Stockton East Water District v. United States

In the United States Court of Federal Claims

No. 04-541C

(Filed: August 1, 2017)

) Keywords: Central Valley Project

STOCKTON EAST WATER DISTRICT ) Improvement Act; Breach of

and CENTRAL SAN JOAQUIN WATER ) Contract; Expectancy Damages.

CONSERVATION DISTRICT, )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Roger J. Marzulla, Marzulla Law LLC, Washington, DC, with whom were Nancie G.

Marzulla and M. Rhead Enion, Marzulla Law LLC, for Plaintiff Central San Joaquin

Water Conservation District.

Jimmy S. McBirney, Trial Attorney, Civil Division, U.S. Department of Justice,

Washington, DC, with whom were Brian A. Mizoguchi, Assistant Director, Scott D.

Austin, Assistant Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer,

Principal Deputy Assistant Attorney General, for Defendant.

OPINION AND ORDER

KAPLAN, Judge.

This decades-old dispute is before the Court for the third time on remand from the

United States Court of Appeals for the Federal Circuit. See Stockton E. Water Dist. v.

United States (Stockton East IV), 761 F.3d 1344, 1345–46 (Fed. Cir. 2014). The issue

before the Court is whether Plaintiff Central San Joaquin Water Conservation District

(Central or “the district”) is entitled to expectancy damages based on the U.S. Bureau of

Reclamation’s (Reclamation) breach of its contractual obligation to make certain

minimum amounts of surface water available to Central from 1999 through 2004 (the

“breach years”). Specifically, as described in greater detail below, the court of appeals

has directed this Court to consider how certain announcements Reclamation made

beginning in 1993 and up until 1999 (the “breaching announcements”) affected the

demand for surface water in the agricultural community served by Central during the

breach years.

The Court reopened the record to permit the parties to submit additional evidence

addressed to the issue identified by the court of appeals. A short trial was held in July

2016. Since then, post-trial briefs have been filed, and closing arguments were presented

in March 2017.

For the reasons set forth below, the Court finds that Central has failed to adduce

evidence sufficient to show that, absent Reclamation’s announcements, demand for

surface water during the breach years would have exceeded the amount of water

Reclamation actually made available to the district. Therefore, Central’s request for

expectancy damages must be DENIED.

BACKGROUND

I. The Origins of this Action

The background of this case is set forth at length in the many prior decisions of

this court and the court of appeals. To recapitulate, Central is a California state agency

that supplies agricultural irrigation water to farmers in the drought-prone Central Valley

of California. Stockton E. Water Dist. v. United States (Stockton East II), 583 F.3d 1344,

1348 (Fed. Cir. 2009), aff’d on reh’g, 638 F.3d 781 (Fed. Cir. 2011). In 1983, Central

entered into a contract with Reclamation for an appropriation of water from the New

Melones Reservoir, one of many facilities composing the Central Valley Project (CVP).1

See Stockton East IV, 761 F.3d at 1346; see also Stockton East II, 583 F.3d at 1349–50.

As set forth in Article 3 of the contract, Reclamation promised that after a ten-year

buildup period it would annually make available to the district a maximum of 80,000 and

a minimum of 56,000 acre-feet of surface water. See Stockton East IV, 761 F.3d at 1346;

see also id. at 1350.

In 1992, however, Congress enacted the Central Valley Project Improvement Act

(CVPIA). That Act required Reclamation to annually dedicate 800,000 acre-feet of water

from the CVP to fish, wildlife, and habitat restoration needs. Id. at 1347. In the spring of

1993, Reclamation announced at public meetings that it would not be able to meet the

quantity commitments in its contracts because of the competing demands placed upon it

by the CVPIA. See id. at 1346–47.

Thereafter, Central and other water districts filed suit in the United States District

Court for the Eastern District of California, alleging that implementation of the CVPIA

effected a taking of their water rights under the contracts without just compensation in

violation of the Fifth Amendment’s Takings Clause. Stockton East II, 583 F.3d at 1354.

Approximately ten years later, in 2004, after extensive proceedings, the case was

1

Stockton East Water District, another plaintiff in this lawsuit, also entered into a

contract with Reclamation for an appropriation of water from the New Melones Reservoir

in 1983. Stockton East II, 583 F.3d at 1350. Stockton East’s damages trial proceeded

separately, and the court issued a separate opinion regarding its damages. Mem. Op. &

Order on Claims of Stockton E. Water Dist., ECF No. 371. That decision is not at issue

here.

2

transferred to this court. See id.2 The plaintiffs then amended their complaint to include a

breach of contract claim for failure to make available the contractual minimum amounts

of water from 1993 to 2004. Id.

II. Prior Proceedings

A. The First Trial and the Court of Appeals’ Remand Decision

A trial was held in this case in late October and early November 2006. Thereafter,

in February 2007, the judge previously assigned to this matter, Christine O.C. Miller,

ruled against the plaintiffs with respect to their breach of contract claims. See Stockton

East I, 75 Fed. Cl. at 361–72. She held that although Reclamation failed to make

available the contractually required amounts of water for certain years covered by the

contracts, Reclamation’s non-performance in each of the years at issue was excused for a

variety of reasons. See id. As most relevant here, Judge Miller determined that in 1994

and 1995, Reclamation had validly invoked the shortage provision of Article 9 of the

contracts, which afforded Reclamation a defense in the event of a water shortage that

occurred “because of drought, or other causes which, in the opinion of the Contracting

Officer, are beyond the control of the United States.”3 See Stockton East I, 75 Fed. Cl. at

356–57, 363–64.

The plaintiffs appealed Judge Miller’s 2007 decision with respect to her finding of

non-liability for 1994, 1995, and 1999–2004. Stockton East II, 583 F.3d at 1354. The

Federal Circuit reversed her determination of non-liability for all years except 1994 and

1995. Id. at 1369. The Federal Circuit then remanded the case for a determination of the

damages to which Central and Stockton East might be entitled based on Reclamation’s

breaches in 1999, 2000, 2001, 2002, 2003, and 2004. Id.

B. The Second Trial and this Court’s Decision on Remand

After the court of appeals remanded the case, an eight-day damages trial was held

in September 2012. At the trial, Central attempted to prove that its demand for surface

water during each of the breach years would have amounted to at least 56,000 acre-feet if

2

As the court explained in a prior opinion, over the ten years before the case was

transferred to this court, there were numerous motions in the district court, multiple

intervening parties, consolidation of related cases, and stays—all of which involved

complex legal issues. See Stockton E. Water Dist. v. United States (Stockton East I), 75

Fed. Cl. 321, 330–47 (2007), aff’d in part & rev’d in part, 583 F.3d 1344 (Fed. Cir.

2009).

3

Judge Miller also found that Reclamation’s failure to make water available in the

remaining years did not constitute breaches because Central failed in certain years to

submit contractually valid schedules requesting the water; because the parties agreed in

certain years to modify water allocations as part of an interim plan of operations; and

because Reclamation did not otherwise make unreasonable operational decisions. See id.

at 361–72.

3

Reclamation had not breached the contract. See Stockton E. Water Dist. v. United States

(Stockton East III), 109 Fed. Cl. 460, 486 (2013), aff’d in part & vacated in part, 761

F.3d 1344 (Fed. Cir. 2014). First, it claimed that, in a non-breach world, the district

would have been required by the contract’s “take or pay” provision to order at least

56,000 acre-feet of water in each of the breach years. Id. at 486–87. Alternatively,

Central argued that the evidence showed: (1) that it would have purchased at least 56,000

acre-feet to meet the demands of local farmers; and (2) that, to the extent that the

expected farmer demand did not materialize, Central would have sold the water to

another district at a profit. Id. at 487–88, 493.

The government argued, on the other hand, that the “take or pay” provision of the

contract would not have been enforced by Reclamation, and thus that Reclamation would

not have charged Central for water that was never delivered to it. Id. at 486. Further, the

government argued that “the evidence does not show an unmet demand, as Central

fulfilled all farmer requests for surface water during the breach years, and there was

water available to Central in the breach years that it did not take.” Id. at 489; see also id.

at 474 (charts reflecting that Reclamation delivered more water to Central than Central

requested during some of the breach years).

The court rejected Central’s arguments. First, the court agreed with the

government’s argument that, in a non-breach world, Reclamation would not have

enforced the “take or pay” provision. Id. at 487. Thus, it noted that “[t]he practice of the

parties, in both breach and non-breach years, was for Central to pay only for water

actually delivered by Reclamation.” Id. It held that “the terms of the 1983 Contract do not

support a finding that Central would have taken 56,000 acre-feet of water in each of the

years 1999–2004 if Reclamation had not breached.” Id.

The court also found unpersuasive Central’s second argument, which Judge

Miller characterized as a claim that “agricultural demand for a full allotment of New

Melones water would have been present during the breach years but for Reclamation’s

failure to make those full allotments available.” Id. at 490; see also id. at 487–88 (stating

that “[t]he thrust of Central’s position is that demand existed by its farmers sufficient to

take that amount of New Melones water each year, but that Reclamation’s failure to make

the contract minimums available in the breach years dampened that demand”).

In making this determination, Judge Miller rejected the conclusions Central asked

her to draw from several pieces of evidence that pre-dated Reclamation’s 1993

announcements. Thus, the court first found unavailing Central’s reliance upon a July 8,

1983, Reclamation memorandum which had estimated Central’s New Melones water

requirements at 72,000 acre-feet per year.4 Id. at 488, 490.

