# Amicus Curiae Brief — Orff v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0002%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 596

## Text

{ Supreme Court, US.

FILED
NOV 2 4 2004
- \ OFFICE OF THE CLERK
No. 03-1566
In the
Supreme Court of
the United States
FRANCIS A. ORFF, ET AL.,
Petitioners,
Vv.
UNITED STATES OF AMERICA, ET AL.,
Respondent.

On Writ of Certiorari to
the United States Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF CENTRAL SAN
JOAQUIN WATER CONSERVATION DISTRICT*
IN SUPPORT OF PETITIONER

Nancie G. Marzulla**

Roger J. Marzulla
MARZULLA & MARZULLA
1350 Connecticut Ave., NW
Suite 410

Washington, DC 20036

(202) 822-6760

[*Amici listing continued on next page]

**Counsel of Record for Amici Curiae

{Continued from Cover]
BRIEF AMICI CURIAE OF

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,
STOCKTON EAST WATER DISTRICT,
SUNNYSIDE IRRIGATION DISTRICT,
TULELAKE IRRIGATION DISTRICT, AND
WESTSIDE IMPROVEMENT DISTRICT

QUESTION PRESENTED

Amici curiae will address the following question:

Are farmers intended third-party beneficiaries of their
irrigation district’s water service and repayment contracts
with the U.S. Bureau of Reclamation and, therefore,
entitled to sue Reclamation for breach thereof, as the
Federal Circuit has long held?

iil

TABLE OF CONTENTS
Page
US TRIN FRING eccsccccccccccsccsccsscocssosssesess ili
FAR Ge RAFT CUE hcccsessccccccsssenssscnscnesesies vi
INTEREST OF AMICT CURIAE. .....cccccscccccsccscscescees l
SUMMARY OF ARGUMENT. ......ccccsccscsccccccccccsensss 3
REIT, endisesnnscccithithiidiapioaianiameniaiia 7

I. The Structure of the Reclamation Act and the
Historical Context in Which the Contracts Were
Entered Into, Support the Federal Circuit’s
Conclusion That the Water Supply Contracts
Between the Bureau of Reclamation and
Irrigation Districts Were Intended To Benefit

the End Water Users...

II. Unlike Water Users Under Typical Utility
Contracts, the Waiter Users Under Reclamation
Act Contracts Hold a Property Right To

Receive Project Water

III. As Beneficial Owner of the Water Right and

Beneficial User of the

Water, the Irrigator

Must Be Provided a Legal Process To

Vindicate This Right..

iV

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases:

Barcellos & Wolfsen v. Westlands Water District,

a 8 I ee 4-5
California v. United States, 438 U.S. 645

SP Te tictippiishtesnbshintipehdediiahdeinbunnieieihpiakauniabthaeteteieni 7-8, 9, 19, 25
City of Monterey v. Del Monte Dunes at Monterey,

Bg Fe I CDi civcecncicnstdsecoiescccsenssenccseses 23
Coachella Valley County Water District v. Stevens,

Bes IS Bi Rinccccdsnsoescanvocesianesonensesaenereus 13
Eddy v. Simpson, 3 Cal. 249 (1853)...........ceceecececeecens 24
First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304

Sere ivivcheiacsaseisiiiiitesieisnsigtbeepinphchcnieiibtietiiaietbiaeasaettieaten ta! 23
Fox v. Ickes, 137 F.2d 30 el 8 ee 26
Fullerton v. State Water Resources Control Board,

90 Cal. App. 3d 590 (1979)...........ccccceceececcecece sues 23-24
Henderson County Drainage Dist. No. 3 v.

United States, 53 Fed. Cl. 48 (2002) ...........cccccececeeceees 4
H.F. Allen Orchards v. United States, 4 Cl. Ct. 601
ST iesniceinslisiesincieiicilesbininntaryibtcidasinientiebiaibin ct caaal 3

