# Baley v. United States

> United States Court of Federal Claims · September 29, 2017 · 134 Fed. Cl. 619

URL: https://www.frixlaw.com/law-library/cases/8640579

## Case

- **Full name:** Lonny BALEY, and John Anderson Farms, Inc., For Themselves, and as Representatives of a Class of Similarly Situated People v. UNITED STATES v. Pacific Coast Federation of Fishermen's Associations, Defendant-Intervenor
- **Court:** United States Court of Federal Claims
- **Decided:** September 29, 2017
- **Citations:** 134 Fed. Cl. 619
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Horn
- **Judges:** Horn
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8640579

## Opinion text

Takings, Physical or Regulatory Taking, Permanent or Temporary Taking, Water Rights, Tribal Rights, Endangered Species Act, Federal Reserved Rights; Motions for Reconsideration.
FINDINGS OF FACT
MARIAN BLANK HORN, Judge
Plaintiffs in the above-captioned cases are a consolidated class of farmers in southern Oregon and northern California, who claim they held a right to receive water from the United States Department of the Interior, Bureau of Reclamation’s Klamath River Basin reclamation project (the Klamath Project) in 2001. The cases arise from the government’s actions in 2001, when defendant, acting through the United States Department of the Interior, Bureau of Reclamation, temporarily terminated water deliveries to the plaintiffs in order to meet the requirements of the Endangered Species Act, 16 U.S.C. § 1531 , et seq. (2000), as outlined in two Biological Opinions from the United States Fish and Wildlife Service (FWS) and the United States National Marine Fisheries Service (NMFS), and its tribal trust obligations to several Native American tribes. After multiple opinions issued by earlier assigned judges, and, following appeal of one of those earlier decisions to the United States Court of Appeals for the Federal Circuit, remand to this court, and reassignment to this judge, a trial was held leading to the instant decision. Plaintiffs allege, in their remaining claims, that the government’s actions constituted compensable takings of their property under the Fifth Amendment to the United States Constitution by depriving them of their alleged rights to use Kla-math Project water, as well as an impairment of their rights under the Klamath River Basin Compact, Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Compact).
I. The Klamath Project
The Klamath Project, an irrigation project straddling the southern Oregon and northern California borders, supplies water to hundreds of farms, comprising approximately 200,000 acres of agricultural land, including those in the Klamath River Basin, as well as to certain National Wildlife Refuge lands owned by the United States. The agricultural irrigation water is used by the farmers and ranchers in the Klamath Project area to grow a variety of crops, including alfalfa, irrigated pasture, small grains, potatoes, onions, sugar beets, as well as several other miscellaneous crops. The Klamath Project is managed and operated by the United States Bureau of Reclamation. The Bureau of Reclamation also manages the Klamath Project to protect tribal trust resources that depend on Klamath Project Water, including the Lost River and shortnose suckers and the Southern Oregon/Northern California Coast (SONCC) coho salmon, all three of which species that are also protected under the Endangered Species Act.
*626 A. Appropriation of Klamath Project Water Rights by the United States
The Klamath Project is one of the earliest federal reclamation projects. Engineering investigations for the Klamath Project began in 1903, and, in 1905, the United States Congress authorized the Klamath Project pursuant to the Reclamation Act of 1902, which provided for federal financing, construction, and operation of water storage and distribution projects. See Reclamation Act of 1902, Pub. L. No. 57-161, 32 Stat. 388 (codified as amended at 43 U.S.C. § 371 , et seq. (2012)). Section 8 of the Act requires the Secretary of the Interior to comply with state law regarding the appropriation of water for irrigation (to the extent it is not inconsistent with federal law). See 43 U.S.C. § 383 . Section 8 also provides that: “The right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” 43 U.S.C. § 372 .
On February 22, 1905, the Oregon legislature enacted a statute specifically related to appropriations of water for Reclamation Act projects, such as the Klamath Project. See 1905 Or. Oen. Laws 401-02. The statute provided:
Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within this State, shall file in the office of the State Engineer a written notice that the United States intends to utilize certain specified waters, the waters described in such notice and unappropriated at the time of the filing thereof shall not be subject to further appropriation under the laws of this State, but shall be deemed to have been appropriated by the United States; provided, that within a period of three years from the date of filing such notice the proper officer of the United States shall file final plans of the proposed works in the office of the State Engineer for his information; and provided further, that within four years from the date of’ such notice the United States shall authorize the construction of such proposed work.
Id. (emphasis in original). Pursuant to the terns of the 1906 Oregon statute, on May 17, 1905, the United States Reclamation Service, the predecessor to the United States Bureau of Reclamation, filed a notice with the Oregon State Engineer stating that “the United States intends to utilize ... [a]ll of the waters of the Klamath Basin in Oregon, constituting the entire drainage basins of the Kla-math River and Lost River, and all of the lakes, streams and rivers supplying water thereto or receiving water therefrom” for purposes of “the operation of works for the utilization of water ... under the provisions of the ... Reclamation Act.” Also pursuant to the terms of the 1905 Oregon statute, the Reclamation Service subsequently filed with the State Engineer plans of proposed works and proof of authorization of the Klamath Project. Prior to the development of the Kla-math Project, private landowners and irrigation companies in the area ultimately to be served by the Klamath Project had begun to divert water for irrigation purposes, The Reclamation Service acquired the interests of such entities in most of these pre-Klamath Project water rights or appropriations and integrated them into the Klamath Project.
The property rights claimed by the plaintiffs in this litigation relate to water that is diverted from Upper Klamath Lake, a large, shallow lake in which water is stored by means of a dam (the Link River Dam), and from locations downstream of Upper Kla-math Lake and the Link River Dam on the Klamath River in Oregon, The water is diverted out of Upper Klamath Lake and the Klamath River and then conveyed through canals and laterals to individual users in both California and Oregon within the Klamath Project. The works which divert the water were constructed by the United States between 1906 and 1966 and are currently owned by the United States, The operation and maintenance of all of the federally owned diversion works downstream of the head-gates of Upper Klamath Lake, as well as works-that divert water directly from the Klamath River, however, have been transferred to two Irrigation Districts, the Kla-math Irrigation District and the Tulelake Irrigation District, by contract, subject to the rules and regulations of the United States Secretary of the Interior. These two Irrigation Districts operate and maintain works that distribute this diverted water to serve *627 benefítted lands. Other Irrigation Districts and individuals that constructed and own their own diversion and delivery facilities also are parties to contracts with the United States for water made available by the Kla-math Project. The individual plaintiff landowners (or their lessees) apply the diverted water to irrigate crops.
B. Contracts Between the United States and Klamath Project Water Users
Water is generally diverted and delivered by the Klamath Project pursuant to state law (to the extent it is not inconsistent with federal law) and pursuant to perpetual repayment contracts between the Bureau of Reclamation and Irrigation Districts, or Warren Act contracts between the Bureau of Reclamation and Irrigation Districts or individuals. Water also is delivered to a smaller number of users pursuant to settlement contracts and as part of lease agreements for lands in the National Wildlife Refuges located within the Klamath Project.
1. Repayment Contracts
The Bureau of Reclamation has entered into repayment contracts with two large Irrigation Districts, the Klamath Irrigation District, which covers the “Main Division” of the Klamath Project, the approximately 40,000 acres of land that were the first developed for irrigation as part of the Klamath Project, and the Tulelake Irrigation District, which covers approximately 63,000 acres of reclaimed lands formerly submerged by Tule Lake in California. 2 Related to these contracts, however, are several other contracts that were entered into in the early years of the Klamath Project.
a. Form A and B Applications
Prior to the establishment of Irrigation Districts, the Department of the Interior had adopted two forms of applications to receive water from reclamation projects such as the Klamath Project, “Form A” and “Form B.” See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-08 (May 18, 1916). The Form A application was to be entered into by homesteaders settling within reclamation project lands. Id. at 406 . As part of the Klamath Project, Tule Lake was dewatered and its reclaimed lands were opened to homesteaders in segments between 1922 and 1948. Pursuant to the terms of the Homestead-Reclamation Act, Pub. L. No. 62-256, 37 Stat. 265 (1912), these homesteaders were permitted to settle these lands in exchange for payments, which varied over time, designed to repay Klamath Project costs. Twenty eight of these Form A applications, entered into by the predecessors of class members owning property within the Tulelake Irrigation District, were admitted into evidence during the trial. The Form A application was titled “APPLICATION FOR PERMANENT WATER RIGHT,” (capitalization in original), and contained the following provision describing the “water right” at issue in the application:
3. Description of water right.—The quantity of water to be furnished hereunder shall be that quantity which may be applied beneficially in accordance with good usage in the irrigation of the land described in paragraph 2: Provided, That in case of a shortage at any time the amount to be furnished shall be an equitable proportionate share, as nearly as practical operations will permit, of the water actually available at the time for all of the area being watered from the same source of supply, such proportionate share to be determined by the project manager.... On account of drought, inaccuracy in distribution, or other cause, there may occur at times a shortage in the water supply, and while-the United States will use all reasonable means to guard against such shortages, in no event shall any liability accrue against the United States, its officers, agents, or employees,-for any damage direct or indirect arising therefrom.
(emphasis in original). Additionally, a provision of the Form A application titled: “Conditions of application to be continuing” stated: “All of the within terms and conditions, in so far as they relate to said land, *628 shall be a charge upon said land to run with the title to same.” (emphasis in original).
Upon completion of the homesteading process, the United States issued a patent deed to the homesteader. Twenty eight patent deeds were admitted into evidence at trial, one for each of the parcels for which a Form A application was admitted into evidence. Twenty seven of the twenty eight patent applications admitted at trial involved land in California and the other patent deed involved land in Oregon. Each of these patent deeds states:
NOW KNOW YE, That the UNITED STATES OF AMERICA, in consideration of the premises, and in conformity with the several Acts of Congress in such ease made and provided, HAS GIVEN AND GRANTED, and by these presents DOES GIVE AND GRANT, unto the said [name] and to his hems, the Tract above described, together with the right to the use of water from the Klamath Reclamation Project as an appurtenance to the irrigable lands in said tract; TO HAVE AND TO HOLD the same, together with all the lights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said [name] and to his heirs and assigns forever ... but' excepting, nevertheless, and reserving unto the United States, rights of way over, across, and through said lands for canals and ditches constructed, or to be constructed, by its authority ....
(capitalization in original). Additionally, some of the patent deeds contained clauses reserving to the United States “all uranium, thorium or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials” or rights of way for the maintenance of power transmission lines.
The Form B application was to be entered into by owners of private lands that were included as part of reclamation projects. See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-07. One Form B application was admitted into evidence at trial. Regarding the water to be provided to the applicant, Form B stated:
2. The quantitative measure of the water right hereby applied for is that quantity of water which shall be beneficially used for the irrigation of said irrigable lands up to, but not exceeding [a quantity which varied by applicant] acre-fee per acre per annum, measured at the land; and in no case exceeding the share, proportionate to irrigable acreage, of water supply actually available as determined by the Project Engineer or other proper officer of the United States, or of its successors in the control of the project, during the irrigation season for the irrigation of lands under said unit....
Under the Department of Interior regulations which governed Form B applications, upon acceptance by the Bureau of Reclamation, a Form B application “becomes a water-right contract.” 45 L.D. 385, 408.
b. Klamath Water Users Association
Form B also included a provision requiring that Form B applicants enter into a contract with a water users’ association, stating:
This application must bear the certificate, as hereto attached, of the water users’ association under said project, which has entered into contract with the Secretary of the Interior .... If the Secretary of the Interior has made no contract with a water users’ association under said project, the applicant agrees to file, upon his direction, evidence of membership in the water users’ association organized under the said project ....
