Reservoir and Gerber Reservoir, and delivered through the Lost River system. In 2001, water deliveries from Clear Lake and Gerber Reservoir were not curtailed, and are not part of this lawsuit. The 176,000 privately owned acres of land in the western portion of the Klamath Project, which are irrigated with water from the Upper Klamath Lake, had their water withheld in 2001. See Def. Ex. 3 (Klamath Project Historic Operation (KP Historic Operation) at 1, 5, 6 (Dept. of Interior Bureau of Reclamation Nov. 2000)); see also Pls.' Ex. 3, App. at 50 (Map and Factual Data on the Klamath Project (Bureau of Reclamation Sept. 2000)) (hereinafter "Map and Factual Data").
Defendant's Response to Proposed Finding #1: With
respect to the first sentence of this proposed finding, defendant agrees with
plaintiffs' general description of the location of the Klamath Project.
Defendant further agrees that the Project supplies irrigation water for use on
farms and ranches within the area served by the Project. However, in addition to
providing irrigation water for these agricultural irrigation purposes, the
Project also provides water for domestic use and for National Wildlife Refuge
lands. Water in Upper Klamath Lake and water released into the Klamath River
support tribal trust resources. Def. Ex. 3 (KP Historic Operation at 5-6,
23-24). The Project also provides flood protection to certain lands within the
area served by the Project. Id.
With respect to the second sentence of this proposed finding,
defendant agrees that there are approximately 240,000 acres within the Klamath
Project area that are potentially irrigable, but states that the actual number
of acres irrigated in any given year is significantly less than this. Defendant
agrees that there are national refuge lands within the Klamath Project area.
With respect to the third sentence of this proposed finding,
defendant disputes plaintiffs' assertion that a full 200,000 acres of land
receive water from the Klamath River system that is stored in the Upper Klamath
Lake (UKL). In the Klamath Basin Adjudication, Reclamation has claimed
approximately 180,000 acres of land as irrigated from the Klamath River
(excluding the wildlife refuge wetlands) and approximately 15,500 acres as
potentially irrigable but not currently irrigated, for a total of 197,000 acres.
See Def. Ex. 22 (Declaration of Cecil H. Lesley, ¶2); Pls.' Ex. 29 at
225-26. Although defendant disputes plaintiffs' acreage figure in the third
sentence, defendant notes that this particular fact, and the parties' dispute,
is not material to the issues before the Court. Defendant also disputes
plaintiffs' assertion that all of the irrigation water received by the lands in
this area (generally referred to as the west side of the Project) is water
"stored in the Upper Klamath Lake." The UKL cannot store enough water
to provide for all irrigation uses. Some of the irrigation use is from natural
flow that is not stored in UKL. In addition, some of the lands that receive
water from the Klamath River also receive Lost River water at certain times of
the year. See Def. Ex. 22 (Lesley Decl. ¶ 2).
With respect to the fourth sentence of this proposed finding,
defendant disputes plaintiffs' assertion that a full 40,000 acres receive
irrigation water from the Lost River system, and states that the number of acres
receiving irrigation water in this area (the east side of the Project) is
limited to 25,542.5 acres. See Def. Ex. 22 (Lesley Decl. ¶ 2). However,
defendant further notes that this particular fact is not material to the issues
before the Court since the plaintiffs' are not alleging a taking of water from
lands in this area of the Klamath Project.
With respect to the fifth sentence of this proposed finding,
defendant agrees that water deliveries from Clear Lake and Gerber Reservoir
(delivered through the Lost River system) were not curtailed in 2001, and are
not part of this lawsuit. Since plaintiffs concede that these water deliveres
are not part of their lawsuit, defendant notes that this is not a material fact
in this case.
With respect to the sixth sentence of this proposed finding,
the documents cited by plaintiffs do not provide any support for plaintiffs'
assertion that there are 176,000 privately owned acres of land in the western
portion of the Klamath Project, which are irrigated from the Upper Klamath Lake,
and that had their water withheld in 2001. Defendant does not dispute the fact
that there are private owned lands in the western portion of the Klamath
Project, but the actual number of acres in private ownership is approximately
158,000. See Def. Ex. 22 (Lesley Decl. ¶ 2).
Plaintiffs' Proposed Finding #2: "Gross crop value [of crops grown with Klamath Project water in] 1999 was estimated at over 104 million dollars. Principal crops . . . include alfalfa, irrigated pasture, small grains, potatoes, onions, sugar beets, and miscellaneous crops. Wildlife benefits derived from Project operations include over 20,000 acres of seasonal and permanent marsh." Def. Ex. 3 (KP Historic Operation at 6-7); Pls.' Ex. 3, App. at 50.
The
gross crop value of crops grown within the Klamath Project area in 1999, and the
principal crops grown in the area, are not facts that are relevant or material
to the question of whether plaintiffs' had a compensable property interest in
the right to use Project water in 2001, notwithstanding a determination in the
Klamath Basin Adjudication that is presumably adverse to plaintiffs for the
purposes of the current summary judgment motions. Although plaintiffs recite
these proposed facts in the Factual Background section of their brief at page 3,
they do not rely on this fact in any portion of their argument. Subject to this
objection that plaintiffs' proposed fact #2 is not a "material" fact
within the meaning of RCFC 56(h)(1), defendant states that plaintiffs have
accurately quoted the gross crop value for 1999 from the KP Historic Operation
report, but notes that this estimated gross crop value is for the entire
Project, not just for the west side of the Project where the lands at issue in
this case are located. Subject to this same objection, defendant agrees with
plaintiffs' recitation of the principal crops grown in the area in question, and
that the wildlife benefits derived from Project operations include over 20,000
acres of seasonal and permanent marsh.
Plaintiffs' Proposed Finding #3: Upper Klamath Lake is approximately 30 miles long, narrow and shallow, with a surface area of 77,500 acres when full. The Link River dam allows discharge of water down to an elevation of 4,136 feet above sea level. The "active storage" of Upper Klamath Lake is thus 486,828 acre-feet. The Bureau of Reclamation (Reclamation) controls the elevation of Upper Klamath Lake by either discharging water from Link River Dam (located at the head of the Upper Klamath River) into the Klamath River or [by releasing it] into the A Canal of the Klamath Project. The irrigation demands of the Klamath Project can almost always be met by maintaining a lake level in excess of 4,138 feet above sea level, although in extreme drought the level has fallen to 4,137 feet above sea level. Historically, Klamath Project water users receive 350,000 to 450,000 acre-feet of water per year for irrigation. See Second Solem Decl. at ¶ 9 (July 14, 2003), Pls.' Ex. 8, App. at 60.
Defendant's Response to Proposed Finding #3: With respect
to the first sentence of this proposed finding, defendant does not dispute that
the Upper Klamath Lake (UKL) is approximately 30 miles long and that it is
relatively narrow and shallow. Indeed, because the UKL is relatively shallow,
Reclamation cannot capture and store large quantifies of water from
precipitation and spring run-off. As stated by the federal district court in Kandra
v. United States,
Unlike other Reclamation projects, the [Klamath] Project does not have a major water storage reservoir. Yearly water levels of UKL vary, largely depending on the previous winter's snowfall and the amount of precipitation during the spring and summer. UKL is relatively shallow and unable to capture and store large quantities of water from spring run-off. Consequently, the Project's storage capacity is limited, and Reclamation cannot store water during years of heavy precipitation to meet water needs in dry years.
