Our Klamath Basin Water Crisis
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
KLAMATH IRRIGATION DISTRICT et al., )
) Judge Francis M. Allegra
PACIFIC COAST FEDERATION OF )
FISHERMEN’S ASSOCIATIONS, )
PLAINTIFFS’ MEMORANDUM SUPPORTING
MOTION TO CERTIFY INTERLOCUTORY APPEAL OR, IN THE
ALTERNATIVE, FOR ENTRY OF JUDGMENT UNDER RULE
Plaintiffs respectfully ask this Court to amend its August 31, 2005 Order to
include the express findings required by 28 U.S.C. §1292 (d), and to certify the Order for interlocutory appeal, or, in the alternative, to enter judgment on the Plaintiffs’ takings
claims under Rule 54(b) of the Rules of the Court of Federal Claims (“RCFC”). The
standards for certification of this Order have been amply met in this case. First, the
determination of whether Plaintiffs have a constitutionally protected property right is in
this case (as in any other just compensation case under the Fifth Amendment) a
controlling issue of law. Second, there is a conflict in the Court of Federal Claims on this
(2001) (holding that the right to receive water from a state water project is a
constitutionally protected property right) with
Klamath Irrig. Dist. v.
Fed. Cl. 504 (2005) (holding that the right to receive water from a federal Reclamation
project is not a constitutionally protected property right). Finally, certification and
resolution of this issue by the Federal Circuit will result in the material advancement of
the ultimate termination of this litigation, avoiding possibly duplicative depositions and
document productions and two separate trials (in the event of reversal).
In the alternative, Plaintiffs request that the Court enter final judgment, pursuant
to RCFC 54(b), with respect to their claims for just compensation for their water rights
and just compensation for the impairment of their water rights. RCFC 54(b) provides for
the “entry of a final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay and upon
direction for the entry of judgment.” RCFC 54(b). In this case, there is no just reason
the Plaintiffs should have to delay seeking review
of the Court’s
Order, denying them relief on their takings claims, while they await adjudication of the
remaining contract claims.
Plaintiffs in this case are thirteen individually named agricultural landowners and
fourteen water, drainage or irrigation districts in
that receive, directly or indirectly, water from irrigation works constructed or operated by
the Department of the Interior, Bureau of Reclamation (“Bureau”). The fourteen
districts, in turn, represent approximately 1,400 families that own farm and ranch land
that is irrigated with water from the Klamath Project, including land that has been
irrigated with water from the Klamath Project for a century. The Klamath Project area
includes 240,00 acres of irrigable lands. At issue in this case is the water that was to be
to irrigate 176,000 privately owned acres of land in
the western portion of the
Klamath Project which was withheld from them in 2001 under the authority of the
Endangered Species Act.
compensation for the taking of their property rights in Klamath Project water under the
Fifth Amendment, and for impairment of their vested rights to the use of water under the
case pending the resolution of the state’s
adjudication process for the
Basin (“Adjudication”), which involves approximately 350,000 acres and thousands of
claimants outside the Klamath Project. Plaintiffs filed an amended complaint adding a
breach of contract count, on
motion for partial summary judgment seeking a determination that their interests in
Klamath Project water were not property interests at issue in the Adjudication. On
the nature and scope of Plaintiffs’ property interest in Klamath Project water. On
motion for partial summary judgment, concluding that Plaintiffs’ claim did not present a
property interest determinable in the Adjudication. The Court then permitted this case to
proceed upon condition that Plaintiffs may not assert any claims in this case that may be
subject to determination in the Adjudication.
the issues of the nature and scope of their property
interest and whether the United
States was liable to pay just compensation for the taking of that interest. On March 23,
2004, the Court granted Defendant’s motion to hold in abeyance the portions of
Plaintiffs’ brief addressing the issue of ultimate liability. This case was transferred to
Francis M. Allegra on
decision on partial summary judgment, determining that Plaintiffs lack any
constitutionally protected property right under the Fifth Amendment, and any vested right
the use of water as defined in the Klamath Compact.
This Court has the discretion to certify an order for an interlocutory appeal when
there is “a controlling question of law” for which “there is a substantial ground for
difference of opinion” and “an immediate appeal from that order may materially advance
ultimate termination of the litigation.” 28 U.S.C.
§1292(d)(2). In re Convertible
Rowing Exerciser Patent Litigation, 903 F.2d 822
(Fed. Cir. 1990); Aleut Tribe v. United
States, 702 F.2d 1015,1019 (Fed. Cir. 1983). As stated in Favell v. United States, 22 Ct.