4

The court concluded that the 1983 documents and studies upon which Central relied

were “temporally too far removed from the breach years to provide a plausible indication

as to Central’s agricultural demand for surface water from 1999 to 2004.” Stockton East

III, 109 Fed. Cl. at 490. It further noted that the 1983 documents were “planning

4

The court concluded that “[a] similar problem” existed with respect to Central’s

reliance upon a November 21, 1990 report prepared by the engineering firm CH2M Hill

Consulting Engineers (CH2M). Id. That report concerned the design and cost of the water

conveyance system that Central would be required to build in order to use New Melones

water. Id. at 488. According to the report, CH2M had conducted surveys and interviews

with farmers within Central, who indicated that they would take approximately 65,000

acre-feet of water per year.5 Id. The court observed that CH2M’s “efforts were

undertaken to support Central’s decision to move forward with construction of its water

conveyance system, and they tend to establish that Central believed there was sufficient

farmer demand for surface water to approve construction of Central’s surface water

conveyance system.” Id. at 490.

The court found, however, that the report did not provide “probative evidence of

farmer demand for surface water.” Id. It observed that Central had not introduced into

evidence any of the surveys or interviews CH2M conducted regarding the farmers’

interest in taking water, forcing the court to rely on “their characterization by [Central’s

General Counsel] as the non-binding expressed intentions of Central’s farmers.” Id. In

particular, the court observed that because it could not review substance of the surveys

and interviews, it was “impossible to determine whether and to what extent [they]

addressed the costs associated with the use of surface water, and therefore the nature of

farmer enthusiasm apparently expressed” to CH2M.6 Id.

The court also found unpersuasive the testimony regarding a farmer survey

Central itself conducted in March 1991 (after delivery of the CH2M report). See id. at

488, 490–91. As discussed in more detail below, to conduct the survey, Central had

documents whose apparent purpose was to estimate Central’s yearly agricultural demand

for surface water.” Id. Therefore, the court concluded, although the documents

“provide[d] evidence of what Reclamation, Central, and the State of California Water

Resources Control Board believed, in 1983, about what Central’s surface water needs

would be in the future, they [we]re not probative of what farmer demand for surface

water would have been absent Reclamation’s breach in the years 1999 to 2004.” Id.

5

CH2M reduced the 65,000 acre-feet figure “by 20% for revenue projection purposes, to

50,000 acre-feet per year.” See id. at 488. According to Central’s hydrology expert, “a

conveyance loss of 30% occurs as water travels from the New Melones Reservoir to the

agricultural land in Central’s district.” Id. Central thus argued that to meet the demand for

50,000 acre-feet of water, over 70,000 acre-feet would need to be released to account for

the conveyance loss. See id.

6

As the court observed, the chairman of Central’s board of directors had testified that

equipment must be installed in order for a farmer to use surface water and that

“[i]nstalling that equipment requires an investment of time and money on the farmer’s

part.” Id. at 490. In fact, applications to Central’s capital improvement program “showed

equipment costs ranging from $8,200.00 to $136,396.59, and averaging roughly

$35,000.00.” Id.

5

solicited letters of intent from dozens of farmers within the water district. See infra Part

III.B.1 (testimony of representative farmers). At the second trial, Central did not

introduce the letters of intent themselves into evidence; but Central General Counsel

testified that letters reflected an aggregate demand for 55,000 acre-feet of water per year.

See id. at 488, 490–91. The court found that this testimony “merits less weight than the

C[H]2M report” because “Central presented no documentary evidence of either [the

General Counsel’s] survey or the responses thereto.” Id. at 491. While the General

Counsel “stated that the responses indicated a commitment to take a quantity of water,”

the court observed, “without the responses themselves, the court cannot gauge the nature

of that ‘commitment.’” Id. (quotation and alterations omitted). “For example,” the court

noted, “it [wa]s impossible to determine the survey’s treatment of the costs associated

with making use of surface water.” Id.

In short, the court found that the General Counsel’s testimony regarding the

survey “d[id] not provide credible evidence that . . . demand would have translated into

actual utilization of surface water by those farmers in the absence of Reclamation’s

breach in any given breach year, let alone for 1994–1998, which were prior non-breach

years.” Id. Indeed, the court observed, “[g]iven Central’s position that its farmers were

enthusiastic about using surface water until it became clear that the surface water Central

planned to receive from Reclamation was not forthcoming, the absence of testimony from

any farmers regarding their surface water plans is conspicuous.” Id.

In addition to discounting Central’s pre-1993 evidence, Judge Miller also rejected

Central’s attempt to establish that the amounts of water it requested in the years

immediately following the 1993 breach announcements were probative of how much

demand would have existed in the breach years starting in 1999. Thus, Central apparently

argued that the fact that it had requested but not received a total of 25,000 acre-feet of

surface water from Reclamation in 1994, 50,000 acre-feet in 1995, and 40,000 acre-feet

in 1996 showed that there was also an unmet demand for surface water during the breach

years. See id. at 487–8. The court, however, rejected Central’s reliance upon its requests

for water in 1994 and 1995 as evidence of what a non-breach world would have looked

like because those years “were drought years” in which Reclamation’s failure to make the

full allotments available was excused under the contract. Id. (noting that the demand in

those years “reflect[ed], in a sense, the breach world, i.e., the world in which Reclamation

did not make full allocations available”).

With respect to 1996, a non-breach year, Reclamation had made available to

Central the full 40,000 acre-feet that Central requested, but Central took only 17,508

acre-feet. “Thus,” the court observed, “for the one year that would be indicative of the

non-breach world, Central took less water than it demanded or that Reclamation allowed

to it.” Id. at 490. Therefore, the court reasoned, the example of that year “provide[d] no

support for the notion that Central had farmer demand of 40,000 acre-feet of New

Melones water in a non-breach world.” Id.

In summary, the court concluded that “Central ha[d] not adduced persuasive

evidence demonstrating how much New Melones water its farmers, having made the

required financial investment, plausibly might have requested in the 1999–2004 non-

6

breach world where Reclamation made full allocations under the 1983 Contract.” Id. at

492. “[A]ccordingly,” the court continued, Central “ha[d] not demonstrated that its

farmers plausibly would have taken 56,000 acre-feet of water in each of the breach

years.” Id. at 492–93. And, given the court’s further conclusion that Central had not

proven that it would have sold any excess water if such water had been made available to

it, the court concluded that Central had failed to carry its burden of establishing its

entitlement to an award of expectancy damages. Id. at 494.

C. The Second Appeal and Remand

After Judge Miller ruled that Central had not demonstrated its entitlement to

expectancy damages, Central filed a second appeal. Central’s primary argument in this

second appeal was that the “take or pay” provision (Article 3 of the contract) required

Reclamation to deliver a minimum of 56,000 acre-feet of water per year to Central

irrespective of demand, and that Article 5 required Central to pay for this quantity. See

Brief for Plaintiff-Appellant at 15, Stockton East IV, 761 F.3d 1344 (No. 13-5078), ECF

No. 10. It was therefore “nonsensical,” Central contended, “for the trial court to require

that Central prove how much water, up to a ceiling of 56,000 acre-feet, Reclamation

would have delivered in the non-breach world.” Id. at 17. According to Central, the

court’s failure to appreciate that “[t]he non-breach world required delivery of at least the

56,000 acre-foot contract minimum” was an error which “sent the court and the parties on

a wild goose chase to try to prove the entirely irrelevant question of how much water

Central’s farmers would have requested if Reclamation’s breaches had not discouraged

them from making requests.” id. at 17, 30.

Alternatively, Central argued, even if Reclamation was not obliged to deliver (and

Central obliged to pay for) 56,000 acre-feet of water, Central had “introduced substantial

evidence at trial that Central would have requested and its farmers would have used more

than the 56,000 acre-foot minimum and in fact would have used all of the water

Reclamation could have delivered to Central—up to 80,000 acre-feet of water annually—

during the breach years.” Id. at 18. This evidence, Central argued, included: (1) testimony

showing that Central needed at least 56,000 acre-feet per year of surface water to

alleviate the depletion of its groundwater; (2) the early forecasts and surveys of farmers’

intent to purchase surface water (which Judge Miller had discredited); and (3) evidence

(also discredited by Judge Miller) that Central would have sold any excess water it

received from Reclamation. Id.

The court of appeals ultimately reversed Judge Miller’s ruling regarding Central’s

entitlement to expectancy damages, but not on any of the grounds that Central urged. In

particular, the court of appeals rejected Central’s argument that the contract required

Reclamation to deliver (as opposed to merely “make available”) the specified minimum

amounts of water, as well as its related argument regarding the “take or pay” nature of the

contract. Stockton East IV, 761 F.3d at 1351. On this point, it held that “[t]he contract

explicitly says that [Reclamation’s] burden is to make the water available, not to deliver

it.” Id.

7

Further, in reversing Judge Miller’s decision, the court of appeals did not address

Central’s arguments that Judge Miller erred when she found that the pre-breach forecasts

and surveys conducted by Reclamation and by Central were not reliable indicators of

what farmer demand would have been in a non-breach world. See id. at 1350–53. Nor did

it discuss Judge Miller’s conclusion—challenged by Central—that the district had failed

to prove that it would have sold any excess water it received from Reclamation. See id.

Nonetheless, the court of appeals concluded that the court had erred in its

“analysis of how expectancy damages are to be analyzed based on the facts of this case.”

Id. at 1351. As noted, Judge Miller determined that Central had failed to prove that

“demand for a full allotment of New Melones water would have been present during the

breach years but for Reclamation’s failure to make those full allotments available.”

Stockton East III, 109 Fed. Cl. at 490. According to the court of appeals, however, “[a]

crucial event in this case” was Reclamation’s 1993 announcement that “it would not be

able to meet the minimum allocations provided for in the contract,” which pre-dated its

subsequent failure to make full allotments available. Stockton East IV, 761 F.3d at 1351.