145 F. Supp.2d 1192, 1197 (D. Or. 2001). See also Def. Ex. 22 (Lesley Decl. ¶ 2). Defendant does not dispute that the surface area of UKL when full is approximately 77,500 acres, but notes that this fact is not material to any of the issues before the Court.
With respect to the second sentence of this proposed finding,
defendant disagrees that the Link River Dam allows discharge of water down to an
elevation of 4,136 feet above sea level. Instead, it is the invert of the
"A" Canal that, in 2001, allowed the UKL to be lowered down to
approximately 4,136 feet. Def. Ex. 1 (KBA Facts, p. 25). With respect to the
third sentence of this proposed finding, defendant agrees that the "active
storage" of the UKL is approximately 486,828 acre-feet. Defendant further
notes that this quantity of water is the difference between a lake elevation of
4,143.3 (a full pool) and 4,136. Def. Ex. 1 (KBA Facts, p. 25).
Defendant disputes the proposed findings set forth in the
fourth sentence. Pacificorp (formerly Copco) operates the Link River Dam and
controls the elevation of the UKL under a contract with Reclamation, although
Reclamation can take over or direct operation of the Link River Dam when
necessary to meet its obligations under the Endangered Species Act and to comply
with Tribal water requirements. See Def. Ex. 1 (KBA Facts, pp. 25-26); Klamath
Water Users Assoc. v. Patterson, 204 F.3d 1206, 1212-14 (9th Cir. 2000).
Defendant further states that water also spills from UKL during flood times, and
that Reclamation does not control this flow of water from UKL. See Def.
Ex. 22 (Lesley Decl. ¶ 3).
With respect to the fifth sentence of this proposed finding,
defendant states that since 1960 Upper Klamath Lake has been operated below
elevation 4138 feet a total of three times, the minimum being 4136.84 feet in
1994. There were two additional years that the Upper Klamath Lake was operated
to within 0.5 feet of 4138 feet: 1991 and 2002. See Def. Ex. 22 (Lesley
Decl. ¶ 3). With respect to the sixth sentence of this proposed finding,
defendant states that in most years, deliveries of water to the irrigators do
not exceed 360,000 acre-feet. Id. However, there have been three years
(1991, 1992 and 1994) when deliveries have been near 450,000 acre-feet. Id.
These higher delivery amounts were due to extreme drought and deliveries outside
the normal irrigation season (April to September). Id. In addition, deliveries
during the normal irrigation season were near 360,000 acre-feet in each of those
three years. Id.
Plaintiffs' Proposed Finding #4: Irrigated farming in the Klamath Valley began well before the commencement of the Klamath project, and many of the individual plaintiffs trace their title to pre-project deeds. See Second Solem Decl. at ¶ 8 (July 14, 2003), Pls.' Ex. 8, App. at 60; Second Danosky Decl. at ¶ 3 (July 16, 2003), Pls.' Ex. 9, App. at 67; Second Henzel Decl. at ¶ 6 (July 16, 2003), Pls.' Ex. 10, App. at 71; Second Hartman Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 12, App. at 95; Second Campbell Decl. at ¶ 3 (July 16, 2003), Pls.' Ex. 14, App. at 101; Second Hagerty Decl. at ¶ 4 (July 14, 2003), Pls.' Ex. 16, App. at 108; Orem Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 20, App. at 135; Second Byrne Decl. at ¶ 2 (July 17, 2003), Pls.' Ex. 25, App. at 194; Second Moore Decl. at ¶ 3 (July 17, 2003), Pls.' Ex. 26, App. at 197; Second Chin Decl. at ¶ 3 (July 17, 2003), Pls.' Ex. 22, App. at 150.
Defendant's Response to Proposed Finding #4: This
proposed fact is not referred or relied on by plaintiffs in their pending
revised motion for partial summary judgment. Accordingly, this proposed fact is
not material to any of the issues presently before the Court, and no response is
required by defendant. However, defendant acknowledges that settlers in the
Klamath River basin began to divert water for irrigation purposes prior to the
development of the Klamath Project. See Def. Ex. 1 (KBA Facts, pp. 50-58,
pp. 60-61, p. 66, p. 77); Def. Ex. 3 (KP Historic Operation at 34).
Plaintiffs' Proposed Finding #5: Appropriative water rights were created through the combined actions of private companies (such as plaintiff, VANBRIMMER DITCH COMPANY) that constructed irrigation facilities, and farmers (such as Jesse Carr, the great uncle of plaintiffs Michael and Robert Byrne), who put that water to beneficial use on their lands. Other farmers received overflow irrigation from Tule Lake or constructed their own irrigation ditches directly from the river. See Second Byrne Decl. at ¶ 2, (July 17, 2003), Pls.' Ex. 25, App. at 194; Orem Decl. at ¶ 5,6 (July 16, 2003), Pls.' Ex. 20, App. at 135; Second Hagerty Decl. at ¶ 4 (July 14, 2003), Pls.' Ex. 16, App. at 108.
This
proposed fact is not referred or relied on by plaintiffs in their pending
revised motion for partial summary judgment. Accordingly, this proposed fact is
not material to any of the issues presently before the Court, and no response is
required by defendant. In addition, the proposed finding of "fact"
contained in the first sentence is a legal argument or proposed legal conclusion
that is unsupported by the referenced declarations. Defendant acknowledges that
Van Brimmer Ditch Company and other irrigators diverted water for irrigation
purposes prior to the development of the Klamath Project. See Def.'s
Response to Pls.' Proposed Fact No. 4, supra. However, as explained in
defendant's brief, the United States acquired these rights in connection with
its development of the Klamath Project. See Def.'s Brief, Sections
III and IV.C.2.; Def. Ex. 1 (KBA Facts, pp. 50-58 ) (describing Reclamation's
acquistion of water rights acquired under state law prior to the development of
the Klamath Project).
Plaintiffs' Proposed Finding #6: Other lands (notably the former lake bottoms of Tule Lake and Lower Klamath Lake, which were to be drained by the project) were owned by the United States. After the Klamath Project was begun, these lands were opened to homesteading, with priority given in many cases to veterans who fought for the United States in World War I and II. Plaintiff, Fred A. Robison and his father, Wade T. Robison, obtained their title as "homesteading vets." Plaintiffs, Lonny Baley and Mark Trotman also trace their title to homesteaders, although their history is not known. Second Robison Decl. at ¶¶ 2-11, 13, 14 (July 17, 2003), Pls.' Ex. 23, App. at 152; Second Danosky Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 9, App. at 67; Second Lonny E. Baley and Mark R. Trotman Decl. at ¶ 1 (July 17, 2003), Pls.' Ex. 24, App. at 185.
Defendant's Response to Proposed Finding #6: This proposed
fact is not referred or relied on by plaintiffs in their pending revised motion
for partial summary judgment. Accordingly, this proposed fact is not material to
any of the issues presently before the Court, and no response is required by
defendant. Although these facts are not material to the issues before the Court,
defendant does not dispute that lands drained and uncovered by the development
of the Klamath Project, which includes the former lake bottoms of Tule Lake and
Lower Klamath Lake, were ceded to the United States by the states of Oregon and
California and that these reclaimed lands were thus owned by the United States.
