Baley v. United StatesBaley v. United States
Takings, Physical or Regulatory Taking, Permanent or Temporary Taking, Water Rights, Tribal Rights, Endangered Species Act, Federal Reserved Rights; Motions for Reconsideration.
FINDINGS OF FACT
Plaintiffs in the above-captioned cases are a consolidated class of farmers in southern Oregon and northern California, who claim they held a right to receive water from the United States Department of the Interior, Bureau of Reclamation’s Klamath River Basin reclamation project (the Klamath Project) in 2001. The cases arise from the government’s actions in 2001, when defendant, acting through the United States Department of the Interior, Bureau of Reclamation, temporarily terminated water deliveries to the plaintiffs in order to meet the requirements of the Endangered Species Act, 16 U.S.C. § 1531, et seq. (2000), as outlined in two Biological Opinions from the United States Fish and Wildlife Service (FWS) and the United States National Marine Fisheries Service (NMFS), and its tribal trust obligations to several Native American tribes. After multiple opinions issued by earlier assigned judges, and, following appeal of one of those earlier decisions to the United States Court of Appeals for the Federal Circuit, remand to this court, and reassignment to this judge, a trial was held leading to the instant decision. Plaintiffs allege, in their remaining claims, that the government’s actions constituted compensable takings of their property under the Fifth Amendment to the United States Constitution by depriving them of their alleged rights to use Kla-math Project water, as well as an impairment of their rights under the Klamath River Basin Compact, Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Compact).
I. The Klamath Project
The Klamath Project, an irrigation project straddling the southern Oregon and northern California borders, supplies water to hundreds of farms, comprising approximately 200,000 acres of agricultural land, including those in the Klamath River Basin, as well as to certain National Wildlife Refuge lands owned by the United States. The agricultural irrigation water is used by the farmers and ranchers in the Klamath Project area to grow a variety of crops, including alfalfa, irrigated pasture, small grains, potatoes, onions, sugar beets, as well as several other miscellaneous crops. The Klamath Project is managed and operated by the United States Bureau of Reclamation. The Bureau of Reclamation also manages the Klamath Project to protect tribal trust resources that depend on Klamath Project Water, including the Lost River and shortnose suckers and the Southern Oregon/Northern California Coast (SONCC) coho salmon, all three of which species that are also protected under the Endangered Species Act.
The Klamath Project is one of the earliest federal reclamation projects. Engineering investigations for the Klamath Project began in 1903, and, in 1905, the United States Congress authorized the Klamath Project pursuant to the Reclamation Act of 1902, which provided for federal financing, construction, and operation of water storage and distribution projects. See Reclamation Act of 1902, Pub. L. No. 57-161, 32 Stat. 388 (codified as amended at 43 U.S.C. § 371, et seq. (2012)). Section 8 of the Act requires the Secretary of the Interior to comply with state law regarding the appropriation of water for irrigation (to the extent it is not inconsistent with federal law). See 43 U.S.C. § 383. Section 8 also provides that: “The 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.
On February 22, 1905, the Oregon legislature enacted a statute specifically related to appropriations of water for Reclamation Act projects, such as the Klamath Project. See 1905 Or. Oen. Laws 401-02. The statute provided:
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; provided, that within a period of three years from the date of filing such notice the proper officer of the United States shall file final plans of the proposed works in the office of the State Engineer for his information; and provided further, that within four years from the date of’ such notice the United States shall authorize the construction of such proposed work.
Id. (emphasis in original). Pursuant to the terns of the 1906 Oregon statute, on May 17, 1905, the United States Reclamation Service, the predecessor to the United States Bureau of Reclamation, filed a notice with the Oregon State Engineer stating that “the United States intends to utilize ... [a]ll of the waters of the Klamath Basin in Oregon, constituting the entire drainage basins of the Kla-math River and Lost River, and all of the lakes, streams and rivers supplying water thereto or receiving water therefrom” for purposes of “the operation of works for the utilization of water ... under the provisions of the ... Reclamation Act.” Also pursuant to the terms of the 1905 Oregon statute, the Reclamation Service subsequently filed with the State Engineer plans of proposed works and proof of authorization of the Klamath Project. Prior to the development of the Kla-math Project, private landowners and irrigation companies in the area ultimately to be served by the Klamath Project had begun to divert water for irrigation purposes, The Reclamation Service acquired the interests of such entities in most of these pre-Klamath Project water rights or appropriations and integrated them into the Klamath Project.
The property rights claimed by the plaintiffs in this litigation relate to water that is diverted from Upper Klamath Lake, a large, shallow lake in which water is stored by means of a dam (the Link River Dam), and from locations downstream of Upper Kla-math Lake and the Link River Dam on the Klamath River in Oregon, The water is diverted out of Upper Klamath Lake and the Klamath River and then conveyed through canals and laterals to individual users in both California and Oregon within the Klamath Project. The works which divert the water were constructed by the United States between 1906 and 1966 and are currently owned by the United States, The operation and maintenance of all of the federally owned diversion works downstream of the head-gates of Upper Klamath Lake, as well as works-that divert water directly from the Klamath River, however, have been transferred to two Irrigation Districts, the Kla-math Irrigation District and the Tulelake Irrigation District, by contract, subject to the rules and regulations of the United States Secretary of the Interior. These two Irrigation Districts operate and maintain works that distribute this diverted water to serve
B. Contracts Between the United States and Klamath Project Water Users
Water is generally diverted and delivered by the Klamath Project pursuant to state law (to the extent it is not inconsistent with federal law) and pursuant to perpetual repayment contracts between the Bureau of Reclamation and Irrigation Districts, or Warren Act contracts between the Bureau of Reclamation and Irrigation Districts or individuals. Water also is delivered to a smaller number of users pursuant to settlement contracts and as part of lease agreements for lands in the National Wildlife Refuges located within the Klamath Project.
1. Repayment Contracts
The Bureau of Reclamation has entered into repayment contracts with two large Irrigation Districts, the Klamath Irrigation District, which covers the “Main Division” of the Klamath Project, the approximately 40,000 acres of land that were the first developed for irrigation as part of the Klamath Project, and the Tulelake Irrigation District, which covers approximately 63,000 acres of reclaimed lands formerly submerged by Tule Lake in California.
a. Form A and B Applications
Prior to the establishment of Irrigation Districts, the Department of the Interior had adopted two forms of applications to receive water from reclamation projects such as the Klamath Project, “Form A” and “Form B.” See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-08 (May 18, 1916). The Form A application was to be entered into by homesteaders settling within reclamation project lands. Id. at 406. As part of the Klamath Project, Tule Lake was dewatered and its reclaimed lands were opened to homesteaders in segments between 1922 and 1948. Pursuant to the terms of the Homestead-Reclamation Act, Pub. L. No. 62-256, 37 Stat. 265 (1912), these homesteaders were permitted to settle these lands in exchange for payments, which varied over time, designed to repay Klamath Project costs. Twenty eight of these Form A applications, entered into by the predecessors of class members owning property within the Tulelake Irrigation District, were admitted into evidence during the trial. The Form A application was titled “APPLICATION FOR PERMANENT WATER RIGHT,” (capitalization in original), and contained the following provision describing the “water right” at issue in the application:
3. Description of water right.—The quantity of water to be furnished hereunder shall be that quantity which may be applied beneficially in accordance with good usage in the irrigation of the land described in paragraph 2: Provided, That in case of a shortage at any time the amount to be furnished shall be an equitable proportionate share, as nearly as practical operations will permit, of the water actually available at the time for all of the area being watered from the same source of supply, such proportionate share to be determined by the project manager.... On account of drought, inaccuracy in distribution, or other cause, there may occur at times a shortage in the water supply, and while-the United States will use all reasonable means to guard against such shortages, in no event shall any liability accrue against the United States, its officers, agents, or employees,-for any damage direct or indirect arising therefrom.
(emphasis in original). Additionally, a provision of the Form A application titled: “Conditions of application to be continuing” stated: “All of the within terms and conditions, in so far as they relate to said land,
Upon completion of the homesteading process, the United States issued a patent deed to the homesteader. Twenty eight patent deeds were admitted into evidence at trial, one for each of the parcels for which a Form A application was admitted into evidence. Twenty seven of the twenty eight patent applications admitted at trial involved land in California and the other patent deed involved land in Oregon. Each of these patent deeds states:
NOW KNOW YE, That the UNITED STATES OF AMERICA, in consideration of the premises, and in conformity with the several Acts of Congress in such ease made and provided, HAS GIVEN AND GRANTED, and by these presents DOES GIVE AND GRANT, unto the said [name] and to his hems, 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; TO HAVE AND TO HOLD the same, together with all the lights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said [name] and to his heirs and assigns forever ... but' excepting, nevertheless, and reserving unto the United States, rights of way over, across, and through said lands for canals and ditches constructed, or to be constructed, by its authority ....
(capitalization in original). Additionally, some of the patent deeds contained clauses reserving to the United States “all uranium, thorium or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials” or rights of way for the maintenance of power transmission lines.
The Form B application was to be entered into by owners of private lands that were included as part of reclamation projects. See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-07. One Form B application was admitted into evidence at trial. Regarding the water to be provided to the applicant, Form B stated:
2. The quantitative measure of the water right hereby applied for is that quantity of water which shall be beneficially used for the irrigation of said irrigable lands up to, but not exceeding [a quantity which varied by applicant] acre-fee per acre per annum, measured at the land; and in no case exceeding the share, proportionate to irrigable acreage, of water supply actually available as determined by the Project Engineer or other proper officer of the United States, or of its successors in the control of the project, during the irrigation season for the irrigation of lands under said unit....
Under the Department of Interior regulations which governed Form B applications, upon acceptance by the Bureau of Reclamation, a Form B application “becomes a water-right contract.” 45 L.D. 385, 408.
b. Klamath Water Users Association
Form B also included a provision requiring that Form B applicants enter into a contract with a water users’ association, stating:
This application must bear the certificate, as hereto attached, of the water users’ association under said project, which has entered into contract with the Secretary of the Interior .... If the Secretary of the Interior has made no contract with a water users’ association under said project, the applicant agrees to file, upon his direction, evidence of membership in the water users’ association organized under the said project ....
George Moss Driscoll, who, at the time of trial, held the position of senior water and land specialist for the Bureau of Reclamation’s Klamath Basin area office, and previously was a water contracts specialist for the Bureau of Reclamation, testified at trial that, “in addition to the form A/form B water right applications, [the Bureau of] Reclamation as a matter of policy initially intended to contract” with such water users associations, which “would be the entity through which Reclamation intended to directly work with and communicate with water users on the project.” In the case of the Klamath Project, the relevant association was the Klamath Water Users Association (KWUA). The contract between the United States and the KWUA, dated November 6,1905, was admitted into evidence at trial. Under the contract, KWUA guaranteed payments for the Kla-
That the aggregate amount of such rights to be issued shall, in no event, exceed the number of acres of land capable of irrigation by the total amount of water available for the purpose ... and that the Secretary of the Interior shall determine the number of acres so capable of such irrigation as aforesaid, his determination to be made upon due and expert consideration of all available data, and to be based upon and measured and limited by the beneficial use of water.
The KWUA contract entitles the signor to receive a specified number of shares in the KWUA. These shares, as well as “all rights and interest represented thereby or existing or accruing by reason thereof or incident thereto,” were to be “inseparably appurtenant” to the real estate parcels specified in the contract. Ownership of KWUA shares entitled them holder to “the right to have such water delivered to the owner thereof by the Association for the irrigation of said lands, as the Association shall from time to time acquire or control means for that purpose.” A copy of the stock subscription and contract used by KWUA also was admitted into evidence at trial.
c. Klamath Irrigation District and Tulelake Irrigation District Repayment Contracts
The November 6, 1905 contract between the United States and the KWUA was eventually supplanted by a July 6, 1918 repayment contract between the United States, the KWUA, and the newly formed Klamath Irrigation District. The July 6, 1918 contract “dissolved” KWUA and transferred to the Klamath Irrigation District, an Oregon municipal corporation, all irrigable lands for which water rights applications to the United States had been made and/or which were covered by stock subscriptions with the KWUA, as well the entirety of KWUA’s liability to the United States for Klamath Project construction costs. The July 6,1918 contract was supplemented by a November 29, 1954 “Amendatory Contract” between the United States and the Klamath Irrigation District. The preamble of the November 29, 1954 contract states that “the District is obligated, among other things, to repay to the United States that part of the expenditures made by the United States in the construction of the Project which is properly allocable to the District” and that “the District, as the duly authorized representative of the water users within its geographic boundaries, desires to enter into an amendatory contract with the United States, which would provide for the District to take over the operation and maintenance of certain of the Project works.” Under the November 29,1964 repayment contract, the Klamath Irrigation District assumed responsibility for the operation and maintenance of certain works in the Kla-math Project from the United States and agreed to provide water and drainage services through those works to certain other Irrigation Districts, including the Tulelake Irrigation District, and certain individuals located outside the Klamath Irrigation District. The November 29, 1954 contract also contained the following provision regarding water shortages:
UNITED STATES NOT LIABLE FOR WATER SHORTAGE
26. 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,
(capitalization in original). The November 29, 1954 contract between the United States and the Klamath Irrigation District was in effect in 2001.
The Tulelake Irrigation District, a California municipal corporation, services water users in the reclaimed lands of Tule Lake that were opened to homesteaders between 1908 and 1948. These homesteaders would have submitted a Form A application to re
[T]he District desires to contract, pursuant to the Federal reclamation laws and the laws of the State of California, for. the furnishing by the United States of a water supply form the [Klamath] Project works and for the repayment of the construction charges hereinafter set forth, less such credits as are applicable under the Federal reclamation laws and the provisions of this contract; and ... the parties desire by this contract to provide, in accordance with and subject to the terms and conditions hereinafter provided, for the transfer to the District of the operation and maintenance of works and properties used or useful for the delivery of water to and protection of the lands within the District
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Similar to the Klamath Irrigation District, under a September 10,1956 contract with the United States, the Tulelake Irrigation District assumed responsibility for the operation and maintenance of Klamath Project works used to supply water to the lands within the district. The September 10, 1966 contract contained a water shortage provision that was identical to the one contained in the November 29, 1964 contract between Kla-math Irrigation District and the United States. The September 10, 1956 contract between the United States and the Tulelake Irrigation District was in effect in 2001,
2. Warren Act Contracts
Warren Act contracts were made with both individual water users and Irrigation Districts which supplied water to individuals within their boundaries. Warren Act contracts cover lands that, unlike those within the Klamath Irrigation District and Tulelake Irrigation District, were not part of the Kla-math Project when it was originally developed. Geographically, these lands are scattered throughout the Klamath Project. These contracts were made pursuant to the Warren Act of 1911, Pub. L. No. 61-406, 36 Stat. 925 (codified at 43 U.S.C. §§ 523-25 (2012)). The Warren Act authorizes the Secretary of the Interior “to cooperate with irrigation districts, water-users’ associations, corporations, entrymen, or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water-users’ associations, corporations, entrymen, or water users for impounding, delivering, and carrying water for irrigation purposes.” 43 U.S.C. § 624. In the Klamath Project, water is delivered to Warren Act contractors through works operated by the Klamath Irrigation District and the Van Brimmer Ditch Company, an Oregon business discussed below. Irrigation Districts relevant to this action who have Warren Act contracts with the United States include: the Enterprise Irrigation District; the Klamath Basin Improvement District; the Klamath Drainage District; the Malin Irrigation District; the Midland District Improvement Company; the Pine Grove Irrigation District; the Poe Valley Improvement District; the Shasta View Irrigation District; the Sunnyside Irrigation District; and the Westside Improvement District. Warren Act contracts for each of these Irrigation Districts were admitted into evidence at trial. These Irrigation District contracts were entered into between 1920 and 1962, although some individual contracts were entered into as early as 1916.