H.-F. Allen Orchards v. United States, 749 F.2d 1571

(Ped, Cie. 1966)... .ccccccsccsccccccsccccscvccsscocssesces 3-4, 6, 14
Ickes v. Fox, 300 U.S. 82 (1937)........2+-+40 6, 15-16, 25-26
Jacobs v. United States, 290 U.S. 13 (1933)..........eeeeees 20
Kentucky Resources Council, Inc. v. Office of Surface
Mining, 155 IBLA 354 (2001)............ceeeeeeeneeeeee ee cees 19
Klamath Irrigation Dist. v. United States, No. 01-591L
(Dat. 11, DEBE). ccccscccccccccscccscccccccccccscccsescescososescon 2
Klamath Water Users Ass'n v. Patterson, 15 F. Supp.2d
990 (D. Ore. 1998)..........cscecscccccccccrccecccccccscsosceens 15
Klamath Water Users Ass'n v. Patterson, 204 F.3d 1206
(Dths Cie. 1999)... scccccsccccsescsccccccccscoscscccesecesossosose 15
Nebraska v. Wyoming, 325 U.S. 589 (1945).........++++ 6,17

Nevada v. United States, 463 U.S. 110
GP ccdisiicctssvcsccoseccussscesescnsseced 6, 8-9, 18-19, 20, 29

Orff v. United States, 358 F.3d 1137
(Sth Cir. 2004).........sccccccccccccccccccrecsccesescreceneesees 3,4

Peterson v. United States Dep't of Interior, 899 F.2d 799
(Dis Cle. 19BG)... .ccccescccsccscscccscccccccsccscceseces 9-10, 11-12

Rancho Santa Margarita v. Vail, 81 P.2d 533, 11
Cal.2d 501 (1938).........ccscccccccccccccccccccccscscsscsossscees 24

Stockton East Water Dist. v. United States, No. 04-541L

ae TD athcptiinnsinenesihicniiibiidnliaiddaaniaiinietddie: 2
Sumner Peck Ranch, Inc. v. Bureau of Reclamation,

oe 8 Re FE re nenTe 5
Constitutions:

Fh + EN OT Um SE 20
Statutes:

Act of May 15, 1922, 42 Stat. 541 (1922).......ccccssseeeeesee1 0

Act of July 10, 1952, 66 Stat. 560 (1952)..............0.eee 21
Omnibus Adjustment Act of May 25, 1926,

ee PE sich iicsiteniicumninitiingunienabshalaiens 10-11
Reclamation Act of 1902, 32 Stat. 388 (1902)............ 7, 25
Cal. Water Code § 102 (2004)..............ccccsceccccececeeee 23
Cal. Water Code § 1201...... uininadieeninidinnniiécedeibamandl 24
ee Ne We iciilinedaddbdnsitiitiindeeiadaticencd 24
hg RARER ERENCE ee PER eee E MRS eee PAL 24
i ii i a a a 24
Se Ce II OE Bi iciisicsisissscdusnnosadecnedicieubuccmns 12

Vili

Cal. Water Code § 31150.............csceceeeeereeeeeeeeeeeees 12
Cal. Water Code § 35875............ccscecccecceccesceseeeceees 12
Cal. Water Code § 44000.............cccceeeeeeeeeeee een ens 12-13
Cal. Water Code § 50970.............ccceeeeeeereeeeeeeeeeeeees 13
Cal. Water Code § 74610...........ccceececereeeeeee eee eneenees 13
Or. REV. STAT. § 545.511 (2004)..........:eceeeeee eee eeeeeee 13
OR. REV. STAT. § 547.355.........ccecceceeeetereeeeeeeeeeeeens 13
OR. REV. STAT. § 552.350..........sssceececeererereececeeoenns 13
OR. REV. STAT. § 553.710............scsccccecceeecereseeceeees 13
OR. REV. STAT. § 554.260..........0cscececeeceeeeeeneeeeneeees 13
Rules:

B. Cd, Rabe SPB. cccccscccccccsscsccsccccscvcscssesessescvesseceess |
B. Cd. Ratha SPB ..ccccccccsccccsccccccscsccsesccsccnccvcccscsscsoes ]
Other Authorities:

A Bill to Authorize Suits Against the United States
to Adjudicate and Administer Water Rights Be >re
a Subcommittee of the Committee on the Judiciary
of the United States Senate, 82nd Cong. (Apr. 25,

ix

Aug. 3 and 8, 1951) (statement of William H.

