Baley v. United States
| Decision Date | 29 September 2017 |
| Docket Number | No. 7-19413C,No. 7-19411C,No. 7-19414C,No. 7-19406C,No. 7-19418C,No. 7-19403C,No. 7-194C,No. 7-19417C,No. 7-19407C,No. 7-19409C,No. 7-19408C,No. 7-19416C,No. 1-591L,No. 7-19410C,No. 7-19404C,No. 7-19419C,No. 7-19402C,No. 7-19420C,No. 7-19401C,No. 7-19412C,No. 7-19405C,No. 7-19415C,1-591L,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 |
| Parties | LONNY BALEY, et al., and JOHN ANDERSON FARMS, INC., et al., For Themselves, and as Representatives of a Class of Similarly Situated People, Plaintiffs, v. UNITED STATES, v. Defendant, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Defendant-Intervenor. |
| Court | U.S. Claims Court |
Takings, Physical or Regulatory Taking, Permanent or Temporary Taking, Water Rights, Tribal Rights, Endangered Species Act, Federal Reserved Rights; Motions for Reconsideration.
Nancie G. Marzulla, Marzulla Law, LLC, Washington, D.C. for plaintiffs. With her was Roger G. Marzulla, Marzulla Law, LLC. Of counsel were William M. Ganong, Special Counsel, Klamath Irrigation District, Klamath Falls, OR and Alan I. Saltman and Kathleen H. Barron, Smith Currie & Hancock LLP, Washington, D.C.
Kristine S. Tardiff, Trial Attorney, for defendant. With her were Jeffrey H. Wood, Acting Assistant Attorney General, and Edward C. Thomas, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice,Washington, D.C. Of counsel were Stephen Palmer, Office of the Regional Solicitor, United States Department of the Interior, Sacramento, CA, and Christopher Keifer, Office of the General Counsel, National Oceanic and Atmospheric Administration, Long Beach, CA.
Todd D. True, Earthjustice, Seattle, WA for defendant-intervenor.
Susan Y. Noe, Native American Rights Fund, Boulder, CO for amicus Klamath Tribes.
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 Klamath 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).
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 (). 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. Gen. 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 terms of the 1905 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 Klamath 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 Klamath 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 Klamath 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 headgates 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 Klamath 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 benefitted lands. Other Irrigation Districts and individuals that constructed and own their own diversion and delivery facilities also are parties to contracts with the United States for water made available by the Klamath Project. The individual plaintiff landowners (or their lessees) apply the diverted water to irrigate crops.
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.
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...
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