The Warren Act contracts entered into by the Irrigation Districts all contain similar or identical language in several key provisions relevant in the current cases. In each of the contracts, the Irrigation District agrees to pay the United States a specified sum of money in exchange for delivery of Klamath Project water. All of these contracts contain language stating that rights to the use the water acquired under the contracts are inferior to prior rights reserved for the lands of the Klamath Project. The Bureau of Reclamation has interpreted this to mean that these lights are junior to those held by the Van Brimmer Ditch Company, Klamath Lake Irrigation District, and Tulelake Irrigation District and, in the case of a drought, would receive Klamath Project water only after the rights of users of these three entities had been fully satisfied. Each of the contracts defines an upper limit to the amount of water the Irrigation District is entitled to receive, although, the exact limit varies by contract. The contracts for the Malin Irrigation Dis-
Finally, each of the Warren Act contracts for Irrigation Districts admitted into evidence at trial also contains a provision limiting the United States’ liability in the event of water shortages, although there are two different forms this language takes. Those contracts entered into by the Klamath Drainage District, Malin Irrigation District, the Kla-math Basin Improvement District, the Shasta View Irrigation District, the Sunnyside Irrigation District, and the Westside Improvement District contain language relating to shortages caused by droughts or “other cause,” stating, in language similar to that of the contract with the Malin Irrigation District, with only minor, non-relevant variations, that:
On account of drought, inaccuracy in distribution or other cause, there may occur at times a shortage in the.quantity of water provided for herein, 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, its officers, agents or employees, for any damage, direct or indirect, arising therefrom, and the payments due hereunder shall not be reduced because of any such shortage.
The shortage provisions in the rest of the contracts, including for the Enterprise Irrigation District, the Midland District Improvement Company, the Poe Valley Improvement District, and the Pine Grove Irrigation District, however, are missing the “other causes” language and state:
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.
At trial, three Warren Act contracts between the United States and individuals, under which three named plaintiffs received water in 2001, were also admitted into evidence. Named Baley plaintiffs Daniel G. and Delores Chin owned two parcels that received water pursuant to individual Warren Act contracts in 2001 entered into by their predecessor-in-interest. Named John Anderson Farms plaintiff Hill Land & Cattle LLC owned one parcel that received water pursuant to an individual Warren Act contract in 2001 that was entered into by its predecessor-in-interest. The Warren Act contracts for these three parcels are identical, or close to identical, in almost all respects and very similar to the Warren Act contracts entered into by the Malin Irrigation District, the Sunnyside Irrigation District, and the Shasta View Irrigation District. Like those Irrigation District contracts, the three individual Warren Act Contracts place upper limits on the water that will be furnished, “two acre-feet per acre of irrigable land during the usual irrigation season” for one of the Chin parcels and “two and one-half (2 1/2) acre-feet per acre of irrigable land during the usual irrigation season) for the Hill Land & Cattle LLC parcel and the other Chin Parcel, while also further stating that this amount “shall not exceed the amount that can be furnished, as determined by the Secretary, at a cost of Thirty-four Dollars ($34.00) ... and in no event shall it exceed 0.6 acre-feet of water per irrigable acre in any one month.” The individual Warren Act
3. Settlement Contracts: the Van Brimmer Ditch Company
The third type of contract governing delivery of water in the Klamath Project, settlement contracts, covers the distribution of water to lands that held a water right or a claim to a water right, prior to the Klamath Project’s inception. George Driscoll testified at trial that the settlement contractors are a “very minor group” that, among the original named plaintiffs at the time of trial, includes only the Van Brimmer Ditch Company. The Van Brimmer Ditch Company is not an Irrigation District, but is instead an Oregon business corporation that delivers irrigation water to landowners. Each share of Van Brimmer Ditch Company stock corresponds with one acre of irrigable land with an appurtenant right to receive water from the company. As a former president of the Van Brimmer Ditch Company, James Moore, a named plaintiff in the Baley case, testified at trial, the Van Brimmer Ditch company traces its history back to the 1880s, prior to the genesis of the Klamath Project, when its founders, the Van Brimmer brothers, posted notices of appropriation and started drawing water from White Lake, which was associated with Lower Klamath Lake, via trenches they and others had dug. Subsequently, the creation of the Klamath Project resulted in the draining of White Lake and the Van Brimmer Ditch Company entered into a contract with the United States to receive water from Upper Klamath Lake instead.
The contract between Van Brimmer Ditch Company and the United States, entered into on November 6, 1909, begins by recognizing that “the changing by the United States of the course or water-level of the ... Lower Klamath Lake [as a result of the construction of the Klamath Project] will in all probability completely destroy or impair the present source of water supply used for irrigation purposes of the [Van Brimmer Ditch] Company” and that “the Company claims that it has established a vested right to the use of fifty second-feet of water for irrigation purposes from the water of Lower Klamath Lake.” In the contract, the Van Brimmer Ditch Company agreed to “waive[] and renounce! ] to the use and benefit of the United States any and all of its riparian rights, in relation to the waters and shores of Lower Klamath Lake appurtenant or incident to the lands now being irrigated by the Company,” and, in exchange, the United States agreed to “deliver to the Company during each and every irrigation season ... a quantity of water, not to exceed fifty second feet.” The United States also “recognize[d] the right as existing in the Company to the perpetual use of said fifty (50) second, feet of water.” Named plaintiffs James and Cheryl Moore are landowner-shareholders in Van Brimmer Ditch Company. In 2001, the Moores owned 135 shares of stock in the Van Brimmer Ditch Company, each of which corresponded with one acre of irrigable land with an appurtenant right to receive irrigation water.
4. Leased Lands in the National Wildlife Refuges
The Klamath Project also administers federal lease contracts with farmers on about 23,000 acres of land within two national wildlife refuges that sit within the Klamath Project, the Tule Lake and the Lower Klamath Wildlife Refuges, pursuant to the Kuchel Act, Pub. L. • No. 88-567, 78 Stat. 850 (1964). These lands are among the most productive lands in the Klamath Basin. Contracts in the refuges are issued for five to eight years, but require annual renewal. The Bureau of Reclamation uses a standard lease contract on these lands. The leases do not 'specify an amount of water to which the lessor is entitled, but instead state that: “[t]he Bureau of Reclamation will handle all deliveries of irrigation water to the leased premises and all draining of the leased premises.” The leases also contain the following shortage provision: “[T]he United States, its officers, agents and employees, and its successors and assigns shall not be held liable for damages because irrigation water is not available or because of an inability to drain the leased premises in a timely manner.” Of the named plaintiffs, only
C. Tribal Rights in Klamath Project Waters
Three Native American tribes, the Kla-math, Yurok, and Hoopa Valley Tribes, (collectively, the Tribes) hold rights to take fish from Klamath Project waters. The rights of the Klamath Tribes are derived from an 1864 treaty between the Klamath Tribes and the United States, in which the Klamath Tribes “relinquished its aboriginal claim to some 12 million acres of land in return for a reservation of approximately 800,000 acres in south-central Oregon.” United States v. Adair,
The rights of the Yurok and Hoopa Valley Tribes are derived from three presidential Executive Orders issued in 1856, 1876, and 1891, which established, extended, and combined the Klamath and Hoopa Valley Reservations in California. The first Executive Order, signed by President Franklin Pierce on November 16, 1855, established the Klamath Reservation in California. See Charles J. Kappler, Indian Affairs: Laws and Treaties 817 (1904). The second, signed by President Ulysses Grant on June 23, 1876, created the Hoopa Valley Indian Reservation, declaring certain lands in California to be “withdrawn from public sale, and set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by act of Congress approved April 8, 1864.” Id. at 815. The third Executive Order, signed by President Benjamin Harrison on October 16, 1891, combined the Klamath and Hoopa Valley reservations into a single Hoopa Valley reservation by extending the Hoopa Valley reservation to include additional portions of the Klamath River, See M. Ultimately, the combined reservation “ran along both sides of the Klamath River, from the mouth of the Trinity River [in California] down to the Pacific Ocean.” Parravano v. Babbitt,
D, The Klamath Compact
On August 30, 1957, Congress gave its consent to the Klamath Compact, an interstate compact between the states of California and Oregon, which plaintiffs allege defendant has violated. See 71 Stat, 497, 497-508. The stated purposes of the Klamath Compact are, “with respect to the water resources of the Klamath River Basin”: “[t]o facilitate and promote the orderly, integrated, and comprehensive development, use, conservation, and control thereof for various purposes”; and “[t]o further intergovernmental cooperation and comity with respect to these resources and programs for their use and development and to remove causes of present and future controversies.” Id. at 497. Article III of the Klamath Compact recognizes certain water rights within the Klamath basin, stating:
A. There are hereby- recognized vested rights to the use of water 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,
B, Subject to the rights described in subdivision A of this article and excepting the uses of water set forth in subdivision E of Article XI [regarding waterfowl management areas], rights to the use of unappropriated waters originating within the Upper Klamath River Basin for any beneficial use in the, Upper Klamath River Basin, by direct diversion or by storage for later use may be acquired by any person after the effective date of this Compact by appropriation under the laws of the state where the use is to be made, as modified by the following provisions of this subdivision B*635 and . subdivision C of this article, and may not be acquired in, any other way ....
Id. at 498. Article XIII of the Klamath Compact contains the language regarding the United States obligations not to “impair” water rights without just compensation, which plaintiffs allege defendant has violated, stating:
The United States shall not, without payment of just compensation, impair ,,any rights to the use of water for use .(a) [domestic use] or (b) [irrigation use] within the Upper Klamath River Basin by the exercise of any powers or rights to use or control water (i) for any purpose whatsoever outside the Klamath River Basin by diversions in California or (ii) for any purpose whatsoever within the Klamath River Basin other than use (a) or (b).
Id. at 507. Article XIII, however, limits this obligation of the United States to pay just compensation to those rights acquired after the effective date of the Klamath Compact, stating:
But the exercise of powers and rights by the United States shall be limited under this paragraph 2 only as against rights to the use of water fór use (a) or (b) within the Upper Klamath River Basin which are acquired as provided in subdivision B of Article III after the effective date of this compact, but only to the extent that annual depletion in the flow of the Klamath River at Keno resulting from the exercise of such rights to use water for uses (a) and (b) do not exceed 340,000 acre-feet in any one calendar year.
Id. Finally, with respect to the rights of Native Americans tribes, Article X of the Klamath Compact states: “Nothing in this compact shall be deemed ... [t]o' deprive any individual Indian, tribe, band or community of Indians of any rights, privileges, or immunities afforded under Federal treaty, agreement or statute.” Id. at 505,
E. The Klamath Adjudication
In 1975, pursuant to the Water Rights Act of 1909, the Oregon Water Resources Department initiated the Klamath Basin General Stream Adjudication (the Klamath Adjudication), a general adjudication to determine the ownership of rights to the waters of the Klamath Basin. The Klamath Adjudication covers. pre-1909 state-based surface water rights not previously adjudicated, as well as federal reserved water rights in the Klamath Basin. Claims were filed beginning in 1990, and administrative hearings were initiated in 2001. On March 7, 2013, the adjudicator for the Klamath Adjudication issued orders of detérmination on all claims filed in the Kla-math Adjudication. On February 28, 2014, the adjudicator issued amended and corrected versions of the orders of determination, which have been submitted to Oregon state courts for judicial confirmation.
Case 003 in the Klamath Basin Adjudication addressed water rights associated with the Klamath Project. Three claims in case 003, claims 298, 321-6 and 321-7, concerned the water rights appropriated by the Van Brimmer brothers and subsequently at issue in the 1909 contract between the Van Brim-mer Ditch Company and the United States. Claim 298 was filed by the United States, which “assert[ed] that it own[ed] the water right appropriated because Van Brimmer transferred the right to the United States” as part of the November 6,1909 contract. In the corrected partial order of determination for ease 003,
II. Events in 2001
A. The Endangered and Threatened Fish
“In light of its dual- purposes of serving agricultural uses and providing for the needs of wildlife, the Klamath Project is subject to the requirements of the Endangered Species Act. See Pub.L. No. 93-205, 87 Stat. 884 (1973) (codified, as amended, at 16 U.S.C. § 1531 et seq.) (the ‘ESA’).” Klamath Irr. Dist. v. United States,
B. Importance of the Fish to the Tribes
Evidence was presented at trial regarding the importance of the Lost River and short nose suckers and of the SONCC coho salmon to Native American tribes living in the Kla-math basin. Dr. Ronald Larson, a retired FWS biologist, who had served for fourteen years as the lead biologist for consultations dealing with the endangered suckers in FWS’s Klamath Falls office, testified that the two species of suckers are considered tribal trust species for the Klamath Tribes because of their long history with the fish. In the Klamath language the Lost River suckers are known as “c’waam” and the shortnose suckers as “qapdo.” According to Dr. Larson, prior to the beginning of the Klamath Project, the Klamath and Modoc Indians would harvest suckers during the spring time when the fish were spawning. An April 6, 2001 Biological Opinion issued by FWS for the Klamath Project, discussed in more detail below, similarly noted that the suckers were once abundant and important seasonal foods for Native Americans in the upper Klamath basin. The July 25, 1995 memorandum prepared by the Regional Solicitor for the Pacific Southwest Region of the Department of the Interior regarding the rights and obligations related to the Klamath Project noted that the Klamath Tribes held treaty-based rights to fish, hunt, and gather on the lands
Don Reck, at the time of the trial, a fisheries biologist at NMFS, whose primary responsibility was to implement the Endangered Species Act, and who has worked on Klamath Basin fishery issues-since 1994, testified that the Yurok Tribe and Hoopa Valley Tribes, both located downstream of the Iron Gate Dam along the Klamath River, have a federally-recognized reserve fishery right for SONCC coho salmon and other fish species. The July 25,1995 Department of the Interior Solicitor’s Office memorandum similarly stated that the Yurok and Hoopa Valley Tribes held “federal Indian reserved fishing rights to take anadromous fish within their reservations in California.” Mr. Reck noted that, when he had previously served as NMFS’s area manager for the Klamath Basin office from 1996 to 2001, he had dealt with both the Yurok and Hoopa Valley Tribes and that they were “very interested in project operations” and were concerned that the Bureau of Reclamation pay sufficient attention to their reserved water rights and water level issues. Consistent with this concern, the Yurok Tribe sent the NMFS a letter on March 23, 2001 with extensive comments on NMFS’ draft 2001 Biological Opinion in which they stated that they “eoncur[red] with NMFS that despite the presence of other factors that have contributed to the decline of the Klamath River’s coho and other anadromous resources, the Klamath Project was and continues to be a major factor in the decline of these resources.” The final April 6, 2001 Biological Opinion prepared by NMFS regarding the SONCC coho salmon, discussed in more detail below, noted that “Indian tribes in the Klamath River Basin ... have a profound interest in water management” and that “[djownstream tribal reserved water rights consist of an instream flow sufficient to protect the right to take fish within their reservations.”