George Moss Driscoll, who, at the time of trial, held the position of senior water and land specialist for the Bureau of Reclamation’s Klamath Basin area office, and previously was a water contracts specialist for the Bureau of Reclamation, testified at trial that, “in addition to the form A/form B water right applications, [the Bureau of] Reclamation as a matter of policy initially intended to contract” with such water users associations, which “would be the entity through which Reclamation intended to directly work with and communicate with water users on the project.” In the case of the Klamath Project, the relevant association was the Klamath Water Users Association (KWUA). The contract between the United States and the KWUA, dated November 6,1905, was admitted into evidence at trial. Under the contract, KWUA guaranteed payments for the Kla- *629 math Project works, to be apportioned among its members. In exchange, only members of the KWUA would be accepted as applicants for water rights in the Klamath Project. Regarding such rights, the contract specified:
That the aggregate amount of such rights to be issued shall, in no event, exceed the number of acres of land capable of irrigation by the total amount of water available for the purpose ... and that the Secretary of the Interior shall determine the number of acres so capable of such irrigation as aforesaid, his determination to be made upon due and expert consideration of all available data, and to be based upon and measured and limited by the beneficial use of water.
The KWUA contract entitles the signor to receive a specified number of shares in the KWUA. These shares, as well as “all rights and interest represented thereby or existing or accruing by reason thereof or incident thereto,” were to be “inseparably appurtenant” to the real estate parcels specified in the contract. Ownership of KWUA shares entitled them holder to “the right to have such water delivered to the owner thereof by the Association for the irrigation of said lands, as the Association shall from time to time acquire or control means for that purpose.” A copy of the stock subscription and contract used by KWUA also was admitted into evidence at trial.
c. Klamath Irrigation District and Tulelake Irrigation District Repayment Contracts
The November 6, 1905 contract between the United States and the KWUA was eventually supplanted by a July 6, 1918 repayment contract between the United States, the KWUA, and the newly formed Klamath Irrigation District. The July 6, 1918 contract “dissolved” KWUA and transferred to the Klamath Irrigation District, an Oregon municipal corporation, all irrigable lands for which water rights applications to the United States had been made and/or which were covered by stock subscriptions with the KWUA, as well the entirety of KWUA’s liability to the United States for Klamath Project construction costs. The July 6,1918 contract was supplemented by a November 29, 1954 “Amendatory Contract” between the United States and the Klamath Irrigation District. The preamble of the November 29, 1954 contract states that “the District is obligated, among other things, to repay to the United States that part of the expenditures made by the United States in the construction of the Project which is properly allocable to the District” and that “the District, as the duly authorized representative of the water users within its geographic boundaries, desires to enter into an amendatory contract with the United States, which would provide for the District to take over the operation and maintenance of certain of the Project works.” Under the November 29,1964 repayment contract, the Klamath Irrigation District assumed responsibility for the operation and maintenance of certain works in the Kla-math Project from the United States and agreed to provide water and drainage services through those works to certain other Irrigation Districts, including the Tulelake Irrigation District, and certain individuals located outside the Klamath Irrigation District. The November 29, 1954 contract also contained the following provision regarding water shortages:
UNITED STATES NOT LIABLE FOR WATER SHORTAGE
26. On account of drought or other causes, there may occur at times a shortage in the quantity of water available in Project reservoirs and, while the United States will use all reasonable means to guard against such shortage, in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom and the payments to the United States provided for herein shall not be reduced because of any such shortages,
(capitalization in original). The November 29, 1954 contract between the United States and the Klamath Irrigation District was in effect in 2001.
The Tulelake Irrigation District, a California municipal corporation, services water users in the reclaimed lands of Tule Lake that were opened to homesteaders between 1908 and 1948. These homesteaders would have submitted a Form A application to re *630 ceive their water rights from the Klamath Project. The preamble of the contract between the Tulelake Irrigation District and the United States states:
[T]he District desires to contract, pursuant to the Federal reclamation laws and the laws of the State of California, for. the furnishing by the United States of a water supply form the [Klamath] Project works and for the repayment of the construction charges hereinafter set forth, less such credits as are applicable under the Federal reclamation laws and the provisions of this contract; and ... the parties desire by this contract to provide, in accordance with and subject to the terms and conditions hereinafter provided, for the transfer to the District of the operation and maintenance of works and properties used or useful for the delivery of water to and protection of the lands within the District
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Similar to the Klamath Irrigation District, under a September 10,1956 contract with the United States, the Tulelake Irrigation District assumed responsibility for the operation and maintenance of Klamath Project works used to supply water to the lands within the district. The September 10, 1966 contract contained a water shortage provision that was identical to the one contained in the November 29, 1964 contract between Kla-math Irrigation District and the United States. The September 10, 1956 contract between the United States and the Tulelake Irrigation District was in effect in 2001,
2. Warren Act Contracts
Warren Act contracts were made with both individual water users and Irrigation Districts which supplied water to individuals within their boundaries. Warren Act contracts cover lands that, unlike those within the Klamath Irrigation District and Tulelake Irrigation District, were not part of the Kla-math Project when it was originally developed. Geographically, these lands are scattered throughout the Klamath Project. These contracts were made pursuant to the Warren Act of 1911, Pub. L. No. 61-406, 36 Stat. 925 (codified at 43 U.S.C. §§ 523-25 (2012)). The Warren Act authorizes the Secretary of the Interior “to cooperate with irrigation districts, water-users’ associations, corporations, entrymen, or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water-users’ associations, corporations, entrymen, or water users for impounding, delivering, and carrying water for irrigation purposes.” 43 U.S.C. § 624 . In the Klamath Project, water is delivered to Warren Act contractors through works operated by the Klamath Irrigation District and the Van Brimmer Ditch Company, an Oregon business discussed below. Irrigation Districts relevant to this action who have Warren Act contracts with the United States include: the Enterprise Irrigation District; the Klamath Basin Improvement District; the Klamath Drainage District; the Malin Irrigation District; the Midland District Improvement Company; the Pine Grove Irrigation District; the Poe Valley Improvement District; the Shasta View Irrigation District; the Sunnyside Irrigation District; and the Westside Improvement District. Warren Act contracts for each of these Irrigation Districts were admitted into evidence at trial. These Irrigation District contracts were entered into between 1920 and 1962, although some individual contracts were entered into as early as 1916.
The Warren Act contracts entered into by the Irrigation Districts all contain similar or identical language in several key provisions relevant in the current cases. In each of the contracts, the Irrigation District agrees to pay the United States a specified sum of money in exchange for delivery of Klamath Project water. All of these contracts contain language stating that rights to the use the water acquired under the contracts are inferior to prior rights reserved for the lands of the Klamath Project. The Bureau of Reclamation has interpreted this to mean that these lights are junior to those held by the Van Brimmer Ditch Company, Klamath Lake Irrigation District, and Tulelake Irrigation District and, in the case of a drought, would receive Klamath Project water only after the rights of users of these three entities had been fully satisfied. Each of the contracts defines an upper limit to the amount of water the Irrigation District is entitled to receive, although, the exact limit varies by contract. The contracts for the Malin Irrigation Dis- *631 triet, the Sunnyside Irrigation District, the Shasta View Irrigation Distinct, the Enterprise Irrigation District, and the Pine Grove Irrigation District limit the amount to “two acre feet per acre of irrigable land during the usual irrigation season.” The contracts for the Malin Irrigation District, the Sunnyside Irrigation District, and the Shasta View Irrigation District contain additional language stating that the amount of water provided “shall not exceed the amount that can be furnished, as determined by the Secretary, at a cost of Thirty-four Dollars ($34.00) ... and in no event shall it exceed 0.6 acre-feet of water per irrigable acre in any one month.” The Westside Improvement District’s contract entitles them to receive a maximum of “two and one-half (2 ½) acrefeet per-acre per annum,” while the Klamath Basin Irrigation District’s contract limits them to an amount of water “not to exceed an average of three and six-tenths (3.6) acrefeet per irrigable acre.” Finally, the contracts for the Klamath Drainage District, Midlands Irrigation District, and Poe Valley Irrigation District simply limit them to the amount of water that can be put to beneficial use for irrigation on the irrigable lands within their districts.
Finally, each of the Warren Act contracts for Irrigation Districts admitted into evidence at trial also contains a provision limiting the United States’ liability in the event of water shortages, although there are two different forms this language takes. Those contracts entered into by the Klamath Drainage District, Malin Irrigation District, the Kla-math Basin Improvement District, the Shasta View Irrigation District, the Sunnyside Irrigation District, and the Westside Improvement District contain language relating to shortages caused by droughts or “other cause,” stating, in language similar to that of the contract with the Malin Irrigation District, with only minor, non-relevant variations, that:
On account of drought, inaccuracy in distribution or other cause, there may occur at times a shortage in the.quantity of water provided for herein, and while the United States will use all reasonable means to guard against such shortage, in no event shall any liability accrue against the United States, its officers, agents or employees, for any damage, direct or indirect, arising therefrom, and the payments due hereunder shall not be reduced because of any such shortage.
The shortage provisions in the rest of the contracts, including for the Enterprise Irrigation District, the Midland District Improvement Company, the Poe Valley Improvement District, and the Pine Grove Irrigation District, however, are missing the “other causes” language and state:
The United States shall not be liable for failure to supply water under this contract caused by hostile diversion, unusual drought, interruption of service made necessary by repairs, damages caused by floods, unlawful acts or unavoidable accidents.
At trial, three Warren Act contracts between the United States and individuals, under which three named plaintiffs received water in 2001, were also admitted into evidence. Named Baley plaintiffs Daniel G. and Delores Chin owned two parcels that received water pursuant to individual Warren Act contracts in 2001 entered into by their predecessor-in-interest. Named John Anderson Farms plaintiff Hill Land & Cattle LLC owned one parcel that received water pursuant to an individual Warren Act contract in 2001 that was entered into by its predecessor-in-interest. The Warren Act contracts for these three parcels are identical, or close to identical, in almost all respects and very similar to the Warren Act contracts entered into by the Malin Irrigation District, the Sunnyside Irrigation District, and the Shasta View Irrigation District. Like those Irrigation District contracts, the three individual Warren Act Contracts place upper limits on the water that will be furnished, “two acre-feet per acre of irrigable land during the usual irrigation season” for one of the Chin parcels and “two and one-half (2 1/2) acre-feet per acre of irrigable land during the usual irrigation season) for the Hill Land & Cattle LLC parcel and the other Chin Parcel, while also further stating that this amount “shall not exceed the amount that can be furnished, as determined by the Secretary, at a cost of Thirty-four Dollars ($34.00) ... and in no event shall it exceed 0.6 acre-feet of water per irrigable acre in any one month.” The individual Warren Act *632 contracts also contain the same shortage provision as those Irrigation Districts immunizing the United States from liability in the event of a droughts or “other cause.” Finally, each of the three individual Warren Act Contracts has a provision stating: “The terms of this contract shall inure to the benefit of and be binding upon the successors in interest and assigns of the parties hereto.”
3. Settlement Contracts: the Van Brimmer Ditch Company
The third type of contract governing delivery of water in the Klamath Project, settlement contracts, covers the distribution of water to lands that held a water right or a claim to a water right, prior to the Klamath Project’s inception. George Driscoll testified at trial that the settlement contractors are a “very minor group” that, among the original named plaintiffs at the time of trial, includes only the Van Brimmer Ditch Company. The Van Brimmer Ditch Company is not an Irrigation District, but is instead an Oregon business corporation that delivers irrigation water to landowners. Each share of Van Brimmer Ditch Company stock corresponds with one acre of irrigable land with an appurtenant right to receive water from the company. As a former president of the Van Brimmer Ditch Company, James Moore, a named plaintiff in the Baley case, testified at trial, the Van Brimmer Ditch company traces its history back to the 1880s, prior to the genesis of the Klamath Project, when its founders, the Van Brimmer brothers, posted notices of appropriation and started drawing water from White Lake, which was associated with Lower Klamath Lake, via trenches they and others had dug. Subsequently, the creation of the Klamath Project resulted in the draining of White Lake and the Van Brimmer Ditch Company entered into a contract with the United States to receive water from Upper Klamath Lake instead.