Thus, the court of appeals stated, “the question the trial court should have been

examining in determining the ‘but for’ non-breach world is: what would have happened

had Reclamation not announced in 1993 (and later years) that it would be unable to

meet—to ‘make available’—the minimum allocations provided for in the contract?” Id.

According to the court of appeals, this court’s analysis of what farmer demand

would have been in a non-breach world had been too focused “on the simple fact that

Central took less water than it demanded or tha[n] Reclamation allocated to it in 1996, a

year the trial court found would be indicative of the non-breach world.” Id. at 1352.

Instead of focusing on the actual demand for water after Reclamation’s announcements,

the court of appeals concluded, this court “should have considered the impact of the

announced breaches on the requests from 1999–2004.” Id. at 1353. By failing to take the

effect of the announcements into consideration, the court of appeals stated, this court

“adopted a legally erroneous limitation on the required analysis.” Id.

In particular, the court of appeals believed that this court had “assumed,

erroneously, and without considering the lingering impact of the pre-1999

announcements, that Central’s failure to request the contractual minimum quantity of

water every year was because there was insufficient demand for the water from Central’s

potential customers.” Id. at 1352. Thus, the court of appeals observed, this court’s

analysis did not take into account the possibility (which the court of appeals characterized

as “eminently plausible”) that “the Government’s announced non-performance in 1993

and the years following caused any lack of expressed demand for water and for requests

by Central for less than the contract minimum quantities in 1999–2004.” Id. According to

the court of appeals, “[b]y 1994, and certainly by 1999, Central and its farmer clients

were on notice that Reclamation was not going to supply the contractual quantities of

water, whether or not circumstances conspired to provide Reclamation legal excuses in

certain years.” Id. “At some point,” the court of appeals observed, “most people stop

asking for what they have been told they are not going to get, and they make other plans

to meet their needs.” Id.

8

Accordingly, the court of appeals vacated this court’s judgment denying an award

of any expectancy damages “[b]ecause the trial court did not take into account the effect

of Reclamation’s announcements on the expectations of the district and the agricultural

community it served.” Id. at 1353. The court of appeals remanded the case back to this

court “for a damages determination consistent with [its] opinion.” Id. It left it to this court

“to determine if the record needs to be reopened to allow evidence relevant to the

damages occurring as a result of the breaches as defined herein.” Id.

III. The Proceedings on the Present Remand

A. Pre-Trial

This case was reassigned to the undersigned while the second appeal was

pending. See Order, ECF No. 384. After the court of appeals issued its mandate

remanding the case to this Court, Central filed a motion seeking entry of partial final

judgment as to certain cost of cover damages, which the Court granted on January 27,

2015. Op. & Order Granting Pl.’s Mot. for Partial Final J. at 2, ECF No. 391. The Court

also directed the parties to file a joint status report proposing future proceedings in the

case. Id. at 6.

The parties filed their report on March 6, 2015. Joint Status Report, ECF No. 396.

In the report, Central requested a “limited reopening of the trial record.” Id. at 7. Central

stated that if the trial record was reopened, it “would proffer evidence, as the Federal

Circuit anticipated, that farmers would have requested significantly more water in the

but-for non-breach world in which Reclamation had not announced in 1993 and later

years that it would be unable to meet the minimum allocations provided by the contract.”

Id.

The government initially expressed opposition to Central’s request that the record

be reopened. See id. at 9. However, it did not press that opposition during an April 1,

2015 status conference. See Tr. of Proceedings (Apr. 1, 2015), ECF No. 400. The Court,

therefore, reopened the record and established a discovery schedule. See Scheduling

Order, ECF No. 398. In addition, at the government’s request, the Court clarified that the

“announcements” whose effect the Court would consider on remand “would include any

communications that came either directly or indirectly from the government beginning in

1993 and up until 1999 that put [Central or its] farmer clients on notice that the Bureau of

Reclamation would or might not make available the minimum contractual allocations,”

irrespective of the contractual requirements. See Order at 1–3, ECF No. 405.

B. Evidence Submitted on Remand

A third trial, lasting approximately three days, was held in July of 2016. At the

trial, Central introduced additional documents and called seven farmers as witnesses. In

addition, both Central and the government presented the testimony of expert witnesses.

The pertinent aspects of the witnesses’ testimony are summarized below.

9

1. Farmer Witnesses

a. Richard Veldstra

Central’s first witness was Richard Veldstra. Mr. Veldstra is a farmer and has

been a member of Central’s Board of Directors since 2013. Trial Tr. at 20–21, 66–67

(July 12, 2016), ECF No. 450 (hereinafter “Trial Tr. Vol. I”).

The Veldstra family farm is located in Escalon, California, which is within the

Central San Joaquin Water District. Id. at 22, 25. The farm consists of 280 acres. Id. at

22. Mr. Veldstra owns forty acres and leases the remaining 240 acres from a family trust,

of which his mother is one of the trustees. See id.; see also id. at 57.

Mr. Veldstra testified that because the precipitation in the Central Valley is

insufficient to support the farm’s crops, his family has historically irrigated the farm with

well water drawn from an underground aquifer. Id. at 25–27. According to Mr. Veldstra,

the water levels in the aquifer have dropped over the years as a result of decreased

rainfall and increased agricultural demand. Id. at 27–29. As a consequence, it has become

more expensive to irrigate the farm’s crops, because the family has been required to dig

deeper wells, install more powerful pumps, and pay utility fees to upgrade transformers

and electrical boxes. Id. at 29–31.

Mr. Veldstra testified that he preferred to use surface water for irrigation if

possible. Id. at 34–35. Among other things, he testified that surface water was of superior

quality and that flowing surface water allows for quicker irrigation which results in less

water loss. Id. at 35–36, 43–44. Moreover, he estimated that the surface water would cost

him $15 per acre-foot less than groundwater. Id. at 36.

In March of 1991, Mr. Veldstra’s mother, on behalf of the family estate and at

Mr. Veldstra’s urging, filled in and submitted to Central a letter of intent in which she

“commit[ed]” to purchasing 100 acre-feet of water from Central at a charge not to exceed

$30 per acre-foot. Id. at 31–32; see also Pl.’s Ex. 1127 at 5456. This letter of intent was

one of many that Central solicited from district farmers before it sought bids for the

construction of a distribution system for the delivery of surface water. See Pl.’s Ex. 1134

(letter from Central soliciting letters of intent). The solicitation letter stated, in pertinent

part, as follows:

In order that the Board may make an informed decision, the

District requires from each water user a firm commitment to

take water when available. The Board hereby requests that

you complete the enclosed form regarding your commitment

to take water. . . . [T]he District will utilize this information

to expend construction funds and to incur long-term District-

wide debt. This debt must be paid regardless of the quantity

of water actually sold. Therefore, please respond with your

best estimate.

Id. at 5645. The letter further stated:

10

The Board will utilize your response to compile a list of

expected water users. The first year that water is available

from the Project, the District will contact those who have

committed to take water. Annual contracts will be executed

setting forth the quantity of water to be taken and the price

to be paid.

Id.

Mr. Veldstra characterized the 100 acre-feet of water his family estimated it

would order as a “relatively modest” amount which would serve as a “good test.” Trial

Tr. Vol. I at 32. He testified that “[i]f it work[ed], we[] [were] going to take a whole lot

more.” Id. According to Mr. Veldstra, when his mother executed the letter of intent in

March 1991, it was his expectation that the district would make the necessary

improvements and build the infrastructure needed to deliver the surface water “relatively

soon”; in fact, he anticipated that the water would be available for purchase within one or

two years. Id. at 33.

Mr. Veldstra testified that conveying 100 acre-feet of surface water to his farm

would have required only “a very modest electrical pump station . . . and a—probably a

six-inch line, plastic line across the frontage of . . . my neighbor’s property, which he was

ready and willing to do, and hooking up to our existing irrigation systems.” Id. at 33–34.

He posited that a “safe estimate” or “rough guess” of what these improvements would

have cost in 1991 was $5,000. Id. at 34.

Mr. Veldstra agreed that given the distance between the Veldstra farm and

Central’s main channels, it would have been expensive and difficult to make the

improvements needed to be able to take delivery of surface water on more than the

limited basis that was contemplated by his mother’s commitment letter. See id. at 50–52.

Mr. Veldstra acknowledged that between 1993 and 1997 he did not personally

have the funds to pay for the infrastructure needed to bring even 100 acre-feet of the

surface water to the property. See id. at 56. He stated, however, that the estate had “lots

of money” and that he would have sought the approval of his mother and her co-trustee to

use estate funds to install the infrastructure. Id. at 56–57.

Ultimately, Mr. Veldstra did not purchase any surface water for his family farm

from the district. Id. at 47. He testified that he and other farmers were deeply angered by

Reclamation’s announcement in 1993 that it would not make available surface water in

the quantities specified in its contract with the district. See id. at 37–39; see also Stockton

East III, 109 Fed. Cl. at 472 (describing public meeting held in June 1993 during which

Reclamation and United States Fish and Wildlife Service (FWS) advised attendees that

250,000 acre-feet of water had been diverted from CVP contractors to fish, that this same

amount would likely be needed for the fish each year, and that “in only the wettest years

might [the districts] see some water” (quotation omitted; alteration in original)). Mr.

Veldstra stated that he was upset that Reclamation had reneged on the contract after the

district had incurred the costs of building the infrastructure to deliver the water—a cost

11

which was funded by a groundwater extraction fee on the farmers. Trial Tr. Vol. I at 38.