C. The Revised 2001 Operations Plan
Piior to 2001, the Klamath Project had been through wet and dry years, including two recent dry years, 1992 and 1994, that were even drier than was 2001. Numerous plaintiff water users, including Lonny Baley, Frank Anderson, Keith Buckingham, Michael Byrne, John Frank, Harold Hartman, Luther Horsley, Edwin Stastny, Jr., and Robert Un-ruh, testified at trial, however, that even during those earlier, severe drought years Klamath Project water users still received all of the water they needed. As the Bureau of Reclamation developed its operating plan for the 2001 water year, water supply forecasts indicated that it would be a “critical dry” year due to drought conditions. See Kandra v. United States,
On March 2, 2001, the Bureau of Reclamation sent out a letter, signed by Karl Wirkus, to the Irrigation Districts in the Klamath Project notifying them of the status of the Endangered Species Act consultation process and that no water was to be diverted or used until a revised operations plan for 2001 was finalized. In relevant part, the March 2, 2001 letter stated:
*638 Reclamation is in the process of developing the 2001 Annual Operations Plan. Biological opinions resulting from current consultations will be a critical part of the plan’s formulation. While it is possible that there may be drastic reductions in project agriculture and refuge deliveries in 2001, Reclamation is working diligently to avoid such an outcome. However, until Reclamation completes the consultation process, no diversion of Project water may occur that would result in a violation of Section 7(d) of the ESA which prohibits “... any irreversible or irretrievable commitment of resources, ..” pending completion of consultation. To date, Reclamation has not made a determination as to whether and to what extent Project water could be delivered in advance of completed consultations. Thus, until such a determination is made or the consultations are completed, no Project water may be diverted or used unless expressly authorized by Reclamation,
(emphasis in original).
On March 30, 2001, the Bureau of Reclamation sent out a similar letter to the Irrigation Districts, also signed by Mr. Wirkus, updating Klamath Project water users on the status of the Endangered Species Act consultation process. The March 30, 2001 letter stated, in relevant part:
We had previously indicated that a new Annual Operations Plan would be announced on April 1, 2001. We will not be announcing any new Operating Plan at that time. We anticipate announcing such a plan by April 6, 2001. We will continue to keep everyone advised of our progress in this regard. Once again, however, until such a determination is made or the consultations are completed, no Project water shall be diverted or used unless expressly authorized by Reclamation,
(emphasis in original).
On April 6, 2001, the FWS, acting in furtherance of its statutory duties under the Endangered Species Act, issued a final Biological Opinion (the FWS Biological Opinion), concluding that the Bureau of Reclamation’s proposed 2001 operation plan for the Kla-math Project was “likely to jeopardize the continued existence of the LRS [Lost River sucker] and SNS [shortnose sucker] and adversely modify their proposed critical habitat.” On the next day, April 6, 2001, NMFS issued its final Biological Opinion (the NMFS Biological Opinion) concluding that the proposed operation plan was “likely to jeopardize the continued existence of SONCO coho salmon” and “to adversely modify critical habitat for the SONCO coho salmon.” As inquired by the Endangered Species Act, 16 U.S.C. § 1536(b)(3)(A), the Biological Opinions of both agencies included “reasonable and prudent alternatives” to address the threat to the three species. FWS’ reasonable and prudent alternatives required, among other actions, that the Bureau of Reclamation maintain “not divert water from UKL [Upper Klamath Lake] for irrigation purposes if surface elevations are anticipated to go below [certain minimum levels], regardless of inflow year type.” The FWS Biological Opinion determined that “[implementation of the [Klamath] Project with these minimum elevations is necessary to avoid jeopardy and adverse modification of proposed critical habitat” for the Lost River and short nose suckers. The NMFS’ only reasonable and prudent alternative required the Bureau of Reclamation to operate the Klamath Project in such a way so as to provide certain levels of “minimum IGD [Iron Gate Dam, a dam downstream from the Link River Dam,] water releases” into the Klamath River between April and September 2001. The NMFS Biological Opinion stated that this reasonable and prudent alternative was “intended to prevent further decline of the listed fish .. while longer-term protections can be implemented to affect the recovery of the species.”
The trust responsibility to the Klamath Basin Tribes is shared by all federal agencies that undertake activities in the Kla-math Basin. Fishery and other resources in the Klamath River, Upper Klamath Lake (UKL), and nearby lakes and streams are important tribal trust resources to the Klamath Basin tribes. Reclamation’s Plan provides flow regimes and lake levels for protection of tribal trust resources within the limitations of the available water supply.
With regard to deliveries to Klamath Project water users, the Revised 2001 Operations Plan stated: “Due to the requirements of the biological opinions and the ESA [Endangered Species Act] and the current drought conditions, only limited deliveries of Project water will be made for irrigation.” The Revised 2001 Operations Plan summarized its ultimate decisions regarding operation of the Klamath Project, as follows:
Reclamation prepared the 2001 Plan ... for certain UKL [Upper Klamath Lake] levels and Klamath River flows at Iron Gate Dam consistent with the guiding principles and objectives....
Prior to listing of endangered and threatened species and the increased scientific understanding of the needs of ESA-listed species and tribal trust resources, the Project was operated to optimize irrigation diversions, with UKL releases and resulting flows at Iron Gate Dam (IGD) targeted to meet Federal Energy Regulatory Commission (FERC) mínimums. Lake elevations were the result of hydropower releases judged against irrigation demand.
Minimum UKL levels and Klamath River flows have been specified as a result of ESA consultation on listed species.... As a result, current conditions indicate water deliveries to farms and refuges within the Project service area will be severely limited. Under the current hydrology, the UKL levels and river flows under this Plan are consistent with requirements of the ESA and Reclamation’s obligation to protect Tribal trust resources.
At trial, Karl Wirkus, the Area Manager of the Bureau of Reclamation’s Klamath Basin area office and the author of the Revised 2001 Operations Plan, testified that as he put the Revised 2001 Operations Plan together and “ran the numbers,” he determined that meeting the minimum Upper Klamath Lake levels and Klamath River flows set forth in the FWS and NMFS Biological Opinions would require all available Klamath Project water and that there would not be any additional quantity of water available to meet other obligations.
On the same day the Revised 2001 Operations Plan was released, April 6, 2001, the Department of the Interior issued a news release stating that, based on the FWS and NMFS Biological Opinions “and the requirements of [the] Endangered Species Act, the Bureau of Reclamation announced today that no water will be available from Upper Kla-math Lake to supply the farmers of the
To provide some assistance to farmers affected by what is expected to be one of the driest years since the Project began in 1907, the United States Department of Agriculture (USDA) announces that most crops in the affected area are eligible for Federal crop insurance (if it had been purchased before the sales closing date) or other assistance.... For producéis carrying coverage, a portion of their otherwise irrigated crop losses resulting from 'the determination announced by the Bureau of Reclamation may be eligible for prevented planting payments.... Assistance is also provided through the Non-insured Crop Disaster Assistance Program (NAP) to producers growing crops that are currently uninsurable.
After the issuance of the Revised 2001 Operatipns Plan, on April 9, 2001, a group of Klamath Project water users, including the Klamath and Tulelake Irrigation Districts, filed a lawsuit in the United States District Court for the District of Oregon seeking to enjoin the Bureau of Reclamation from implementing the Revised 2001 Operations Plan and an order requiring the Bureau of Reclamation “to release unspecified ‘historic’ amounts of irrigation water.” See Kandra v. United States,
D. Effect on Farmers in the Klamath Basin
Ultimately, the delivery of irrigation water from Upper Klamath Lake to the plaintiffs in the above-captioned cases was totally terminated following the issue of the Revised 2001 Operations Plan in April 2001 until July 2001, when the Bureau of Reclamation released approximately 70,000 acre-feet of water. At trial, plaintiffs consistently testified that this late release of water was of very little, or more often, no use.' Moreover, some individual plaintiffs testified that they never received any of this water. For example, farmer David Cacka testified that the water was of no use to him in July because his crops had already died due to lack of water. Similarly, Mark Stuntenbeck, the assistant manager of Kla-math Irrigation District in 2001, testified that, in his District, “there were an awful lot of farmers that had no need for the water at that point” because, “[s]inee they were denied water early in the irrigation season, a lot of farmers did not plant any crops. And those that unfortunately did, the crops did not survive without any water.” Even those who received some water, such as Malin Irrigation District manager Harold Hartman, whose District received 10% of its normal delivery, described the amount as “not overall beneficial” because it was “[v]ery difficult to wet the system,” which had dried out due to lack of water deliveries. At best, in the words of Don Russell, a ditch rider for over forty years in the Klamath Project, who
Evidence introduced at trial also indicated that at least some of the plaintiffs received payments from various federal government programs after water deliveries were cut off in 2001. Many of the plaintiffs testified that they applied for funds from the Klamath Basin Water Conservation Program, a federal program administered by the Farm Service Agency which paid farmers $129.00 per irrigable acre for which no water was received. Several plaintiffs testified that they received payments under the Klamath Basin Emergency Operation and Maintenance Act of 2001, Pub. L. No. 107-349, 116 Stat. 2973 (2002), which reimbursed farmers for the operation and maintenance costs they had paid for water deliveries in 2001. Other plaintiffs testified that they received payments from the federal government’s crop disaster program, the federal government’s non-insured assistance program, and for placing cover crops on fields through the Emergency Conservation Program. Finally, some plaintiffs also received payments from the Risk Management Agency’s crop insurance program.
III. Procedural History
A. Lonny Baley, et al. v. United States
The procedural history of the above-captioned cases is long and complicated, including assignment to and review by multiple judges in the United States Court of Federal Claims and review by the United States Court of Appeals for the Federal Circuit, which resulted in a remand, and reassignment after the remand, to the undersigned judge. The plaintiffs in Lonny Baley, et al. v. United States, case number 1-591L, were initially a mixture of Irrigation Districts and individual water users. The Baley plaintiffs filed their initial complaint on October 11, 2001, an amended complaint on March 24, 2003, and a second amended complaint on January 31, 2005. In them second amended complaint, plaintiffs alleged that the govemment’s actions in terminating their water deliveries through the Klamath Project in 2001 constituted a taking of their water rights without just compensation in violation of the Fifth Amendment to the United States Constitution, an impairment of their water rights in violation of the Klamath Compact, and a breach of certain contracts between the Bureau of Reclamation and the named plaintiffs.
The case was initially assigned to Judge Diane G. Sypolt. On May 10, 2002, defendant filed a motion requesting that the case be stayed pending completion of the Klamath Adjudication, discussed above. In its motion, defendant argued that
because a number of the core elements of Plaintiffs’ takings claims turn on state law—and because these state law issues are presently the subject of the ongoing Klamath Basin Adjudication, in which both sides are participating—a stay of this case pending final resolution of the Adjudication is fully justified ....
On June 14, 2002, plaintiffs filed a response opposing defendant’s motion in which they argued that “plaintiffs’ water rights are vested under Oregon law and do not depend upon the adjudication for recognition.”
To resolve this issue, on May 12, 2003, Judge Sypolt, ordered plaintiffs to
file a motion for summary judgment on the question of whether their water rights ... are property that is compensable under the Fifth Amendment ... notwithstanding any adverse determination, including a retroactive one, regarding the existence, extent, or character of such rights by the Hearing Officer Panel in Case No. 003 of the State of Oregon’s ongoing Klamath Basin Adjudication.
Accordingly, on September 22, 2003, plaintiffs filed a motion for partial summary judgment seeking a finding that the property rights determination in the Klamath Adjudication was irrelevant to plaintiffs’ interest in the litigation, in support of which plaintiffs stated that, “regardless of the outcome of the Adjudication, plaintiffs will retain the beneficial interest in the Klamath Project water because plaintiff water users, not the govem-
On November 13, 2003, Judge Sypolt, in a very brief and somewhat unclear motion, granted plaintiffs’ revised motion for partial summary judgment and denied defendant’s motion to stay, stating that:
It appears from their motion for partial summary judgment that plaintiffs not only assert no property interest determinable in the Adjudication, but also concede that they claim no legal title to, but only “vested beneficial interests” in, the Klamath Basin Project water. Defendant, far from disputing this assertion, makes it the basis for its cross-motion for summary judgment, that these beneficial interests consist of contract lights that are not compensable as takings.
Accordingly, plaintiffs’ motion for partial summary judgment that their water interests are not property interests at issue in the Adjudication is granted and defendant’s motion for a stay pending the outcome of the Adjudication is denied. Based on plaintiffs’ assertion that no rights or interests in this case are affected by the Adjudication, plaintiffs are barred from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication.
The Baley case was re-assigned to Judge Francis Allegra on December 9, 2004 after Judge Sypolt retired from the United States Court of Federal Claims. Subsequently, on August 31, 2005, Judge Allegra entered summary judgment in favor of the defendant on the takings and Klamath Compact claims, see Klamath Irr. Dist. v. United States,
On remand, the Court of Federal Claims should proceed as follows: First, it should determine, for purposes of plaintiffs’ takings and Compact claims, whether plaintiffs have asserted cognizable property interests .... To the extent the Court of Federal Claims determines that one or more plaintiffs have asserted cognizable property interests, it then should determine whether, as far as the takings and Compact claims are concerned, those interests were taken or impaired. That determination will turn on existing takings law.