Def. Ex. 1 (KBA Facts at pp. 45-47 (describing and quoting from the state
cession statutes)); Def. Ex. 1 (KBA Facts at pp. 97-99 (describing reclamation
of the Tule Lake area lands)); Def. Ex. 3 (KP Historic Operation at 6).
Defendant agrees that some of these reclaimed lands were made available for
homesteading, and that priority was given in many cases to veterans. Def. Ex. 1
(KBA Facts, pp. 99-100, 104); Pls.' Ex. 3. However, defendant further states
that portions of these reclaimed lands were made part of the Lower Klamath
National Wildlife Refuge, which contains 46,912 acres, and Tule Lake National
Wildlife Refuge, which contains 39,117 acres. Def. Ex. 22 (Lesley Decl. ¶ 4);
Pls.' Ex. 3. Of this refuge acreage, approximately 22,000 acres are leased for
agricultural purposes. Def. Ex. 22 (Lesley Decl. ¶ 4).
Although Defendant has not been able to verify the facts in
the third and fourth sentences of this proposed finding, for the purposes of
this briefing only, defendant does not dispute these proposed facts.
Plaintiffs' Proposed Finding #7: Authorized in 1905, the Klamath Project was one of the first water projects constructed under the Reclamation Act of 1902. In the Reclamation Act, "Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western states." California v. United States, 438 U.S. 645, 650 (1978). As with other Reclamation Act projects, the Klamath Project was to be self-sufficient. A "revolving fund was established with moneys received from the sale of public lands, and the Secretary of Interior was directed to survey the west and located and construct irrigation projects, opening up the improved lands to settlement under the homestead laws . . . . Construction costs were to be repaid into the fund by the settlers and landowners in ten annual installments without interest." Frank J. Trelease, Reclamation Water Rights, 32 ROCKY MTN. L. REV. 464, 465 (1960), Pls.' Ex. 7, App. at 58.
Defendant's Response to Proposed Finding #7: With respect
to the first sentence of this proposed finding, Defendant does not dispute that
the Klamath Project was authorized in 1905, and that the Klamath Project was one
of the first water projects constructed under the Reclamation Act of 1902.
With respect to the second sentence of this proposed finding,
Defendant does not dispute that plaintiffs have accurately quoted a single
sentence from California v. United States, 438 U.S. 645, 650 (1978), that
generally describes the program created by the Reclamation Act of 1902.
Defendant further notes that this fact is not material to any of the questions
presented in plaintiffs' pending motion for partial summary judgment.
With respect to the third sentence, plaintiffs have not
provided any evidentiary support for their assertion that the Klamath Project
was intended to be self-sufficient. Moreover, this fact is not material to any
of the questions presented in plaintiffs' pending motion for partial summary
judgment.
With respect to the fourth and fifth sentences, defendant
does not dispute that plaintiffs have accurately quoted an excerpted portion of
the referenced law review article. Defendant further notes that this same law
review article further states that, "The revolving fund was long ago
exhausted and today's projects are built with general funds. Repayment periods
have been stretched out." Pls.' Ex. 7 at 59. The same article also
emphasizes that the Reclamation Act of 1902 was enacted because previous
attempts to develop these large reclamation projects with private funds had been
unsuccessful. As the the article explains,
The Carey Act of 1894 was the first attempt of the national government to assume an active role in the development of western irrigation. It placed a million acres at the disposal of each participating state that would build (or cause to be built by private capital) large irrigation works and would sell the lands to settlers in tracts of 160 acres. However, the Carey Act was substantially a failure. Few projects were built and on most of them the settlers found themselves in severe financial difficulties resulting from the heavy mortgages placed upon the lands to secure repayment of the cost of construction of the irrigation works.
The Reclamation Act marked a departure from this pattern of private development. Since the need for large dams and canals was not being fully met by private capital, the act introduced federal financing of the projects. . . .
Pls.' Ex. 7 at 58-59.
Plaintiffs' Proposed Finding #8: In return for their payments, in compliance with the Reclamation Act, Klamath Project farmers were to receive from the Reclamation Service (later the Bureau of Reclamation) water rights. "[T]he right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 43 U.S.C. §§ 372, 383 (2003).
Defendant disputes this proposed fact. First, the "fact" proposed in
the first sentence, which is really a legal conclusion rather than an
uncontroverted fact, is not supported by the provision of the Reclamation Act
that is cited and quoted in the second sentence. The relevant question here is
not whether any of the plaintiffs are to or "were to receive" water
rights from Reclamation, the relevant question is whether they had in fact
received such water rights prior to or as of the 2001 water year that is the
focus of plaintiffs' takings claims. The question of whether plaintiffs hold
such a right and, if so, the nature and scope of that right, is the central
issue in the briefing before the Court and is therefore quite clearly disputed.
Notably, plaintiffs have not presented any evidence that they have in fact
received such certificates, nor is defendant aware of Reclamation having
transferred, released or otherwise relinquished the Project water rights it
appropriated for the Project to the plaintiffs. See Def. Ex. 22 (Lesley
Decl. ¶ 6).
Plaintiffs' Proposed Finding #9: To obtain Klamath Project water rights, Reclamation required homesteaders to file a Form A Water Rights Application, while existing landowners were required to file Form B. Both water rights applications read:
[A]pplication is hereby made to the United States of America . . . for a permanent water right for the irrigation of and to be appurtenant to all of the irrigable area now or hereafter developed under the above-named project within the tract of land described in paragraph 2, as shown by plats now or hereafter approved by the Secretary of Interior.
Form A, Application for Permanent Water Right, Pls.' Ex. 4, App. at 52.
I . . . do hereby apply . . . for a water right for the irrigation of and to be appurtenant to . . . acres of irrigable land as shown on plats approved by the Secretary of the Interior within the tract described as follows . . . .
Form B, Water-Right Application for Lands in Private Ownership and Lands Other than Homesteads Under the Reclamation Act, Pls.' Ex. 5, App. at 53.
Defendant's Response to Proposed Finding #9: Defendant
disputes portions of this proposed finding of fact. First, defendant disputes
plaintiffs' assertion that homesteaders and private landowners received
"Klamath Project water rights" through the mere filing of the
applications that are partially described above. Indeed, the question of whether
the plaintiffs have "water rights" and, if so, what the scope and
nature of those "water rights" are, is the disputed question that is
before the Court in the parties' cross-motions.
Defendant agrees that no Klamath Project water can be
delivered without a contract. The referenced "Water Right
Applications" are forms of contract prepared by the Department of the
Interior for the delivery of Project water. See Def. Ex. 23 ("The
water right application constitutes a contract between the United States and the
applicant and gives the Government a lien upon the applicant's land for
non-payment of charges and also the right to withhold water until the same are
paid.").
Plaintiffs' Proposed Finding #10: Homesteaders who satisfied legal requirements eventually obtained title to their land by patent deed from the United States, which typically stated:
The United States of America, in consideration of the premises, and in conformity with the several Acts of Congress . . . has given and granted . . . unto the said [name of grantee] . . . the tract above described, together with the right to the use of water from the Klamath Reclamation Project as an appurtenance to the irrigable lands in said tract . . . .