Veeder, Special Assistant to Attorney General,
DOJ)

Reed D. Benson, Whose Water Is It? Private Rights
and Public Authority Over Reclamation Project Water,
16 VA. ENVTL. L.J. 363, 387-88 (1997)........ccceceeee. 10-11

Bureau of Reclamation, About Us,
http://www.usbr.gov/main/about/ (last visited
IU I IO ihiecsiescciiemsiusinciiine bes ike 2-3

Department of Interior, Departmental Manual, 209 DM

3.2, Authority in Specified Matters, available at
http://elips.doi.gov/elips/release/3537.htm (last visited
dg RGR Seen nen MRED mE 19

Filings of Claims for Water Rights in General Stream
Adjudication, Op. Solicitor, Dep’t of Interior, 97

Interior Dec. 21, 1989 WL 506913 at *1 (July 6,

Se natiapainaiitnnentonsdninsisdbiniaensibanceaiats 19, 20-21, 27-29

Arthur L. Littleworth & Eric L. Garner, California
UT PUI stiches ii al 24

Frank J. Trelease, Reclamation Water Rights, 32
Rocky Mtn. L. Rev. 464, 465 (1960)...........ccccccceceeceeee 9

Amici curiae submit this brief supporting petitioners;

all parties have consented to its filing. See S. Ct. Rule 37.3.
INTERESTS OF AMICI CURIAE

Amici curiae consist of fifteen water-management
districts (Districts) in Oregon and California that receive
water stored by the Bureau of Reclamation in its Klamath
and Central Valley Projects. Amici curiae are the: Central
San Joaquin Water Conservation District; 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; Stockton East Water
District; Sunnyside Irrigation District; Tulelake Irrigation
District; and Westside Improvement District.

All of these Districts, amici curiae, contract with the
Bureau of Reclamation (Reclamation) for delivery of project
water to the end users—farmers on tens of thousands of acres
of high-value agricultural land; the farmers all possess a

property right to receive the water from the Reclamation

' No counsel for any party to the case authored this brief amici curiae,
either in whole or in part. Furthermore, no persons other than amici
curiae contributed financially to the preparation of this brief. See S. C:.
Rule 37.6.

projects. All of these Districts presently have suits pending
against the United States under the Tucker Act in the U.S.
Court of Federal Claims, seeking monetary damages for
breach of their water service contracts or for payment of just
compensation, in a representative capacity on behalf of their
water users. Reclamation’s failure to deliver this water to the
Districts has caused the Districts to seek monetary damages
in the U.S. Court of Federal Claims under the Tucker Act for
breach of the water deliver contracts or for the
unconstitutional taking of their water rights. See Klamath
Irrigation Dist. v. United States, No. 01-591L (Oct. 11,
2001); Stockton East Water Dist. v. United States, No. 04-
541L (April 20, 2004).

How this Court defines intended third-party
beneficiary status could have a profound effect on the rights
and obligations of all Reclamation Act project contract
holders, including amici curiae. Reclamation has constructed
more than 600 dams and reservoirs in 17 Western states. Of
these, Reclamation administers 348 reservoirs with a total
storage capacity of 245 million acre-feet, providing one out
of five Western farmers (140,000) with irrigation water for
10 million acres of farmland (on which they produce 60
percent of the nation’s vegetables and 25 percent of its fruit

and nuts). See Bureau of Reclamation, About Us,

http://www.usbr.gov/main/about/ (last visited November 22,
2004).
SUMMARY OF THE ARGUMENT
At issue in this case is whether water users, who
receive water from a U.S. Bureau of Reclamation
(Reclamation) water project pursuant to a contract between
Reclamation and an irrigation district, are the intended
beneficiaries of that contract and therefore, entitled to sue for
breach of contract damages under it. This case asks the
Court to pick between decisions of two Circuit Courts of
Appeal, reversing a Ninth Circuit Court of Appeals decision,
Orff v. United States, 358 F.3d 1137 (9th Cir. 2004), and
adopting the Federal Circuit’s analysis set forth in H.F. Allen
Orchards v. United States, 749 F.2d 1571 (Fed. Cir. 1984).
In H.F. Allen Orchards, the Federal Circuit

concluded that the water users were the intended third-party
beneficiaries of the contracts between Reclamation and the
water district. The trial court had dismissed a suit brought by
160 water users as third-party beneficiaries of irrigation
districts’ contracts with Reclamation on two grounds: (1)
lack of third-party beneficiary status; and (2) lack of merits.
See H.F. Allen Orchards v. United States, 4 Cl. Ct. 601
(1984). The Federal Circuit reversed on the first holding, but

affirmed on the second:

The irrigation districts, which contracted
with the Bureau, act as a surrogate for the
aggregation of farmers. They use no water
themselves. The farmers ultimately pay for
all the services which the government
supplies. It is clear that the appellants,
owners of the property at issue, the water,
also are intended third-party beneficiaries of
the 1945 Consent Decree. Under the rules of
the Claims Court “every action shall be
prosecuted in the name of the real party in
interest.” Here the farmers, owners of the
water and beneficiaries of the irrigation
projects, are the true parties in interest.
Id. at 1572-73, 1576; see also Henderson County Drainage
Dist. No. 3 v. United States, 53 Fed. Cl. 48 (2002) (holding
that individual farmers were third-party beneficiaries to a
contract entered into between their drainage districts and the

United States).

The minority view, represented by the Ninth Circuit’s
decision in Orff v. United States, 358 F.3d 1137 (9th Cir.
2004), reached a different conclusion, holding that the water
users were not the intended third-party beneficiaries of the
contract between Reclamation and the water district. Jd. Not
only is the Orff decision at odds with decisions from the
Federal Circuit, it is at odds with other Ninth Circuit cases
involving the same contract and same farmers. Compare Orff
v. United States, 358 F.3d 1137 (9th Cir. 2004) with
Barcellos & Wolfsen v. Westlands Water District, 899 F.2d

~-

814, 816 (9th Cir. 1990) (holding water users were third-
party beneficiaries under irrigation districts’ contracts with
Reclamation); Sumner Peck Ranch, Inc. v. Bureau of
Reclamation, 823 F. Supp. 715, 731-33 (E.D. Cal. 1993)
(recognizing plaintiffs landowners as third-party
beneficiaries to the 1963 and 1965 contracts between the
United States and Westlands).
As the Federal Circuit correctly concluded in H.F.
Allen Orchards, the historical context of these water delivery
contracts and the statutory structure of the Reclamation Act
force an inexorable conclusion that the end water users are
the intended third-party beneficiaries of these water delivery
contracts. Any other result would be untenable because the
subject matter of the contract, the right to receive the water,
is held by the water user. Indeed, as the U.S. Department of
Interior has repeatedly observed, under state law, neither the
water district nor Reclamation can own the water right
because they do not put the water to beneficial use; rather,
the water right resides in the water user, who most typically
is a farmer who puts the water to beneficial use by irrigating
his farm crops.
The ability of water users to seek damages for the

government's refusal to deliver their water to them under the
contract is crucial because in recent years, Reclamation has

adopted policies that favor use of the water for environmental

objectives (such as protecting endangered fish) over the
contractually intended delivery of the water to farmers for
agricultural use. As a result, increasingly, Reclamation
chooses to dramatically reduce or not deliver any water at all
to the water districts, leaving the water users, farmers, with
no water with which to grow their crops. Yet, it is the farmers
themselves, and not the water districts, that ultimately suffer
when the government breaches the water delivery contracts.
Amici curiae urge this Court to adopt the rule of law

set forth by the Federal Circuit, recognizing that landowners
do have the right to sue as third-party beneficiaries of
irrigation contracts. H.F. Allen Orchards v. United States,
749 F.2d 1571, 1576 (Fed. Cir. 1984). The Federal Circuit
observed that irrigation districts act as a “surrogate for the
aggregation of farmers” and that their constituents are the
true parties in interest in this type of litigation. Jd. In
upholding the right of the water user to sue individually, the
Federal Circuit followed established precedent of this Court
and reclamation jurisprudence. See, e.g., Ickes v. Fox, 300
U.S. 82 (1937); Nebraska v. Wyoming, 325 U.S. 589 ( 1945);
Nevada v. United States, 463 U.S. 110 (1983). Accordingly,
the Ninth Circuit’s deviation from traditional notions of

water (property) rights and reclamation law should be

reversed.

ARGUMENT

1. The Structure of the Reclamation Act and the
Historical Context in Which the Contracts Were
Entered Into, Support the Federal Circuit’s
Conclusion That the Water Supply Contracts
Between the Bureau of Reclamation and Irrigation
Districts Were Intended To Benefit the End Water

Users.

The contract under scrutiny in this case is a highly
specialized agreement, the terms of which are largely
dictated by the federal Reclamation Act of 1902. The two
entities that entered into the contract, the Bureau of
Reclamation and the Westlands Water District, owe their
existence to the reclamation laws passed by Congress and 17
Western states. These water delivery and repayment
contracts, including the one at issue in this case, can be
understood only in the historical and legislative framework in
which they were forged.