Id. at 619-20 (footnotes omitted). After the remand, on November 22, 2013, Judge Allegra dismissed the breach of contract claims of three plaintiffs, the Klamath Irrigation District, the Tulare Irrigation District, and Lonny Baley, on 28 U.S.C. § 1500 (2012) grounds. See Klamath Irr. Dist. v. United States,
B. John Anderson Farms, et al. v. United States
The plaintiffs in John Anderson Farms, et al. v. United States, case numbers 7-194C, 7-19401C, 7-19402C, 7-19403C, 7-19404C, 7-19405C, 7-19406C, 7-19407C, 7-19408C, 7-19409C, 7-19410C, 7-19411C, 7-19412C, 7-19413C, 7-19414C, 7-19415C, 7-19416C, 7-19417C, 7-19418C, 7-19419C, 7-19420C, who are all individual water users, filed their original complaint on March 22, 2007. The cases were initially assigned to Judge Allegra. Although, initially, the Baley and John Anderson Farms cases were assigned to separate attorneys in different divisions of the United States Department of Justice, reporting to different Assistant Attorney Generals, more recently, the Department of Justice counsel of record responsibilities in both cases were assigned to the above-listed attorney of record. On August 2, 2007, Judge Allegra stayed the John Anderson Farms cases pending resolution of the appeal to the Federal Circuit in the then-named Klamath Irrigation District, et al. v. United States case, number 1-591L. The stay was lifted on August 25, 2011 and an amended complaint was filed on October 4, 2011. In their 2011 amended complaint, the John Anderson Farms plaintiffs alleged that the government’s actions constituted breach of contracts hetween the government and the plaintiffs and a taking of plaintiffs’ property, in the form of their water rights, without compensation in violation of the Fifth Amendment to the United States Constitution. On March 13, 2014, Judge Allegra granted plaintiffs’ motion to voluntarily dismiss all remaining breach of contract claims with prejudice.
C. The Consolidated Cases Before the Undersigned Judge
On June 25, 2015, after a significant amount of discovery following the remand had already occurred, the above-captioned cases were re-assigned to the undersigned judge upon Judge Allegro's illness and subsequent passing. On July 22, 2015, after holding a status conference with the parties, the court issued an order, which modified a previous May 7, 2015 order issued by Judge Allegra. The new order set a trial date and set various pretrial deadlines. On January 12, 2016, after holding a status conference with the parties, the court issued an order consolidating the Baley and John Anderson Farms cases. The parties subsequently filed cross-motions in limine on the issue of whether
The parties subsequently finished discovery, submitted their pretrial filings, and filed a series of additional motions in limine regarding various issues. The court ruled on a number of these at a status hearing on January 4, 2017 and at the pretrial conference on January 10, 2017. On January 6, 2017, plaintiffs filed a renewed motion for class certification in both the consolidated Baley, case no. 1-591L, and John Anderson Farms, case no. 7-194C and 7-19401-19419C, cases. Judge Allegra had previously denied, without prejudice, a class certification request in the Baley case. This court granted the consolidated class certification motion at the January 10, 2017 pretrial 'conference,
All owners (or their lessees) of agricultural land who claim an appurtenant right to receive and put to beneficial use water from the Klamath Project in 2001, and allege a Fifth Amendment taking of their right to receive and use such water in 2001 and impairment of their water right in violation of the Klamath River Basin Compact. This includes owners or lessees of land located within or receiving Klamath Project water from the following districts:
Enterprise Irrigation District
Klamath Basin Improvement District
Klamath Drainage District
Klamath Hills District Improvement Company
Klamath Irrigation District
Malin Irrigation District
Midland District Improvement Company
Pine Grove Irrigation District
Poe Valley Improvement District
Shasta View Irrigation District
Sunnyside Irrigation District
Tulelake Irrigation District
Van Brimmer Ditch Company
Westside Improvement District No. 4
Excluded from the class are landowners (or their lessees) located on the east side of the Klamath Project who received Klamath Project water in 2001 from Gerber and Clear Lake Reservoirs.[14 ]
A trial was held in the above-captioned cases in Washington, D.C. over the course of ten days, which included an opportunity for a selection of the affected farmers to testify and be heard. After a separate post-trial hearing on a pre-trial motion filed by defendant to dismiss the Irrigation Districts as plaintiffs from the Baley case, plaintiffs filed a motion to voluntarily dismiss the Irrigation Districts as plaintiffs. The court granted the motion, and, because the previous lead plaintiff in case number 1-591L, Klamath Irrigation District, was among those dismissed, also ordered that case number 1-591L be re-eaptioned from Klamath Irrigation District, et al. v. United States to Lonny Baley, et al. v. United States. Defendant filed a motion to dismiss, or in the alternative for summary judgment, on the claims of any shareholders in the Van Brimmer Ditch Company, including those of named plaintiffs James and Cheryl Moore, which was briefed by the parties. The issue raised in this motion is addressed in the current opinion.
Just prior to trial, defendant and plaintiffs also filed cross-motions for partial summary judgment on the nature of plaintiffs’ beneficial interest in the use of Klamath Project water, and the possible effect of the contracts governing delivery on that interest. In its motion, defendant asked the court to hold that “plaintiffs’ appurtenant right to receive and use Klamath Project water is defined and limited by the contracts between the districts and the United States and any individual Warren Act contracts that remain in place” and that “plaintiffs’ interest in Project water, to the extent it may exist separately from those contracts, cannot be severed from plaintiffs’ respective ownership of land for the purposes of the Fifth Amendment.” In their cross-motions, plaintiffs asked the court to hold that their alleged water rights were “property protected by the Fifth Amendment, established under Oregon law, and that these property rights were unmodified by contract in 2001 at the time of the taking.” This motion also is addressed in this opinion.
Defendant, plaintiffs, and third-party inter-venor Pacific Coast Federation of Fisherman’s Associations simultaneously filed post-trial briefs. The Klamath Tribes filed a motion for leave to file a memorandum as ami-cus curiae, which was granted by the court. Defendant, plaintiffs, and third-party interve-nor subsequently filed their post-trial reply briefs, with defendant filing a sur-reply on issues raised for the first time in plaintiffs’ reply brief. On May 22, 2017, plaintiffs filed a third amended complaint that reflected the class certification approved by the court and the class notice plan subsequently approved by the court. As noted above, in order to allow plaintiffs to begin the process of perfecting the class in the event of a favorable decision or an appeal of this court’s decision, along with their amended complaint, plaintiffs filed an entry of appearance list listing 1,151 landowners or lessees (or their representatives) who had submitted timely entry of appearance forms.
DISCUSSION
As noted above, defendant’s motion to dismiss or for summary judgment as to the. claims of any shareholders of the Van Brim-mer Ditch Company was deferred to trial
I. Claims of Van Brimmer Ditch Company Shareholders
Although defendant’s motion regarding the claims of the Van Brimmer Ditch Company shareholders is titled as a motion to dismiss or alternatively for summary judgment, the motion never cites the standard of review for a motion to dismiss under Rule 12 of the Rules of the Rules of the United States Court of Federal Claims (RCFC) (2017) or the particular provision of RCFC 12 under which defendant seeks to bring its motion. Indeed, defendant’s motion never even mentions RCFC 12. Instead, the only standard of review discussed by defendant in its motion is the standard for summary judgment under RCFC 56. Moreover, certain evidence defendant cites in support of its motion, such as a declaration submitted by former Van Brim-mer Ditch Company President Gary Orem, the 1909 contract between the Van Brimmer Ditch Company and the United States, and even the trial testimony of James Moore, would generally be inappropriate to consider under a motion to dismiss under RCFC 12. The court, therefore, will treat defendant’s motion as one for summary judgment under RCFC 56.
RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect. Both rules provide that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 66(a) (2017); Fed. R. Civ, P. 66(a) (2017); see also Alabama v. North Carolina,
A fact is material if it will make a difference in the result of a case under the governing law. See Anderson v. Liberty Lobby, Inc.,
When reaching a summary judgment determination, the judge’s function is not to weigh the evidence and determine the truth of the case presented, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,
In appropriate cases, summary judgment;
saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result.
Dehne v. United States,
Summary judgment, however, will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc„
The initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged if the moving party can demonstrate that there is an absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett,
Even if both parties argue in favor of summary judgment and allege an absence of genuine issues of material fact, the
Cross-motions are no more than a claim by each party that it alone is entitled to summary judgment. The making of such inherently contradictory claims, however, does not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich Co. v. United States Filter Corp.,
Defendant moves for the dismissal of the .claims of any plaintiffs who are shareholders of the Van Brimmer Ditch Company on the grounds that such claims are barred by Judge Sypolt’s November 13, 2003 Order, Among the named plaintiffs, only James and Cheryl Moore were shareholders of the Van Brimmer Ditch Company, although the decision on defendant’s motion applies to any and all plaintiff class members who receive their water as shareholders of the Van Brimmer Ditch Company. According to defendant, the November 13, 2003 Order remains in effect because it was not challenged by plaintiffs on appeal and the Federal Circuit ultimately declined to rule on defendant’s argument that Van Brimmer’s claim was barred by the November 2003 Order. See Klamath Irr. Dist. v. United States,
Plaintiffs reject defendant’s argument that the November 13, 2003 Order remains valid and continue to argue that the rights asserted by the Van Brimmer shareholders are not the same as those that were at issue in the Klamath Adjudication. Plaintiffs argue that the Judge Sypolt’s November 13, 2003 Order “no longer serves any legitimate purpose” because “[t]he reason for the 2003 order no longer exists.” According to the plaintiffs, the purpose of Judge Sypolt’s November 13, 2003 Order was to address defendant’s May 10, 2002 motion to stay the then-titled Klamath Irrigation District case, now identified as the Baley case, case number 1-591L, until the Klamath Adjudication was decided, and because the Klamath Adjudication was completed on February 28, 2014, the Order is “now moot.” Plaintiffs also argue that the claims of the Moores and other plaintiffs who are Van Brimmer Ditch Company shareholders are not based on their ownership of Van Brim-mer Ditch Company stock, but, instead, are based on their beneficial interests in Klamath Project waters just like all other plaintiffs in the above-captioned cases.
The court turns first to plaintiffs’ argument that Judge Sypolt’s November 13, 2003 Order is “now moot” because it was intended only to address defendant’s May 10, 2002 motion to stay case number 1-591L, pending the conclusion of the Klamath Adjudication. Initially, the court notes that the plain language of the November 13, 2003 Order contains no language describing its effects as temporary. Instead, the Order appears to impose, without qualification, a permanent bar on the types of claims plaintiffs may bring, stating: “plaintiffs are barred from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication,” clearly referring to the Klamath Adjudication.
Although Judge Sypolt’s Order is extremely short and not the clearest, the language of the November 13, 2003 Order does not support plaintiffs’ argument that the only purpose of the Order was to address defendant’s motion so stay. The November 13, 2003 Order decided both defendant’s May 10, 2002 motion to stay the case on the grounds that issues relevant to the case were the subject of the then ongoing Klamath Adjudication and plaintiffs’ September 22, 2003 motion for summary judgment that the property rights determination in the Klamath Adjudication was irrelevant to plaintiffs’ interest in the then-titled Klamath Irrigation District case. After 'finding, in favor of plaintiffs, that “it appeared]” that plaintiffs in Klamath Irrigation District “assert no property interest determinable in the Adjudication” and,' therefore, denying defendant’s motion to stay the case and granting plaintiffs’ summary judgment motion, the court added language barring claims subject to the Klamath Adjudication, stating that it was doing so “[biased on plaintiffs’ assertion that no rights or interests in this case are affected by the Adjudication.” This language from Judge Sypolt’s November 13, 2003 Order indicates that a purpose of the Order was to prevent plaintiffs from later disavowing their assertion that none of the rights they asserted in the Klamath Irrigation District case would be affected by the Klamath Adjudication, the basis on which Judge Sypolt made her decision. To hold now that the November 13, 2003 Order is no longer binding on the parties would not only be contrary to its plain language, but also would undermine its apparent intent of holding plaintiffs accountable for the statements they made in order to receive the benefit of the court’s decision and avoid the stay sought by defendant. The court, therefore, holds that the November 13, 2003 Order remains in effect and continues to bar plaintiffs from “from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication.”
Despite this evidence, plaintiffs argue that plaintiffs who are Van Brimmer Ditch Company shareholders claims in the present litigation differ from those that were before the Klamath Adjudication because, in the present cases, these plaintiffs’ claims are based solely on their beneficial rights to Klamath Project water, rather than on their shares in the Van Brimmer Ditch Company. The evidence, however, demonstrates that any interests that the Van Brimmer Ditch Company’s users may have in Klamath Project water are simply derivative of the Van Brimmer Ditch Company’s water rights. The Van Brimmer Ditch Company’s articles of incorporation state that its purpose was to use the waters of Lower Klamath Lake “as has heretofore been appropriated and used” by the Van Brimmer brothers for irrigation purposes, and that each share was to be distributed for one acre of irrigable land dependent upon the Van Brimmer Ditch Company ditch for its water supply. Today, the Van Brimmer Ditch Company continues to distribute water to its users based on the number of shares they hold in the company, with each share corresponding to the right to receive water for one acre of irrigable land. Thus, the water rights held by the Van Brimmer Ditch Company’s users are to a portion of the water rights held by the Van Brimmer Ditch Company, i.e., to a portion of the water that was at issue in claims 298, 321-6, and 321-7 of ease 003 of the Klamath Adjudication. As such, any claims brought by the Van Brimmer Ditch Company’s users in the present litigation would be based on water rights that were at issue in the Klamath adjudication and barred by the Judge Sypolt’s November 13, 2003 Order. Defendant’s motion for summary judgment is granted, and plaintiffs who are shareholders of the Van Brimmer Ditch Company, such as James and Cheryl Moore,
II. Plaintiffs’ Takings and Klamath Compact Claims
Turning to the merits of the takings and Klamath Compact claims, the remaining plaintiffs in the class actions allege that the government’s actions in 2001 constituted a taking under the Fifth Amendment to the United States Constitution of their beneficial interest in Klamath Project water and an impairment of their right to receive Klamath Project water in violation of the Klamath Compact, for which they are owed just compensation. In its February 17, 2011 decision remanding case number 1—591 to this court, the United States Court of Appeals for the Federal Circuit instructed this court to proceed with plaintiffs’ takings and Klamath Compact claims using the following two-step process:
First, it should determine, for purposes of plaintiffs’ takings and Compact claims, whether plaintiffs have asserted cognizable property interests.... To the extent the Court of Federal Claims determines that one or more plaintiffs have asserted cognizable property interests, it then should determine whether, as far as the takings and Compact claims are concerned, those interests were taken or impaired.