According to Mr. Veldstra, were it not for Reclamation’s announcements that it would

not be providing the minimum amounts of water specified in the contract, he “would

have been taking water every year and increasing the amounts.” Id. at 43.

On cross-examination, however, Mr. Veldstra acknowledged that although, to his

knowledge, Reclamation had been supplying Central with all the water it requested since

2006, he had not ordered any water from Central. Id. at 61. Instead, he was working on a

plan to have his land serviced by water from another water district (South San Joaquin).

Id. at 62. According to Mr. Veldstra, that option was superior for his farm because it

would all be “gravity feed”; that is, it “would not require any pumping,” thus obviating

the need to modify his irrigation system. Id.

b. Joe Lombardi

Central’s second witness was Fred “Joe” Lombardi. Mr. Lombardi has been a

farmer for forty-eight years. Id. at 72. He grows multiple crops, including approximately

700 acres of walnuts. Id. at 73–74. In the 1990s, most of the land he farmed was within

the Central San Joaquin Water District. Id. at 77. Mr. Lombardi owned most of the land

he farmed; he leased the remainder. Id. at 77–78.

Mr. Lombardi testified that in 1991, he filled out the letter of intent on his

mother’s behalf. Id. at 79. In the letter, he estimated that his mother would order 3,300

acre-feet of water. Id.; see also Pl.’s Ex. 1127 at 5460. Mr. Lombardi testified that if the

water were made available, he intended to purchase it. Trial Tr. Vol. I at 79.

Mr. Lombardi acknowledged that droughts occurred with some regularity in the

Central Valley, observing that “[i]t’s just something you deal with as a farmer” and that

“[y]ou know these things happen.” Id. at 80. At the time he submitted the letter to

Central, he “didn’t give that much thought” to whether, under the contract, he would get

less water in drought years. Id. at 81. Mr. Lombardi testified that he “just thought,

because we had a commitment from the district—from the government, I guess you could

say, that we would be getting water.” Id. Mr. Lombardi stated that he knew that “the

reservoirs are huge and they have—hold a lot of water, and so I just thought we would

get water.” Id.

Mr. Lombardi did not personally attend Reclamation’s public meetings or review

written communications regarding its intent to not supply the contractual minimum

amounts of water. Id. at 104–06. Mr. Lombardi testified that he nonetheless knew of

Reclamation’s plans based on his conversations with others in the community. Id. at 90

(testifying that he learned about Reclamation’s disavowal of its contractual obligations

“from the coffee shop or [by] visiting growers in the area”); see also id. at 105–06.

Mr. Lombardi testified that he was disillusioned by Reclamation’s

announcements. See id. at 91. His understanding, he stated, “was that we were going to

get water. And it didn’t occur to me that we wouldn’t get water. So when it

12

happened . . . you know, the only thing that we have out there is our word. And if your

word is not good . . . you don’t do business with people anymore.” Id.

Mr. Lombardi asserted that if Reclamation had made the full contractual amount

of surface water available each year, including drought years, he would have used more

surface water. Id. at 94–95. He explained that “[w]e would—we would have been as

excited the first year as—to take that water as we were to even hear that they were going

to form the district and have this surface water.” Id. at 95.

On direct examination, Mr. Lombardi testified that because Central “didn’t come

through with their—their contract as it was explained to us,” he did not purchase water

from Central until 2005. Id. at 82.7 On cross-examination, however, he acknowledged

that another reason why he did not install the infrastructure before 2005 was because he

did not have the funds to do so. Id. at 102 (observing that “[w]e don’t spend money we

don’t have” and that “it’s important not to get overleveraged”). He testified that when he

first installed infrastructure to take water “[i]t was a major thing, but we had the money to

do it.” Id. at 101.

Mr. Lombardi testified that he believed that the price of surface water and the

price of groundwater were “not that different.” Id. at 88; see also id. at 103 (testifying

that he understood that there was no significant cost difference between surface and

groundwater). In any event, he stated, price “wasn’t a main concern of mine.” Id. at 103;

see also id. at 104 (agreeing that cost was not a significant factor in his decision to

purchase surface water in 2005).

c. Raymond Owning

Raymond Owning, a retired farmer, leased land in Central’s water district and

owned land in the neighboring Stockton East Water District. Id. at 111–13, 119–20. In

1991, Mr. Owning submitted a letter of intent to take 1,600–1,800 acre-feet of surface

water from Central to service approximately 600 acres of land. Id. at 113–14; see also

Pl.’s Ex. 1127 at 5488.

Mr. Owning purchased and used surface water from Central for some of his land.

Trial Tr. Vol. I at 114. He did not purchase water for the rest of his land, however,

because Central had located the necessary dam in a spot where the water level was

apparently too low for pumps to operate. Id. at 114–15, 127–29. Mr. Owning testified

that he did not put in a dam himself because of the expense, the regulatory burden, and

the fact that the availability of water was uncertain. Id. at 128–29. He further testified that

although he understood that Central was going to rebuild the dam, “[they] just never got

around to it” before he retired. Id. at 115.

Mr. Owning testified that he never attended any of the meetings held by

Reclamation or FWS. Id. at 131. Nor did he speak with any officials at Reclamation. Id.

7

That year, he installed a pipeline approximately a quarter-mile in length in order to take

water, at a cost of $50,000. Trial Tr. Vol. I at 83.

13

He stated that he did attend a meeting that Central held at which he recalls being told that

“fish came ahead of us when it came to allotment of water.” Id. He stated that this

meeting was held “right about when they started, the ’91, ’95, back in there, when they

started talking about it.” Id. at 131–32. Mr. Owning thought that this meeting occurred

before he started receiving surface water from Central. Id. at 132.

d. Eugene Caffese

Eugene Caffese testified that he has farmed both his own land and leased land in

the Central Valley for over forty-five years. See id. at 137. At the time of the trial, Mr.

Caffese had been a member of Central’s Board of Directors for the preceding fifteen

years. Id. at 148.

Mr. Caffese signed a letter of intent on March 8, 1991, in which he indicated that

he would purchase 800 acre-feet of surface water to irrigate 320 acres of land that he

owned within the district. Id. at 142–43; see also Pl.’s Ex. 1127 at 5485. Mr. Caffese

testified that he took the “commitment” he made when signing the letter “seriously” and

not “idly.” Trial Tr. Vol I. at 165. He agreed, however, that at the time that he signed the

letter “[he] understood that this was sort of a[n] initial sign of [his] intent and it wasn’t a

commitment that [he was] going to be necessarily making down the road.” Id. at 159–60.

Mr. Caffese also understood when he filled out the form that he could change his mind as

matters moved forward. Id. at 160.

Mr. Caffese did not purchase the full allotment of water set forth in his letter of

intent. See id. In addition, Mr. Caffese testified that he received all of the water he

requested from Central between 1999 and 2004. Id. at 161.

Initially, Mr. Caffese put in a pumping facility at a cost of $15,000 to $20,000 that

would allow him to take half of the water he indicated he intended to purchase. Id. at

146–47, 153–55. He planned to add another pumping station at a later date to allow him

to use surface water on the remainder of his land. Id. at 146–47, 156. For “economic

reasons,” however, Mr. Caffese never installed a second pump. Id. at 147, 156. Mr.

Caffese testified that these “economic reasons” included consideration of the uncertain

availability of surface water. Id. at 147. According to Mr. Caffese, he concluded that the

water supply was not reliable “[b]ecause the federal government wouldn’t give us the

water or all the water,” an understanding he came to after reading the newspaper,

conversing with directors, and hearing from his neighbors at the local coffee shops. Id. at

147–48. He did not recall personally attending any meetings held by Reclamation or

Central regarding water availability. Id. at 163.

The economic considerations that led Mr. Caffese not to install the second pump

also included the cost of doing so, which he estimated would have been $25,000 to

$40,000. Id. at 155–56. Other economic considerations included how much revenue he

was receiving. Id. at 156. In particular, he agreed that an important consideration would

be whether the price of commodities was high enough for him to have the capital to make

infrastructure improvements. Id. And he further agreed that in the mid-1990s,

“commodity prices were pretty low, so it was difficult economically for [him] to install a

14

second pumping plant.” Id. at 156–57; see also id. at 157 (agreeing that low commodity

prices were “at least part of the reason” why he did not install a second pump, and stating

that he was now considering installing a second pump because of higher commodity

prices and an improved economic situation).

Mr. Caffese also purchased surface water for use on 400 of 650 acres of land that

he leased for farming in the district. Id. at 148–49. He used his own portable pumps to

bring the surface water onto the property. Id. at 149. He testified that landlords were

“very reluctant to spend any money in the—for federal water because it wasn’t reliable.”

Id. Installing a permanent pump might cost $20,000 to $30,000 or more. Id. Mr. Caffese

explained that his landlords “were against spending that kind of money and if next year

Reclamation says, no, you don’t have no water.” Id.

e. James Nilsson

James Nilsson testified that he has been a farmer in the Central Valley “since the

late ’60s, early ’70s” and has been a member of Central’s Board of Directors for “eight or

ten years.” Id. at 168, 175. During the 1990s, Mr. Nilsson farmed between 2,000 and

2,400 acres, about 1,800 acres of which was within the district. Id. at 180–81. Of those

1,800 acres, Mr. Nilsson owned half and leased half. Id. at 181. By the time of the breach

years, 1999 to 2004, the amount of land that Mr. Nilsson was farming had decreased to

approximately 1,500 acres. Id.

According to Mr. Nilsson, he recalled filling out and submitting a letter of intent

to take surface water for farmland that he owned in the district. See id. at 171. Central,

however, was unable to locate a copy of that letter. Id.