On the numerous occasions on which this Court has
been called upon to interpret the provisions of the
Reclamation Act of 1902, 32 Stat. 388 (1902), the Court has
repeatedly noted the role that statute played in transforming
the arid Wes: from desert into a vast region of fruitful family
farms:

In order to correctly ascertain the meaning

of the Reclamation Act of 1902, we must
recognize the obvious truth that the history

of irrigation and reclamation before that date
was much fresher in the minds of those then
in Congress than it is to us today. “[{The]
afternoon of July 23, 1847, was the true date
of the beginning of modern irrigation. It was
on that afternoon that the first band of
Mormon pioneers built a small dam across
City Creek near the present site of the
Mormon Temple and diverted sufficient
water t> saturate some 5 acres of
exceeding! dry land. Before the day was
over they had planted potatoes to preserve
the seed.” During the subsequent half
century, irrigation expanded throughout the
arid States of the West, supported usually by
private enterprise or the local community.
By the turn of the century, however, most of
the land which could be profitably irrigated
by such small-scale projects had been put to
use. Pressure mounted on the Federal
Government to provide the funding for the
massive projects that would be needed to
complete the reclamation, culminating in the
Reclamation Act of 1902.

California v. United States, 438 U.S. 645, 648-49 (1978)
(citations omitted).

[With the passage of the Reclamation Act
of 1902, the Federal Government was
designated to play a more prominent role in
the development of the West. That Act
directed the Secretary of the Interior to
withdraw from public entry arid lands in
specified western States, reclaim the lands
through irrigation projects, and then to
restore the lands to entry pursuant to the

homestead laws and certain conditions
imposed by the Acct itself.

Nevada v. United States, 463 U.S. 110, 115 (1983) (citation
omitted).
In enacting the Reclamation Act, “Congress set forth
on a massive program to construct and operate dams,
reservoirs, and canals for the reclamation of the arid lands in
17 Western states.” California, 438 U.S. at 650. A
“revolving fund was established with moneys received from
the sale of public lands, and the Secretary of Interior was
directed to survey the west and locate and construct irrigation
projects, opening up the improved lands to settlement under
the homestead laws .. . . Construction costs were to be repaid
into the fund by the settlers and landowners in ten annual
installments without interest.” Frank J. Trelease, Reclamation
Water Rights, 32 Rocky Mtn. L. Rev. 464, 465 (1960).
Indeed, as the Ninth Circuit stated,
The Congress that enacted the Reclamation
Act of 1902, however, had far greater
expectations for the program than simply an
increase in the West’s agricultural
production. With the Reclamation Act,
Congress created a blueprint for the orderly
development of the West, and water was the

instrument by which that plan would be
carried out.

Peterson v. United States Dep't of Interior, 899 F.2d 799,
802 (9th Cir. 1990).

Under the Reclamation Act, as originally conceived,
the Bureau of Reclamation dealt directly with the farmers,

delivering water to them and collecting repayments of the

required that all future contracts be made
only with irrigation districts. Thus, users
now receive reclamation project water
through an intermediary, which may be an
irrigation district, a conservancy district, a
water user’s association, or some other form
of organization.

» es , q
cost of constructing the project facilities. The parties soon Reed D. Benson, Whose Water Is It? Private Rights an
Public Authority Over Reclamation Project Water, 16 VA.

ENVTL. L.J. 363, 387-88 (1997).

realized, however, the significant benefits of organizing a

“water users association,” the forerunner of the modern water

district.?
Congress then authorized Reclamation to contract
with districts rather than individual users, and, in the

Omnibus Adjustment Act of 1926,°

* The Act of May 15, 1922, provides in pertinent part:
That in carrying out the purposes of the Act of June 17,
1902 . . ., and Acts amendatory thereof and
supplementary thereto, and known as and called the
reclamation law, the Secretary of the Interior may enter
into contract with any legally organized irrigation
district whereby such irrigation district shall agree to
pay the moneys required to be paid to the United States,
and in such event water-right applications on the part of
landowners and entrymen, in the discretion of the
Secretary of the Interior, may be dispensed with... .