Klamath Irr. Dist. v. United States,
A. Have Plaintiffs Asserted Cognizable Property Interests
The court turns first to the issue of “whether plaintiffs have asserted cognizable property interests.” Id. at 519. In response to a certified question sent by the Federal Circuit in case number 1-591, the Supreme Court of Oregon set forth the following three factor test for determining, “[ujnder Oregon law, whether plaintiffs acquired an equitable or beneficial property interest in the water right”:
whether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether the United States acquired the water right for plaintiffs’ use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs soipehow have altered that relationship. In this case, the first two factors suggest that plaintiffs acquired a beneficial or equitable property interest in the water right to which the United States claims legal title, but we cannot provide a definitive answer to the court’s second question because all the agreements between the parties are not before us.
Klamath Irr. Dist. v. United States,
That is because it is not disputed that, in this case, the first two parts of the three-part test have been met. Specifically, the parties do not dispute that plaintiffs have put Klamath Project water to beneficial use and that the United States acquired the pertinent water rights for plaintiffs’ use and benefit.
Id. With regard to the third part of the Oregon Supreme Court’s test, the Federal Circuit instructed this court to “address whether contractual agreements between plaintiffs and the government have clarified, redefined, or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable property interests for purposes of their takings and Compact claims.” Id. The Federal Circuit specified that this court
should give the government the opportunity to demonstrate how plaintiffs’ beneficial/equitable rights to the use of Klamath Project water have been clarified, redefined, or altered. In that context, it will be the government’s burden to demonstrate with specificity how the beneficial/equitable rights of one or more plaintiffs have been clarified, redefined, or altered. After the government has come forward with its*653 showing, plaintiffs will have the opportunity to respond.
Id. at 519-20 (footnotes omitted).
As instructed by the Federal Circuit, the court turns to the issue of whether “contractual agreements between plaintiffs and the government have clarified, redefined, or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable property interests for purposes of their takings and Compact claims.” Id. at 519. Defendant argues that plaintiffs’ beneficial rights have been altered by language, including the various shortage provisions, contained in the various contracts governing delivery of Kla-math Project water, in particular the Form A and B applications, the repayment contracts with the Klamath Irrigation District and the Tulelake Irrigation District, the Warren Act contracts, and the leases for lands in the National Wildlife Refuges. Plaintiffs reject defendant’s assertion that the contracts have altered plaintiffs’ rights, on the grounds that plaintiffs never signed any of the contracts that allegedly altered their rights, nor are they in privity with anyone who did.
Initially, the court notes that, throughout its post-trial brief, defendant alleges that the contracts governing the delivery of water from the Klamath Project “created” any property rights in the Klamath Project water plaintiffs may have held. As a matter of law, this is incorrect. Although it is unclear precisely what defendant means by this statement, the Oregon Supreme Court explained in its March 11, 2010 decision that, “[ujnder Oregon law, the water right became appurtenant to the land once the persons taking the water from the Klamath Project applied it to their land and put it to beneficial use.” Klamath Irr. Dist. v. United States,
1. Form A and B Applications
The court first reviews the Form A and B applications. These applications for water rights were used by the United States Department of the Interior in the early days of the Klamath Project, prior to the establishment of Irrigation Districts. See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-8. The Form A application was to be used by homesteaders settling into reclaimed lands, while the Form B application was to be used by owners of private lands. Id. Defendant does not allege, and there is no evidence in the record to suggest, that any of the plaintiffs signed any of these applications. Instead, defendant argues that, because the terms and conditions of the contracts continue to run with the land, the plaintiffs who are the sueces-sors-in-interest to the signors of the Forms A and B applications remain bound by these terms and conditions.
In support of its argument that the terms and conditions of Form A applications run with the land, defendant points to the provi
In response to the evidence offered by the defendant, plaintiffs point out that after homesteaders who signed Form A applications completed the homesteading process, they were issued patent deeds giving them ownership over the lands they homesteaded. Such patent deeds were issued for each of properties identified with each of the Form A applications admitted during trial. These patent deeds conveyed to the homesteaders
the Tract above described [in the patent deed], together with the right to the use of water from the Klamath Reclamation Project as an appurtenance to the irrigable lands in said tract; TO HAVE AND TO HOLD the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said [name] and to his heirs and assigns forever ... but excepting, nevertheless, and reserving unto the United States, rights of way over, across, and through said lands for canals and ditches constructed, or to be constructed, by its authority
(capitalization in original). The patent deeds, thus, conveyed the land and an appurtenant water right, while reserving the right of the United States to enter the lands for Klamath Project purposes. Additionally, some of the patent deeds contained clauses reserving to the United States any “fissionable” minerals contained in the lands or rights of way for the maintenance of power transmission lines. The deeds make no mention, however, of any other conditions on the property rights.
Although defendant argues that the “water right” conveyed by these patents “is the water right described and defined by the Form A contract,” there is no indication in the patent deeds that they were intended to incorporate the' terms of the Form A applications. “The general rule, long recognized in California, is that ‘ “where a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged, and the deed is deemed to express the final and entire contract between the parties,” ’ ” Ram’s Gate Winery, LLC v. Roche,
The Form B application does not contain a provision similar to the Form A application stating that its conditions run with title to the lands. The only evidence defendant offers in support of its contention that the provisions in the Form B applications run with the land is that both the Form A and Form B applications were recorded in the county records and that a Bureau of Reclamation senior water and land specialist, George Driscol, testified at trial that the Bureau of Reclamation continues to refer to provisions of the applications concerning the government’s rights, to use the lands for constructing Kla-math Project facilities. It is not obvious why recording a contract with a county recorder
2. Repayment Contracts with Klamath Irrigation District and Tulelake Irrigation District
Defendant also argues that the provisions of the repayment contracts between the United States and the Klamath Irrigation District and between the United States and Tulelake Irrigation District, including their shortage provisions, alter the water rights of plaintiffs who receive water from these Irrigation Districts. Defendant’s reasoning is essentially identical with respect to both of these contracts. Initially, defendant concedes that no landowners within the Klamath Irrigation District or the Tulelake Irrigation District are signatories to the Districts’ contracts with the United States. With regard to landowners within the Klamath Irrigation District, defendant notes that plaintiffs’ pre-deeessors-in-interest, after filing their Form B applications, formed the Klamath Irrigation District. Defendant then asserts that, when the Klamath Irrigation District entered into a contract with the government on November 29,1954, these landowners lands, and their appurtenant water rights, became “subject to the terms and conditions contained in the KID [Klamath Irrigation District] contract.” Similarly, with regards to those plaintiffs within the Tulelake Irrigation District, defendant notes that plaintiffs’ predecessors-in-interest, after filing their Form A applications, subsequently formed the Tulelake Irrigation District and included their lands within the Tulelake Irrigation District, Defendant then asserts that, when the Tulelake Irrigation District entered into a contract with the government in 1956, these landowners’ lands, and their appurtenant water rights, became “subject to the terms and conditions contained in the TID [Tulelake Irrigation District] contract.”
The November 28, 1954 contract between the Klamath Irrigation District and the United States was signed by these two parties only, and does not purport to bind any third parties. Similarly, the September 10, 1956 contract between the Tulelake Irrigation District and the United States is signed by these two parties only, and does not purport to bind any third parties. Further, the only purposes of the contracts appear to have been to have the Irrigation Districts assume the costs of repaying the United States for the construction of the Klamath Project and to transfer to the Irrigation Districts the operation of the Klamath Project works delivering the water to the lands within the Irrigation Districts. The preamble to the Kla-math Irrigation District’s contract states that the District is “obligated ... to repay to the United States that part of the expenditures made by the United States in the construction of the Project which is properly allocable to the District” and that “the District ... desires to enter into an amendatory contract with the United States, which would provide for the District to take over the operation and maintenance of certain of the Project works.” Similarly, the preamble to the Tule-lake Irrigation District’s contract states that it is entering into the contract for “furnishing by the United States of a water supply from the [Klamath] Project works and for the repayment of the construction charges” of the Klamath Project, and that because both parties wanted to provide “for the transfer to the District of the operation and maintenance of works and properties used or useful for the delivery of water to and protection of the lands within the District.” The contracts then set forth the respective obligations of the Irrigation Districts and the United States in operating these works.
Nowhere do the contracts purport to alter or otherwise impact any landowner’s water rights, which defendant admits were already appurtenant to the lands within the Klamath Irrigation District and the Tulelake Irrigation District prior to the creation of these Irrigation Districts. Further, it is not correct to argue that the individual landowners within the Klamath and Tulelake Irrigation Districts are subject to the terms of the contracts, which are addressed directly to the
3. Warren Act Contracts
Defendant also argues that the rights of plaintiffs who receive their water under individual Warren Act contracts or from an Irrigation District receiving water pursuant to a Warren Act contract, are altered by the terms of these contracts, including their shortage provisions. Warren Act contracts governing the delivery of water to ten Irrigation districts, the Enterprise Irrigation District, the Klamath Basin Improvement District, the Klamath Drainage District, the Malin Irrigation District, the Midland District Improvement Company, the Pine Grove Irrigation- District, the Poe Valley Improvement District, the Shasta View Irrigation District, the Sunnyside Irrigation District, and the Westside Improvement District, were admitted into evidence at trial. Additionally, three Warren Act contracts governing the delivery of water to the predecessors-in-interest of two named plaintiffs in the above-captioned cases were also admitted into evidence at trial. With regard to both sets of contracts, defendant argues that “the right of the landowner to receive water ... is defined and limited by the terms of the applicable Warren Act contract.” Plaintiffs argue that the Warren Act contracts entered into by the Irrigation Districts cannot affect the rights of individual plaintiffs because the plaintiffs themselves were not a party to these contracts.
Unlike the contracts entered into between the Klamath Irrigation District and the Tule-lake Irrigation District with the United States, the Warren Act contracts do not focus only on repayment .to the United States for the construction . of Klamath Project works and the operation of these works. Instead, the Warren Act contracts demonstrate an additional desire of the Irrigation Districts to secure water for their members. For instance, the contract with the Malin Irrigation District states that, “the District was organized for the purpose of securing and distributing water for the irrigation of its lands, and desires the United States to construct certain irrigation works and supply inigation water from the Klamath project for such district lands.” Further, unlike the Kla-math Irrigation District and Tulelake Irrigation District repayment contracts, the Warren Act contracts go beyond describing the logistics of distributing water to define and set limits on the amount of water that will be furnished by the United States to the Districts. For instance, the contract of the Malin Irrigation District specifies the Klamath Project canal through which the United States will release the water and sets three limits on the amounts that can be releasedj stating that the amount: “shall not exceed the amount that can be furnished ... at a cost of Thirty-four Dollars ($34.00) per acre”; “nor shall it exceed two acre-feet per acre of irrigable land during the usual irrigation season”; “and in no event shall it exceed 0.6 acrefeet of water per irrigable acre in any one month.” Finally, the contracts set a priority for the water vis-á-vis other Klamath Project appropriators, stating that the use rights acquired by the contract are inferior to the rights of prior appropriators, such as the Klamath Irrigation District, the Tulelake Irrigation District, and the Van Brimmer
The individual Warren Act contracts, like the Form A applications, and unlike the Form B applications, make clear that their terms run with the land, stating: “The terms of this contract shall inure to the benefit of and be binding upon the successors in interest and assigns of the parties hereto.” The terms and obligations imposed by the individual Warren Act contracts, thus, continue to bind the sueeessors-in-interest of the signors of the contract, including named plaintiffs Daniel G. and Delores Chin and Hill Land & Cattle LLC. Similar to the Warren Act contracts entered into by Irrigation Districts, for which the terms are identical or essentially identical to those included in the terms of the individual Warren Act contracts, these individual Warren Act contracts do not just alter, but also define, the water rights currently held by these sueeessors-in-interest.
Defendant argues that the shortage provisions contained in the Warren Act contracts mean that plaintiffs who receive water under an individual or Irrigation District Warren Act contract “had no right to receive and use any water from the Klamath Project in 2001.”
In the circumstances of the present cases, the presence or absence of the two words “other cause” in a Warren Act contract is dispositive. Although 2001 was a dry year, the Bureau of Reclamation’s statements in 2001 make clear that the reason the Bureau refused to supply water to the plaintiffs in 2001 was not because of drought, but because of what it perceived as the requirements of the Endangered Species Act as set forth in the FWS and NMFS Biological Opinions and of its tribal trust obligations towards the Klamath, Yurok and Hoopa Valley Tribes.
The Lost River and shortnose suckers, coho salmon, and bald eagles are listed under the ESA. Reclamation will manage Project water supplies in accordance with the April, 2001, [sic] biological opinions issued by NMFS and the U.S. Fish and Wildlife Service (FWS) for this year’s Project operation....”
With regard to its tribal trust obligations, the Revised 2001 Operations Plan states that “Reclamation’s Plan provides flow regimes and lake levels for protection of tribal trust resources within the limitations of the available water supply.” The statements in these contemporary documents are consistent with the testimony heard at trial. Jason Cameron, who at the time of the trial was the deputy ' area manager of the Bureau of Reclamation’s Klamath Basin area office, and who, in 2001, served as a water quality technician at the Bureau of Reclamation, monitoring water quality related to the endangered sucker fish, testified that the Bureau of Reclamation’s drought plan for the Klamath Project, which is triggered when there is “an insufficient water supply,” was not implemented in 2001 because there was no water supply available. Although Mr. Cameron did not explain why no water was available, Karl Wirkus, the Area Manager of the Bureau of Reclamation’s Klamath Basin area office in 2001 and the author of the Revised 2001 Operations Plan, testified that the reason no water was available in 2001 was because all Klamath Project water was needed to satisfy the satisfy the requirements of the reasonable and prudent alternatives set forth in the FWS and NMFS Biological Opinions.