Cl. 132 (1990), this Court has identified the following three factors that must be present
to certify an interlocutory appeal:
(1) a controlling question of law; as to which there is;
(2) substantial ground for difference of opinion; and
(3) possible material advancement of the ultimate termination of the litigation
will occur if the certification order is issued.
This three-prong test is designed to fairly assess the relative burdens and benefits
associated with an immediate appeal. American
Tel. & Tel. Co. v.
Cl. 540, 541 (1995). In deciding a motion for certification, the Court may also consider
factors such as “[t]he difficulty and general importance of the question presented, the
probability of reversal, the significance of the gains from reversal, and the hardship on
the parties in their particular circumstances.” 16 C. Wright, A. Miller, & E. Cooper,
Federal Practice & Procedure §3930 at 415-16 (2d
ed. 1996). See Vereda, LTDA v.
I. Whether Plaintiffs Possess a
Constitutionally Protected Property Right
or Vested Water Right Is a Controlling
Question of Law.
A controlling question of law is often defined as one that could materially affect
the course of litigation with resulting savings of the court’s or the parties’ resources.
Brown v. United States,
F.2d 1020, 1027 (9th Cir. 1982), aff’d, Arizona
v. Ash Grove Cement Co. 459
(1983); see generally 16 C. Wright, A.
Miller, & E. Cooper, Federal Practice &
Procedure §3930 at 415-16 (2d ed. 1996). (“[A] question is ‘controlling’ if its incorrect
disposition would require reversal of a final judgment . . . a dismissal that might have
been ordered without the ensuing [trial] court proceedings.”)
The determination that a plaintiff lacks a constitutionally protected property right
outcome determinative in a Fifth Amendment taking
391 F.3d 1212, 1218 (Fed. Cir. 2004) (finding no taking where the plaintiff the could not
the “threshold requirement of a recognized property
interest”); American Pelagic
to demonstrate the existence of a legally cognizable property interest, the courts task is at
an end”). It follows that the same is true of rights to the use of upper Klamath basin
water for irrigation which, under the Klamath Compact, may not be impaired without
payment of just compensation.
Hence, this Court’s determination in its
right to receive water from the Klamath Project, and their beneficial interest in that water,
is not a constitutionally protected property right compels dismissal of Plaintiffs’ First
Claim for Relief (Just Compensation for Taking). Moreover, this same determination
disposes of Plaintiffs’ Second Claim for Relief (Impairment of Water Rights/Klamath
Compact). Indeed, as this Court noted: “[N]othing in the Compact enhances the rights of
of the plaintiffs here as against the
Although this Court’s August 31 Order did not dispose of Plaintiffs’ Third Claim
for Relief (Breach of Contract), it significantly crippled Plaintiffs’ case by rejecting their
theory that the water, delivery of which is the subject of those contracts, belongs to
Plaintiffs by right. As Plaintiffs argued to this Court, these contracts are analogous to
those involving moving companies or overnight delivery services; they do not deal with
ownership of the object moved or delivered, but only with how and when it will be
delivered—and for what price. Moreover, this Court’s
little reason to hold much optimism for a favorable result on Plaintiffs’ contract claims:
First, for most of the district contracts sub judice, plaintiffs’ “beneficial
interest” in the Klamath Project water is not, as they claim, an absolute
right, limited only by appurtenancy and beneficial use. . . . The plain
language of these provisions expressly absolves the
liability for all types of water shortages—not only hydrologic causes, as
claimed by plaintiffs, but also any other cause that impacts the availability
of water through the system.
67 Fed. Cl. at 535. Moreover, the Court stated that “plaintiffs face an uphill battle
showing that the ESA was designed to abrogate their
Plainly, thus, the issue presented in this case is a controlling question of law.
There Is a Substantial Ground for Difference
of Opinion on This Controlling Question of Law.
Certification for interlocutory appeal is appropriate where there is a “substantial
ground for difference of opinion” on the controlling question of law. Usually, an issue
upon which there is substantial ground for difference of opinion is one upon which courts
disagreed. Coast Federal Bank FSB v.