42 Stat. 541 (1922) (codified in 43 U.S.C § 511).

* The Omnibus Adjustment Act of May 25, 1926, provides in pertinent

part:
No water shall be delivered upon the completion of
any new project or new division of a project initiated
after May 25, 1926, until a contract or contracts in
form approved by the Secretary of the Interior shall
have been made with an irrigation district or
irrigation districts organized under State law
providing for payment by the district or districts of

10

Originally, the Department of the Interior
was given responsibility not only for
constructing the reclamation projects, but
also for administering the distribution of
water to agricultural users in a project
service area. In 1926, however, Congress
amended the reclamation laws to remove
from the Department the primary
responsibility for distributing water and
monitoring its use. Omnibus Adjustment Act
§ 46, 43 U.S.C. § 423e. Instead, the
Secretary of the Interior was directed to
enter into long-term water service contracts

the cost of constructing, operating, and maintaining
the works during the time they are in control of the
United States, such cost of constructing to be repaid
within such terms of years as the Secretary may find
to be necessary, in any event not more than forty
years from the date of public notice hereinafter
referred to, and the execution of said contract or
contracts shall have been confirmed by a decree of a
court of competent jurisdiction. . . .

Omnibus Adjustment Act of May 25, 1926, ch. 383, § 46, 44
Stat. 636 (1926) (codified in 43 U.S.C. § 423 (2004)).

11

with irrigation districts organized under state
law. It was left to the individual districts to
execute subcontracts with the actual users of
water and to deliver the water.

Peterson v. United States Department of the Interior, 899
F.2d 799, 804 (9th Cir. 1990).

To enable water users in reclamation projects to
comply with the new requirement that they contract through
districts, in 1917, the California legislature enacted a
statutory authorization for the creation of water districts, such
as Westlands and some of amici, for the express purpose of
entering into contracts with the Bureau of Reclamation for
delivery of water to their water users and collecting the
payments due to Reclamation.

Districts may cooperate and contract with
the United States under the Federal
Reclamation Act of June 17, 1902, and all
acts amendatory thereof or supplementary
thereto or any other act of Congress
heretofore or hereafter enacted permitting
cooperation.

Cal. Water Code § 23195 (2004); see also Cal. Water Code §
31150 (authorizing “County water districts” to contract with
federal government under reclamation laws); Cal. Water
Code § 35875 (authorizing “California water districts” to
contract with federal government under reclamation laws);

Cal. Water Code § 44000 (authorizing “California water

12

storage districts” to contract with federal government under
reclamation laws); Cal. Water Code § 50970 (authorizing
“reclamation districts” to contract with federal government
under reclamation laws); Cal. Water Code § 74610
(authorizing “water conservation districts” to contract with
federal government under reclamation laws).*

As the California Supreme Court has noted, in
entering into contracts, performing them, and suing to
enforce them, a water district is acting as a representative of
its landowners and water users. Coachella Valley County
Water District v. Stevens, 274 P. 538, 542 (Cal. 1929) (“[NJo
good reason has been suggested why . . . the landowners and
other water users in the district may not set up such a
governmental agency to act in a representative capacity in
their behalf.”)

* The Oregon legislature adopted similar legislation. See Or. Rev. Stat. §
545.511 (2004) (authorizing Board of Directors of irrigation districts to
order that an election to authorize contracts with the United States); Or.
Rev. Stat. § 547.355 (authorizing the board of supervisors of drainage
districts to enter into reclamation contracts with the United States); Or.
Rev. Stat. § 552.350 (authorizing Oregon “water improvement districts”
to “cooperate with the United States in the manner provided by Congress
for flood control, reclamation, conservation and allied purposes”); Or.
Rev. Stat. § 553.710 (authorizing Oregon “water control districts” to
enter into contracts for construction of works); Or. Rev. Stat. § 554.260
(authorizing the Board of Directors of Oregon corporations for irrigation,
drainage, water supply or flood control to enter into a contract with the
United States for maintenance and operation of any works).

As the Federal Circuit stated in finding that
the water users are third-party beneficiaries of these
contracts with the Bureau of Reclamation:

The irrigation districts, which contracted

with the Bureau, act as a surrogate for the

aggregation of farmers. They use no water
themselves. The farmers ultimately pay for
all the services which the government
supplies. It is clear that the appellants,
owners of the property at issue, the water,

also are intended third-party beneficiaries of
the 1945 Consent Decree.

H.F. Allen Orchards v. United States, 749 F.2d 1571, 1576
(Fed Cir. 1984) (citations omitted).