The Bureau of Reclamations’ decision to curtail water deliveries to plaintiffs in 2001, therefore, was, according to its own statements, not caused by a “hostile diversion, unusual drought, interruption of service made necessary by repairs, damages caused by floods, unlawful acts or unavoidable accidents.” Therefore, the shortage provisions in the Warren Act Contracts that do not contain the phrase “other cause” are inapplicable in the present cases. As such, plaintiffs whose claims arise from water they receive from Irrigation Districts whose contracts with the United States contain such shortage provisions, including the Klamath Drainage District, the Malin Irrigation District, the Klamath Basin Improvement District, the Shasta View Irrigation District, the Sunny-side Irrigation District, and the Westside Improvement District, hold beneficial rights to receive Klamath Project water for which they may seek compensation under the Fifth Amendment or the Klamath Compact. Additionally, the claims of any class members that are based on parcels for which plaintiffs or plaintiffs’ predecessors-in-interest signed such a Warren Act contract also hold beneficial rights to receive Klamath Project water for which they may seek compensation under the Fifth Amendment or the Klamath Compact.
By contrast, the court finds that the phrase “other cause” in certain Warren Act shortage provisions is broad enough to encompass shortages caused by the United States’ tribal trust and Endangered Species Act obligations. Therefore, the shortage provisions in Warren Act contracts which immunize- the United States from liability due to “other causes” are applicable in the present case. As such, plaintiffs whose claims arise from water they receive from Irrigation Districts whose contracts with the United States contain such shortage provisions, including the Enterprise Irrigation District, the Midland District Improvement Company, the Poe Valley Improvement District, and the
4, Leased Lands in the National Wildlife Refuges
Defendant also argues that the water rights of plaintiffs who received their water through leases for lands in the National Wildlife Refuges that sit within the Klamath Project have been altered by the provisions of these leases, including their shortage provisions.
These leases entitle their leaseholder to lease a defined parcel of land, “with privileges and appurtenances,” and, thus, include the water rights appurtenant to the land. Unlike the Warren Act contracts, the leases do not include any language defining the leaseholder’s water right. The leases, however, state that they are leases made between the Bureau of Reclamation and the lessee, and, that “in consideration for the rents and covenants” contained in the leases, the Bureau of Reclamation will provide deliveries of water to the leased premises. The leases, thus, are clearly intended to define the relationship between the plaintiff lessees and the United States regarding the appropriation of Klamath Water. As such, the water rights of plaintiffs who hold such leases were altered by and subject to the provisions of the leases.
Among other provisions, the leases state that “the United States ... shall not be held liable for damages because irrigation water is not available.” The provision contains no language requiring that water be unavailable due to specific causes. Because their property right was subject to this provision and irrigation water was unavailable in 2001, plaintiffs who leased lands in the National Wildlife Refuges are barred from recovering damages based on the denial of water to those lands.
B. Were Plaintiffs’ Interests Taken or Impaired
There, therefore, are a group of class members who have asserted cognizable property interests for which they may seek compensation from defendant, for which reason, the court turns to the next step in the Federal Circuit’s instructions, “whether, as far as the takings and Compact claims are concerned, those interests were taken or impaired.” Klamath Irr. Dist. v. United States,
1. Takings Framework
Initially, the parties dispute whether the government’s actions should be analyzed as regulatory rather than physical
a. Physical or Regulatory Taking
The issue of whether plaintiffs’ claims should be analyzed as physical or regulatory takings, although not whether they should be analyzed as permanent or temporary, was briefed by the palsies in motions in limine prior to the trial and decided by the court in its December 21, 2016 Opinion. See Klamath Irrigation v. United States,
After summarizing the parties’ arguments, the court proceeded to summarize the Federal Circuit’s decision in Casitas Municipal Water District v. United States, “a binding precedent on this court.” Id. at 732. The court then found that the “[t]he facts in the present cases are very similar to those in Casitas.” Id. at 733. In particular, the government had “taken an action that had the effect of preventing plaintiffs from enjoying the right to use water provided by an irrigation project,” “plaintiffs in the present eases had
Both defendant and defendant-intervenor, after trial, now request that this court reconsider its December 21, 2016 Opinion and hold that the government’s actions in the present cases are properly analyzed as regulatory rather than physical takings. Defendant argues that the court’s decision was wrong because plaintiffs failed to prove at trial that the government actually took any physical actions that resulted in the deprivation of Klamath Project water that plaintiffs allege constituted the taking at issue Defendant-intervenor makes a different argument, asserting that impairments on a use right, such as plaintiffs’ water rights in the present cases, can never constitute a physical taking, regardless of the nature of government action.
Neither defendant nor defendant-interve-nor discuss the standard to be applied to for motions for reconsideration. Pursuant to RCFC 59:
The court may, on motion, grant a new trial or a motion for reconsideration on all or some of the issues—and to any party— as follows:
(A) for any reason for which a new trial has heretofore been granted in an action at law in federal court;
(B) for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court; or
(C) upon the showing of satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done to the United States.
RCFC 59(a)(1) (2017). The United States Court of Appeals for the Federal Circuit has stated that: “The decision whether to grant reconsideration lies largely within the discretion of the [trial] court.” Yuba Natural Res., Inc. v. United States,
“Motions for reconsideration must be supported ‘by a showing of extraordinary circumstances which justify relief.’ ” Caldwell v. United States,
Courts must address reconsideration motions with “exceptional care.” Carter v. United States,
In sum, it is logical and well established that, “ ‘[t]he litigation process rests on the assumption that both parties present their case once, to their best advantage;’ a motion for reconsideration, thus, should not be based on evidence that was readily available at the time the motion was heard.” Seldovia Native Ass’n Inc. v. United States,
Defendant argues that the court should revisit its earlier decision because plaintiffs failed to prove at tidal that the government “took any physical action with regard to” any of the “points of diversion” from Upper Kla-math Lake or the Klamath river to the Kla-math Project works supplying water to the plaintiffs’ lands.
Initially, the court notes that its December 21, 2016 Opinion did not assume or make any factual finding that Bureau of Reclamation personnel physically operated the Klamath Project works diversion points from Upper Klamath Lake or the Klamath River. See Klamath Irr. Dist. v. United States,
Further, defendant’s argument that “instructions” from the government that result in the diversion of water cannot result in a physical taking because they are not “physical actions” is incorrect as a matter of law. In language quoted in this courts’ December 21, 2016 Opinion, the Federal Circuit in Casitas stated that, in the three United States Supreme Court cases involving physical takings of water rights, International Paper Co. v. United States,
The petitioner’s right was to the use of the water; and when all the water that it used was withdrawn from the petitioner’s mill and turned elsewhere by government requisition for the production of power it is hard to see what more the Government could do to take the use.
Id. at 407. Just as in International Paper Co., the government’s actions in the present eases caused the withdrawal of water used by plaintiffs and, thereby, deprived them of their right to use that water.
Defendant-intervenor, Pacific Coast Federation of Fisherman’s Associations, makes a different argument, that “[a] takings claim based on an alleged impairment of the right to use property must be analyzed as a potential regulatory taking, regardless of what caused the restriction.” (emphasis in original). As it relates to water law, this proposed bright line rule is obviously incorrect. Each of the three Supreme Court cases which found a physical taking of water, as well as Casitas, involved a right to use water. See id. at 407,
b. Permanent or Temporary Taking
The issue of whether the government’s actions should be analyzed as a permanent or temporary taking was not briefed in the parties’ motions in limine and, therefore, not discussed in the court’s December 21, 2016 Opinion. In their post-trial briefs, defendant and defendant-intervenor argue that, if the court declines to reconsider its December 21, 2016 Opinion holding that the government’s actions be analyzed as physical takings, it should analyze the actions as temporary, rather than permanent takings, applying the framework set forth in Arkansas Game and Fish,
Defendant argues that the government’s actions must be analyzed as a temporary taking because plaintiffs’ water rights are appurtenant to their properties and are of permanent duration in time. With regard to the appurtenant nature of plaintiffs’ water rights, defendant argues that “black letter law” requires the court to evaluate the effect of the government’s actions on their property as a whole, including fee ownership of the lands to which the property rights are appurtenant. With regard to the permanent nature of plaintiffs’ water rights, defendant argues that, even if the court finds that “ap-purtenancy can be severed from the fee for the puiposes of this claim, because the appurtenant ‘right’ to receive [Klamath] Project water is a permanent -right, and plaintiffs are only alleging a taking of that right in 2001, that claim must be analyzed as a temporary taking.” Defendant-intervenor similarly argues that it is “apparent” that the government’s actions should be analyzed as a temporary taking because the government’s water restrictions were in place for less than a year.
It is undisputed that plaintiffs’ water rights were appurtenant to their land. This fact was pled in plaintiffs’ second amended complaint, and a number of plaintiffs testified to it at trial during questioning by defendant, including Frank Anderson, John Frank, Donald Russel, Harold Hartman, Edwin Stastny, Jr., James Moore, Gary Wright, Claude Hag-erty, Steven L. Kandra, and David A, Cacka. Defendant’s argument that the court should analyze the effect of the government’s actions on plaintiffs’ property as a whole, including the fee estates to which their water rights were appurtenant, rather than the effect on their water rights alone, however, is incorrect as a matter of law. This court has determined that the government’s actions should be analyzed as a physical rather than regulatory taking, and with regard to physical takings, the Federal Circuit has held that “[t]he size and scope of a physical invasion is immaterial to the analysis; even if the government only appropriates a tiny slice of a person’s holdings, a taking has occurred, and the owner must be provided just compensation.” Casitas Mun. Water Dist. v. United States,
That plaintiffs’ water rights are permanent in duration also is undisputed and supported by substantial evidence admitted at trial. For instance, the 1905 KWUA contract, the rights and obligations of which were incorporated into Klamath Irrigation District’s contracts with the United States, states that the KWUA members right to use Klamath Project water “shall be ... forever appurtenant to designated lands owned by [KWUA’s] share-holders.” Similarly, the Warren Act contracts state an amount of water that the United States shall furnish each year to the contractor from the various works of the Klamath Project. Defendant’s argument (and defendant-intervenor’s related argument) that the government’s actions should be analyzed as a temporary taking because they only affected plaintiffs’ water rights for one year, while plaintiffs’ water rights are perpetual, is, however, in direct contradiction with the Federal Circuit’s decision in Casitas. In Casitas the Federal Circuit, addressing whether the government’s actions should be treated like the temporary moratorium at issue in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
The California license governing Casitas’ use of water for the Project permits Casi-tas to divert up to 107,800 acre-feet per year from the Ventura River and to put to beneficial use each year 28,500 acre-feet of the diverted water. The water diverted to the fish ladder facility is gone forever, as the license does not allow Casitas to make up this amount in subsequent years.
Casitas Mun. Water Dist. v. United States,
Similar to the facts in Casitas, in the present cases, the plaintiffs held rights to receive the amount of Klamath Project water they could put to beneficial use each year, which in some cases was capped at a specific amount in terms of acre-feet per second. Neither Oregon or California law, nor the various contracts plaintiffs and Irrigation Districts entered into with the Bureau of Reclamation, allowed them to make up the amounts they were deprived of in 2001 in subsequent years. Therefore, as in Casitas, the water plaintiffs were deprived of in 2001 is “gone forever.” Casitas Mun. Water Dist. v. United States,
2. Effect of Tribal Rights
The parties also dispute the effect of any rights the Tribes may have to Klamath Project water on plaintiffs’ claims. Defendant argues that the government’s actions did not constitute a taking of the plaintiffs’ water rights because the plaintiffs’ water rights were subordinate to those of the Klamath, Yurok, and Hoopa Valley Indian Tribes. According to defendant, the amount of Klamath Project water needed to satisfy the Tribes’ rights was at least equal to the quantity needed to satisfy the requirements of the Endangered Species Act with respect to the Lost River and shortnose suckers and the SONCC coho salmon in 2001. Defendant also argues that the Bureau of Reclamation’s Revised 2001 Operations Plan indicates that its decision regarding water availability in 2001 was based, at least in part, on the government’s obligation to satisfy its trust obligation towards the Tribes to supply the water needed to meet their senior water rights. According to defendant, because there was not even enough water to fully satisfy the Tribes’ senior water rights in 2001, plaintiffs, as junior rights holders, were not entitled to receive any water and, thus, no taking occurred. In them amicus brief filed with this court, the Klamath Tribes, similarly argue that, to satisfy the Klamath Tribes’ rights, “the amount of water required to remain in the [Upper Klamath] Lake, although unquantified in 2001, could not have been less than that required by the ESA [Endangered Species Act], as the ESA only seeks to avoid extinction whereas the Tribal water right is
Plaintiffs argue that defendant has not shown that the 2001 curtailment of water deliveries was necessary to protect the Tribes’ water rights because those rights are unquantified, making such proof impossible, and because post-2001 evidence shows that the water curtailment did not actually protect the threatened and endangered fish. Plaintiffs also argue that the evidence offered at trial shows that the Bureau of Reclamation’s decision to withhold water deliveries from the plaintiffs’ in 2001 was based entirely on its obligations under the Endangered Species Act, rather than to comply with its trust obligations to satisfy the Tribes’ water rights. Plaintiffs further argue that the Bureau of Reclamation had trust obligations towards not only to the Tribes, but also to the plaintiff water users and that, under the Supreme Court’s opinion in Nevada v. United States,
Both Oregon, where the Klamath Tribe is based, and California, where the Yurok and Hoopa Valley Tribes are based, follow the doctrine of prior appropriation for water rights. See Irwin v. Phillips,
The water rights held by the Kla-math, Yurok and Hoopa Valley Tribes are reserved federal rights. “[W]hen the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States,
“An implied reservation of water for an Indian reservation will be found where it is necessary to fulfill the purposes of the reservation.” Colville Confederated Tribes v. Walton,
The Tribes’ reserved rights are senior to those of any of the plaintiff users of the Klamath Project water. The Klamath Tribes’ rights hold a priority date of “time immemorial,” meaning they are senior to any other possible rights holder, See United States v. Adair,
The Klamath Tribes hold a “non-consumptive” right in the waters of Upper Klamath Lake and its tributaries entitling them to prevent other appropriators from depleting these waters below levels that would prevent them from “supporting] game and fish adequate to the needs of Indian hunters and fishers.” United States v. Adair,
The Yurok and Hoopa Valley Tribes hold the right “to take fish from the Klamath River ... for ceremonial, subsistence, and commercial purposes.” United States v. Eberhardt,
Defendant and amicus Klamath Tribes argue that the quantity of water needed to protect these water rights held by the Tribes in 2001 was, at a minimum equal to the quantity needed to satisfy the Bureau of Reclamations’ obligations under Section 7 of the Endangered Species Act. In 2001, as in the present day, Section 7 of the Endangered Species Act required federal agencies to, “in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species ....” 16 U.S.C. § 1536(g)(2) (2000). In 2001, as in the present day, under the regulations implementing Section 7, to “jeopardize the continued existence” of a species meant “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the-likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 60 C.F.R. § 402.02 (2000). In the cases presently before the court, the Bureau of Reclamation, pursuant to its obligations under Section 7, initiated formal consultations with the NMFS regarding the SONCC coho salmon on January 22, 2001 and with the FWS regarding the Lost River and shortnose suckers on February 13, 2001, The results of these consultations were the biological assessments issued by the NMFS and the FWS, which found that the Bureau of Reclamation’s proposed 2001 operations plan for the Klamath Project, which would have provided the plaintiffs with water deliveries in line with historic practices, was “likely to jeopardize the continued existence” of the Lost River and shortnose suckers and the SONCC coho salmon. To avoid jeopardizing the fish, the NMFS and FWS determined it would be necessary to implement certain “reasonable and prudent alternatives,” including not releasing water for irrigation purposes from Upper Klamath Lake in order to maintain certain minimum elevations and releasing additional water into Klamath River to maintain certain flow rates. The Bureau of Reclamation subsequently implemented the reasonable and prudent alternatives proposed in the NMFS and FWS Biological Opinions in its Revised 2001 Operations Plan, resulting in the total denial of water deliveries to plaintiffs until July 2001.