Likewise, a substantial ground for difference of opinion may exist if there is a dispute
among judges on the trial court on the issue and the Federal Circuit has not ruled on the
issue, see, e.g., Rodriguez v. Banco Cent., 917 F.2d 664 (1st. Cir. 1990), or where
difficult and novel issues of first impression are
presented. See, e.g., Am. Management
In this case, as this Court expressly notes, there is a conflict in the Court of
Federal Claims on the question of whether a beneficial interest in water is a
constitutionally protected property right:
In that case [Tulare Lake Basin Water Storage Dist. v. United States, 49
Fed.Cl. 313 (2001)], various districts in
contractually conferred water rights were taken as a result of the Bureau’s
restrictions on water use as required by the ESA. This court ruled that a
physical taking had occurred as a result of the restrictions and granted the
plaintiffs summary judgment. But, with all due
be wrong on some counts, incomplete on others and, distinguishable, at all
67 Fed. Cl. at 538. (citations omitted).
Having reviewed the
court disagrees with the approach taken in
support to the views espoused by plaintiffs here.”
opinion by two experienced and highly respected judges of this court, resulting in
diametrically opposing outcomes, are precisely the kind which the Federal Circuit should
resolve, particularly in light of the pendancy of
other cases raising similar issues.1
The gravamen of the Court’s determination—an issue
one that has remained unexamined until now:
Although research reveals no other case that has directly examined this
issue, a number of prior opinions proceeded from the uncontested
assumption that the
unappropriated water rights in the Basin.
67 Fed. Cl. at 524 n. 32.
Moreover, this Court’s holding that “pursuant to
States obtained rights to the unappropriated water
tributaries,” (67 Fed. Cl. at 526), is at odds with (because it potentially renders moot) the
ongoing state proceedings in the Klamath Basin Adjudication that commenced in 1975.
That proceeding involves thousands of post-1905 claims to Klamath basin water which,
this Court’s decision, could be considered invalid
Indeed, tribal interests have made such an
argument to the adjudicators:
Casitas Municipal Water Dist. v. United States,
For instance the
Klamath Drainage District and the Klamath Hills
District Improvement Company, both
plaintiffs in this
case, hold water rights permits issued by the State
1905 law in 1953. 67
Fed. Cl. at 530. However, if the Court is correct,
water, those permits
The Klamath Tribes hereby provide Notice to the Administrative Law
Judge of a pending related case involving the claimants Bureau of
Reclamation and KPWU, Klamath Irrigation
District, et al. v. United
States, NO. 01-591 L (United States Court of Federal Claims). The
related case addresses, among other things, the extent to which these
competing claimants own water rights for the Klamath Project.
The Court in Klamath Irrigation District entered an opinion [2005 WL
authority), which may be dispositive of the “proper holder” contentions
advanced by KPWU in Case 003. The opinion also holds
Water Resources Department’s Closing Brief (no reference no.), which
had been submitted to the Court of Federal Claims is flawed. See, attached
Slip Opinion at p. 28, n. 35.
We urge the ALJ’s immediate attention to this related case, because the
Court’s legal analysis and holdings in Klamath Irrigation District are, at a
minimum, persuasive legal precedent on the “proper holder” issues
currently on submission to the ALJ in Case 003 and may be dispositive of
such issues; and because KPWU may now be precluded from relitigating
those holdings in Case 003.
See Klamath Adjudication
attached as Ex. 1 (footnote omitted).
Certification of the issue to the Federal Circuit would help to resolve these
differences of opinion on this important question of law.
III. Certification of This Question of Law
Will Result in the “Possible
Material Advancement of the Ultimate
Termination of the Litigation.”
Certification will also result in the material advancement of the ultimate
termination of the litigation. See Kennard v. United Parcel Serv., 531 F.Supp. 1139,
1149 (E.D. Mich. 1982) (Court should also consider “the extent to which additional time
and expense may be saved by an interlocutory appeal.”) First, if Plaintiffs are correct,
that they do possess a constitutionally protected property right in the beneficial use of
Klamath Project water, this case will proceed to
resolution on the takings claim, possibly
obviating the need to move forward on adjudicating the breach of contracts claims, which
will be time-consuming and resource intensive.
Moreover, there has been virtually no discovery in this case. There has only been
a nominal written discovery, and no depositions have been taken. In order to prepare all
three claims for trial (taking, breach of contract, and violation of the Klamath Compact),
the parties will need to review and analyze largely the same documents and depose the
same witnesses. If this Court does not certify an appeal of the takings and Compact
issues, and the parties move forward to prepare the contract claims for trial, a reversal
later by the Federal Circuit on the takings or Compact issue would require the parties to
start the same discovery all over again, this time focusing on these two issues. Sound
economy supports a strategy that results in preparing all of the issues that will ultimately
be tried at one time, and not piece-meal. “[M]uch can be gained by having the court of
appeals address the controlling question in the case on an interlocutory basis rather than
at the conclusion of what could otherwise prove to be a much protracted lawsuit.”