The contract between Van Brimmer Ditch Company and the United States, entered into on November 6, 1909, begins by recognizing that “the changing by the United States of the course or water-level of the ... Lower Klamath Lake [as a result of the construction of the Klamath Project] will in all probability completely destroy or impair the present source of water supply used for irrigation purposes of the [Van Brimmer Ditch] Company” and that “the Company claims that it has established a vested right to the use of fifty second-feet of water for irrigation purposes from the water of Lower Klamath Lake.” In the contract, the Van Brimmer Ditch Company agreed to “waive[] and renounce! ] to the use and benefit of the United States any and all of its riparian rights, in relation to the waters and shores of Lower Klamath Lake appurtenant or incident to the lands now being irrigated by the Company,” and, in exchange, the United States agreed to “deliver to the Company during each and every irrigation season ... a quantity of water, not to exceed fifty second feet.” The United States also “recognize[d] the right as existing in the Company to the perpetual use of said fifty (50) second, feet of water.” Named plaintiffs James and Cheryl Moore are landowner-shareholders in Van Brimmer Ditch Company. In 2001, the Moores owned 135 shares of stock in the Van Brimmer Ditch Company, each of which corresponded with one acre of irrigable land with an appurtenant right to receive irrigation water.
4. Leased Lands in the National Wildlife Refuges
The Klamath Project also administers federal lease contracts with farmers on about 23,000 acres of land within two national wildlife refuges that sit within the Klamath Project, the Tule Lake and the Lower Klamath Wildlife Refuges, pursuant to the Kuchel Act, Pub. L. • No. 88-567, 78 Stat. 850 (1964). These lands are among the most productive lands in the Klamath Basin. Contracts in the refuges are issued for five to eight years, but require annual renewal. The Bureau of Reclamation uses a standard lease contract on these lands. The leases do not 'specify an amount of water to which the lessor is entitled, but instead state that: “[t]he Bureau of Reclamation will handle all deliveries of irrigation water to the leased premises and all draining of the leased premises.” The leases also contain the following shortage provision: “[T]he United States, its officers, agents and employees, and its successors and assigns shall not be held liable for damages because irrigation water is not available or because of an inability to drain the leased premises in a timely manner.” Of the named plaintiffs, only *633 one, James Prank, alleges that he received water through a lease contract for lands in one of the National Wildlife Refuges within the Klamath Project. A lease signed by Mr. Frank on April 19,1999, and renewable up to October 31, 2003, for lands in a National Wildlife Refuge was admitted into evidence at trial.
C. Tribal Rights in Klamath Project Waters
Three Native American tribes, the Kla-math, Yurok, and Hoopa Valley Tribes, (collectively, the Tribes) hold rights to take fish from Klamath Project waters. The rights of the Klamath Tribes are derived from an 1864 treaty between the Klamath Tribes and the United States, in which the Klamath Tribes “relinquished its aboriginal claim to some 12 million acres of land in return for a reservation of approximately 800,000 acres in south-central Oregon.” United States v. Adair, 723 F.2d 1394, 1398 (9th Cir. 1983). Among other provisions, the treaty guaranteed the Kla-math Tribes “the exclusive right of taking fish in the streams and lakes” that were included as part of the Klamath Indian Reservation. 3 See Treaty Between the United States of Am. & the Klamath & Moadoc Tribes & Yahooskin Band of Snake Indians, Art. I., Oct. 14, 1864, 16 Stat 707. The Kla-math Tribes’ reservation abutted Upper Kla-math Lake and included several of its tributaries. Based on the language of the 1864 treaty, a federal court water rights adjudication determined that the Klamath Tribe holds “[a] water right to support game and fish adequate to the needs of Indian hunters and fishers.” United States v. Adair, 723 F.2d at 1411 . This right is “non-consumptive,” meaning that the Klamath Tribes are “not entitled to withdraw water from the stream for agricultural, industrial, or other consumptive uses,” but instead hold “the right to prevent other appropriators from depleting the streamsf] waters below a protected level in any area where the non-consumptive right applies.” Id. (citing 1 R. Clark, Waters and Water Law § 56.2, at 578-81 (1967) and Cappaert v. United States, 426 U.S. 128, 143 , 96 S.Ct. 2062 , 48 L.Ed.2d 523 (1976)). Because the 1864 Treaty amounted to “a recognition of tbe Tribe’s aboriginal water rights,” the Klamath Tribes’ water rights “carry a priority date of time immemorial.” Id. at 1414, The Klamath Tribes’ water rights in Upper Klamath Lake had not been quantified in 2001.
The rights of the Yurok and Hoopa Valley Tribes are derived from three presidential Executive Orders issued in 1856, 1876, and 1891, which established, extended, and combined the Klamath and Hoopa Valley Reservations in California. The first Executive Order, signed by President Franklin Pierce on November 16, 1855, established the Klamath Reservation in California. See Charles J. Kappler, Indian Affairs: Laws and Treaties 817 (1904). The second, signed by President Ulysses Grant on June 23, 1876, created the Hoopa Valley Indian Reservation, declaring certain lands in California to be “withdrawn from public sale, and set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by act of Congress approved April 8, 1864.” Id. at 815. The third Executive Order, signed by President Benjamin Harrison on October 16, 1891, combined the Klamath and Hoopa Valley reservations into a single Hoopa Valley reservation by extending the Hoopa Valley reservation to include additional portions of the Klamath River, See M. Ultimately, the combined reservation “ran along both sides of the Klamath River, from the mouth of the Trinity River [in California] down to the Pacific Ocean.” Parravano v. Babbitt, 70 F.3d 539, 542 (9th Cir. 1995) (citing Mattz v. Arnett, 412 U.S. 481, 493-94 , 93 S.Ct. 2245 , 37 L.Ed.2d 92 (1973)). 4 Federal and California *634 state courts have recognized that the right of the Yurok and Hoopa Valley Tribes “to take fish from the Klamath River was reserved to the Indians when the [Hoopa Valley] reservation was created.” United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986) (citing Blake v. Arnett, 663 F.2d 906, 911 (9th Cir.1981); People v. McCovey, 36 Cal.3d 517 , 205 Cal.Rptr. 643 , 685 P.2d 687, 697 , cert. denied, 469 U.S. 1062 , 105 S.Ct. 544 , 83 L.Ed.2d 432 (1984)); see also Parravano v. Babbitt, 70 F.3d at 547 (“The 1876 and 1891 executive orders that created the extended Hoopa Valléy Reservation and the 1988 Hoo-pa-Yurok Settlément Act vested the Tribes with federally reserved fishing rights .... ”). “[T]he right reserved includes fishing for ceremonial, subsistence, and commercial purposes.” United States v. Eberhardt, 789 F.2d at 1359 . The Department of the Interior, in a July 25, 1995 memorandum prepared by the Department’s Regional Solicitor for the Pacific Southwest Region, recognized that “[t]he Yurok and Hoopa Valley Tribes have federal Indian reserved fishing rights to take anadromous fish[ 5 ] within their reservations in California” and that “[t]hese rights were secured to the Yurok and Hoopa Indians by a series of nineteenth century executive orders.” A January 9, 1997 memorandum by the Department of the Interior’s Regional Solicitors for the Pacific Southwest and Pacific Northwest Regions recognized that the Yurok and Hoopa Valley Tribes “hold adjudicated water rights which vested at the latest in 1891 and perhaps as early as 1855.” In a letter the Yurok Tribe submitted to the NMFS on March 23,2001 commenting on the NMFS’ draft Biological Opinion regarding Klamath Project operations, the Yurok Tribe maintained that it held a federally resérved water right with a priority date of time immemorial. There is no evidence in the record that the rights held by the Yurok and Hoopa Valley Tribes have ever been quantified as water rights.
D, The Klamath Compact
On August 30, 1957, Congress gave its consent to the Klamath Compact, an interstate compact between the states of California and Oregon, which plaintiffs allege defendant has violated. See 71 Stat, 497, 497-508. The stated purposes of the Klamath Compact are, “with respect to the water resources of the Klamath River Basin”: “[t]o facilitate and promote the orderly, integrated, and comprehensive development, use, conservation, and control thereof for various purposes”; and “[t]o further intergovernmental cooperation and comity with respect to these resources and programs for their use and development and to remove causes of present and future controversies.” Id. at 497. Article III of the Klamath Compact recognizes certain water rights within the Klamath basin, stating:
A. There are hereby- recognized vested rights to the use of water originating in the Upper Klamath River Basin validly established and subsisting as of the effective date of this compact under the laws of the state in which the use or diversion is made, including rights to the use of waters for domestic and irrigation uses within the Klamath Project. There are also hereby recognized rights to the use of all waters reasonably required for domestic and irrigation uses which may hereafter be made within the Klamath Project,
B, Subject to the rights described in subdivision A of this article and excepting the uses of water set forth in subdivision E of Article XI [regarding waterfowl management areas], rights to the use of unappropriated waters originating within the Upper Klamath River Basin for any beneficial use in the, Upper Klamath River Basin, by direct diversion or by storage for later use may be acquired by any person after the effective date of this Compact by appropriation under the laws of the state where the use is to be made, as modified by the following provisions of this subdivision B *635 and . subdivision C of this article, and may not be acquired in, any other way ....
Id. at 498. Article XIII of the Klamath Compact contains the language regarding the United States obligations not to “impair” water rights without just compensation, which plaintiffs allege defendant has violated, stating:
The United States shall not, without payment of just compensation, impair ,,any rights to the use of water for use .(a) [domestic use] or (b) [irrigation use] within the Upper Klamath River Basin by the exercise of any powers or rights to use or control water (i) for any purpose whatsoever outside the Klamath River Basin by diversions in California or (ii) for any purpose whatsoever within the Klamath River Basin other than use (a) or (b).
Id. at 507. Article XIII, however, limits this obligation of the United States to pay just compensation to those rights acquired after the effective date of the Klamath Compact, stating:
But the exercise of powers and rights by the United States shall be limited under this paragraph 2 only as against rights to the use of water fór use (a) or (b) within the Upper Klamath River Basin which are acquired as provided in subdivision B of Article III after the effective date of this compact, but only to the extent that annual depletion in the flow of the Klamath River at Keno resulting from the exercise of such rights to use water for uses (a) and (b) do not exceed 340,000 acre-feet in any one calendar year.