The Bureau of Reclamation, thus, withheld water from plaintiffs in order to retain what it believed was the amount of water in Upper Klamath Lake and the Klamath River needed to avoid “jeopardizing] the continued existence,” that is “reducing] appreciably the likelihood of ... the survival,” of the Lost River and shortnose suckers and the SONCC coho salmon. See 16 U.S.C. § 1636(a)(2); 60 C.F.R. § 402.02. The quantity of water that would have been necessary to retain in Upper Klamath Lake and in the Klamath River in order to prevent the extinction of the Lost River and shortnose suckers and the SONCC coho salmon cannot have been any less than the quantity that would have been needed to
Plaintiffs do not directly challenge defendant’s conclusions regarding the priority dates and extent of the Tribes’ water rights. Instead, plaintiffs argue that that the government has failed to prove that the Tribes’ senior water rights precluded deliveries to the plaintiffs in 2001. In support of this argument, plaintiffs point to the lack of quantification of the Tribes’ water rights, arguing that “[without knowing how much water the Tribes are entitled to, the Government cannot show that all (or any portion) of the water in Upper Klamath Lake belonged to the Tribes—and not the Klamath farmers.” Initially, the court notes that unquantified reserved rights are not automatically unenforceable. See Winters v. United States,
The court has concluded that the Tribes’ water right entitled them to keep at least as much water in Upper Klamath Lake and the Klamath River as was necessary to prevent jeopardizing the continued existence of the Lost River and shortnose suckers and the SONCC coho salmon. Determinations as to the minimum elevation in Upper Klamath Lake and the minimum flows into the Kla-math River that would be necessary to avoid jeopardizing the continued existence of these fish were set forth in the NMFS and FWS Biological Opinions. Plaintiffs, however, challenge the accuracy of the determinations set forth in at least the NMFS Biological Opinion, pointing to a summary of a government report contained in an unpublished 2006 United States District Court opinion, Pac. Coast Fed’n of Fisherman’s Ass’ns v. United States Bureau of Reclamation, No. C. 02-2006,
“[A]n uncompensated taking and an unlawful government action constitute ‘two separate wrongs [that] give rise to two separate causes of action,’ and ... a property owner is free either to sue in district court for asserted improprieties committed in the course of the challenged action or to sue for an uncompensated taking in the Court of Federal Claims.” Rith Energy, Inc. v. United States,
Plaintiffs, thus, must assume the lawfulness of the Bureau of Reclamation’s actions in 2001. This means that plaintiffs must assume that the Bureau of Reclamation acted reasonably when it determined that it was required under the Endangered Species Act to implement the determinations of the NMFS and FWS Biological Opinions in the Revised 2001 Operations Plan, as the United States District Court for the District of Oregon determined in Kandra v. United States,
The FWS Biological Opinion begins with a 43 page description of the historical operation of the Klamath Project and the Bureau of Reclamation’s proposed actions for the Klamath Project in 2001, including summaries of historic elevations in Upper Klamath Lake and other reservoirs in above average water years, below average water years, dry years, critical dry years, detailed descriptions of how the Bureau of Reclamation historically operated the various Klamath Project works and facilities and how it intended to operate them in 2001, and summaries of the various contractual relationships between the Bureau of Reclamation and water users. The FWS Biological Opinion then moves to a 167 page section titled “Biological/Conference Opinions Regarding Operation of the Bureau of Reclamation’s Klamath Project and its Effects on the Endangered Lost River Sucker, Endangered Shortnose Sueker, and Proposed Critical Habitat for the Suckers.”
The NMFS Biological Opinion is not as lengthy as the FWS Biological Opinion, which is likely due, at least in part, to the fact that, unlike the FWS Biological Opinion, the NMFS Biological Opinion concerns only one species of fish. The NMFS Biological Opinion contains 3 pages of background on the Klamath Project and description of the Bureau of Reclamation’s proposed plans for operating the Klamath Project in 2001, 7 pages describing the life cycle, population trends, and current status of the SONCO coho salmon, a 9 page “Environmental Baseline” describing the effects of past and ongoing human and natural factors leading to the current status of the fish, an 11 page analysis of the expected effects of the Bureau of Reclamation’s proposed Klamath Project operations on the fish, a 1 page analysis of the cumulative effect of other human activities on the fish, and a 6 page discussion of NMFS’ pi’oposed reasonable and prudent alternative to the Bureau of Reclamation’s proposed operations of the Klamath Project in 2001. The NMFS Biological Opinion ends with 14 charts and graphs summarizing the average flows and temperatures at various points in the Klamath River, as well as the effect of various levels of water discharges from the Klamath Project on the SONCO coho and other species of salmon. A bibliography in the NMFS Biological Opinion lists 74 pieces of literature the NMFS used to formulate the opinions set forth in the NMFS Biological Opinion. Among the conclusions of the NMFS Biological Opinion was that continued operation of the Klamath Project according to historic standards was likely to “jeopardize the continued existence of [the] SONCC coho salmon” and that certain minimum flows of water released from the Klamath Project were necessary “to prevent further decline” of the fish. These were the minimum flows of water into the Klamath River that were, subsequently, implemented by the Bureau of Reclamation in 2001.
Plaintiffs present nothing to challenge the conclusions of the FWS Biological Opinion. The only offer plaintiffs make to show that the conclusions in the NMFS Biological Opinion were flawed are passages from a 2006 unpublished decision of the United States District Court for the Northern District of California in the case of Pacific Coast Federation of Fisherman’s Associations v. United States Bureau of Reclamation, which summarize portions of an after the fact February 6, 2002 report by the National Research Council, an arm of the National Academy of Sciences, titled: “Prepublication Copy, Interim Report, Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin (2002).” Pac. Coast Fed’n of Fisherman’s Ass’ns v. United States Bureau of Reclamation,
The NRC [National Research Council] Report recognized that “the reduction in stocks of native coho salmon in the Kla-math, River Basin has been caused by multiple interactive factors.” Changes in the physical habitat associated with inadequate flows and water temperature were cited as examples. However, the NRC Report found that there was not a sufficient basis to support the proposed flows in the 2001 NMFS Biological Opinion. The NRC Report also found that higher flows might disadvantage the young coho salmon between July and September because the additional flows would include water that had been warmed in retention lakes. High water -temperature was found to be one of the reasons for the decline of coho salmon. The NRC Report also questioned whether the increased flows might have a detrimental effect upon thermal refugia, which was determined to be critical to the coho salmon’s habitat.
While the NRC Report did not find scientific support for the minimum flows proposed by NMFS, the NRC Report also found that the BOR’s proposal in its 2001 biological assessment could not be justified. The NRC Report concluded that the BOR’s 2001 biological assessment “could lead to more extreme suppression of flows than has been seen in the past, and cannot be justified either.” Overall, the report concluded that “there is no convincing sci*676 entific justification at present for deviating from flows derived from operational practices in place between 1990 and 2000.”
Id. The District Court opinion does not say whether the National Research Council report drew any similar conclusions regarding the Upper Klamath Lake elevation levels proposed in the 2001 FWS Biological Opinion.
The court considers the FWS and NMFS Biological Opinions relied upon by the Bureau of Reclamation in 2001, thoughtfully researched, clearly presented, credible decision-making documents, which drew on a wide body of scientific literature and displayed a strong grasp of the history and operation of the Klamath Project, the biological needs of the threatened and endangered fish, and the effects of the Klamath Project and other human activities on the lifecycles of the fish. Each of the Biological Opinions marshals its findings on these topics to explain, in depth, why the reasonable and prudent alternatives they set forth, including minimum elevation levels in Upper Klamath Lake and minimum water flows into the Kla-math River, were necessary to avoid jeopardizing the continued existence of the Lost River and shortnose suckers and the SONCC coho salmon.
Plaintiffs have failed to offer or identify any specific evidence in the record which casts doubt on the scientific conclusions of the FWS Biological Opinion. Therefore, because the court finds the FWS Biological Opinion was reasoned and highly credible, the court accepts the conclusions of the FWS Biological Opinion, including that the elevation levels for Upper Klamath Lake set forth in the FWS Biological Opinion, which were subsequently adopted by the Bureau of Reclamation, were necessary to avoid jeopardizing the continued existence of the Lost River and shortnose suckers.
With regard to the NMFS Biological Opinion, plaintiffs offer only the summary of the February 6, 2002 National Research Council report in the unpublished opinion from the United States District Court for the Northern District of California in’ support of its allegations that the conclusions of the NMFS Biological Opinion are flawed. The District Court opinion states, without elaboration, that “the NRC Report found that there was not a sufficient basis to support the proposed flows in the 2001 NMFS Biological Opinion” and that the Klamath River flows proposed by the 2001 NMFS Biological Opinion “might disadvantage the young coho salmon between July and September” and “might have a detrimental effect upon thermal refugia, which was determined to be critical to the coho salmon’s habitat.” Pac. Coast Fed’n of Fisherman’s Ass’ns v. United States Bureau of Reclamation,
Defendant, in its briefs before this court, rejects plaintiffs’ argument and argues instead that the Tribes’ reserved rights were a factor in the Bureau of Reclamations’ decision to withhold water in 2001. In support of its argument, defendant points to the following evidence in the record: the statement in the Revised 2001 Operations Plan that “the UKL [Upper Klamath Lake] levels and river flows under this Plan are consistent with
The court agrees with the Klamath Tribes that the Bureau of Reclamation’s motives are not dispositive in the present cases. It is a fundamental principle of water law in prior appropriation states that a senior water right “may be fulfilled entirely before ... junior appropriated get any water at all.” Montana v. Wyoming,
Plaintiffs further argue that, in managing Klamath Project water, the Bureau of Reclamation was not free to favor the Tribes over the plaintiffs. In support of this argument, plaintiffs quote language from the Supreme Court’s opinion in Nevada v. United States holding that, in managing reclamation projects, the United States must balance its fiduciary obligations to both Native American tribes and other water users. See Nevada v. United States,
The court, therefore, holds that, because the Tribes held water rights to Klamath Project water that were senior to those held by all remaining plaintiff class members, and because the Tribes water rights were at least co-extensive to the amount of water that was
CONCLUSION
For the reasons discussed above, defendant’s motion to exclude the claims of any plaintiffs deriving water rights from the Van Brimmer Ditch Company is GRANTED. The claims of any class members whose alleged beneficial right to Klamath Project Water is derived from their ownership of shares held in the Van Brimmer Ditch Company are DISMISSED.
Regarding the remaining claims of the remaining class members, the court recognizes the hardships encountered by many plaintiffs as a result of the actions taken in 2001. The court also recognizes the unfortunate amount of time it has taken to resolve these claims, with two previous judges of this court assigned, followed by an appeal to the United States Court of Appeals for the Federal Circuit, anfl a remand to this court, some time after which the above-captioned cases were assigned to the undersigned. After the trial, the coupt now finds that all of the remaining class members, who can ultimately prove they are properly in the class, held beneficial interests in receiving water from the Kla-math Project in 2001. The issues are, however, more complicated. With regard to those class members, either individually or through an Irrigation District, who received water based on Warren Act contracts containing language immunizing the government from liability resulting from water shortages caused “[o]n account of drought, inaccuracy in distribution, or other cause” and for those class members who received water based on lease agreements to lease lands in the National Wildlife Refuges within the boundaries of the Klamath Project, the interests of such class members have been altered by contract in such a way that plaintiffs are barred from seeking compensation from the United States based on either a taking or impairment of such a claim. All other class members have asserted cognizable property interests. Based on the superior water rights held by the Klamath, Yurok, and Hoopa Valley Tribes, however, the remaining class members were not entitled to receive water in 2001. The government’s actions in 2001, did not, therefore, constitute a taking of these plaintiffs’ property under the Fifth Amendment to the United States Constitution or effect an impairment of their rights under the Klamath Compact.
IT IS SO ORDERED.
Notes
. Although Tule Lake is spelled as two words, the name of the Tulelake Irrigation District does not include tlte space between the two words,
. The Klamath Indian Reservation was terminated in 1954 pursuant to an act of Congress, but the act explicitly preserved the Klamath Tribes' water rights. See United States v. Adair,
. In 1988, Congress enacted the Hoopa-Yurok Settlement Act, 25 U.S.C. § 1300i, to divide the extended Hoopa Valley Reservation into the Yu-rok Reservation and the Hoopa Valley Reservation. "One of the concerns of Congress at die time of the 1988 partitioning was to protect the [Yurok and Hoopa Valley] Tribes' fisheries.” Parravano v. Babbitt,
, “Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n,
. The findings of the Klamath Adjudication are available on the Oregon Water Resources’ Department website at http://www.oregon.gov/ owrd/Pages/adj/ACFFOD.aspx.
. The corrected order of partial determination for case 003 is available at http://www.Oregon. gov/owrd/ADJ/ACFFOD/KBA_ACFFOD_07017. PDF.
. In a joint status report filed October 28, 2014, the parties informed the court that, in 2014, the Klamath Adjudication also issued an order of partial determination finding that "the United States, BIA [Bureau of Indian Affairs], as trustee for the Klamath Tribes, holds a water right for specified elevations in Upper Klamath Lake with a priority date of 'time immemorial.' "
. "In addition, at this time, the Bureau was subject to a preliminary injunction order issued by the U.S. District Court for the Northern District of California in the Pacific Coast [Federation of Fishermen's Associations v. United States Bureau of Reclamation,
. As Mr. Russell explained, a ditch rider takes water requests from farmers and other water users and inspects the conditions in canals and other works to ensure that they will not prevent the delivery of water.