Mr. Nilsson first began purchasing surface water from Central sometime in the

1990s, after he observed the success his neighbors were having when irrigating their

farms with surface water. Id. at 182. Mr. Nilsson testified that he “was a little bit later to

come on board because [he] was a little more reluctant than some of the growers.” Id. at

170. He explained that:

[W]hat I was afraid of [was] I have to pay for the

infrastructure, putting it in. I got some credits for the water,

but I went through that period of thinking when there was no

water. And I didn’t have the cash outlay at the time to be

guessing whether I was going to have water or not. I wanted

something that was going to be certain. And I believe I put

it in as soon as we had a little more certainty in the water

delivery start coming.

Id.; see also id. at 178 (testifying that at the time that surveys were being conducted in

1991, he did not want to put in infrastructure “and then not have water, because that was

a period when we thought that we were going to have water and there was no water”).

Mr. Nilsson testified that he ultimately decided to take surface water from Central

because “we went through a drought . . . . [a]nd we saw what it did to our water tables

15

and our wells, and where we were having to pump. And we knew we couldn’t keep going

like that. We would have to do something.” Id. at 174. Mr. Nilsson took surface water to

irrigate approximately 80 to 100 acres of his land located on a 350-acre plot. Id. at 173,

184. Mr. Nilsson testified that he had not taken surface water for the rest of the land he

owned because it was too far from Central’s distribution sources. Id. at 189–90.

Mr. Nilsson testified that there were several reasons why he never built the

infrastructure needed to irrigate more of his 350-acre plot with surface water. See id. at

183–85. Over time these reasons have included the uncertainty of the availability of

water, id. at 185; the costs he would need to incur to put in a pump as well as pipeline, id.

at 183; and personal financial considerations, id. at 184. According to Mr. Nilsson,

however, the “main” consideration had been “whether we have the water or not to pump

with it.” Id. at 185.

Mr. Nilsson also discussed surface water with respect to land that he leased. Id. at

175–76. He testified that he did not use surface water for any of the land he leased

because his landlords did not “want to put the outlay of money” for the necessary

infrastructure. Id. at 176. But he also testified that on one parcel he leased, he made use

of surface water that had been used by upstream farmers and which had drained off into a

channel next to the leased property. Id. at 190–92. Because this surface water was

available free of charge, his landlord rejected his suggestion that the landlord install

infrastructure needed to take surface water from Central. Id. at 193–94. Another landlord

initially expressed interest in installing the infrastructure, but Mr. Nilsson’s lease ended

before any work could actually take place. Id. at 194. Mr. Nilsson did not recall ever

approaching a third landlord about purchasing infrastructure to take Central’s water. Id.

f. Richard Wagner

Richard Wagner is a dairyman and farmer. Id. at 202. Prior to attending college,

Mr. Wagner worked on his family farm, and he returned to farming upon completing

college in 1978. Id. at 202–03. The family farm, which is located in the district, is still

operated by Mr. Wagner. Id. at 203. Over time, Mr. Wagner has added more acreage and

properties to his holdings. Id. at 205–06.

Mr. Wagner testified that over the years he had access to groundwater from wells,

as well as surface water from drainage ditches and lagoons on his dairy establishments.

Id. at 207–11. In the time he has worked on his family farm, Mr. Wagner has noticed that

the levels of the well water have “typically . . . gone down.” Id. at 211. For that reason,

when the Central irrigation district was established, Mr. Wagner thought “it was going to

be a benefit for us because we were going to hopefully address the overdrafting of the

underground.” Id.

In 1991, Mr. Wagner heard that Central had entered into a contract with

Reclamation Id. at 212. When Central sought parties interested in taking surface water,

Mr. Wagner signed a letter of intent on March 15, 1991. Id. at 214; see also Pl.’s Ex.

1127 at 5458. In fact, he “had certain infrastructure in place already to be able to take

16

water,” and “felt that it was a real benefit to the area because . . . the district was to

address the overdrafting of the underground.” Trial Tr. Vol. I at 213.

In the commitment letter, Mr. Wagner estimated that he would take 2,400 acre-

feet of surface water. Pl.’s Ex. 1127 at 5458. He testified that he took this representation

“seriously.” Trial Tr. Vol. I at 215. But when asked whether he “intend[ed] to take that

water” at the time he filled out the letter, he responded “[w]ell, I intended to take some of

it.” Id. He noted that “I mean, I’m looking at this now. You know, because I put 2400

acre-feet, 600 acres. That was pretty much the total number of acres that we had to

irrigate at that time.” Id. He explained that “I don’t know that I would have been able to

take all that water, you know, initially, anyway. But that would have been my intent, is to

try to take as much as I could.” Id.

Mr. Wagner then began taking “a limited amount” of water as soon as it was

available in the amounts he could handle with his existing infrastructure, as that did not

require him “to spend any additional money.” Id. at 223–24. Eventually, Mr. Wagner put

in additional infrastructure at a cost of approximately $35,000 to take additional water on

160 acres of land that he purchased in 2004. Id. at 224–26. Mr. Wagner used Central’s

capital improvement plan to offset, over time, some of the cost of the infrastructure

improvements. Id. at 226–27. Mr. Wagner understood that Central had made the capital

improvement program available as an enticement for farmers to put in infrastructure even

in the face of uncertain water availability. Id. at 227–28.

Mr. Wagner stated that farmers were “pretty reluctant” to put out the money to

build systems at “an additional expense” when the supply of water from Reclamation was

not completely reliable. Id. at 228. Mr. Wagner clarified that “it wouldn’t be the smartest

decision to—to spend this money and then not have the water.” Id. at 229. Regarding the

availability of surface water through Central, Mr. Wagner said “it was always a year-to-

year matter.” Id. at 230.

g. Johan Bartelink

Johan Bartelink is a dairyman and farmer who began farming in 1962. Trial Tr. at

254, 257 (July 13, 2016), ECF. No. 453 (hereinafter “Trial Tr. Vol. II”). Since 1967, Mr.

Bartelink has had a dairy and farming operation in the Central Valley. See id. at 258.

During the 1990s, the farming portion of Mr. Bartelink’s operation primarily consisted of

alfalfa and corn that was partially used to feed his cattle. Id. at 260.

In 1991, Mr. Bartelink filled out a letter of intent with Central to take surface

water. Id. at 261–63; see also Pl.’s Ex. 1127 at 5547. Once Central began delivering

surface water, Mr. Bartelink used it on his land and found that using surface water

hastened the process of irrigation and was cost effective. Trial Tr. Vol. II at 263–64.

On cross-examination, Mr. Bartelink testified that one of the reasons he had not

pursued surface water from Central for a second parcel of land was because of a dispute

between himself and Central’s Board of Directors that existed in the early 1990s. Id. at

270–72. That dispute arose when the Board opposed his efforts to have a section of his

17

land reallocated to the South San Joaquin water district, where prices for surface water

were lower. Id. at 271–72. He further testified that at some point during the 1990s, he

decided not to incur the expenses necessary to install the infrastructure to receive surface

water on another piece of land because he understood that he could not get a “guarantee”

of more than two years of surface water from Reclamation. Id. at 272–73. Mr. Bartelink

was unable to state with any certainty whether he made this decision in 1993 or 1994 or

later in 1998 or 1999. Id. at 273–74. He also could not recall whether or not he had ever

seen any announcements from Reclamation concerning the availability of surface water

to the district. Id. at 274–75.

2. Central’s Expert, Dr. Smith

In addition to the farmers, Central presented the testimony of Dr. Rodney Smith,

whom the Court qualified as an expert in the field of water demand analysis and the

economics thereof. Id. at 282–84; see also Pl.’s Ex. 1140 at 2 (report prepared by Dr.

Smith stating that he is an expert in economic valuation of water rights, water supplies,

and water projects). Central also introduced into evidence Dr. Smith’s report, whose

stated purpose was “to determine a reasonable forecast of the anticipated demand for

surface water by landowners in Central San Joaquin Water Conservation District . . .

during 1999 through 2004 assuming that the Bureau of Reclamation did not fail to make

water available to Central San Joaquin.” Pl.’s Ex. 1140 at 5; Trial Tr. Vol. II at 286.

Dr. Smith concluded that if water had been made available to Central as provided

in the contract, then Central would have had a demand for 59,010 acre-feet of water in

1999, 86,155 acre-feet of water in 2000, and 90,360 acre-feet for each year beginning in

2001 and ending in 2004. Pl.’s Ex. 1140 at 5; see also Trial Tr. Vol. II at 287. He based

these projections on what he called “the economic principle of revealed preference” and

“the economic principle that producers select the least-cost combination of inputs in their

business.” Pl.’s Ex. 1140 at 6.

With respect to the first principle—that of revealed preference—Dr. Smith

explained that its premise was that “one way to determine landowner preferences for

surface water is to study their decisions.” Id. at 8. Dr. Smith derived landowners’

preferences for surface water from the surveys and interviews conducted by CH2M and

from the letters of intent farmers had signed in 1991 in response to Central’s solicitation.

Id.; see also Trial Tr. Vol. II at 296–98. He also noted that the demand for surface water

reflected in the letters of intent was “consistent with the Bureau of Reclamation’s own

projections of the demand for surface water” and with “the amount specified in the

district’s contract with the Bureau of Reclamation.”8 Pl.’s Ex. 1140 at 8.

Dr. Smith explained that in 1991, Central received letters of intent from ninety-

five landowners in response to its solicitation. See id.; see also Trial Tr. Vol. II at 297.

According to Dr. Smith, those letters reflected that the respondents intended to irrigate

8

In 1983, Reclamation “estimated Central’s New Melones water requirements at 72,000

acre-feet per year.” Stockton East III, 109 Fed. Cl. at 488.