Id. Finally, with respect to the rights of Native Americans tribes, Article X of the Klamath Compact states: “Nothing in this compact shall be deemed ... [t]o' deprive any individual Indian, tribe, band or community of Indians of any rights, privileges, or immunities afforded under Federal treaty, agreement or statute.” Id. at 505,
E. The Klamath Adjudication
In 1975, pursuant to the Water Rights Act of 1909, the Oregon Water Resources Department initiated the Klamath Basin General Stream Adjudication (the Klamath Adjudication), a general adjudication to determine the ownership of rights to the waters of the Klamath Basin. The Klamath Adjudication covers. pre-1909 state-based surface water rights not previously adjudicated, as well as federal reserved water rights in the Klamath Basin. Claims were filed beginning in 1990, and administrative hearings were initiated in 2001. On March 7, 2013, the adjudicator for the Klamath Adjudication issued orders of detérmination on all claims filed in the Kla-math Adjudication. On February 28, 2014, the adjudicator issued amended and corrected versions of the orders of determination, which have been submitted to Oregon state courts for judicial confirmation. 6
Case 003 in the Klamath Basin Adjudication addressed water rights associated with the Klamath Project. Three claims in case 003, claims 298, 321-6 and 321-7, concerned the water rights appropriated by the Van Brimmer brothers and subsequently at issue in the 1909 contract between the Van Brim-mer Ditch Company and the United States. Claim 298 was filed by the United States, which “assert[ed] that it own[ed] the water right appropriated because Van Brimmer transferred the right to the United States” as part of the November 6,1909 contract. In the corrected partial order of determination for ease 003, 7 the adjudicator denied the government’s claims on the grounds that, although, in the 1909 contract, the Van Brim-mer Ditch Company transferred its riparian rights to the government, the 50 cubic feet per second (cfs) of water identified in the agreement were appropriative water rights, rather than riparian rights, and nothing in the agreement could be construed as transferring Van Brimmer’s, appropriative rights to the government. Claims 321-6 and 321-7 were brought by the Van Brimmer Ditch Company along with a number of other Kla-math Project water users. The two claims were “essentially duplicative,” but based on different appropriation dates. Claim 321-6 was based on a,second notice of appropriation made by the Van Brimmer brothers on *636 September 4, 1883. The adjudicator granted this claim to the Van Brimmer Ditch Company with a priority date of September 4,1883, but limited it “to a quantity of 50 cfs, as defined in a 1909 contract between Van Brimmer and the United States,” on the grounds that any additional water rights held at that time were abandoned by the Van Brimmer Ditch Company. Claim 321-7 was based on a second notice of appropriation filed by the Van Brimmer brothers on September 19, 1884. The adjudicator denied the claim on the grounds that the earlier priority date was supported by the evidence. 8
II. Events in 2001
A. The Endangered and Threatened Fish
“In light of its dual- purposes of serving agricultural uses and providing for the needs of wildlife, the Klamath Project is subject to the requirements of the Endangered Species Act. See Pub.L. No. 93-205, 87 Stat. 884 (1973) (codified, as amended, at 16 U.S.C. § 1531 et seq.) (the ‘ESA’).” Klamath Irr. Dist. v. United States, 635 F.3d at 508. “Pursuant to the ESA, the Bureau [of Reclamation] has an obligation not to engage in any action that is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of the critical habitat of such a species.” Id. at 509 (citing 16 U.S.C. § 1536 (a)(1)). “In a 1999 Ninth Circuit decision, the interests of [Klamath] Project water users were declared subservient to the ESA, the result being that, as necessary, the Bureau has a duty to control the operation of the Link River Dam in order to satisfy the requirements of the ESA.” Id. at 508 (citing Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999), amended by 203 F.3d 1175 (9th Cir. 2000)). Of relevance to this litigation, Kla-math Project operations potentially affect three species of fish protected under the Endangered Species Act: the endangered Lost River sucker; the endangered short-nose sucker; and the threatened SONCC coho salmon. The Lost River and short nose suckers were listed as endangered in 1988, see Final Rule, Determination of Endangered Status for Shortnose Sucker and Lost River Sucker, 53 Fed. Reg. at 27130 (July 18, 1988), while the SONCC coho salmon was listed as threatened in 1997. See Final Rule, Threatened Status for Southern Oregon/Northern California Coast Evolutionary Significant Unit (ESU) of Coho Salmon, 62 Fed. Reg. 24588 (May 6, 1997). The Lost River and shortnose suckers reside in Upper Klamath Lake and nearby waters, while the SONCC coho salmon use the mainstream and tributaries of the Klamath River downstream from the Upper Klamath Lake and the Link River Dam.
B. Importance of the Fish to the Tribes
Evidence was presented at trial regarding the importance of the Lost River and short nose suckers and of the SONCC coho salmon to Native American tribes living in the Kla-math basin. Dr. Ronald Larson, a retired FWS biologist, who had served for fourteen years as the lead biologist for consultations dealing with the endangered suckers in FWS’s Klamath Falls office, testified that the two species of suckers are considered tribal trust species for the Klamath Tribes because of their long history with the fish. In the Klamath language the Lost River suckers are known as “c’waam” and the shortnose suckers as “qapdo.” According to Dr. Larson, prior to the beginning of the Klamath Project, the Klamath and Modoc Indians would harvest suckers during the spring time when the fish were spawning. An April 6, 2001 Biological Opinion issued by FWS for the Klamath Project, discussed in more detail below, similarly noted that the suckers were once abundant and important seasonal foods for Native Americans in the upper Klamath basin. The July 25, 1995 memorandum prepared by the Regional Solicitor for the Pacific Southwest Region of the Department of the Interior regarding the rights and obligations related to the Klamath Project noted that the Klamath Tribes held treaty-based rights to fish, hunt, and gather on the lands *637 that were formerly part of their reservation along the Upper Klamath Lake and its tributaries. The memorandum also noted that “[t]he Tribes’ primary interest is in the operation of Upper Klamath Lake because it serves as habitat for fish protected by their treaty rights, including two endangered species of fish, the Lost River and shortnose suckers. These fish are a traditional food source for the Tribes.”
Don Reck, at the time of the trial, a fisheries biologist at NMFS, whose primary responsibility was to implement the Endangered Species Act, and who has worked on Klamath Basin fishery issues-since 1994, testified that the Yurok Tribe and Hoopa Valley Tribes, both located downstream of the Iron Gate Dam along the Klamath River, have a federally-recognized reserve fishery right for SONCC coho salmon and other fish species. The July 25,1995 Department of the Interior Solicitor’s Office memorandum similarly stated that the Yurok and Hoopa Valley Tribes held “federal Indian reserved fishing rights to take anadromous fish within their reservations in California.” Mr. Reck noted that, when he had previously served as NMFS’s area manager for the Klamath Basin office from 1996 to 2001, he had dealt with both the Yurok and Hoopa Valley Tribes and that they were “very interested in project operations” and were concerned that the Bureau of Reclamation pay sufficient attention to their reserved water rights and water level issues. Consistent with this concern, the Yurok Tribe sent the NMFS a letter on March 23, 2001 with extensive comments on NMFS’ draft 2001 Biological Opinion in which they stated that they “eoncur[red] with NMFS that despite the presence of other factors that have contributed to the decline of the Klamath River’s coho and other anadromous resources, the Klamath Project was and continues to be a major factor in the decline of these resources.” The final April 6, 2001 Biological Opinion prepared by NMFS regarding the SONCC coho salmon, discussed in more detail below, noted that “Indian tribes in the Klamath River Basin ... have a profound interest in water management” and that “[djownstream tribal reserved water rights consist of an instream flow sufficient to protect the right to take fish within their reservations.”
C. The Revised 2001 Operations Plan
Piior to 2001, the Klamath Project had been through wet and dry years, including two recent dry years, 1992 and 1994, that were even drier than was 2001. Numerous plaintiff water users, including Lonny Baley, Frank Anderson, Keith Buckingham, Michael Byrne, John Frank, Harold Hartman, Luther Horsley, Edwin Stastny, Jr., and Robert Un-ruh, testified at trial, however, that even during those earlier, severe drought years Klamath Project water users still received all of the water they needed. As the Bureau of Reclamation developed its operating plan for the 2001 water year, water supply forecasts indicated that it would be a “critical dry” year due to drought conditions. See Kandra v. United States, 145 F.Supp.2d 1192, 1198 (D. Or. 2001). In response, the Bureau of Reclamation performed a biological assessment of the Klamath Project’s operations on the Lost River sucker and the shortnose sucker, and a similar assessment regarding the SONCC coho salmon. See Klamath Irrigation Dist. v. United States, 67 Fed.Cl. 504, 513 (2005) (citing Kandra v. United States, 145 F.Supp.2d at 1198 ). “Both assessments concluded that operation of the Project was likely to affect adversely the three species in violation of the ESA, 16 U.S.C. § 1531 , et seq.” Id. On January 22, 2001, the Bureau of Reclamation forwarded its biological assessment regarding the SONCC coho salmon to NMFS and requested the initiation of a formal consultation with the NMFS pursuant to section 7(a)(2) of the Endangered Species Act. On February 13, 2001, the Bureau of Reclamation similarly forwarded its biological assessment regarding the Lost River sucker and the shortnose sucker to the FWS and requested the initiation of a formal consultation with the FWS.
On March 2, 2001, the Bureau of Reclamation sent out a letter, signed by Karl Wirkus, to the Irrigation Districts in the Klamath Project notifying them of the status of the Endangered Species Act consultation process and that no water was to be diverted or used until a revised operations plan for 2001 was finalized. In relevant part, the March 2, 2001 letter stated:
*638 Reclamation is in the process of developing the 2001 Annual Operations Plan. Biological opinions resulting from current consultations will be a critical part of the plan’s formulation. While it is possible that there may be drastic reductions in project agriculture and refuge deliveries in 2001, Reclamation is working diligently to avoid such an outcome. However, until Reclamation completes the consultation process, no diversion of Project water may occur that would result in a violation of Section 7(d) of the ESA which prohibits “... any irreversible or irretrievable commitment of resources, ..” pending completion of consultation. To date, Reclamation has not made a determination as to whether and to what extent Project water could be delivered in advance of completed consultations. Thus, until such a determination is made or the consultations are completed, no Project water may be diverted or used unless expressly authorized by Reclamation,
(emphasis in original).
On March 30, 2001, the Bureau of Reclamation sent out a similar letter to the Irrigation Districts, also signed by Mr. Wirkus, updating Klamath Project water users on the status of the Endangered Species Act consultation process. The March 30, 2001 letter stated, in relevant part:
We had previously indicated that a new Annual Operations Plan would be announced on April 1, 2001. We will not be announcing any new Operating Plan at that time. We anticipate announcing such a plan by April 6, 2001. We will continue to keep everyone advised of our progress in this regard. Once again, however, until such a determination is made or the consultations are completed, no Project water shall be diverted or used unless expressly authorized by Reclamation,
(emphasis in original).