United States Patent, Pls.' Ex. 6, App. at 56. Plaintiffs within Klamath Irrigation District, Tulelake Irrigation District, Fred A. Robision, and Albert A. Robison, trace title to their lands and water rights to such patents. See, e.g., Second Robison Decl. at ¶¶ 2, 14 (July 17, 2003), Pls.' Ex. 23, App. at 152; Second Solem Decl. at ¶ 7 (July 14, 2003), Pls.' Ex. 8, App. at 60; Second Danosky Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 9, App. at 67.
Defendant's Response to Proposed Finding #10: This
proposed finding of fact is not relevant or material to the issues raised in
plaintiffs' pending motion for partial summary judgment. Indeed, a review of
plaintiffs' brief reveals that plaintiffs have not cited to, referenced, or
relied upon any patents from the United States in their argument. Although this
proposed fact is not a material fact, and therefore no response is required by
defendant, defendant does not dispute that some of the land that was reclaimed
by the United States when it developed the Klamath Project was ceded to the
United States by the State of California and then conveyed by the United States
to homesteaders by a patent. See Def. Ex. 1 (KBA Stip. Facts, pp. 96-99)
(discussing lands within the Tulelake Irrigation District). Defendant admits
that Plaintiffs' Exhibit 6 is a patent from the United States for lands within
the Klamath Project area. Although plaintiffs have quoted only a small portion
of this single patent, defendant does not dispute that the language quoted is
typical of language found in such patents. Defendant disputes the last sentence
of this proposed finding. Although title to lands may be traced back to a
patent, any right to receive water for such lands is defined and controlled by
contracts with Reclamation. As noted elsewhere herein and in defendant's brief
in support of its cross-motion for partial summary judgment, the question of
whether plaintiffs have "water rights" is the central disputed
question in this case.
Plaintiffs' Proposed Finding #11: Pre-Project settlers, who already held title to their farms, were to receive Final Water Rights Certificates from Reclamation. See Form B, Water-Right Application for Lands in Private Ownership and Lands Other than Homesteads Under the Reclamation, Pls.' Ex. 5, App. at 53 ("I . . . do hereby apply . . . for a water right for the irrigation of and to be appurtenant to . . . acres of irrigable land as shown on plats approved by the Secretary of the Interior within the tract described as follows . . . ."; see also 43 U.S.C. § 541 (2003) ("[A]ll purchasers of water-right certificates on reclamation projects shall be entitled to a final water-right certificate upon proof of the cultivation and reclamation of the land to which the certificate applies . . . .").
Defendant's Response to Proposed Finding #11: This
proposed fact is not referred or relied on by plaintiffs in their pending
revised motion for partial summary judgment. Accordingly, this proposed fact is
not material to any of the issues presently before the Court, and no response is
required by defendant. However, defendant does not dispute that certain
individuals who held land in private ownership within the Klamath Project before
1905 submitted "Water Right Applications" for lands in private
ownership. As stated in Plaintiffs' Proposed Finding of Fact #9 and in
defendant's response thereto, no Klamath Project water can be delivered without
a contract, and the "Water Right Applications" are forms of contract
prepared by the Department of the Interior for the delivery of Project water. See
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."). Moreover, as noted in response to Proposed
Finding #8, the relevant question here is not whether any of the plaintiffs are
to or "were to receive" water rights certificates from Reclamation,
the relevant question is whether they had in fact received such water rights
prior to or as of the 2001 water year that is the focus of plaintiffs' takings
claims. The question of whether plaintiffs hold such a right and, if so, the
nature and scope of that right, is the central issue in the briefing before the
Court and is therefore quite clearly disputed.
Plaintiffs' Proposed Finding #12: To facilitate payment for their Klamath Project water rights, on May 22, 1903 the landowners formed the Klamath Water Users Association (Association), a corporation to which all water rights applicants were required to subscribe. The Association entered into a contract with the United States to guarantee "the payments for the water rights to be issued to the shareholders . . ." The function of collecting money from the landowners and making payments to Reclamation was assumed by Klamath Irrigation District in 1918, and by other districts as additional units of the Klamath Project came on line. The cost of Klamath Project facilities, annual operation, and maintenance have long since been paid off, and the plaintiff districts have performed all obligations of their contracts. See KWUA 1905 Contract at ¶ 4 (Pls.' Amended Compl., App. at Ex. 1, pp.1 (Mar. 24, 2003)); Second Solem Decl. at ¶ 6 (July 14, 2003), Pls.' Ex. 8, App. at 60; Second Danosky Decl. at ¶ 5 (July 16, 2003), Pls.' Ex. 9, App. at 67; Second Henzel Decl. at ¶ 13 (July 16, 2003), Pls.' Ex. 10, App. at 71; Second Hartman Decl. at ¶ 7 (July 16, 2003), Pls.' Ex. 12, App. at 95; Second Campbell Decl. at ¶ 6 (July 16, 2003), Pls.' Ex. 14, App. at 14; Second Hagerty Decl. at ¶ 6 (July 14, 2003), Pls.' Ex. 16, App. at 16; Orem Decl. at ¶ 7 (July 16, 2003), Pls.' Ex. 20, App. at 135; Second Anderson Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 13, App. at 99; Second Moore Decl. at ¶ 4 (July 16, 2003), Pls.' Ex. 17, App. at 112; Haught Decl. at ¶ 6 (July 16, 2003), Pls.' Ex. 21, App. at 147.
Defendant's Response to Proposed Finding #12:
Defendant disputes may of the proposed findings of fact contained in Plaintiffs'
Proposed Finding of Fact #12.
With respect to the first sentence of this proposed finding,
defendant agrees that landowners in the area to be served by the Klamath Project
formed the Klamath Water Users Association ("KWUA"). See Def.
Ex. 1 (KBA Facts at 45, 88-89). Plaintiffs have not provided any supporting
documentation for their assertion that the KWUA was formed on May 22, 1903. The
factual stipulations entered into by the parties in the Adjudication provide
that the original KWUA "existed between 1905 and 1919." Def. Ex. 1 (KBA
Facts at 45 n.20). See also Pls.' Ex. 10 at 72 (Henzel Decl. ¶ 7)
(stating that KWUA was formed on March 4, 1904). Defendant also disputes
plaintiffs' characterization that the KWUA was formed "[t]o facilitate
payment for [the landowners] Klamath Project water rights . . . ." The
purpose of the formation of the KWUA was described by the parties in their
Statement of Stipulated Facts in the Adjudication as follows:
The Klamath Water Users Association was organized and incorporated under the laws of the state of Oregon for the purpose of entering into a contract with the United States of America for the development of the Klamath Reclamation Project, pursuant to the Reclamation Law of 1902. Exhibit 003E00040710. The stockholders of the Klamath Water Users Association, under the requirements of its Bylaws (Exhibit 003E00040712), were the owners and occupants of land within an area to be included in the Klamath Reclamation Project. Following the execution of the Contract between the Klamath Water Users Association and the United States (Exhibit 003E00010001, Index 2549), the land owners entered into Stock Subscription Agreements and Contracts with the Klamath Water Users Association, which provided for the issuance of one share of stock for each acre of irrigable land owned by the water user within the Project boundaries. Exhibit 003E00010727. 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. A representative copy of such applications accompanies this Stipulation as Exhibit 003E00040728. The Klamath Water Users Association was responsible for collecting from each of its stockholder members his or her annual charges for the costs of construction and operation of the project and was responsible under the Contract with the United States for the full payment of said charges, whether or not it was able to collect the amount of the charges from each of its members. The terms of the Agreements and Contracts and the structure of the relationship between the United States, the Klamath Water Users Association, and its stockholder members was done in accordance with the Reclamation Act of 1902. The Agreements between said parties created liens in favor of the United States against the land of the water users for the repayment of the construction charges. Pursuant to the terms of the Agreements, the liens were to remain in place until the charges were paid in full.