18

20,132 acres of land with 53,929 acre-feet of water. Pl.’s Ex. 1140 at 8. Dr. Smith

assumed a “conveyance loss” of 30% of the water that Reclamation released to the

farmers. See id. According to Dr. Smith, this resulted in a conclusion that the demand for

surface water in 1991, before Reclamation announced that it would not comply with the

contract, would have been 77,041 acre-feet of water. Id.; see also Trial Tr. Vol. II at 298.

To determine the level of demand for the years 1999 through 2004, Dr. Smith

conducted what he called an “economic analysis of the landowners[’] decision[s] to

connect to Central San Joaquin.” Trial Tr. Vol. II at 304. He began with the assumption

that it would not be economical for farmers whose land was more than one-half mile

from a stream to connect to Central’s system. Pl.’s Ex. 1140 at 9–10. He therefore

defined the market for surface water as the 27,000 acres of land in the district that were

within one-half mile of a stream. Id. at 10. Dr. Smith then analyzed the comparative cost

of using surface water rather than groundwater for farmers whose farms were located

within those 27,000 acres. Id. at 10–14. He concluded that 83.7% of the district’s acreage

had an economic incentive to purchase surface water, which would translate to a demand

of 90,360 acre-feet of water per year by 2001, after a ramp-up period.9 Id. at 14–17.

3. The Government’s Expert, Dr. Sunding

The government presented the testimony and report of Dr. David Sunding, whom

the Court qualified as an expert in natural resources economics, agricultural economics,

and the economics of water resources, including related uses of econometrics and

surveys. Trial Tr. Vol. II at 370. Dr. Sunding challenged the validity of Dr. Smith’s

analysis and conclusions in detail.

First, Dr. Sunding noted in his report that “[t]he most striking shortcoming” of Dr.

Smith’s report was that “it fail[ed] to address the question of how announcements made

by [Reclamation] affected demand for water from Central during the breach years.”

Def.’s Ex. 1216 at 2–3. Thus, Dr. Sunding observed, while “[m]any factors

could . . . have led to differences between Dr. Smith’s forecasted levels of demand and

the demand actually observed during the breach years,” Dr. Smith made no attempt to

identify “which portion of the difference between estimated and observed demand [wa]s

due to Reclamation’s announcements.” Id. at 4; see also Trial Tr. Vol. II at 374 (opining

that Dr. Smith’s analysis “fail[ed] to present a proper but-for world because he d[id not]

analyze the marginal or the incremental effect of any breach-related announcements

made by Reclamation on surface water demand during the breach period of 1999 through

2004”). According to Dr. Sunding, “one can’t simply assume that all differences between

actual demand in the real world and Dr. Smith’s hypothetical but-for world . . . result[ed]

from breach-related announcements.” Trial Tr. Vol. II at 378. He opined that the

differences could have been the result of other factors, such as whether capital was

available that would allow farmers to make the investments needed to bring the surface

9

The figure of 90,360 acre-feet was derived by taking 83.7% of 27,000 acres,

multiplying it by 2.8 acre-feet per acre, and then factoring in the 30% conveyance loss.

Pl.’s Ex. 1140 at 14.

19

water to their properties and the practical difficulties of connecting to the distribution

system, “particularly over long distances or in situations where they might have to pump

to a higher elevation.” Id. at 380.

Dr. Sunding further testified that what Dr. Smith called his “investment model”

for forecasting demand from 1999 through 2004 was based on a “flawed methodology”

because it relied “on a number of biased and unsupported assumptions” and “fail[ed] to

consider factors,” testified to by the farmers, “that [were] relevant . . . to farmers’

investment[s] in water demand decisions.” Id. at 374. Specifically, according to Dr.

Sunding, “Dr. Smith’s model is an incomplete representation of the actual decision that

farmers make when they undertake an investment like a connection to a surface water

system,” in that he had “boiled the thing down to a question of whether or not surface or

groundwater is cheaper.” Id. at 385. Among other things, Dr. Sunding testified, Dr.

Smith’s model did not consider whether—even assuming that they viewed surface water

as cheaper—farmers might not make the investments needed to bring it to their property

because they lacked the capital required and were averse to going into debt to fund the

needed infrastructure. Id. at 388–89. Another factor Dr. Smith did not consider, according

to Dr. Sunding, was the reluctance of landlords to pay for the infrastructure that their

farmer tenants might need in order to connect to the surface water distribution system. Id.

at 390. Dr. Sunding also testified that Dr. Smith’s model failed to take into account

potential concerns of farmers about the relative reliability of surface water as compared

to groundwater during periods of drought, when Reclamation was relieved its obligations

under the contract. Id. at 391–93.

In addition, Dr. Sunding was critical of Dr. Smith’s assumption that farmers

within one-half mile of a stream could readily connect to the surface water distribution

system, asserting that it was inconsistent with the testimony of at least one of the farmer

witnesses, who set the outer limit at one-quarter mile. Id. at 395–97. Other factors Dr.

Smith did not consider, according to Dr. Sunding, were the need of some farmers to

secure easements to allow them to run pipe through neighboring farmland and the

difficulties involved in pumping water uphill. Id. at 397–98.

Dr. Sunding also opined that there were a number of “technical errors” in Dr.

Smith’s report that had “the collective effect of inflating his surface water demand

estimates.” Id. at 374. For example, Dr. Sunding noted that although Dr. Smith had

assumed that farmers in 1992 would have expected to pay $22 per acre-foot for surface

water, in fact, the letters of intent contained a reference to costs of up to $30 per acre-

foot. Id. at 399. Resetting the price to $30 per acre-foot, Dr. Sunding testified, would

result in a 22% reduction in surface water demand by the full build-out time. Id. at 404.

Dr. Sunding was also critical of, among other things, the interest rate that Dr. Smith used

to discount future variable cost savings and Dr. Smith’s assumptions regarding the

reliability of surface water. Id. at 401–02, 406–10.

Finally, Dr. Sunding criticized Dr. Smith’s reliance upon the surveys and

interviews CH2M conducted with the farmers and upon the letters of intent the farmers

sent to Central as indicia of “revealed preference” to support his projection of the demand

for surface water in 1991 before Reclamation made its announcements. Id. at 410–13. He

20

stated that Dr. Smith had “misus[ed] the concept of revealed preference” and that he was

“overstating the importance of the surveys as corroboration for his model results.” Id. at

411. Specifically, Dr. Sunding noted that farmers might overstate their participation

because the solicitation letter did not identify the many costs (other than price of water)

that a farmer might have to incur to connect to the system. Id. He further testified that the

principle of revealed preference “is used in the context where someone puts real money

down, makes a real commitment based on some decision.”10 Id. at 412. In fact, he noted,

in some water districts, farmers responding to similar surveys are required to put down an

earnest money deposit. Id. at 413. Here, however, the farmers testified that they did not

view their execution of the letters of intent as binding and they put down no deposit. Id.

DISCUSSION

I. Standards and Burden of Proof

In a breach-of-contract case, to “make[] the non-breaching party whole,” the court

may award expectancy damages “to give [the plaintiff] the benefits he expected to

receive had the breach not occurred.” Glendale Fed. Bank, FSB v. United States, 239

F.3d 1374, 1380 (Fed. Cir. 2001); see also Energy Capital Corp. v. United States, 302

F.3d 1314, 1324–25 (Fed. Cir. 2002). “To analyze expectancy damages,” the court “looks

at what would have happened ‘had the contract been performed.’” Stockton East IV, 761

F.3d at 1352 (quoting Restatement (Second) of Contracts § 344(a) (Am. Law Inst.

1981)). In other words, the court must compare what actually happened against a “‘but

for’ non-breach world.” Id. at 1351.

It is the plaintiff who bears the burden of demonstrating “what might have been”

absent the breach. Glendale Fed. Bank FSB, 239 F.3d at 1380; see also Energy Nw. v.

United States, 641 F.3d 1300, 1308 (Fed. Cir. 2011) (“[T]he burden of proving the non-

breach world . . . lie[s] with [the plaintiff].”); S. Nuclear Operating Co. v. United States,

637 F.3d 1297, 1304 (Fed. Cir. 2011) (observing that “it is incumbent upon [the plaintiff]

to establish a plausible ‘but-for’ world” in order to establish its entitlement to expectancy

damages (quoting Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268, 1273 (Fed.

Cir. 2008))). Therefore, the court will not award expectancy damages where the plaintiff

has not produced sufficient evidence to “perform the necessary comparison between the

breach and non-breach worlds.” Kan. Gas & Elec. Co. v. United States, 685 F.3d 1361,

1371 (Fed. Cir. 2012); see also Yankee Atomic, 536 F.3d at 1273 (noting that “[w]ithout

record evidence about [the plaintiff’s] condition with full Government performance, the

Court of Federal Claims could not perform the necessary comparison between the breach

and non-breach worlds and thus could not accurately assess the [plaintiff’s] damages.”

(citations omitted)).

10

As an example, Dr. Sunding testified, that “[i]f I go to the . . . store and buy tennis

shoes that cost $50, as an economist, I could reasonably infer that my valuation of the

tennis shoes was above $50 because I found it worthwhile to undertake the transaction.”

Trial Tr. Vol. II at 412.

21

II. Decision

As described above, when Judge Miller previously held that Central had failed to

establish its entitlement to expectancy damages, she relied in part upon the fact that the

amount of surface water Reclamation made available to Central during both the breach

and non-breach years exceeded the real world demand for surface water by Central’s

farmers. The court of appeals instructed the court to revisit the analysis of Central’s

entitlement to expectancy damages by specifically considering the extent to which

Reclamation’s breaching announcements may have depressed the demand for surface

water during the breach years.