On April 6, 2001, the FWS, acting in furtherance of its statutory duties under the Endangered Species Act, issued a final Biological Opinion (the FWS Biological Opinion), concluding that the Bureau of Reclamation’s proposed 2001 operation plan for the Kla-math Project was “likely to jeopardize the continued existence of the LRS [Lost River sucker] and SNS [shortnose sucker] and adversely modify their proposed critical habitat.” On the next day, April 6, 2001, NMFS issued its final Biological Opinion (the NMFS Biological Opinion) concluding that the proposed operation plan was “likely to jeopardize the continued existence of SONCO coho salmon” and “to adversely modify critical habitat for the SONCO coho salmon.” As inquired by the Endangered Species Act, 16 U.S.C. § 1536 (b)(3)(A), the Biological Opinions of both agencies included “reasonable and prudent alternatives” to address the threat to the three species. FWS’ reasonable and prudent alternatives required, among other actions, that the Bureau of Reclamation maintain “not divert water from UKL [Upper Klamath Lake] for irrigation purposes if surface elevations are anticipated to go below [certain minimum levels], regardless of inflow year type.” The FWS Biological Opinion determined that “[implementation of the [Klamath] Project with these minimum elevations is necessary to avoid jeopardy and adverse modification of proposed critical habitat” for the Lost River and short nose suckers. The NMFS’ only reasonable and prudent alternative required the Bureau of Reclamation to operate the Klamath Project in such a way so as to provide certain levels of “minimum IGD [Iron Gate Dam, a dam downstream from the Link River Dam,] water releases” into the Klamath River between April and September 2001. The NMFS Biological Opinion stated that this reasonable and prudent alternative was “intended to prevent further decline of the listed fish .. while longer-term protections can be implemented to affect the recovery of the species.” 9
*639 On April 6, 2001, the Bureau of Reclamation issued a revised 2001 operations plan for the Klamath Project (the Revised 2001 Operations Plan) that incorporated the reasonable and prudent alternatives proposed by the FWS and the NMFS Biological Opinions. The Revised 2001 Operations Plan listed four “Guiding Principles and Objectives” which it stated were “described” in the July 25, 1995 memorandum from the Department of the Interior’s Regional Solicitor for the Pacific Southwest Region, and “further addressed” in a second memorandum, dated January 9, 1997, prepared by the Department of the Interior’s Regional Solicitors for the Pacific Northwest and Pacific Southwest Regions, (emphasis in original). The principles and objectives were: “Meeting the Requirements of the Endangered Species Act”; "Trust Responsibility of the United States to Federally Recognized Tribes Within the Kla-math River Basin”; “Providing Deliveries of Project Water”; and “Conserving Wetland and Wildlife Values.” With regard to the Endangered Species Act, the Revised 2001 Operations Plan stated: “The Lost River and shortnose suckers, coho salmon, and bald eagles are listed under the ESA. Reclamation will manage Project water supplies in accordance with the April, 2001, [sic] biological opinions issued by NMFS and the U.S. Fish and Wildlife Service (FWS) for this year’s Project operation....” With regard to the tribal trust responsibilities, the Revised 2001 Operations Plan stated, in full:
The trust responsibility to the Klamath Basin Tribes is shared by all federal agencies that undertake activities in the Kla-math Basin. Fishery and other resources in the Klamath River, Upper Klamath Lake (UKL), and nearby lakes and streams are important tribal trust resources to the Klamath Basin tribes. Reclamation’s Plan provides flow regimes and lake levels for protection of tribal trust resources within the limitations of the available water supply.
With regard to deliveries to Klamath Project water users, the Revised 2001 Operations Plan stated: “Due to the requirements of the biological opinions and the ESA [Endangered Species Act] and the current drought conditions, only limited deliveries of Project water will be made for irrigation.” The Revised 2001 Operations Plan summarized its ultimate decisions regarding operation of the Klamath Project, as follows:
Reclamation prepared the 2001 Plan ... for certain UKL [Upper Klamath Lake] levels and Klamath River flows at Iron Gate Dam consistent with the guiding principles and objectives....
Prior to listing of endangered and threatened species and the increased scientific understanding of the needs of ESA-listed species and tribal trust resources, the Project was operated to optimize irrigation diversions, with UKL releases and resulting flows at Iron Gate Dam (IGD) targeted to meet Federal Energy Regulatory Commission (FERC) mínimums. Lake elevations were the result of hydropower releases judged against irrigation demand.
Minimum UKL levels and Klamath River flows have been specified as a result of ESA consultation on listed species.... As a result, current conditions indicate water deliveries to farms and refuges within the Project service area will be severely limited. Under the current hydrology, the UKL levels and river flows under this Plan are consistent with requirements of the ESA and Reclamation’s obligation to protect Tribal trust resources.
At trial, Karl Wirkus, the Area Manager of the Bureau of Reclamation’s Klamath Basin area office and the author of the Revised 2001 Operations Plan, testified that as he put the Revised 2001 Operations Plan together and “ran the numbers,” he determined that meeting the minimum Upper Klamath Lake levels and Klamath River flows set forth in the FWS and NMFS Biological Opinions would require all available Klamath Project water and that there would not be any additional quantity of water available to meet other obligations.
On the same day the Revised 2001 Operations Plan was released, April 6, 2001, the Department of the Interior issued a news release stating that, based on the FWS and NMFS Biological Opinions “and the requirements of [the] Endangered Species Act, the Bureau of Reclamation announced today that no water will be available from Upper Kla-math Lake to supply the farmers of the *640 Klamath Project.” The news release continued:
To provide some assistance to farmers affected by what is expected to be one of the driest years since the Project began in 1907, the United States Department of Agriculture (USDA) announces that most crops in the affected area are eligible for Federal crop insurance (if it had been purchased before the sales closing date) or other assistance.... For producéis carrying coverage, a portion of their otherwise irrigated crop losses resulting from 'the determination announced by the Bureau of Reclamation may be eligible for prevented planting payments.... Assistance is also provided through the Non-insured Crop Disaster Assistance Program (NAP) to producers growing crops that are currently uninsurable.
After the issuance of the Revised 2001 Operatipns Plan, on April 9, 2001, a group of Klamath Project water users, including the Klamath and Tulelake Irrigation Districts, filed a lawsuit in the United States District Court for the District of Oregon seeking to enjoin the Bureau of Reclamation from implementing the Revised 2001 Operations Plan and an order requiring the Bureau of Reclamation “to release unspecified ‘historic’ amounts of irrigation water.” See Kandra v. United States, 145 F.Supp.2d 1192, 1195-96 (D. Or. 2001). Plaintiffs alleged that the Revised 2001 Irrigation Plan “breache[d] their contractual rights to irrigation water and [was] arbitrary and capricious under the Administrative Procedure Act (‘APA’), 5 U.S.C. § 706 , in that’its implementation violate[d] the National Environmental Policy Act (‘NEPA’), 42 U.S.C. § 4321 , et seq., and the Endangered Species Act (‘ESA’), 16 U.S.C. § 1531 , et seq.” Id at 1196. With respect to their allegations regarding the Endangered Species Act, the Kandra plaintiffs alleged that a number of provisions of the FWS and NMFS Biological Opinions violated the Endangered Species Act, and therefore, that the adoption of the findings of the Biological Opinions as part of the Revised 2001 Operation Plan rendered the Revised 2001 Operations Plan arbitrary and capricious. See id. at 1206 . The Kandra plaintiffs’ alleged issues with the Biological Opinions included that “FWS failed to consider scientific evidence of variable lake elevations and the impact on sucker fish populations” and. that “NMFS relied on a lack of relevant information about the effects of variable flow regimes on salmon and the salmon’s utilization of the Kla-math River.” Id. The District Court rejected the Kandra plaintiffs’ request for a preliminary injunction, holding that they had failed to show a likelihood of success on the merits of their claims or that they were entitled to injunctive relief. See id. at 1211 . On October 15, 2017, the Kandra plaintiffs filed a notice to voluntarily dismiss their claims, and the District Court dismissed the case on October 27, 2017. See Notice of Dismissal, Kandra v. United States, No. 01-6124 (D. Or. Oct. 15, 2017); Order of Dismissal, Kandra v. United States, No. 01-6124 (D. Or. Oct. 27, 2017).
D. Effect on Farmers in the Klamath Basin
Ultimately, the delivery of irrigation water from Upper Klamath Lake to the plaintiffs in the above-captioned cases was totally terminated following the issue of the Revised 2001 Operations Plan in April 2001 until July 2001, when the Bureau of Reclamation released approximately 70,000 acre-feet of water. At trial, plaintiffs consistently testified that this late release of water was of very little, or more often, no use.' Moreover, some individual plaintiffs testified that they never received any of this water. For example, farmer David Cacka testified that the water was of no use to him in July because his crops had already died due to lack of water. Similarly, Mark Stuntenbeck, the assistant manager of Kla-math Irrigation District in 2001, testified that, in his District, “there were an awful lot of farmers that had no need for the water at that point” because, “[s]inee they were denied water early in the irrigation season, a lot of farmers did not plant any crops. And those that unfortunately did, the crops did not survive without any water.” Even those who received some water, such as Malin Irrigation District manager Harold Hartman, whose District received 10% of its normal delivery, described the amount as “not overall beneficial” because it was “[v]ery difficult to wet the system,” which had dried out due to lack of water deliveries. At best, in the words of Don Russell, a ditch rider for over forty years in the Klamath Project, who *641 served the farmers of the Enterprise Irrigation District and the Pine Grove Irrigation District in 2001, 10 for the farmers of the Klamath Basin, the July 2001 water deliveries were “too little, too late.”
Evidence introduced at trial also indicated that at least some of the plaintiffs received payments from various federal government programs after water deliveries were cut off in 2001. Many of the plaintiffs testified that they applied for funds from the Klamath Basin Water Conservation Program, a federal program administered by the Farm Service Agency which paid farmers $129.00 per irrigable acre for which no water was received. Several plaintiffs testified that they received payments under the Klamath Basin Emergency Operation and Maintenance Act of 2001, Pub. L. No. 107-349, 116 Stat. 2973 (2002), which reimbursed farmers for the operation and maintenance costs they had paid for water deliveries in 2001. Other plaintiffs testified that they received payments from the federal government’s crop disaster program, the federal government’s non-insured assistance program, and for placing cover crops on fields through the Emergency Conservation Program. Finally, some plaintiffs also received payments from the Risk Management Agency’s crop insurance program.
III. Procedural History
A. Lonny Baley, et al. v. United States
The procedural history of the above-captioned cases is long and complicated, including assignment to and review by multiple judges in the United States Court of Federal Claims and review by the United States Court of Appeals for the Federal Circuit, which resulted in a remand, and reassignment after the remand, to the undersigned judge. The plaintiffs in Lonny Baley, et al. v. United States, case number 1-591L, were initially a mixture of Irrigation Districts and individual water users. The Baley plaintiffs filed their initial complaint on October 11, 2001, an amended complaint on March 24, 2003, and a second amended complaint on January 31, 2005. In them second amended complaint, plaintiffs alleged that the govemment’s actions in terminating their water deliveries through the Klamath Project in 2001 constituted a taking of their water rights without just compensation in violation of the Fifth Amendment to the United States Constitution, an impairment of their water rights in violation of the Klamath Compact, and a breach of certain contracts between the Bureau of Reclamation and the named plaintiffs.
The case was initially assigned to Judge Diane G. Sypolt. On May 10, 2002, defendant filed a motion requesting that the case be stayed pending completion of the Klamath Adjudication, discussed above. In its motion, defendant argued that
because a number of the core elements of Plaintiffs’ takings claims turn on state law—and because these state law issues are presently the subject of the ongoing Klamath Basin Adjudication, in which both sides are participating—a stay of this case pending final resolution of the Adjudication is fully justified ....
On June 14, 2002, plaintiffs filed a response opposing defendant’s motion in which they argued that “plaintiffs’ water rights are vested under Oregon law and do not depend upon the adjudication for recognition.”
To resolve this issue, on May 12, 2003, Judge Sypolt, ordered plaintiffs to
file a motion for summary judgment on the question of whether their water rights ... are property that is compensable under the Fifth Amendment ... notwithstanding any adverse determination, including a retroactive one, regarding the existence, extent, or character of such rights by the Hearing Officer Panel in Case No. 003 of the State of Oregon’s ongoing Klamath Basin Adjudication.
Accordingly, on September 22, 2003, plaintiffs filed a motion for partial summary judgment seeking a finding that the property rights determination in the Klamath Adjudication was irrelevant to plaintiffs’ interest in the litigation, in support of which plaintiffs stated that, “regardless of the outcome of the Adjudication, plaintiffs will retain the beneficial interest in the Klamath Project water because plaintiff water users, not the govem- *642 meat, put the water to beneficial use.” On November 3, 2008, defendant filed an opposition to plaintiffs’ motion for partial summary-judgment.
On November 13, 2003, Judge Sypolt, in a very brief and somewhat unclear motion, granted plaintiffs’ revised motion for partial summary judgment and denied defendant’s motion to stay, stating that:
It appears from their motion for partial summary judgment that plaintiffs not only assert no property interest determinable in the Adjudication, but also concede that they claim no legal title to, but only “vested beneficial interests” in, the Klamath Basin Project water. Defendant, far from disputing this assertion, makes it the basis for its cross-motion for summary judgment, that these beneficial interests consist of contract lights that are not compensable as takings.
