942 F.3d 1312
Fed. Cir.2019Background:
- The Klamath Project (Upper Klamath Lake → Klamath River) supplies irrigation to ~200,000 acres; it is operated by the Bureau of Reclamation and subject to ESA and tribal trust obligations.
- In 2001, severe drought and ESA Biological Opinions from FWS and NMFS led the Bureau to suspend or curtail Project deliveries to protect endangered Lost River and shortnose suckers and threatened SONCC coho salmon and to honor tribal trust resources.
- Farmers and irrigation organizations sued in the Court of Federal Claims alleging a Fifth Amendment taking, impairment of Klamath Compact rights, and contract breaches; after interlocutory appeals the case was remanded following Oregon Supreme Court certification on state-law water-interest questions.
- At trial the Court of Federal Claims: (a) found plaintiffs hold cognizable state-law water interests in Project water; (b) ruled several plaintiffs barred by contract/lease provisions (Warren Act language, refuge leases, Van Brimmer shares); and (c) held tribal water rights were federal reserved rights senior to plaintiffs and sufficient to justify the 2001 curtailment, so no compensable taking.
- The Federal Circuit affirms, concluding tribal reserved rights encompassed the relevant Project water and that the Bureau reasonably withheld deliveries to meet ESA and trust obligations; it rejects plaintiffs’ arguments that adjudication, quantification, or a lower tribal-entitlement standard required a different result.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tribal reserved water rights were senior to plaintiffs and covered Klamath Project water (Upper Klamath Lake and Klamath River flows) | Plaintiffs: Tribes’ rights do not extend to stored Project water or to the geographic scope claimed; any tribal entitlement should be limited to a "reasonable livelihood" standard and must be quantified before displacing irrigators. | Gov./Federation: Tribes hold federal reserved (Winters) rights tied to reservation purposes; those rights predate Project development and include water necessary to avoid jeopardy to tribal fisheries; no prior state adjudication or quantification is required. | Held: Tribes’ reserved water rights (Klamath, Yurok, Hoopa) are senior and encompass the Project water at issue; Biological Opinions established necessary lake levels/flows for tribal resources, so plaintiffs’ rights were subordinate. |
| Standard for tribal entitlement ("reasonable livelihood" vs. avoiding jeopardy under ESA) | Plaintiffs: Tribal entitlement should be limited to sufficient catch to support a reasonable livelihood/moderate living, a lesser quantity than ESA-based protections. | Defendants: ESA jeopardy threshold protects the existence of tribal resources and is not a lower standard; tribal reserved rights protect habitat necessary for tribal fishing. | Held: Court accepts that ESA/biological thresholds (avoid jeopardy) are consistent with tribal reserved rights; plaintiffs’ narrower standard does not undercut the government’s obligations. |
| Whether the Bureau was required to obtain state adjudication/quantification of tribal rights before curtailing junior users | Plaintiffs: Section 8 of the Reclamation Act and Oregon law require conformity with state water law and adjudication before reallocating water. | Defendants: Federal reserved rights are federal questions, not governed by state adjudication; reserved rights can be enforced without prior state quantification. | Held: No adjudication or quantification was required; federal reserved rights may be enforced and need not be adjudicated in state proceedings before the Bureau acted. |
| Effect of contract/lease language (Warren Act shortage clauses; refuge lease disclaimers) on plaintiffs’ takings claims | Plaintiffs: Contractual languages do not bar Fifth Amendment takings claims—plaintiffs retained compensable interests. | Defendants: Shortage/"other cause" clauses and refuge lease disclaimers altered plaintiffs’ expectations and preclude liability for 2001 shortages. | Held: Court of Federal Claims correctly barred claims for plaintiffs whose contracts/leases contained liability-limiting language; others remained but lost on priority grounds. |
| Claims of Van Brimmer Ditch shareholders (priority/date issues) | Plaintiffs: Van Brimmer rights predate tribes and are senior. | Defendants: Those claims are barred by prior court orders or otherwise indistinguishable from other junior claimants. | Held: Court dismissed Van Brimmer-derived claims as barred or not entitled to relief; appellants did not preserve a successful challenge on appeal. |
Key Cases Cited
- Winters v. United States, 207 U.S. 564 (1908) (establishes implied federal reserved water rights for reservations)
- Cappaert v. United States, 426 U.S. 128 (1976) (federal reserved-rights doctrine extends to water necessary to reservation purpose)
- Arizona v. California, 373 U.S. 546 (1963) (federal reserved rights preempt state appropriation when necessary to reservation purposes)
- United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) (recognizes Klamath Tribes’ treaty-based fishing and implied water rights with ancient priority)
- Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) (discusses tribal fishing entitlements and standards for tribal harvests)
- Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995) (upholds measures to protect tribal fishing rights under federal law)