For the reasons set forth below, the Court finds that Central has failed to produce

evidence sufficient to reliably quantify either the level of demand for surface water by

Central’s farmers before Reclamation made its first breaching announcement in 1993 or

what the expected level of demand would have been in a non-breach world from 1999

through 2004. Further, even if its demand estimates were reliable, Central has not shown

that it was Reclamation’s breaching announcements (rather than other factors unrelated to

Reclamation’s breach) that caused actual demand during the breach years to fall below

what Central identifies as the expected demand. For these reasons, the Court lacks a

reliable basis for “perform[ing] the necessary comparison between the breach and non-

breach worlds,” rendering any award of expectancy damages impermissibly speculative.

See Kan. Gas & Electric, 685 F.3d at 1371.

A. Demand for Water Before the 1993 Announcement

Central’s contentions regarding demand for water before the 1993 announcement

turn on the farmers’ testimony regarding their enthusiasm for surface water and on Dr.

Smith’s report, which draws heavily on the pre-1993 evidence Central presented at the

previous trial. Thus, Central’s farmer witnesses testified that—at the time Central

surveyed their interest in purchasing surface water in 1991—they were enthusiastic about

the possibility of having access to this alternative source of water. The Central Valley had

long been plagued by and recently experienced several years of drought. Several

witnesses noted that they were concerned about the depletion of groundwater in the

district, which was a product of both the frequent droughts and increased demand. See,

e.g., Trial Tr. Vol. I at 29 (testimony of Mr. Veldstra). They generally welcomed the

possibility that making surface water available for purchase (either by themselves or by

other farmers) would result in the replenishment of the aquifers. See id. at 211–13

(testimony of Mr. Wagner); id. at 84–85 (testimony of Mr. Lombardi regarding the

importance of at least some of the farmers ordering surface water to maintain the

aquifer).

The farmers also described some of the benefits they believed they would secure

through having surface water available to irrigate their own crops. They noted the ever-

increasing costs of digging deeper wells and pumping groundwater. See, e.g., id. at 30–31

(testimony of Mr. Veldstra). Several of the farmers testified to the qualitative superiority

of using surface water rather than groundwater. See id. at 34–35 (testimony of Mr.

Veldstra). Others testified that using surface water allows for quicker irrigation, which

22

wastes less water and is also healthier for the crops. See id. at 44 (testimony of Mr.

Veldstra); Trial Tr. Vol. II at 263 (testimony of Mr. Bartelink).

Further, Central observes that at least ninety-five farmers signed letters of intent

in 1991 in which they provided their best estimates of the amount of surface water they

expected to purchase once it became available. Based on these letters, and applying the

principle of “revealed preference,” Central’s expert, Dr. Smith, concluded that in 1991

(two years before Reclamation announced that it would not comply with the contract),

farmers’ enthusiasm for surface water would have translated into a demand for 77,041

acre-feet of water. Trial Tr. Vol. II at 298.

The Court agrees that in 1991, farmers in the district were enthused about

Central’s plans to make surface water available for purchase. It finds unpersuasive,

however, Central’s argument that absent the breaching announcements, this enthusiasm

would have translated into the level of demand for surface water to which Dr. Smith

testified.

First, Dr. Smith’s conclusion regarding the level of farmer demand for surface

water in 1991 is largely reliant upon his “revealed preference” analysis of the non-

binding letters of intent the farmers signed (and to which Central alluded in the previous

trial). As Dr. Sunding explained, however, the principle of revealed preference Dr. Smith

cited applies where binding commitments have been made and where an individual has

“put[] real money down.” Id. at 412. And the Court finds persuasive Dr. Sunding’s

observation that the letters of intent and survey responses upon which Dr. Smith relied

“are not . . . example[s] of revealed preference” because “they do not represent actual

decisions or actions.” Def.’s Ex. 1216 at 6.

Thus, although the letters of intent had as their subject line “commitment to

purchase surface water,” and stated that “[t]he undersigned hereby commits to purchase

surface water from the District at the delivery channels for an estimated charge not to

exceed $30 per acre-foot,” it is undisputed that the farmers who completed and submitted

letters of intent were not, and did not consider themselves legally bound to order any

particular amount of surface water. Moreover, none of the witnesses put down any money

as a deposit, as Dr. Sunding testified was sometimes required by other districts in similar

circumstances. Trial Tr. Vol. II at 411–13. The solicitation accompanying the letters did

not require that farmers actually commit to take any specific amount of water either in the

first year that the project became operational or in any subsequent year. Rather, it asked

that farmers provide their “best estimate” of the water that the farmer might order “when

available” because “[t]he debt must be paid regardless of the quantity of water actually

sold.” Pl.’s Ex. 1134. It advised that the letters would be used to make “a list of expected

water users,” that such “expected” users would be contacted when water was available,

and that at that time “[a]nnual contracts will be executed setting forth the quantity of the

water to be taken and the price to be paid.” Id.

Dr. Sunding further explained that rather than accurately revealing the farmers’

preferences, the letters of intent might tend to overstate farmer demand for surface water.

Trial Tr. Vol. II at 415. As Dr. Sunding pointed out, the nonbinding survey process may

23

have actually contained an incentive for farmers “to shade the truth in the direction of

overstating their demands” because doing so enabled them to keep their options open. Id.

The Court also finds it significant that at least two of the seven witnesses that

Central selected to serve as representatives of Central’s farmers generally acknowledged

that they did not intend to purchase or might not purchase the amounts of water they

purportedly committed to purchase in their letters of intent. One of Central’s witnesses

acknowledged that he intended to take only “some” of the water he had committed to

take in executing his letter of intent. Trial Tr. Vol. I at 215 (testimony of Mr. Wagner).

Another agreed that at the time he signed the letter, he understood it as “a[n] initial sign

of [his] intent” and not as “a commitment that [he was] going to be necessarily making

down the road.” Id. at 159-60 (testimony of Mr. Caffese).

Moreover, the Court shares Judge Miller’s reluctance to rely upon the letters of

intent to draw conclusions about the quantities of surface water farmers would have

actually purchased because many of them would have been required to invest significant

amounts of time and money in infrastructure and equipment in order to use the water.

Stockton East III, 109 Fed. Cl. at 490 (citing testimony establishing that it could take

several months to install the necessary equipment and that such equipment might cost

“anywhere from $6,000.00 to $30,000.00” (internal quotation omitted)).11 Judge Miller’s

concerns were based on the fact that the letters of intent were not placed into evidence

during the initial damages trial, so that it was “impossible to determine whether and to

what extent those letters addressed the costs associated with the use of surface water, and

therefore the nature of farmer enthusiasm apparently expressed in the letters of intent.”

Id.

11

In fact, as noted above, testimony regarding applications to Central’s capital

improvement program showed that equipment costs ranged from $8,200.00 to

$136,396.59, and averaged roughly $35,000.00. See Stockton East III, 109 Fed. Cl. at

490. Other testimony presented in the first damages trial, and cited by the government in

its post-trial brief, described additional costs, inconveniences, and risks attendant to

converting to the use of surface water. For example, a farmer who converts to the use of

surface water must still maintain his groundwater-pumping facilities to irrigate areas that

cannot be reached by surface water and to use when surface water is unavailable,

including in times of drought. See Trial Tr. at 2228–29 (Sept. 18, 2012), ECF. No. 349

(testimony of irrigation scientist and water resource engineer Ali Shahroody). Therefore,

farmers who use surface water must maintain multiple sets of pumping facilities and bear

all associated costs, including standby electricity charges for all pumps. See id. at 2228–

30. In addition, a farmer may access groundwater at will simply by turning on the pump.

See id. at 2230–32. Deliveries of surface water must be scheduled with Central in

advance of the time they are needed. See id. Finally, while surface water may be

abundant in some years, in times of drought it may vanish because Central’s contract

with Reclamation absolves the United States of liability for failure to offer Central

surface water when a water shortage is caused by drought, as occurred in 1994 and 1995.

See id. at 2229; see also Stockton East II, 583 F.3d at 1363–64.

24

While the letters of intent are now in evidence (along with the testimony of

several farmers who executed such letters), they have, to a certain extent, validated Judge

Miller’s skepticism because it is now clear that the letters of intent did not, in fact,

address in any way the costs associated with building the infrastructure needed to receive

surface water. As Dr. Sunding explained, the fact that the solicitation letter did not

identify the many costs that a farmer might have to incur to connect to the system may

have led farmers to actually overstate their estimates. See Trial Tr. Vol. II at 394–95.

To be sure, the farmers testified that they were aware when they signed the letters

of intent that in order to actually use surface water, they would have to invest in

infrastructure and in some cases secure easements that would allow them to run pipe over

their neighbors’ lands. But because the letters were not binding, there is no reason to

believe that the estimates reflected careful consideration (much less actual calculation) of

the up-front costs and other actions that would need to be taken in order to use surface

water. Further, the farmers who filled in the letters were not advised that—in the event of

drought—Reclamation would not be required to make surface water available to Central.

At least one of the farmers, Mr. Lombardi, apparently assumed that drought would not

affect Reclamation’s obligations. Trial Tr. Vol. I. at 81. To the extent that the farmers

expected that Reclamation would have an obligation to supply surface water even in

drought years, it may have led them to over-estimate the amount of water they would

purchase.

In fact, while several farmers provided after-the-fact estimates of what it might

have cost for them to access surface water, none of the farmer witnesses were asked

about whether and to what extent they actually thought through or calculated the costs

involved (or the resources available to them), at the time they executed the letters of

intent. See, e.g., id. at 34 (testimony of Mr. Veldstra). There is no evidence at all that any

of them performed the kind of due diligence that one might expect if they were putting

real money on the line.