Accordingly, plaintiffs’ motion for partial summary judgment that their water interests are not property interests at issue in the Adjudication is granted and defendant’s motion for a stay pending the outcome of the Adjudication is denied. Based on plaintiffs’ assertion that no rights or interests in this case are affected by the Adjudication, plaintiffs are barred from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication.
The Baley case was re-assigned to Judge Francis Allegra on December 9, 2004 after Judge Sypolt retired from the United States Court of Federal Claims. Subsequently, on August 31, 2005, Judge Allegra entered summary judgment in favor of the defendant on the takings and Klamath Compact claims, see Klamath Irr. Dist. v. United States, 67 Fed. Cl. 504 , and, on March 16, 2007, summary judgment in favor of the defendant on the breach of contract claims. See Klamath Irr. Dist. v. United States, 75 Fed.Cl. 677 (2007), rev’d, 635 F.3d 505 (2011). Plaintiffs filed a timely appeal with the United States Court of Appeals for the Federal Circuit, which, on July 16, 2008, certified three questions to the Oregon Supreme Court regarding the nature of plaintiffs’ alleged water rights under Oregon law. 11 See Klamath Irr. Dist. v. United States, 532 F.3d 1376 (Fed. Cir. 2008). The Oregon Supreme Court issued an opinion answering the certified questions on March 11, 2010. 12 See Klamath Irr. Dist. v. United States, 348 Or. 15 , 227 P.3d 1145 (2010). *643 Thereafter, on February 17, 2011, the United States Court of Appeals for the Federal Circuit issued an opinion vacating Judge Allegro's Court of Federal Claims decision and remanding the case back to the Court of Federal Claims for further proceedings. See Klamath Irr. Dist. v. United States, 635 F.3d 505 . With regard to plaintiffs’ takings and Klamath Compact claims, the Federal Circuit instructed that:
On remand, the Court of Federal Claims should proceed as follows: First, it should determine, for purposes of plaintiffs’ takings and Compact claims, whether plaintiffs have asserted cognizable property interests .... To the extent the Court of Federal Claims determines that one or more plaintiffs have asserted cognizable property interests, it then should determine whether, as far as the takings and Compact claims are concerned, those interests were taken or impaired. That determination will turn on existing takings law.
Id. at 619-20 (footnotes omitted). After the remand, on November 22, 2013, Judge Allegra dismissed the breach of contract claims of three plaintiffs, the Klamath Irrigation District, the Tulare Irrigation District, and Lonny Baley, on 28 U.S.C. § 1500 (2012) grounds. See Klamath Irr. Dist. v. United States, 113 Fed.Cl. 688 (2013). On June 3, 2014, Judge Allegra, at plaintiffs’ request, dismissed all remaining plaintiffs’ contract claims, without prejudice.
B. John Anderson Farms, et al. v. United States
The plaintiffs in John Anderson Farms, et al. v. United States, case numbers 7-194C, 7-19401C, 7-19402C, 7-19403C, 7-19404C, 7-19405C, 7-19406C, 7-19407C, 7-19408C, 7-19409C, 7-19410C, 7-19411C, 7-19412C, 7-19413C, 7-19414C, 7-19415C, 7-19416C, 7-19417C, 7-19418C, 7-19419C, 7-19420C, who are all individual water users, filed their original complaint on March 22, 2007. The cases were initially assigned to Judge Allegra. Although, initially, the Baley and John Anderson Farms cases were assigned to separate attorneys in different divisions of the United States Department of Justice, reporting to different Assistant Attorney Generals, more recently, the Department of Justice counsel of record responsibilities in both cases were assigned to the above-listed attorney of record. On August 2, 2007, Judge Allegra stayed the John Anderson Farms cases pending resolution of the appeal to the Federal Circuit in the then-named Klamath Irrigation District, et al. v. United States case, number 1-591L. The stay was lifted on August 25, 2011 and an amended complaint was filed on October 4, 2011. In their 2011 amended complaint, the John Anderson Farms plaintiffs alleged that the government’s actions constituted breach of contracts hetween the government and the plaintiffs and a taking of plaintiffs’ property, in the form of their water rights, without compensation in violation of the Fifth Amendment to the United States Constitution. On March 13, 2014, Judge Allegra granted plaintiffs’ motion to voluntarily dismiss all remaining breach of contract claims with prejudice.
C. The Consolidated Cases Before the Undersigned Judge
On June 25, 2015, after a significant amount of discovery following the remand had already occurred, the above-captioned cases were re-assigned to the undersigned judge upon Judge Allegro's illness and subsequent passing. On July 22, 2015, after holding a status conference with the parties, the court issued an order, which modified a previous May 7, 2015 order issued by Judge Allegra. The new order set a trial date and set various pretrial deadlines. On January 12, 2016, after holding a status conference with the parties, the court issued an order consolidating the Baley and John Anderson Farms cases. The parties subsequently filed cross-motions in limine on the issue of whether *644 plaintiffs’ takings claims should be analyzed as regulatory or physical takings, which, on December 21, 2016, the court decided. In its December 21, 2016 Opinion, the court found in favor of the plaintiffs, holding that “the government’s actions in the present cases ‘should be analyzed under the physical takings rubric.’” Klamath Irr. Dist. v. United States, 129 Fed.Cl. 722, 737 (2016) (quoting Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1296 (Fed. Cir. 2008)). The court was careful to note, however, “that in making this decision, it is in no way making any determinations as to the nature or scope of plaintiffs’ alleged property rights, which remain at issue in the above-captioned cases.” Id.
The parties subsequently finished discovery, submitted their pretrial filings, and filed a series of additional motions in limine regarding various issues. The court ruled on a number of these at a status hearing on January 4, 2017 and at the pretrial conference on January 10, 2017. On January 6, 2017, plaintiffs filed a renewed motion for class certification in both the consolidated Baley, case no. 1-591L, and John Anderson Farms, case no. 7-194C and 7-19401-19419C, cases. Judge Allegra had previously denied, without prejudice, a class certification request in the Baley case. This court granted the consolidated class certification motion at the January 10, 2017 pretrial 'conference, 13 The court granted the renewed motion for class certification in order to ensure that all parties would be included in the event of a future appeal should either party choose to do so after this court issues its current, trial opinion. As subsequently modified by the parties, and approved by this court, the consolidated class in the above-captioned cases is comprised of:
All owners (or their lessees) of agricultural land who claim an appurtenant right to receive and put to beneficial use water from the Klamath Project in 2001, and allege a Fifth Amendment taking of their right to receive and use such water in 2001 and impairment of their water right in violation of the Klamath River Basin Compact. This includes owners or lessees of land located within or receiving Klamath Project water from the following districts:
Enterprise Irrigation District
Klamath Basin Improvement District
Klamath Drainage District
Klamath Hills District Improvement Company
Klamath Irrigation District
Malin Irrigation District
Midland District Improvement Company
Pine Grove Irrigation District
Poe Valley Improvement District
Shasta View Irrigation District
Sunnyside Irrigation District
Tulelake Irrigation District
Van Brimmer Ditch Company
Westside Improvement District No. 4
Excluded from the class are landowners (or their lessees) located on the east side of the Klamath Project who received Klamath Project water in 2001 from Gerber and Clear Lake Reservoirs.[ 14 ]
*645 On January 10, 2017, plaintiffs filed a motion to amend their amended complaint in the John Anderson Farms case to include a claim for a violation of the Klamath Compact, in order to conform the allegations in the John Anderson Farms case with those in the Baley case. The court granted plaintiffs motion on January 27, 2017.
A trial was held in the above-captioned cases in Washington, D.C. over the course of ten days, which included an opportunity for a selection of the affected farmers to testify and be heard. After a separate post-trial hearing on a pre-trial motion filed by defendant to dismiss the Irrigation Districts as plaintiffs from the Baley case, plaintiffs filed a motion to voluntarily dismiss the Irrigation Districts as plaintiffs. The court granted the motion, and, because the previous lead plaintiff in case number 1-591L, Klamath Irrigation District, was among those dismissed, also ordered that case number 1-591L be re-eaptioned from Klamath Irrigation District, et al. v. United States to Lonny Baley, et al. v. United States. Defendant filed a motion to dismiss, or in the alternative for summary judgment, on the claims of any shareholders in the Van Brimmer Ditch Company, including those of named plaintiffs James and Cheryl Moore, which was briefed by the parties. The issue raised in this motion is addressed in the current opinion.
Just prior to trial, defendant and plaintiffs also filed cross-motions for partial summary judgment on the nature of plaintiffs’ beneficial interest in the use of Klamath Project water, and the possible effect of the contracts governing delivery on that interest. In its motion, defendant asked the court to hold that “plaintiffs’ appurtenant right to receive and use Klamath Project water is defined and limited by the contracts between the districts and the United States and any individual Warren Act contracts that remain in place” and that “plaintiffs’ interest in Project water, to the extent it may exist separately from those contracts, cannot be severed from plaintiffs’ respective ownership of land for the purposes of the Fifth Amendment.” In their cross-motions, plaintiffs asked the court to hold that their alleged water rights were “property protected by the Fifth Amendment, established under Oregon law, and that these property rights were unmodified by contract in 2001 at the time of the taking.” This motion also is addressed in this opinion.
Defendant, plaintiffs, and third-party inter-venor Pacific Coast Federation of Fisherman’s Associations simultaneously filed post-trial briefs. The Klamath Tribes filed a motion for leave to file a memorandum as ami-cus curiae, which was granted by the court. Defendant, plaintiffs, and third-party interve-nor subsequently filed their post-trial reply briefs, with defendant filing a sur-reply on issues raised for the first time in plaintiffs’ reply brief. On May 22, 2017, plaintiffs filed a third amended complaint that reflected the class certification approved by the court and the class notice plan subsequently approved by the court. As noted above, in order to allow plaintiffs to begin the process of perfecting the class in the event of a favorable decision or an appeal of this court’s decision, along with their amended complaint, plaintiffs filed an entry of appearance list listing 1,151 landowners or lessees (or their representatives) who had submitted timely entry of appearance forms. 15
DISCUSSION
As noted above, defendant’s motion to dismiss or for summary judgment as to the. claims of any shareholders of the Van Brim-mer Ditch Company was deferred to trial *646 and remains outstanding. The court will turn to that motion first. The court will then proceed to the merits of the case, plaintiffs’ claims that the government’s actions in 2001 constituted takings under the Fifth Amendment to the United States Constitution or, as it relates to some of the plaintiffs, a violation of the Klamath Compact.
I. Claims of Van Brimmer Ditch Company Shareholders
Although defendant’s motion regarding the claims of the Van Brimmer Ditch Company shareholders is titled as a motion to dismiss or alternatively for summary judgment, the motion never cites the standard of review for a motion to dismiss under Rule 12 of the Rules of the Rules of the United States Court of Federal Claims (RCFC) (2017) or the particular provision of RCFC 12 under which defendant seeks to bring its motion. Indeed, defendant’s motion never even mentions RCFC 12. Instead, the only standard of review discussed by defendant in its motion is the standard for summary judgment under RCFC 56. Moreover, certain evidence defendant cites in support of its motion, such as a declaration submitted by former Van Brim-mer Ditch Company President Gary Orem, the 1909 contract between the Van Brimmer Ditch Company and the United States, and even the trial testimony of James Moore, would generally be inappropriate to consider under a motion to dismiss under RCFC 12. The court, therefore, will treat defendant’s motion as one for summary judgment under RCFC 56.
RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect. Both rules provide that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 66(a) (2017); Fed. R. Civ, P. 66(a) (2017); see also Alabama v. North Carolina, 560 U.S. 330, 344 , 130 S.Ct. 2295 , 176 L.Ed.2d 1070 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States, 713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons. P.C., 680 F.3d 1341, 1349 (Fed. Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012); Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010), cert. denied. 564 U.S. 1004 , 131 S.Ct. 2990 , 180 L.Ed.2d 821 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 , 125 S.Ct. 2963 , 162 L.Ed.2d 887 (2005); Mata v. United States, 114 Fed.Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed.Cl. 315, 317 (2012); Arranaga v. United States, 103 Fed.Cl. 465, 467-68 (2012); Cohen v. United States, 100 Fed.Cl. 461, 469 (2011); Boensel v. United States, 99 Fed.Cl. 607, 610 (2011).
A fact is material if it will make a difference in the result of a case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 , 106 S.Ct. 2505 ; see also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 , 106 S.Ct. 2505 ); Mata v. United States, 114 Fed.Cl. at 744 ; Arranaga v. United States, 103 Fed.Cl. at 467-68 ; Thompson v. United States, 101 Fed.Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469 . Irrelevant or unnecessary factual disputes do not preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48 , 106 S.Ct. 2505 ; see also Scott v. Harris, 550 U.S. 372, *647 380 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); Motion Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001); Gorski v. United States, 104 Fed.Cl. 605, 609 (2012); Walker v. United States, 79 Fed.Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199 , 168 F.Supp. 213, 216 (1958), cert. denied, 361 U.S. 843 , 80 S.Ct. 94 , 4 L.Ed.2d 81 (1959), reh'g denied, 361 U.S. 941 , 80 S.Ct. 375 , 4 L.Ed.2d 361 (1960).
When reaching a summary judgment determination, the judge’s function is not to weigh the evidence and determine the truth of the case presented, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 , 106 S.Ct. 2505 ; see, ag., Schlup v. Delo, 513 U.S. 298, 332 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States, 118 Fed.Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed.Cl. 452, 455 (2013); Cohen v. United States, 100 Fed.Cl. at 469-70 ; Boensel v. United States, 99 Fed. Cl. at 611 ; Macy Elevator, Inc. v. United States, 97 Fed.Cl. 708, 717 (2011); Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed.Cl. 113, 126 (2009); Johnson v. United States, 49 Fed.Cl. 648, 661 (2001), aff'd, 52 Fed.Appx. 507 (Fed. Cir. 2002), published at 317 F.3d 1331 (Fed. Cir. 2008). The judge must determine whether the evidence presents a disagreement sufficient to require submission to fact finding, or whether the issues presented are so one-sided that one party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52 , 106 S.Ct. 2505 ; Jay v. Sec’y of Dep’t of Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh'g denied and en banc suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed.Cl. at 316. When the record could not lead a rational trier of fact to find for the nonmov-ing party, there is no genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986); Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d at 1372 ; Marriott Int’l Resorts, L.P. v. United States, 586 F.3d at 968 ; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d 1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548 , 1553 n.3 (Fed. Cir. 1996). In such cases, there is no need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment;
saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result.
Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex, (U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d 890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed.Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc„ 477 U.S. at 248 , 106 S.Ct. 2505 ; see also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 , 129 S.Ct. 38 , 172 L.Ed.2d 19 (2008); Eli Lilly & Co. v. Barr Labs,, Inc., 251 F.3d 955 , 971 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1109 , 122 S.Ct. 913 , 151 L.Ed.2d 879 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350,1353 (Fed. Cir. 1999); TigerSwan, Inc, v. United States, 118 Fed.Cl. at 451 ; *648 Stephan v. United States, 117 Fed.Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group, Inc. v. United States, 101 Fed.Cl. 623, 629 (2011). In other words, if the nonmoving party produces sufficient evidence to raise a question as to the outcome of the case, then the motion for summary judgment should be denied. Any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 , 129 S.Ct. 2658 , 174 L.Ed.2d 490 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88 , 106 S.Ct. 1348 ; Yant v. United States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 , 131 S.Ct. 69 , 178 L.Ed.2d 23 (2010); Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001), reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S. 957 , 123 S.Ct. 2637 , 156 L.Ed.2d 655 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257 ; Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R. Hodges Trust v. United States, 111 Fed.Cl. at 455 ; Boensel v. United States, 99 Fed.Cl. at 611 (“‘The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 , 106 S.Ct. 2505 ) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88 , 106 S.Ct. 1348 ; Casitas Mun. Water Dist. v. United States, 543 F.3d at 1283 ; Lathan Co. Inc. v. United States, 20 Cl.Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-67 ; Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807 . “However, once a moving party satisfies its initial burden, mere allegations of a genuine issue of material fact without supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48 , 106 S.Ct. 2505 .
The initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged if the moving party can demonstrate that there is an absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986); see also Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed. Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994), reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed. Cir. 1997); Vivid Techs., Inc., v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807 ; RQ Squared, LLC v. United States, 119 Fed.Cl. 751, 757 (Fed. Cl. 2015). If the moving party makes such a showing, the burden shifts to the nonmoving party to demonstrate that a genu ine dispute regarding a material fact exists by presenting' evidence which establishes the existence of an element essential to its case upon which it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322 , 106 S.Ct. 2548 ; see also Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d at 1244 ; Florida Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed. Cir. 2000); Vivid Techs., Inc., v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807 ; Rasmuson v. United States, 109 Fed.Cl. 267, 271 (2013). However, “a non-movant is required to provide opposing evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).
Even if both parties argue in favor of summary judgment and allege an absence of genuine issues of material fact, the *649 court is not relieved of its responsibility to determine the appropriateness of summary disposition in a particular case, and it does not follow that summary judgment should be granted to one side or the other. See Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968-69 (Fed. Cir. 2009); B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030 , 1037 n.5 (9th Cir. 2000), cert. denied, 532 U.S. 942 , 121 S.Ct. 1403 , 149 L.Ed.2d 346 (2001); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have moved for summary judgment does not mean that the court must grant summary judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 , 89 S.Ct. 866 , 21 L.Ed.2d 776 (1969); Rogers v. United States, 90 Fed.Cl. 418, 427 (2009), subsequent determination, 93 Fed.Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed.Cl. 384, 387 (2009), aff'd, 615 F.3d 1378 , (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir. 2010), cert. denied, 564 U.S. 1004 , 131 S.Ct. 2990 , 180 L.Ed.2d 821 (2011); St. Christopher Assocs., L.P. v. United States, 75 Fed.Cl. 1, 8 (2006), aff'd, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v. United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion on its own merits, taking care to draw all reasonable inferences against the party whose motion is under consideration, or, otherwise stated, in favor of the non-moving party. See First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.), reh'g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 , 122 S.Ct. 921 , 151 L.Ed.2d 886 (2002); Oswalt v. United States, 85 Fed.Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006).
Cross-motions are no more than a claim by each party that it alone is entitled to summary judgment. The making of such inherently contradictory claims, however, does not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d at 593 ; Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d at 1148 ; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2 ; Rogers v. United States, 90 Fed.Cl. at 427 ; Reading & Bates Corp. v. United States, 40 Fed.Cl. at 748 .
Defendant moves for the dismissal of the .claims of any plaintiffs who are shareholders of the Van Brimmer Ditch Company on the grounds that such claims are barred by Judge Sypolt’s November 13, 2003 Order, Among the named plaintiffs, only James and Cheryl Moore were shareholders of the Van Brimmer Ditch Company, although the decision on defendant’s motion applies to any and all plaintiff class members who receive their water as shareholders of the Van Brimmer Ditch Company. According to defendant, the November 13, 2003 Order remains in effect because it was not challenged by plaintiffs on appeal and the Federal Circuit ultimately declined to rule on defendant’s argument that Van Brimmer’s claim was barred by the November 2003 Order. See Klamath Irr. Dist. v. United States, 635 F.3d at 519 n.10. Defendant argues that both the claims in the present cases of plaintiffs who are shareholders in the Van Brimmer Ditch Company and those that were at issue in case 003 of the Klamath Adjudication are based on the right to use the 50 cfs of water identified in Van Brimmer’s 1909 contract with the United States. Defendant argues that for plaintiffs who are shareholders of the Van Brimmer Ditch Company, such as James and Cheryl Moore, their shares in Van Brimmer Ditch Company stock are the source of their right to receive Klamath Project water. According to defendant, this means that, unlike other plaintiffs in these cases, the plaintiffs who are shareholders of the Van Brimmer Ditch *650 Company do not claim a beneficial interest in Klamath Project waters, but, instead, hold a proportionate share of the 50 cfs of water that was the subject of the Van Brimmer Ditch Company’s 1909 contract with the United States. According to defendant, these rights are identical to the rights asserted by the Van Brimmer Ditch Company in the Klamath Adjudication and, therefore, barred by Judge Sypolt’s November 13, 2003 Order,
Plaintiffs reject defendant’s argument that the November 13, 2003 Order remains valid and continue to argue that the rights asserted by the Van Brimmer shareholders are not the same as those that were at issue in the Klamath Adjudication. Plaintiffs argue that the Judge Sypolt’s November 13, 2003 Order “no longer serves any legitimate purpose” because “[t]he reason for the 2003 order no longer exists.” According to the plaintiffs, the purpose of Judge Sypolt’s November 13, 2003 Order was to address defendant’s May 10, 2002 motion to stay the then-titled Klamath Irrigation District case, now identified as the Baley case, case number 1-591L, until the Klamath Adjudication was decided, and because the Klamath Adjudication was completed on February 28, 2014, the Order is “now moot.” Plaintiffs also argue that the claims of the Moores and other plaintiffs who are Van Brimmer Ditch Company shareholders are not based on their ownership of Van Brim-mer Ditch Company stock, but, instead, are based on their beneficial interests in Klamath Project waters just like all other plaintiffs in the above-captioned cases.
The court turns first to plaintiffs’ argument that Judge Sypolt’s November 13, 2003 Order is “now moot” because it was intended only to address defendant’s May 10, 2002 motion to stay case number 1-591L, pending the conclusion of the Klamath Adjudication. Initially, the court notes that the plain language of the November 13, 2003 Order contains no language describing its effects as temporary. Instead, the Order appears to impose, without qualification, a permanent bar on the types of claims plaintiffs may bring, stating: “plaintiffs are barred from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication,” clearly referring to the Klamath Adjudication.