Def. Ex. 1 (KBA Facts at 88-89).
With respect to the second sentence of this plaintiffs'
proposed finding #12, defendant does not dispute that plaintiffs have accurately
quoted a portion of a clause from KWUA's 1905 Contract with Reclamation, which
is attached to their Amended Complaint as Ex. 1. However, defendant disputes the
suggestion created by pulling this limited language out of context that the
landowners' payments to Reclamation – made through the KWUA – gave them a
"water right" other than a contractual right to use Project water that
is defined and limited by irrigation districts' contracts with Reclamation. See
Def.'s Brief, Section IV.C.
With respect to the third sentence of this proposed finding,
defendant agrees that in 1918 the Klamath Irrigation District ("KID")
assumed KWUA's repayment obligations. See Def. Ex. 1 (KBA Facts at 89)
("By Contract dated July 6, 1918, the United States of America, the [KID],
and the [KWUA] entered into an Agreement whereby the District assumed the
obligations of the [KWUA] and its stockholders, specifically, the obligation to
pay the United States for the construction of those portions of the Klamath
Project facilities that provided irrigation water to the irrigable lands within
the District, and for the operation and maintenance charges of those
facilities."). Defendant also agrees that repayment obligations were
assumed by other districts as additional units of the Klamath Project were
developed and came on line.
With respect to the fourth sentence of this proposed finding,
defendant does not dispute that the initial construction costs of the Klamath
Project have been repaid. See, e.g., Def. Ex. 1 (KBA Facts at 92 )
("The obligations for the repayment of construction debt to the United
States was satisfied by KID in full on May 4, 1965."); Def. Ex. 1 (KBA
Facts at 109) ("TID and the landowners in TID have fully repaid and
satisfied all obligations allocated to them for repayment of costs of
construction of the Klamath Project."). However, defendant notes that there
are new features of the Project that have not been included in the current
repayment contracts with the water users at this time. These new features
include the new Clear Lake Dam, the new A Canal Headworks and Fish Screens, and
the proposed Link River Fish Passage. See Def. Ex. 22 (Lesley Decl. ¶
5).
For the purposes of plaintiffs' present motion for partial
summary judgment only, defendant does not dispute that the districts are current
in their ongoing obligation to pay for the operation and maintenance of the
Klamath Project. See, e.g., Def. Ex. 1 (KBA Facts at 109) (stating that
"all costs owing to Reclamation [by Tulelake Irrigation District or
"TID"] for operation and maintenance of Project works operated by
Reclamation (reserved works) have been paid and are current."). However,
defendant disputes the assertion by plaintiffs that the cost of annual operation
and maintenance "have long since been paid off." The contractual
obligation of the irrigation districts to pay a proportionate share of the
annual operation and maintenance costs of the Klamath Project is an ongoing
obligation under the contracts, and are not expected to ever be paid out. See
Def. Ex. 22 (Lesley Decl. ¶ 5).
Plaintiffs' Proposed Finding #13: In 1957 Congress ratified and President Eisenhower signed the Klamath River Basin Compact (Klamath Compact), an interstate compact between California and Oregon "to facilitate and promote the orderly, integrated and comprehensive development, use, conservation and control . . . [of] the development of lands by irrigation and other means . . . ." The Klamath Compact recognizes plaintiffs' "vested rights to the use of waters originating in the Upper Klamath River Basin . . . including rights to the use of waters for domestic and irrigation uses within the Klamath Project." Under the Klamath Compact, the United States agreed that the Bureau of Reclamation (Reclamation) "shall not, without payment of just compensation, impair any rights to the use of water for use (a) [domestic] or (b) [irrigation] within the Upper Klamath River Basin by the exercise of any powers or rights to use or control water . . . . Klamath River Basin Compact, arts. XIII(B)(1), III(A) Pub. Law 85-222 (1957), Pls.' Ex. 1, App. at 30.
Defendant's Response to Proposed Finding #13:
Defendant agrees with the proposed fact contained in the first sentence of
plaintiffs' proposed finding #13. The second sentence is a legal contention
rather than a proposed finding of uncontroverted fact. Defendant disputes
plaintiffs' assertion that the Compact "recognizes plaintiffs' ‘vested
rights'" because it is defendant's position that plaintiffs did not have a
vested right under applicable state law at the time the Compact was entered into
by the states of California and Oregon and ratified by the U. S. Congress. See
Def.'s Brief, Section IV.E.1.
Defendant agrees that, in the third sentence of this proposed
finding of fact, plaintiffs have accurately quoted a portion of the Compact, but
emphasizes that the Compact, like any contract or agreement, must be interpreted
as a whole. Plaintiffs limited quotation of the Compact excludes articles and
language that are pertinent to this case. See Def.'s Brief, Section
IV.E.1. In addition, plaintiffs' citation to the Compact in the third sentence
is incorrect. The quoted language appear in Article XIII.B.2. of the Compact,
not in Article XIII.B.1 or in Article III.A. Moreover, as explained in
Defendant's memorandum, this compensation section only applies to rights
acquired after the effective date of the compact (1957) and in accordance with
state procedures outlined in Article III.B. of the Compact. It does not
reference or apply to the "vested rights" described in Article III.A.,
which is relied on by plaintiffs as a basis for their right.
Plaintiffs' Proposed Finding #14: Plaintiff, Klamath Drainage District holds a vested and determined water right from the State of Oregon in the form of Klamath Drainage District Permit (No. 43334) to Appropriate the Public Waters of the State of Oregon (Sept. 5, 1978) issued by the Oregon Water Resources Department. Second Henzel Decl. at ¶ 14 (July 16, 2003), Pls.' Ex. 10, App. at 74-75.
Defendant's Response to Proposed Finding #14: Defendant
does not dispute that Plaintiff Klamath Drainage District ("KDD")
holds a "Permit to Appropriate the Public Waters of the State of
Oregon" from the Klamath River, and that KDD's permit number is 43334.
Defendant agrees that this permit was issued by the Oregon Water Resources
Department on September 5, 1978, and further notes that the priority date of the
permit is April 25, 1977. Pls.' Ex. 10 at 89. See also Def. Ex. 25.