American Tel. & Tel. Co. v.
Thus, the interest of judicial economy strongly favors permitting an interlocutory
appeal in this case to resolve an issue that looms large and is largely dispositive of all of
the claims in the case.
Moving Forward if Certification is Denied
In the Court’s
their “view on how this case would proceed if the motion to certify were denied,
including whether the remaining issues are amenable to resolution via summary judgment
would require a trial.” At the outset, Plaintiffs
must note that proceeding forward in
this case will be complicated whether or not certification is granted; however,
certification will assure that the future proceedings in this case only occur once.
Although the Plaintiffs in this case can be concisely described as thirteen individuals and
fourteen irrigation districts, such a description is probably a bit overly simplistic. That is
to say, the interests of the various Plaintiffs did not spring into existence at the same time,
through the same document, or with the same conditions—the Opinion references this
point. See, e.g., Klamath, 67 Fed. Cl. at 530-31(noting that “various plaintiffs’ interests
in the Klamath Project water fall into five basic categories”); id. at Appendix A. In other
words, examining the Plaintiffs all as one monolithic group may not be possible, thus
making further proceedings in this case complex. Thus, when deciding whether to certify
this case, the Court should be mindful of the resources that will be exhausted if discovery
and, potentially the trial, have to be repeated. Simply put, certification may save
To answer the Court’s question directly, if the motion to certify is denied,
Plaintiffs believe that a trial of this case will be necessary. The circumstances
surrounding the execution of the 13 district contracts, as well as the way in which the
parties have performed them over the years, are relevant to proper contract interpretation.
David Nassif Assocs. v. United States, 557 F.2d 249, 256 (Ct. Cl. 1977) (holding that the
parol evidence rule does not bar introduction of all evidence extrinsic to a contract
because “it is not the writing alone which attests to its own finality and completeness but
the circumstances surrounding its execution, including the negotiations which produced
it”); Contracts must also be read in the context of the historical events and legal
framework in which they were formed; Metric Constructors, Inc. v. National Aeronautics
& Space Admin., 169 F.3d 747, 752 (Fed. Cir. 1999) (holding that contracts must also be
read in the context of the historical events and legal framework in which they were
At a minimum, substantial discovery must be done in order to determine the facts
in this case. No depositions have been taken, very little document production has
occurred, and only limited written discovery on specific points (not involving contract)
has been exchanged. A great deal of work is yet to be done to prepare this case for trial
and, since the witnesses and documents for all three claims are closely intertwined and
overlapping, Plaintiffs would much prefer to have the legal issue resolved first rather than
risk the need to re-depose witnesses and re-produce documents in the event of a reversal.
As Plaintiffs have met the above-listed statutory criteria for certification, Plaintiffs
believe that certification would facilitate the best use of the resources of this Court and
V. Entry of Judgment
Finally, if this Court decides not to certify the
Plaintiffs request that the Court enter final judgment pursuant to RCFC 54(b) on their two
takings claims. Under RCFC 54(b):
When more than one claim for relief is presented in an action, whether as
a claim, counterclaim, or third-party claim, or when multiple parties are
involved, the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express
direction for the entry of judgment.
RCFC 54(b). In this case there is clearly no just reason for delaying the review of
Plaintiffs’ takings claims while they await the outcome of the Court’s decision of
remaining breach of contract claims. See, e.g.,
claims have an independent, albeit related, basis from the takings claims
addressed in this remanded proceeding, the court directs the clerk to enter final
judgment pursuant to RCFC 54(b) as to the takings claims based on this opinion
and order.”) According, the Court should enter final judgment on Plaintiffs’
takings claims if it decides against certification.
For all of these reasons, Plaintiffs respectfully request that the Court grant
Plaintiffs’ motion to certify for interlocutory appeal and amend its Order dated August
31, 2005, to include the following finding:
The Court finds that controlling questions of law are involved with respect
to which there are substantial grounds for difference of opinion and an
immediate appeal from the order may materially advance the ultimate
termination of the litigation.
In the alternative, Plaintiffs request that the Court enter final judgment on their
takings claims, as any delay in their ability to seek review would be unjust.
__s/ Nancie G. Marzulla______
Nancie G. Marzulla
Roger J. Marzulla
MARZULLA & MARZULLA
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