IN THE UNITED STATES COURT OF FEDERAL CLAIMS

KLAMATH IRRIGATION DISTRICT et al.,

Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.)

Judge Diane Gilbert Sypolt

No. 01-591 L

This case arises from restrictions imposed by the federal government under the Endangered Species Act (ESA), 16 U.S.C. §§1531-1544 (2003). The key question presented for review has been asked and answered in many different contexts and by many different decision makers: Do the Klamath Reclamation Project water users have a vested property right (water right appurtenant to their land), which the federal government cannot take from them, without payment of just compensation?

The United States Supreme Court has repeatedly held that the water users who put the water to beneficial use in a Reclamation Project have a property right. See, e.g., Ickes v. Fox, 300 U.S. 82, 95 (1937) ("[B]y the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works."); Nevada v. United States, 463 U.S. 110, 126 (1983) ("[T]he Government is completely mistaken if it believes that the water rights confirmed to it . . . were like so many bushels of wheat, to be bartered, sold, or shifted about as the Government might see fit. Once these lands were acquired by settlers in the Project, the Government’s ‘ownership’ of the water rights was at most nominal; the beneficial interest in the rights confirmed to the Government resided in the owners of the land within the Project to which these water rights became appurtenant upon the application of Project water to the land.").

The Supreme Court and this Court have also held that the federal government cannot take vested water rights, without payment of just compensation. See, e.g., Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 319 (2001) ("The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so."); see also Hage v. United States, 35 Fed. Cl. 147, 172 (1996) (holding that "[w]ater rights, like other property rights, are entitled to the full protection of the Constitution."); Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 427 (1991) (holding water rights are protected by the Fifth Amendment), aff’d, 64 F.3d 677 (Fed. Cir. 1995); Dugan v. Rank, 372 U.S. 609, 623 (1963) ("It follows that if any part of respondents’ claimed water rights were invaded it amounted to an interference therewith and a taking thereof – not a trespass."); United States v. Gerlach Livestock Co., 339 U.S. 725, 752-53 (1950) ("No reason appears why those who get the waters should be spared from making whole those from whom they are taken. Public interest requires appropriation; it does not require expropriation.").

Defendant United States, through the Department of Interior (Interior), has recognized that the landowners who put Klamath Reclamation Project (Klamath Project) water to beneficial use have a property right in that water. In 1989, the Interior Solicitor provided a legal opinion to the Secretary of Interior stating that "water rights obtained by the Bureau in the name of the United States," belong to "the water user who puts the project water to beneficial use." Filings of Claims for Water Rights in General Stream Adjudications, Op. Solicitor, Dep’t of Interior, 97 I.D. 21 at 25; 1989 I.D. LEXIS 101, 13 (July 6, 1989) (hereinafter "Interior Solicitor Op."). The Interior Solicitor concluded that the landowners have "a vested property interest in the water right." Id. According to the United States Supreme Court, "[c]onsiderable weight must be accorded to these interpretations of the Reclamation Act by the agency charged with its operation." California v. United States, 438 U.S. 645, 676 n.30 (1978) (citations omitted).

Finally, in 1957, Congress consented to the Klamath River Basin Compact thereby recognizing the vested property rights of the beneficial users of the project water. Klamath River Basin Compact, art. XIII(B)(1), Pub. Law 85-222, 71 Stat. 497 (Aug. 30, 1957) ("The United States shall recognize and be bound by the provisions of subdivision A of Article III."), Pls. Ex. 1, App. at 30; art. III(A) ("There are hereby recognized vested rights to the use of waters originating in the Upper Klamath River Basin validly established and subsisting as of the effective date of this compact under the laws of the state in which the use or diversion is made, including rights to the use of waters for domestic and irrigation uses within the Klamath Project."), Pls. Ex. 1, App. at 30. The federal government also agreed that it would not impair the water rights of the water users without payment of just compensation. Id. at art. XIII(B)(2) ("The United States shall not, without payment of just compensation, impair any rights to the use of water for use (a) or (b) [domestic or irrigation] within the Upper Klamath River Basin . . . ."), Pls. Ex. 1, App. at 30.

In the face of such overwhelming precedent to the contrary, defendant nevertheless claims that it has no obligation to pay plaintiffs for the Klamath Project water it refused to release to them in 2001 because this water was necessary to protect three species of fish listed as threatened or endangered under the Endangered Species Act.

Accordingly, plaintiffs, eleven government agencies and three corporations (hereinafter "plaintiff districts") in the Klamath River Basin, on behalf of approximately 1,400 farm families that own approximately 200,000 acres of farm and ranch land (including land that has been irrigated with water from the Klamath Project for a century), and the individually named plaintiffs, seek relief from this Court. As there are no material facts in dispute regarding the liability issues raised in this motion, plaintiffs ask this Court to grant their motion for partial summary judgment.