Defendant further states that the right to use water from the
Klamath River that was granted by KDD's permit is "subject to existing
rights including the existing policies established by the [State of Oregon]
Water Policy Review Board," as well as other limitations and conditions set
forth in the permit. Pls.' Ex. 10 at 89. For example, the permit limits KDD's
use of water from the Klamath River to the "time between October 1 and
March 1 when water can be put to beneficial use by irrigation, either for
immediate crop growth or for forecast requirements to raise soil moisture to
field capacity in the soil profile to be utilized by plant growth in the
subsequent growing season." Id. As such, this state permit includes
a right to receive water during the period from October 1 through March 1, but
does not entitle KDD to receive water after March 1 in any given year. This is
very different from the terms of the irrigation district contracts with
Reclamation which generally provide for the delivery of water during the
irrigation season, which is defined in the contracts as a period between April
and September. See, e.g., Pls. Amended Compl. Ex. 3, Amendatory
Contract Between the United States and Klamath Drainage District, April 28,
1943, at ¶14 (defining "irrigation season" as the period between
April 15 and September 30). Because plaintiffs allege that Reclamation's
issuance of its 2001 Operations Plan on April 6, 2001 resulted in a shut off of
water deliveries to plaintiffs, see Complaint at ¶ 29, KDD was not denied its
state permitted rights, as those rights did not entitle KDD to receive water
between March 1 and September 30, when the alleged taking occurred.
In addition, although KDD has a "permit" from the
State of Oregon, KDD has not yet been issued a "Certificate of Water
Right" indicating that it has perfected its rights under that permit. See
Def. Ex. 25 (OWRD Water Rights Information Query Results for KDD Permit No.
43334). As explained by the Oregon Water Resources Department in its "Water
Rights in Oregon" publication, the request and receipt of a permit is only
the first step in obtaining water rights under Oregon's current water rights
system. Water Rights in Oregon (May 2001) at 15-17 (relevant excerpts at Def.
Ex. 24) (full copy available at http://www.wrd.state.or.us/publication/aquabook00/index.shtml)
. The second step involves putting the water to a beneficial use, and the third
step requires the permit holder to "prove up" that use. Id. at
19-21. Following submission of the required proof of actual use, the OWRD will
determine whether to issue a water rights certificate and, if so, the terms of
that certificate. Id. at 21. Only with the issuance of a water rights
certificate does the landowner have a "perfected" water right under
Oregon law. Id.
Plaintiffs' Proposed Finding #15: Plaintiff, Klamath Hills Improvement District holds a vested and determined water right from the States of Oregon in the form of Klamath Hills Improvement District Permit No. 48435 to Appropriate the Public Waters of the States of Oregon. Moreover, also within the boundaries of and a part of Klamath Hills Improvement District, is a water permit issued by the State of Oregon to Murel and Barbara Long vested on October 3, 1977. See Second Waldrip Decl. at ¶ 5 (July 16, 2003), Pls.' Ex. 19, App. at 117.
Defendant's Response to Proposed Finding #15: With
respect to first sentence of this proposed finding of fact, defendant does not
dispute that Plaintiff Klamath Hills Improvement District ("KHID") has
a "Permit to Appropriate the Public Waters" of the State of Oregon, in
Klamath County, and that KHID's permit number is 48435. Ex. 2 to the Second.
Waldrip Decl. (Pls.' Ex. 19 at 123). See also Def. Ex. 26.
Defendant further states that the right to use the water of the Klamath River
that is granted by this Permit has a priority date of October 10, 1983, and is
expressly "subject to existing rights including the appropriate minimum
flow policies established by the [State of Oregon] Water Policy Review
Board," as well as other limitations and conditions set forth in the
permit. Pls.' Ex. 19 at 123. Defendant disputes plaintiffs' assertion that KHID
has a "vested and determined" right under state law. Although KHID has
a "permit" from the State of Oregon, KHID has not yet been issued a
"Certificate of Water Right" indicating that it has perfected its
rights under that permit. See Def. Ex. 26 (OWRD Water Rights Information
Query Results for KHID Permit No. 48435). As explained in by the Oregon Water
Resources Department in its "Water Rights in Oregon" publication, the
request and receipt of a permit is only the first step in obtaining water rights
under Oregon's current water rights system. Water Rights in Oregon (May 2001) at
15-17 (Def. Ex. 24). The second step involves putting the water to a beneficial
use, and the third step requires the permit holder to "prove up" that
use. Id. at 19-21. Following submission of the required proof of actual
use, the OWRD will determine whether to issue a water rights certificate and, if
so, the terms of that certificate. Id. at 21. Only with the issuance of a
water rights certificate does the landowner have a "perfected" water
right under Oregon law. Id.
With respect to the second sentence of this proposed finding,
defendant does not dispute that Murel and Barbara Long – who are not named
plaintiffs in this action – have a "Permit to Appropriate the Public
Waters of the State of Oregon," and that the permit number is 42730. Ex. 4
to Second Waldrip Decl. (Pls.' Ex. 19 at 129). Defendant does not dispute that
the priority date of the right granted by this permit is October 3, 1977, and
further notes that the rights granted by this permit are "subject to
existing rights including the existing flow policies established by the [State
of Oregon] Water Policy Review Board," as well as other limitations and
conditions set forth in the permit. Id. Defendant does not dispute that
the land covered by Permit No. 42730 is located within the boundaries of the
KHID. Defendant further notes that, unlike KDD and KHID, Murel and Barbara Long
have been issued a "Certificate of Water Right" by the State of Oregon
which certifies that they have "a right to the use of the waters of the
Klamath River" for irrigation purposes, as specified in their certificate.
A copy of this certificate is included in Defendant's Appendix as Def. Ex. 27.
With respect to the delivery of water to satisfy the rights
granted under the permits referenced above, and the relative priority of these
rights, defendant notes that KHID receives its water deliveries under a contract
with the Klamath Drainage District ("KDD"). Ex. 5 to Second Waldrip
Decl. (Pls.' Ex. 19 at 130-33). This contract expressly provides that
"should there be a shortage of water at any time, the lands within the
Klamath Drainage District shall have the first call upon what water there is
available." Pls.' Ex. 19 at 131. During the 2001 water year, the Board of
Supervisors of Klamath Drainage District notified KHID that, as of April 16,
2001, "further delivery of water through the District's North Canal is
suspended until further decision of the Board." Id. at 134.
The limited rights granted under these state permits is
discussed further in Section IV.F. of Defendant's memorandum in support of its
cross-motion for summary judgment.
Plaintiffs' Proposed Finding #16: Plaintiff, VANBRIMMER DITCH COMPANY holds a vested and recognized right to the use of fifty second feet of water for irrigation purposes from the Klamath Project. See Orem Decl. at ¶ 7 (July 16, 2003), Pls.' Ex. 20, App. at 135.
Defendant's Response to Proposed Finding #16:
Defendant disputes that Van Brimmer Ditch Company has a "vested and
recognized right," as specified above. Defendant admits that Van Brimmer
has a contractual right to receive a perpetual delivery of 50 cfs of water from
the Klamath Project. See Def. Ex. 1 (KBA Facts at 61); Def. Ex. 4 (KP
Historic Operation, Drought Plan at B-1 to B-2). Van Brimmer has filed a claim
in the Adjudication and it will not have a "vested and recognized
right" under Oregon law unless and until its claim is determined to be
valid in the Adjudication. See Def. Ex. 1 (KBA Fact at 59-61) (describing
Van Brimmer's claim in the Adjudication).