For these reasons, the Court finds that Central has failed to provide a reliable

quantification of the actual demand for surface water before Reclamation made its 1993

announcement.

B. Effect of Announcements on Demand

As noted, in addition to relying upon Dr. Smith’s testimony and the letters of

intent to establish the level of demand for surface water that existed before 1993, Central

also relied upon Dr. Smith to establish what the expected demand for surface water

would have been during the breach years had Reclamation complied with the contract.

From that starting point, Central then cites the testimony of the farmers and argues that

the shortfall between actual demand and the demand projected by Dr. Smith’s analysis

was caused by the breaching announcements. Central asks for an award of damages based

on the difference between the number of acre-feet Reclamation actually made available

during the breach years, and the number of acre-feet Dr. Smith projects would have been

25

demanded had the water actually been made available.12 For the reasons set forth below,

these arguments are unpersuasive.

1. Dr. Smith’s Testimony

The Court is not persuaded by Dr. Smith’s testimony that if Reclamation “did not

fail to make water available to Central,” the demand for surface water in the district

during the breach years would have been 59,010 acre-feet of water in 1999, 86,155 acre-

feet of water in 2000, and 90,360 acre-feet for each year beginning in 2001 and ending in

2004. See Pl.’s Ex. 1140 at 5; see also Trial Tr. Vol. II at 287.

For one thing, Dr. Smith used his unreliable quantification of pre-announcement

demand (discussed above) to estimate what demand would have been during the breach

years following a ramp-up period. His analysis of demand in the but-for world is

therefore infected by the same flawed assumptions regarding farmer demand as his

analysis of the pre-breach years.

Further, the Court agrees with Dr. Sunding’s additional critiques of the

methodology Dr. Smith used to arrive at his conclusions regarding demand in the but-for

world. See Trial Tr. Vol. II at 372 (testifying that Dr. Smith’s report suffers from “a

number of fatal flaws on several levels”). In particular, Dr. Smith stated that his analysis

of demand during the breach years relied upon an economic model of landowners’

decisions to install necessary infrastructure that was based on “the comparative cost to

the landowner of using surface water versus groundwater.” Id. at 304.13 As Dr. Sunding

observed, however, Dr. Smith’s premise—that “83% of the landowners within one-half

mile of an irrigation channel or stream” would have viewed surface water as less costly—

As set forth in Judge Miller’s opinion, Reclamation delivered the following amounts of

12

water to Central from 1999 through 2004:

1999 33,786 acre-feet

2000 27,759 acre-feet

2001 25,750 acre-feet

2002 10,503 acre-feet

2003 9,845 acre-feet

2004 13,605 acre-feet

Stockton East III, 109 Fed. Cl. at 474.

13

According to Dr. Smith, “[t]he cost of the surface water” used in his model “was the

rate charged for the surface water, plus . . . operating costs incurred by the landowner

from lifting the available surface water out of the nearby stream into its operations.” Trial

Tr. Vol. II at 304. Dr. Smith assumed an operating cost of $6 per acre-foot, which was the

maximum lift cost identified by Central’s consulting hydrologist, Mr. Durbin. Id. at 305.

26

appears to be at odds with the perceptions of at least some of the testifying farmers. See

id. at 396–97.

For example, Mr. Lombardi testified that he understood that surface water was

“priced pretty much so that it’s close,” and that the “price is not that different.” Trial Tr.

Vol. I at 88. Mr. Caffese similarly agreed that “the cost for surface water and the cost for

groundwater were approximately the same.” Id. at 160. Mr. Wagner also agreed that “the

price of surface water is pretty comparable to the price of groundwater.” Id. at 240.14

Second, as Dr. Sunding observed, the notion that some 83% of farmers within a

half-mile of an irrigation channel would have purchased surface water because surface

water was cheaper provides “an incomplete representation of the actual decision that

farmers make when they undertake an investment like a connection to a surface water

system.” Trial Tr. Vol. II at 385.

Thus, the relative prices of surface water and groundwater are only two of the

factors a farmer would consider before making such an investment. Other factors

identified by the testifying farmers would include general economic factors, including,

among other things, commodity prices, the farmers’ own financial position and tolerance

for risk, the farmers’ access to the capital needed to finance infrastructure, their comfort

level with indebtedness, their ability to secure easements from other property owners to

run pipe, and the availability of alternative sources of water.

Further, many of the testifying farmers leased at least a portion of the land that

they farmed. In order to purchase more surface water, these farmers would have had to

convince their landlords to grant them permission to install infrastructure and, in some

cases, persuade their landlords to finance it. Dr. Smith’s analysis does not include any

consideration of how much of the land within a half-mile of Central’s channels was

leased land, or of what factors a landlord might consider in deciding whether to grant or

withhold such permission or whether it would be a good investment to finance the

infrastructure. See id. at 390.

Perhaps most significantly, Dr. Smith offers no explanation why actual demand

for water during the breach years did not come close to his projections and, in fact, was

below the amount of water Reclamation actually made available. Central would have the

Court infer that it was the breaching announcements that caused the shortfall. But Dr.

Smith did not isolate the effect of the breaching announcements on farmers’ demand for

surface water during the breach years from the possible effects of other factors, including

14

When asked about whether it would change his analysis if he learned that farmers

“were unaware of the cost differential between surface water and groundwater,” Dr.

Smith stated that he would “have to know more about the circumstance of what the

person’s talking about” so that he could determine whether those individuals fell within

the 83.7% of farmers he was describing for whom he assumed surface water was more

cost effective. Id. at 311–12. But there is nothing in the record to suggest that Dr. Smith

undertook such further inquiry to test his theory.

27

droughts, crop prices, and the relative cost of pumping groundwater. Therefore, Dr.

Smith’s testimony did not truly address the question before the Court on remand.

2. The Farmers’ Testimony

Finally, even if Dr. Smith’s testimony was persuasive, the farmers’ testimony

regarding the effect of the breaching announcements would not supply the missing link

between the demand that Dr. Smith projected in a non-breach world and actual demand.

To be sure, the Court is persuaded by the farmers’ testimony (and by common sense) that

concerns about the availability of surface water were a factor that discouraged at least

some farmers from making the investments needed to receive it. The Court also

acknowledges that some farmers were angered by Reclamation’s disavowal of its

agreement with Central, particularly after the district had expended money to build

infrastructure, which it financed with a groundwater extraction fee on the farmers. The

Court does not give much credence, however, to the farmers’ blanket assertions, some

twenty years after the fact, that they would have purchased much larger amounts of

surface water during the breach years were it not for the breaching announcements.

First, the Court is not convinced that the concerns the farmers expressed about the

availability of surface water would not have been present irrespective of Reclamation’s

announcements. Thus, it is evident to the Court that the frequent droughts that plagued

the district during the relevant time period also made farmers reluctant to invest in

infrastructure. See Trial Tr. Vol. I at 173 (Mr. Nilsson explaining that he delayed putting

in infrastructure because “there was several years there, then, that we didn’t get water” on

account of “the droughts or the water went to the fish”). Indeed, during their testimony,

some of the farmers conflated their concerns about Reclamation’s disavowal of the

contract with their concerns about the effects of drought. See id. at 170, 178 (Mr. Nilsson

was more hesitant than his neighbors to put in infrastructure even before 1993

announcements because he was concerned about supply); id. at 92–93 (Mr. Lombardi

testifying that “to get water to my field, I might have to spend $50,000 [on

infrastructure],” that “I just can’t go out there and spend that kind of money if I’m not

sure what’s going to happen,” and that one year “you might have a drought . . . . [s]o you

may not get the water” while “[f]or that next year, Reclamation might decide, well, we

need more water for the fish [so] [y]ou’re not going to get it”); but see id. at 143 (Mr.

Caffese agreeing that he was willing to sign letter of intent even though supply of surface

water might be affected by droughts). In some instances the testifying farmers seemed

unaware of the fact that, in the event of a drought, Reclamation would be relieved of its

contractual obligations. Id. at 81 (testimony of Mr. Lombardi).

Second, even to the extent that the announcements themselves may have

discouraged the farmers from building the infrastructure and/or taking other actions

necessary to take delivery of surface water from Central, the record reveals many other

reasons (described above) why farmers might have chosen not to take the steps necessary

to purchase surface water. These included, among others, the cost of building

infrastructure (both in terms of time and money); each farmer’s financial solvency; the

distance between the channels and a farmer’s property; the need to secure easements

from other property owners to run pipe; the availability of alternative sources of water;

28

and other individualized factors. Given the influence of these factors and Central’s failure

to address them in its expert testimony, its claim that demand for surface water would

have exceeded the amounts Reclamation actually made available absent Reclamation’s

breaching announcements is entirely speculative.

In short, although the Court finds that Reclamation’s breaching announcements

likely suppressed farmer demand for surface water to at least some extent during the

breach years, Central has not presented proof adequate to permit the Court to quantify the

extent to which demand was suppressed with any degree of confidence. Therefore,

Central has not shown that—in a world where Reclamation never made the breaching

announcements—the demand for surface water would have exceeded the amount of

water Reclamation actually made available in the breach years. Central, accordingly, has

not established its entitlement to any expectancy damages.

CONCLUSION

For the foregoing reasons, the Court concludes that Central has failed to establish

an entitlement to expectancy damages for the breach years. It therefore is not entitled to

any further relief on its breach-of-contract claims. The Clerk is directed to enter final

judgment accordingly. Each side shall bear its own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

29