. The three questions certified by the Federal Circuit were:
1. Assuming that Klamath Basin water for the Klamath Reclamation Project "may be deemed to have been appropriated by the United States” pursuant to Oregon General Laws, Chapter 228, § 2 (1905), does that statute preclude irrigation districts and landowners from acquiring a beneficial or equitable property interest in the water right acquired by the United States?
2. In light of the statute, do the landowners who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States, and do the irrigation districts that receive water from the Klamath Basin Reclamation Project have a beneficial or equitable property interest in the water right acquired by the United States?
3. With respect to surface water rights where appropriation was initiated under Oregon law prior to February 24, 1909, and where such rights are not within any previously adjudicated area of the Klamath Basin, does Oregon State law recognize any property interest, whether legal or equitable, in the use of Kla-math Basin water that is not subject to adjudication in the Klamath Basin Adjudication?
Klamath Irr. Dist. v. United States,
. The Oregon Supreme Court answered the Federal Circuit's three certified questions as follows:
1. The 1905 Oregon act did not preclude plaintiffs from acquiring an equitable or beneficial property interest in a water right to which the United States holds legal title. Moreover, under the 1905 act, a formal written release from the United States is not necessary for plaintiffs to have acquired an equitable or beneficial property interest in the water right that the United States appropriated.
2. Under Oregon law, whether plaintiffs acquired an equitable or beneficial property interest in the water right turns on three factors: whether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether tire United States acquired the water right for plaintiffs' use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs somehow have altered that relationship. In this case, the first two factors suggest that plaintiffs acquired a beneficial or equitable property interest in tire water right to*643 which the United States claims legal title, but we cannot provide a definitive answer to the court’s second question because all the agreements between the parties are not before us.
3. To the extent that plaintiffs assert only an equitable or beneficial property interest in the water right to which the United States claims legal title in the Klamath Basin adjudication, plaintiffs are not "claimants" who must appear in that adjudication or lose the right. As a general rule, equitable or beneficial property interests in a water right to which someone else claims legal title are not subject to determination in a state water rights adjudication.
Klamath Irr. Dist. v. United States,
. The January 5, 2017 motion sought to renew an earlier motion to certify a class filed by the plaintiffs in case number 1-591L on October, 11, 2001, along with their initial complaint in case number 1-591L. In their October 11, 2001 motion, plaintiffs sought to certify a class comprised of: "All landowners who possess appurtenant water rights in the Klamath Basin and who receive their irrigation water from the Upper Kla-math lake through the Link River Dam.” On the same day, October 11, 2001, plaintiffs in case number 1-591L tiled a motion to hold their motion for class certification in abeyance until the issue of liability was determined. On December 10, 2001, defendant filed an unopposed motion requesting that the issue of class certification be addressed after the close of discovery. The earlier motions relating to class certification before Judges Sypolt and Allegra were apparently not addressed before Judge Allegra decided the issue of liability, the case was appealed to the Federal Circuit, and then remanded to this court. On June 25, 2014, plaintiffs filed a motion before Judge Allegra renewing their October 11, 2001 motion for class certification in case number 1-591L. On October 2, 2014, Judge Allegra denied the renewed motion for class certification, without prejudice, on the grounds that "such a certification would require that discovery in this case be reopened, further delaying resolution of this matter.” In the view of Judge Allegra, "the better course [was] to complete discovery as to the plaintiffs currently before the court, with the hopes of bringing at least some of the issues in this case to completion.”
. The class originally proposed by the plaintiffs and approved by the court on January 10, 2017 contained slightly different language. The parties subsequently modified the class definition to the
. At the request of the court, on September 8, 2017, defendant filed a status report summarizing the initial results of its review of the entry of appearance forms. In its status report, defendant states that its review of the entry of appearance forms indicates that there are over 3,600 individual parcels of land identified by the claimants in their entry of appearance forms. Defendant states that it has no objection to the claims based on 709 of these parcels. Defendant states that there are additional claims for which it does not object to the initial eligibility of the claimant who submitted the form, but notes that there is more than one landowner identified for the parcel on the relevant Irrigation District's assessment roll. For those claims, defendant states that additional information and clarification will be required. Finally, defendant notes that it has stated objections to the initial eligibility to claims based on hundreds of other parcels.
. The court notes that, although the November 13, 2003 Order was addressed only to plaintiffs in the Klamath Irrigation District case (the John Anderson Farms had not yet been filed on November 13, 2003), a single class has since been
. Defendant also argues: "The Court should further hold that the 'beneficial interest’ in Kla-math Project water resulting from the use of Project water delivered under these Warren Act contracts is not a compensable property right separate and apart from contracts and that plaintiffs' claims sound in contract.” Such a conclusion would be contrary to the Federal Circuit's binding Februaiy 17, 2011 decision. In that decision, the Federal Circuit quoted the Oregon Supreme Court's three factor test for determining whether plaintiffs had acquired a right of beneficial use in Klamath Project water:
[Wjhether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether the United States acquired the water right for plaintiffs’ use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs somehow have altered that relationship.
Klamath Irr. Dist. v. United States,
. Regarding .the Warren Act contracts, defendant appears to argue that plaintiffs who leased lands from the United States have no property right in their right to use Klamath Project water and that the court should find that their claims "sound[ ] in contract,” For the same reasons as for the Warren Act contracts, the court finds that such a holding would contradict the instruction of the Federal Circuit’s February 17, 2011 decision in this case. See generally Klamath Irrigation Dist. v. United States,
, Defendant also argues that the court's earlier decision "assume[d], without deciding that plaintiffs’ rights to use of the water was exactly as they alleged” and now that it has allegedly been show that plaintiffs "did not hold legal title and had no right to divert water from UKL or the Klamath River” the government’s actions "cannot be regarded as a seizure or physical taking” of the water or plaintiffs' right to use the water.
. Defendant-intervenor argues that Casitas is distinguishable from the present cases because it involved “an unusual set of facts where the court assumed the plaintiff owned the water it had diverted into a private canal.” (emphasis in original). This court rejected this precise argument in its December 21, 2016 Opinion, writing:
[Djefendant notes that the government in Casi-tas conceded, for the purpose of appeal, that Casitas held not only a right to use water, but also a right to divert water from the Ventura River Project, and, therefore, argues that the Federal Circuit's holding was premised on a finding that Casitas's right to divert water, rather than its right merely to use water, had been taken. This argument finds no support in the text of the Casitas opinion, which, after mentioning that Casitas held a right to divert 107,800 acre-feet of water from the Ventura River Project, see [ Casitas Mun. Water Dist. v. United States, 543 F.3d] at 1288, never describes the government’s actions as having interfered with Casitas’ right to divert water. By contrast, the opinion does state that, as a result of the government's actions, "[t]he water [diverted by the government], and Casitas' right to use that water, is forever gone.” Id at 1296 (emphasis added). Moreover, after quoting a statement from the Supreme Court’s opinion in International Paper that:
[t]he petitioner's right was to the use of the water; and when all the water that it used was withdrawn from the petitioner's mill and turned elsewhere by government requisition for the production of power it is hard to see what more the Government could do to take the use,
the Federal Circuit stated ”[s]imilar to the petitioner in International Paper, Casitas’ right was to the use of the water, and its water was withdrawn from the Robles-Casitas Canal and turned elsewhere (to the fish ladder) by the government,” Id. at 1292 (emphasis added) (quoting Int’l Paper Co. v. United States,282 U.S. at 407 ,51 S.Ct. 176 ). At the very least, these statements demonstrate that the United States Court of Appeals for the Federal Circuit concluded that the government’s water diversions in Casitas resulted in a permanent taking of Casitas' right to use the diverted water. See also CRV Enters., Inc. v. United States,626 F.3d at 1247 ("Thus, the prior water rights cases finding a physical taking involved instances where the 'United States physically diverted the water, or caused water to be divert*665 ed away from the plaintiffs' property’ such that water was removed entirely and the plaintiffs 'right to use that water, [was] forever gone.’ " (alteration in original) (emphasis added) (quoting Casitas v. United States,543 F.3d at 1290, 1296 )).
Klamath Irr. Dist. v. United States,
. Defendant-intervenor also criticizes the court’s December 21, 2016 Opinion for "suggesting] that the facts of this case are comparable to the facts of Casitas because the regulatory mandate that required water not to be diverted from the river for irrigation purposes altered the 'status quo ante.' ” In the portion of the opinion defendant-intervenor is apparently referencing (no citation is provided by defendant-intervenor), the court rejected defendant's attempt in its motion in limine to distinguish the present cases from Casitas on the grounds that "the Bureau of Reclamation’s actions did not amount to a physical diversion of Klamath Project water, but instead constituted only regulatory restrictions prohibiting the removal of water by plaintiffs from Upper Klamath Lake, the equivalent of what the court in Casitas termed 'merely requiring] some water to remain in stream’ as opposed to 'actively causing] the physical diversion of water.’ ” Klamath Irr. Dist. v. United States,
Defendant-intervenor also claims that the court's reasoning amounts to "the idea that the imposition of a new regulatory constraint on the use of land, water, or any other resource should be regarded as a physical taking simply because it changes the status quo ante." The court finds no support for such a proposition in its December 21, 2016 Opinion. Nor does defendant-inter-venor’s argument, again, made without specific citations to the court’s opinion, provide any such support. Defendant-intervendr’s argument, thus, fails.
. A corporeal hereditament is defined as a "tangible item of property, such as land, a build
. Defendant argues that Casitas should be discounted because it predates the Supreme Court’s decision in Arkansas Game and Fish Commission v. United States,
. The court notes that the existence and extent of any possible federal reserved water rights that may be held by the Tribes for the purposes of supporting agriculture are not dispositive in the present cases. Such reserved water rights for agricultural purposes are distinct from water rights held for the purpose of maintaining their fishing rights and their extent is determined according to the so-called "practicably irrigable acreage" standard set forth by the Supreme Court in Arizona v. California. See Arizona v. California,
. The court notes that plaintiffs raised this argument for the first time in their post-trial reply brief and failed to present evidence at trial to support the argument.
. The FWS Biological Opinion also contains a separate analysis on the effect of the Bureau of Reclamation’s proposed operations of the Kla-math Project on the Bald Eagle, which is not relevant to the present cases.
. Although plaintiffs failed to present any evidence at trial concerning the Tribes' water rights or the conclusions of the FWS and NMFS Biological Opinions, the importance of these issues
In 2001, as today, the Project's water right was junior in priority to the federal reserved water rights of the Klamath Tribes, and Reclamation’s management of Project operations was further subject to its trust obligations to protect senior fishing rights of two tribes in the California portion of the Klamath River basin—the Yurok and Hoopa Valley Tribes.
Defendant further argued: "Reclamation’s ESA Section 7 obligations overlapped with its trust obligations given that the Klamath Tribes hold water rights with a priority date senior to the Klamath Project's 1905 priority and the Hoopa Valley and Yurok Tribes hold fishing rights which also have senior priority dates,” Based on these arguments, defendant requested:
The Court should conclude here, as a matter of law, that because the plaintiffs’ beneficial interest is derivative of the water rights appropriated by the United States for the Klamath Project, any 'right' to receive and use Project water is junior in priority to the senior tribal rights described above.
Plaintiffs responded to defendant’s argument by arguing that the existence of the Tribes’ water rights was irrelevant to the existence of plaintiffs’ water rights and that "the Government’s argument that the Endangered Species Act (ESA) is coextensive with Indian water rights or that ESA constraints somehow constitute a tribal right, unsupported by any authority, is simply bizarre.” (footnote omitted). At the close of trial, the court informed the parties of certain issues that should be among the issues the parties ought to address in their post-trial briefs. The court specifically mentioned "the role of tribal water rights in any ultimate liability or damages calculation” and how the Tribes’ water rights "impact the water rights at issue.” The court also stated that "the tribal rights issue” needed to be "very clear” in the parties' post-trial submissions.
With regard to the conclusions of the FWS and NMFS Biological Opinions, prior to trial, on December 16, 2016, in a motion in limine, defendant argued to
exclude from trial any written evidence or testimony that seeks to challenge, directly or indirectly, the conclusions reached by FWS and NMFS in their respective Biological Opinions regarding the proposed operation of the Kla-math Project in 2001, and the determination by the Bureau of Reclamation regarding the operation of the Klamath Project in 2001, including its determination regarding the availability of Project water.
Defendant’s argument in support of its motion in limine was similar to the one it makes in its post-trial brief, specifically, that "it is well-settled that a plaintiff may not challenge [a] government decision in the context of a Fifth Amendment takings claim.” In a response to defendant’s motion, filed January 3, 2017, plaintiffs argued that defendant’s motion should be denied as moot. Plaintiff’s stated that they conceded the validity of the government's actions and ”agree[d] that the Bureau of Reclamation’s action constituting die taking—its withholding of Klamath's water in 2001—was authorized by the Endangered Species Act (as were the biological opinions).” Plaintiffs, however, argued that this was "all Klamath is required to concede” and that "plaintiffs in this taking case are not required to concede every factual assertion the Government makes in support of its action.”
, In support of its argument that the Bureau of Reclamations actions in 2001 were not motivated by existence of the Tribes’ reserved rights, plaintiffs also malee the related argument that "[u]n-der its historic practice before 2001, even in the driest years, Reclamation was able to provide full deliveries to Klamath farmers without violating any senior water rights or tribal trust responsibilities,” The court need not draw any conclusions about the actions of the Bureau of Reclamation in years other than the one at issue in the cases currently before the court. The past history of the enforcement or non-enforcement of the Tribes' reserved rights is irrelevant to the legal status of those rights in 2001. This is because, "(u]nlike appropriation rights, reserved rights are not based on diversion and actual beneficial use.” F. Cohen, Handbook of Federal Indian Law 19.01[1] at 120S. “Instead, sufficient water is reserved to fulfill the purposes for which a reservation was established.” Id. at 19.01[1] at 1205— 06. Thus, any potential failure of the Tribes to exercise their reserved rights prior to 2001, or any potential failure by the Bureau of Reclamation to enforce those rights prior to 2001, would have no impact on the existence and nature of the Tribes reserved rights in this case. See id. at 19.01(2] at 1206 ("Thus, a reservation established in 1865 that starts putting water to use in 1981 under its reserved rights has, in times of shortage, a priority that is superior to any non-Indian water right with a state-law priority acquired after 1865.”),