Plaintiffs' Proposed Finding #17: In Klamath Basin Adjudication Case 003, the plaintiff districts and Reclamation seek to confirm essentially the same pre-1909 Klamath Project water right for "irrigation, reclamation, and domestic" uses. See Statement and Proof of Claim To Waters of the Klamath River and Its Tributaries, Attachment No. 2 (Apr. 30, 1997) ("The purposes for which water is used and claimed, as stated in the May 17, 1905 ‘Notice of Intention to Utilize all Waters of the Klamath Basin,' are those provided for by the . . . Reclamation Act, as amended and supplemented, including irrigation, reclamation, domestic and other authorized uses."); Water Appropriation (Link River) (Dec. 31, 1904) & Water Appropriation (Klamath River) (Feb. 27, 1905) ("[T]he water is to be used for irrigation, domestic, power mechanical and other beneficial uses in and upon the lands situated in Klamath (Oregon) and Modoc (California) counties . . . .").
Defendant's Response to Proposed Finding #17: Defendant
agrees that the claims filed by the irrigation districts and the claims filed by
Reclamation in Case 003 are interrelated, but disputes plaintiffs' assertion
that they are "essentially the same." As noted in the KBA Facts, these
claims "have characteristics in common, but also have characteristics that
differ." Def. Ex. 1 (KBA Facts at 2). Because of the "complexity of
the claims and their relationship," the parties to Case 003 prepared the
extension stipulation of facts. Id. Some of these differences are
highlighted in the table that appears at pages 69-70 of the KBA Facts. Def. Ex.
1.
Plaintiffs' Proposed Finding #18: Regardless of whether the State of Oregon issues the water rights certificate in the name of plaintiff districts, in the name of Reclamation, or jointly, there will be no difference in the way those water rights have been historically held and exercised. See Joint Report Responding to Ct.'s Order of March 26, 2003 at 24 (Apr. 23, 2003) ("If Reclamation's claim to Klamath Project water is decided in favor of Reclamation in the Adjudication, there would be no change in the way the water rights have historically been held and exercised.").
Defendant's Response to Proposed Finding #18: This
proposed finding of fact is not supported by the single sentence excerpted out
of one of defendant's statements in the Joint Report filed by the parties on
April 23, 2003. Although defendant agrees that the outcome of the Adjudication
cannot change how Project water was actually distributed in years past,
including 2001, the Adjudication will determine who "owns" the water
right under Oregon state law by determining whether plaintiffs' or defendant's
claim to such rights are valid and, if so, the amount and scope of that right
(i.e., the quantity of water, the place and time that such right can be
exercised, and the relative priority date of such right). See Ex. 1 to
Joint Report dated Apr. 23, 2003 (Letter from the State of Oregon to Nancie
Marzulla, et al., dated Apr. 11, 2003, regarding the Klamath Basin
Adjudication). For the purposes of this briefing, the parties have been
instructed to assume that the government will prevail in Case 003.
Plaintiffs' Proposed Finding #19: Plaintiffs hold the beneficial interest in the Klamath Project water rights, and the United States makes no claim to this beneficial interest either in the Klamath Basin Adjudication or elsewhere. See Joint Report Responding to Ct.'s Order of March 26, 2003 at 24 (Apr. 23, 2003) ("Defendant agrees that the landowners who receive irrigation water from the Klamath Project have a beneficial interest in the Klamath Project water.").
Defendant's Response to Proposed Finding #19: Defendant has
not disputed that the individual plaintiffs in this case, as landowners
receiving irrigation water pursuant to their irrigation districts' contracts
with Reclamation, and putting that water to a beneficial use on their land, have
what is commonly referred to as a beneficial interest in the Klamath Project
water. Defendant disputes plaintiffs assertion here that all plaintiffs –
including the plaintiff irrigation districts – hold a beneficial interest in
the Klamath Project water. Although defendant agrees that the individual
plaintiffs, as described above, have a beneficial interest in the Project water,
defendant emphasizes that the parties dispute the scope and extent of that
interest, and the question of whether that beneficial interest rises to the
level of a compensable property interest for the purposes of the Fifth
Amendment. See Def.'s Brief, Section IV.
Plaintiffs' Proposed Finding #20: As holders of the beneficial interest, plaintiffs are entitled to use of Klamath Project water regardless of the name in which the adjudication ultimately decrees title to the water rights. See Joint Report Responding to Ct.'s Order of March 26, 2003 at 24 (Apr. 23, 2003) (" If Reclamation's claim to Klamath Project water is decided in favor of Reclamation in the Adjudication, there would be no change in the way the water rights have historically been held and exercised."); Teel Irrigation Dist. v. Water Resources Dep't, 919 P.2d 1172 (Or. 1996) ("The permit itself does not represent a perfected and vested water right . . . . [t]he water rights is perfected when the water actually is put fully to a beneficial use.").
Defendant's Response to Proposed Finding #20:
Defendant disputes this proposed finding for several reasons. First, this is a
proposed legal conclusion advocated by plaintiffs in their brief rather than a
proposed finding of fact, and therefore is not properly in included in
plaintiffs' proposed findings of uncontroverted fact. Second, the proposed legal
conclusion that plaintiffs are entitled to receive water regardless of how the
Adjudication is decided begs the question of whether that right is contractual
in nature (as defendant contends) or is a property right that is protected by
the Fifth Amendment (as plaintiffs contend). This question is clearly
controverted, as evidenced by the parties' briefings in this case. Third,
plaintiffs' partial quotation from one of defendant's statements from the cited
Joint Report is misleading. Defendant's full statement, found at pages 23-24 of
that Joint Report is:
If Reclamation's claim to Klamath Project water is decided in favor of Reclamation in the Adjudication, there would be no change in the way the water rights have historically been held and exercised. Plaintiffs' water interests would be, as they always have been, as described in the contracts they entered into with Reclamation. The exercise of these rights would be pursuant to the certificates the state would issue to Reclamation based on the decree issued by the state court as part of the adjudication process. Reclamation would then deliver Klamath Project water to the Klamath Project water users in accordance with the contracts when such rights have priority under the adjudication decree. Because the United States remains the owner and title holder of the Klamath Project water storage and delivery facilities, whether the water right was in the name of Reclamation or the water users, operation of the Klamath Project to store and deliver water would still be subject to other laws, such as the Endangered Species Act, and to tribal water rights that are senior to the Klamath Project water rights. See Def's Mot. to Stay at 6-7 (discussing tribal water rights).
Plaintiffs' Proposed Finding #21: In the Klamath Basin Adjudication Case No. 003, plaintiffs and defendant have filed joint stipulated facts demonstrating valid water rights for the irrigation of Klamath Project lands. The parties extensively incorporate by reference each other's filings, and have worked cooperatively toward the joint goal of obtaining confirmation of water rights for irrigation of the Klamath Project. See Statement of Stipulated Facts: Claims and Contests Consolidated in Case 003 (Aug. 4, 2003).