Although Judge Sypolt’s Order is extremely short and not the clearest, the language of the November 13, 2003 Order does not support plaintiffs’ argument that the only purpose of the Order was to address defendant’s motion so stay. The November 13, 2003 Order decided both defendant’s May 10, 2002 motion to stay the case on the grounds that issues relevant to the case were the subject of the then ongoing Klamath Adjudication and plaintiffs’ September 22, 2003 motion for summary judgment that the property rights determination in the Klamath Adjudication was irrelevant to plaintiffs’ interest in the then-titled Klamath Irrigation District case. After 'finding, in favor of plaintiffs, that “it appeared]” that plaintiffs in Klamath Irrigation District “assert no property interest determinable in the Adjudication” and,' therefore, denying defendant’s motion to stay the case and granting plaintiffs’ summary judgment motion, the court added language barring claims subject to the Klamath Adjudication, stating that it was doing so “[biased on plaintiffs’ assertion that no rights or interests in this case are affected by the Adjudication.” This language from Judge Sypolt’s November 13, 2003 Order indicates that a purpose of the Order was to prevent plaintiffs from later disavowing their assertion that none of the rights they asserted in the Klamath Irrigation District case would be affected by the Klamath Adjudication, the basis on which Judge Sypolt made her decision. To hold now that the November 13, 2003 Order is no longer binding on the parties would not only be contrary to its plain language, but also would undermine its apparent intent of holding plaintiffs accountable for the statements they made in order to receive the benefit of the court’s decision and avoid the stay sought by defendant. The court, therefore, holds that the November 13, 2003 Order remains in effect and continues to bar plaintiffs from “from making any claims or seeking any relief in this case based on rights, titles, or interests that are or may be subject to determination in the Adjudication.” 16
*651 Having determined that the November 13, 2003 Order remains in effect, the court now turns to the issue of whether the claims of the Van Brimmer Ditch Company’s shareholders are “based on rights, titles, or interests that are or may be subject to determination in the [Klamath] Adjudication” and, thus, are barred by the November 13, 2003 Order. In claims 298, 321-6, and 321-7 of case 003 of the Klamath Adjudication, the Van Brimmer Ditch Company and the United States brought competing claims based on the water rights appropriated by the Van Brimmer brothers in 1883 and 1884, and subsequently at issue in the 1909 contract between Van Brimmer and the United States. The Klamath adjudicator granted the Van Brimmer Ditch Company’s claim and denied the claim of the United States, finding that the Van Brimmer Ditch Company held appropriative water rights to 50 cfs of water, with a priority date of September 4, 1883, and that the 1909 agreement limited Van Brimmer’s water rights to 50 cfs, but did not transfer these rights to the United States. In a July 16, 2003 declaration submitted in case 1-591L in this court, Van Brim-mer Ditch Company President Gary D. Orem describes the water rights held by the Van Brimmer Ditch Company as arising in a virtually identical way to the water rights the Van Brimmer Ditch Company claimed and was awarded in the Klamath Adjudication. In his declaration, Mr. Orem describes the Van Brimmer brothers’ 1883 and 1884 notices of appropriation of water from Lower Klamath Lake, the completion of an irrigation ditch and beginning of irrigation in 1886, the conveyance of the Van Brimmer brothers’ water rights to the Van Brimmer Ditch Company in 1903, and the 1909 contract between the Van Brimmer Ditch Company and the United States, in which the United States Agreed to deliver 50 cfs of water from Lower Kla-math Lake to the Van Brimmer Ditch Company for irrigation purposes. Mr. Orem alleges, consistent with the Van Brimmer Ditch Company’s claims in the Klamath Adjudication, that in the 1909 contract the United States “recognized” the Van Brimmer Ditch Company’s “vested right to the use of fifty second feet of water for irrigation purposed from the water of Lower Klamath Lake” and that the Van Brimmer Ditch Company’s right to the 60 cfs of water “was never owned by the United States.” Based on the declaration of its own president, therefore, the Van Brimmer Ditch Company’s claims in the present case appear to be based on the same water rights that were at issue in the Klamath Adjudication.
Despite this evidence, plaintiffs argue that plaintiffs who are Van Brimmer Ditch Company shareholders claims in the present litigation differ from those that were before the Klamath Adjudication because, in the present cases, these plaintiffs’ claims are based solely on their beneficial rights to Klamath Project water, rather than on their shares in the Van Brimmer Ditch Company. The evidence, however, demonstrates that any interests that the Van Brimmer Ditch Company’s users may have in Klamath Project water are simply derivative of the Van Brimmer Ditch Company’s water rights. The Van Brimmer Ditch Company’s articles of incorporation state that its purpose was to use the waters of Lower Klamath Lake “as has heretofore been appropriated and used” by the Van Brimmer brothers for irrigation purposes, and that each share was to be distributed for one acre of irrigable land dependent upon the Van Brimmer Ditch Company ditch for its water supply. Today, the Van Brimmer Ditch Company continues to distribute water to its users based on the number of shares they hold in the company, with each share corresponding to the right to receive water for one acre of irrigable land. Thus, the water rights held by the Van Brimmer Ditch Company’s users are to a portion of the water rights held by the Van Brimmer Ditch Company, i.e., to a portion of the water that was at issue in claims 298, 321-6, and 321-7 of ease 003 of the Klamath Adjudication. As such, any claims brought by the Van Brimmer Ditch Company’s users in the present litigation would be based on water rights that were at issue in the Klamath adjudication and barred by the Judge Sypolt’s November 13, 2003 Order. Defendant’s motion for summary judgment is granted, and plaintiffs who are shareholders of the Van Brimmer Ditch Company, such as James and Cheryl Moore, *652 therefore, are barred from bringing any claims based on their rights to receive Kla-math Project water based on these shares. The claims of such plaintiffs are dismissed.
II. Plaintiffs’ Takings and Klamath Compact Claims
Turning to the merits of the takings and Klamath Compact claims, the remaining plaintiffs in the class actions allege that the government’s actions in 2001 constituted a taking under the Fifth Amendment to the United States Constitution of their beneficial interest in Klamath Project water and an impairment of their right to receive Klamath Project water in violation of the Klamath Compact, for which they are owed just compensation. In its February 17, 2011 decision remanding case number 1—591 to this court, the United States Court of Appeals for the Federal Circuit instructed this court to proceed with plaintiffs’ takings and Klamath Compact claims using the following two-step process:
First, it should determine, for purposes of plaintiffs’ takings and Compact claims, whether plaintiffs have asserted cognizable property interests.... To the extent the Court of Federal Claims determines that one or more plaintiffs have asserted cognizable property interests, it then should determine whether, as far as the takings and Compact claims are concerned, those interests were taken or impaired.
Klamath Irr. Dist. v. United States, 635 F.3d at 519-20.
A. Have Plaintiffs Asserted Cognizable Property Interests
The court turns first to the issue of “whether plaintiffs have asserted cognizable property interests.” Id. at 519. In response to a certified question sent by the Federal Circuit in case number 1-591, the Supreme Court of Oregon set forth the following three factor test for determining, “[ujnder Oregon law, whether plaintiffs acquired an equitable or beneficial property interest in the water right”:
whether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether the United States acquired the water right for plaintiffs’ use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs soipehow have altered that relationship. In this case, the first two factors suggest that plaintiffs acquired a beneficial or equitable property interest in the water right to which the United States claims legal title, but we cannot provide a definitive answer to the court’s second question because all the agreements between the parties are not before us.
Klamath Irr. Dist. v. United States, 635 F.3d at 515 (quoting Klamath Irr. Dist. v. United States, 227 P.3d at 1169 ). In its February 17, 2011 decision, the Federal Circuit instructed that, in determining whether plaintiffs have asserted cognizable property interests, this court “should direct its attention to the third part of the three-part test set forth by the Oregon Supreme Court in response to our certified question 2.” Id. at 519. The Federal Circuit explained:
That is because it is not disputed that, in this case, the first two parts of the three-part test have been met. Specifically, the parties do not dispute that plaintiffs have put Klamath Project water to beneficial use and that the United States acquired the pertinent water rights for plaintiffs’ use and benefit.
Id. With regard to the third part of the Oregon Supreme Court’s test, the Federal Circuit instructed this court to “address whether contractual agreements between plaintiffs and the government have clarified, redefined, or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable property interests for purposes of their takings and Compact claims.” Id. The Federal Circuit specified that this court
should give the government the opportunity to demonstrate how plaintiffs’ beneficial/equitable rights to the use of Klamath Project water have been clarified, redefined, or altered. In that context, it will be the government’s burden to demonstrate with specificity how the beneficial/equitable rights of one or more plaintiffs have been clarified, redefined, or altered. After the government has come forward with its *653 showing, plaintiffs will have the opportunity to respond.
Id. at 519-20 (footnotes omitted).
As instructed by the Federal Circuit, the court turns to the issue of whether “contractual agreements between plaintiffs and the government have clarified, redefined, or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable property interests for purposes of their takings and Compact claims.” Id. at 519. Defendant argues that plaintiffs’ beneficial rights have been altered by language, including the various shortage provisions, contained in the various contracts governing delivery of Kla-math Project water, in particular the Form A and B applications, the repayment contracts with the Klamath Irrigation District and the Tulelake Irrigation District, the Warren Act contracts, and the leases for lands in the National Wildlife Refuges. Plaintiffs reject defendant’s assertion that the contracts have altered plaintiffs’ rights, on the grounds that plaintiffs never signed any of the contracts that allegedly altered their rights, nor are they in privity with anyone who did.
Initially, the court notes that, throughout its post-trial brief, defendant alleges that the contracts governing the delivery of water from the Klamath Project “created” any property rights in the Klamath Project water plaintiffs may have held. As a matter of law, this is incorrect. Although it is unclear precisely what defendant means by this statement, the Oregon Supreme Court explained in its March 11, 2010 decision that, “[ujnder Oregon law, the water right became appurtenant to the land once the persons taking the water from the Klamath Project applied it to their land and put it to beneficial use.” Klamath Irr. Dist. v. United States, 227 P.3d at 1163 . The Oregon Supreme Court went on to note that any contractual agreements between plaintiffs and the United States could have “clarified, redefined, or even altered” the relationship between the United States and the plaintiffs on whose behalf the United States originally appropriated the waters of the Klamath Project. Id. at 1165. For instance, such agreements could have caused plaintiffs to have either acquired or lost rights to water that had also been put to beneficial use. See id. (“For instance, we cannot foreclose the possibility that plaintiffs could have bargained away any equitable or legal right to the water in return for a reduced payment schedule or forgiveness of their debt. Conversely, the United States may have granted plaintiffs either patents, water rights, or contractual rights that would be sufficient, as a matter of state law, for plaintiffs to have acquired at a minimum an equitable property interest in the water.”). The contracts, could not, however, by themselves create a right to beneficial use in water. See id. at 1169 (setting forth the three factors that, under Oregon law, determine “whether plaintiffs acquired an equitable or beneficial property interest in the water right”). The court now turns to the specifics of each of the contracts governing the delivery of Klamath Project water in order to determine if they clarified, redefined, or altered the rights held by plaintiffs in Klamath Project water. Because the various agreements defendant alleges affected plaintiffs’ rights differ significantly in history and language, the court examines each set of contracts separately.
1. Form A and B Applications
The court first reviews the Form A and B applications. These applications for water rights were used by the United States Department of the Interior in the early days of the Klamath Project, prior to the establishment of Irrigation Districts. See Laws and Regulations Relating to the Reclamation of Arid Lands, 45 L.D. 385, 406-8. The Form A application was to be used by homesteaders settling into reclaimed lands, while the Form B application was to be used by owners of private lands. Id. Defendant does not allege, and there is no evidence in the record to suggest, that any of the plaintiffs signed any of these applications. Instead, defendant argues that, because the terms and conditions of the contracts continue to run with the land, the plaintiffs who are the sueces-sors-in-interest to the signors of the Forms A and B applications remain bound by these terms and conditions.
In support of its argument that the terms and conditions of Form A applications run with the land, defendant points to the provi *654 sion in the Form A applications which states: “All of the within terms and conditions, in so far as they relate to said land, shall be a charge upon said land to run with the title to same,” The meaning of the word “charge” in this clause appears to be: “An encumbrance, lien, or claim.” Charge, Black’s Law Dictionary 282 (10th ed. 2014) (“”). Thus, it would appear, based on this provision, that all of the applications’ provisions, including the shortage provisions, were intended to run with the lands the applications concerned, and, therefore, bind the signors’ successors-in-interest in those lands.
In response to the evidence offered by the defendant, plaintiffs point out that after homesteaders who signed Form A applications completed the homesteading process, they were issued patent deeds giving them ownership over the lands they homesteaded. Such patent deeds were issued for each of properties identified with each of the Form A applications admitted during trial. These patent deeds conveyed to the homesteaders
the Tract above described [in the patent deed], together with the right to the use of water from the Klamath Reclamation Project as an appurtenance to the irrigable lands in said tract; TO HAVE AND TO HOLD the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8640579. Public record. Not legal advice.