Defendant agrees that the parties have filed joint stipulated facts in the
Klamath Basin Adjudication Case No. 003. This "Statement of Stipulated
Facts Re: Claims and Contests Consolidated For Hearing in Case 003 [Claimants'
Statement of August 4, 2003]" is included in Defendant Appendix as
Defendant's Exhibit 1. Defendant disputes plaintiffs' assertion that these joint
stipulated facts "demonstrat[e] valid water rights for the irrigation of
Klamath Project lands." The purpose of the joint stipulated facts is to
provide supporting documentation as to the elements of the parties' respective
claims of a pre-1909 water right for the Klamath Project. The ultimate purpose
of the Adjudication is to determine whether valid pre-1909 water rights exist
and who holds those rights.
Plaintiffs' Proposed Finding #22: Historically, with minor exceptions not relevant here, Reclamation had for many decades released to Klamath Project farmers, through their districts, all of the water they could beneficially use on their lands. Second Solem Decl. at ¶ 10 (July 14, 2003), Pls.' Ex. 8, App. at 60; Second Danosky Decl. at ¶ 9 (July 16, 2003), Pls.' Ex. 9, App. at 67; Second Henzel Decl. at ¶ 13 (July 16, 2003), Pls.' Ex. 10, App. at 71; Second Essig Decl. at ¶ 6 (July 14, 2003), Pls. Ex. 11, App. at 93; Second Hartman Decl. at ¶ 15 (July 16, 2003), Pls.' Ex. 12, App. at 95; Second Campbell Decl. at ¶ 7 (July 16, 2003), Pls.' Ex. 14, App. at 101; Second Kennedy Decl. at ¶ 8 (July 16, 2003), Pls. Ex. 15, App. at 107; Second Hagerty Decl. at ¶ 8 (July 14, 2003), Pls.' Ex. 16, App. at 108; Second Kandra Decl. at ¶ 5 (July 18, 2003), Pls. Ex. 18, App. at 116; Orem Decl. at ¶ 9 (July 16, 2003), Pls.' Ex. 20, App. at 135; Second Anderson Decl. at ¶ 5 (July 16, 2003), Pls.' Ex. 13, App. at 99; Second Moore Decl. at ¶ 5 (July 16, 2003), Pls.' Ex. 17, App. at 112; Haught Decl. at ¶ 7 (July 16, 2003), Pls.' Ex. 21, App. at 147; Second Moore Decl. at ¶ 5 (July 17, 2003), Pls.' Ex. 26, App. at 197; Second Chin Decl. at ¶ 4 (July 17, 2003), Pls.' Ex. 22, App. at 150; Second Robison Decl. at ¶ 15 (July 17, 2003), Pls.' Ex. 23, App. at 152; Second Byrne Decl. at ¶ 4 (July 17, 2003), Pls.' Ex. 25, App. at 194; Second Baley and Trotman Decl. at ¶ 6 (July 17, 2003), Pls.' Ex. 24, App. at 185.
Defendant's Response to Proposed Finding #22: In their
pending revised motion for partial summary judgment and supporting memorandum,
plaintiffs have not cited to, referenced, or relied on this proposed fact.
Accordingly, this proposed fact is not material to any of the issues raised in
their motion, is not properly included in their Proposed Findings of
Uncontroverted Fact under RCFC 56(h)(1), and requires no response from
defendants at this time. Moreover, plaintiffs have not attempted to identify or
explain the "exceptions" they characterize as irrelevant, so defendant
cannot respond to this aspect of plaintiffs' proposed finding.
Plaintiffs' Proposed Finding #23: Prior to issuance of the biological opinions on April 5 and 6, 2001, Reclamation planned to deliver Klamath Project water in 2001 in accordance with historical practice. See Biological Assessment of Klamath Project's Continuing Operations on the Endangered Lost River Sucker and Shortnose Sucker (Bureau of Reclamation Feb. 13, 2001), available at http://www.usbr.gov/mp/kbao/esa/ba2000.pdf . ("Reclamation proposes to operate the project to meet or exceed the elevations summarized in Table 1, depending on the water year type. These levels are the minimum end of the month values taken from historic operations (1960-1998).").
Defendant's Response to Proposed Finding #23: In their
pending revised motion for partial summary judgment and supporting memorandum,
plaintiffs have not cited to, referenced, or relied on this proposed fact.
Accordingly, this proposed fact is not material to any of the issues raised in
their motion, is not properly included in their Proposed Findings of
Uncontroverted Fact under RCFC 56(h)(1), and requires no response from
defendants at this time.
Plaintiffs' Proposed Finding #24: The biological opinions prohibited Reclamation from delivering water to plaintiffs in accordance with historical practices on the ground that it was "likely to jeopardize the continued existence" of the Lost River and Shortnose sucker fish and the coho salmon. See Biological/Conference Opinion Regarding the Effects of Operation of the Bureau of Reclamation's Klamath Project On the Endangered Lost River Sucker, Endangered Shortnose Sucker, Threatened Bald Eagle, and Proposed Critical Habitat for the Lost River/Shortnose Suckers, Klamath Falls Fish & Wildlife Office, executive summary at iii (Fish & Wildlife Service Apr. 5, 2001), available at http://www.usbr.gov/mp/kbao/esa/34_final_sucker_bo_4_06_01.pdf ("[The Service concludes that implementation of the Project, as proposed, in calendar year 2001 is likely to jeopardize the continued existence of the suckers and adversely modify their proposed critical habitat."); Biological Opinion, Ongoing Klamath Project Operations at 25 (National Marine Fisheries Service Apr. 6, 2001), available at http://swr.nmfs.noaa.gov/psd/klamath/KpopBO2002finalMay31.pdf ("NMFS believes that the ongoing operation of the Klamath Project according to the proposed action will adversely affect coho salmon populations in the Klamath River.").
Defendant's Response to Proposed Finding #24:
Defendant disagrees with plaintiffs' characterization of the biological
opinions. These documents speak for themselves. Defendant does not dispute that,
on April 5, 2001, the Fish & Wildlife Service issued a biological opinion
concluding that proposed Klamath Project operations were likely to jeopardize
two species of endangered sucker fish, the Lost River and shortnose suckers,
which inhabit Upper Klamath Lake and its tributaries. Defendant also does not
dispute that, on April 6, 2001, the National Marine Fisheries Service (now NOAA
Fisheries) issued a biological opinion concluding that proposed Project
operations also were likely to jeopardize the threatened Southern
Oregon/Northern California Coast (SONCC) coho salmon which inhabit the Klamath
River in California. These biological opinions included reasonable and prudent
alternatives ("RPAs") that could be implemented by BOR to avoid
jeopardizing the continued existence of those species. Consistent with the RPA
recommendations, the 2001 Operations Plan implemented by BOR for the Project
resulted in a reduction in the amount of water available for irrigation as
compared to years of average precipitation in the Klamath Basin. 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) 305-0506REGINALD 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
CERTIFICATE OF SERVICE
The undersigned certifies that on this 3rd day of October 2003 a true and correct copy of the foregoing Defendant's Response to Plaintiffs' Revised Proposed Findings of Uncontroverted Fact was sent by electronic mail and by first class U.S. mail, postage prepaid to the following:
Nancie G. Marzulla
Roger J. Marzulla
MARZULLA & MARZULLA
1350 Connecticut Avenue, N.W.
Suite 410
Washington, D.C. 20036
__________________________