Il. Unlike Water Users Under Typical Utility
Contracts, the Water Users Under Reclamation
Act Contracts Hold a Property Right To Receive

Project Water.

As the Federal Circuit explained in H.F. Allen
Orchards, what makes the water delivery contract at issue in
this case distinguishable from a typical utility contract is that
the water users, the third-party beneficiaries, have
constitutionally protected rights to the project water upon
which the water delivery contracts between Reclamation and
the water district are based. H.F. Allen Orchards v. United
States, 749 F.2d 1571, 1576 (FeAl Cir. 1984) (“The irrigation

districts, which contracted with Reclamation, act as a

14

surrogate for the aggregation of farmers. They use no water
themselves. The farmers ultimately pay for all the services
which the government supplies.”).°

In the seminal case on this issue, Jckes v. Fox, 300
U.S. 82 (1937), a suit by 160 of Washington’s Yakima
Project water users to enjoin the Secretary’s threat to cut off
their irrigation water, this Court rejected the government’s
argument that such water users’ rights were defined solely by
the Sunnyside Water Users’ Association’s water delivery
contract with the United States. (Their third-party
beneficiary status under the contract does not appear to have
been questioned.) Holding that the reclamation project water
users hold vested property rights to receive their water from
Reclamation, quite apart from any contractual provision, this
Court stated:

Although the government diverted, stored,
and distributed the water, the contention of

5 Indeed, the water delivery contracts at issue in this case are
distinguishable from the contract at issue in Klamath Water Users Ass'n
v. Patterson, 204 F.3d 1206 (9th Cir. 1999), which was a contract to
operate a dam to produce hydropower. Klamath Water Users Ass'n v.
Patterson, 15 F. Supp.2d 990, 992 (D. Ore. 1998). In Patterson, the
district court had recognized that plaintiffs’ water rights derived from
their water delivery contracts, not the 1956 hydropower contract: “The
1956 contract is not the source of plaintiffs’ rights to water in the
Klamath Basin. Rather, their water rizhts are found primarily in their
individual repayment contracts with the federal government and in state
water law.” /d. at 996. The Ninth Circuit agreed.

15

petitioner that thereby ownership of the Id. at 95-96.
water or water-rights became vested in the
United States is not well founded.
Appropriation was made not for the use of
the government, but, under the Reclamation
Act, for the use of the landowners; and by
the terms of the law and of the contract
already referred to, the water rights became
the property of the landowners, wholly
distinct from the property right of the
government in the irrigation works. The
government was and remained simply a

Next, in Nebraska v. Wyoming, 325 U.S. 589 (1945),
an original proceeding to apportion the waters of the Platt
River, the United States claimed ownership of waters
impounded by the North Platt and Kendrick Act projects.
Rejecting the United States’ argument, this Court reiterated
its Ickes holding that the water users (here represented by the
state) held a property right in the reclamation project water:

carrier and distributor of the water, with the
right to receive the sums stipulated in the
contracts as reimbursement for the cost of
construction and annual charges for
operation and maintenance of the works. As
security therefore, it was provided that the
government should have a lien upon the
lands and the water rights appurtenant
thereto — a provision which in itself imports
that the water rights belong to another than
the lienor, that is to say, to the landowner.

Id. at 94-95 (citations omitted).

This Court so declared because the Reclamation

water right was appurtenant to the land:

[I]t long has been established law that the
right to the use of water can be acquired
only by prior appropriation for beneficial
use; and that such right when thus obtained
isa property right, which, when acquired for
irrigation, becomes, by state law and here by
express provision of the Reclamation Act as
well, part and parcel of the land upon which
it is applied.

16

The property right in the water right is
separate and distinct from the property right in
the reservoirs, ditches or canals. The water
right is appurtenant to the land, the owner of
which is the appropriator. The water right is
acquired by perfecting an appropriation, i.e.,
by an actual diversion followed by an
application within a reasonable time of the
water to a beneficial use. Indeed [Section] 8
of the Reclamation Act provides as we have
seen 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.”

*** *

The rights of the United States in respect to
the storage of water are recognized. So are
the water rights of the landowners. To
allocate those water rights to the United States
would be to disregard the rights of the
landowners.

Id. at 614-16 (citations omitted).

17

And, in Nevada v. United States, 463 U.S. 110
(1983), this Court prohibited the Bureau of Reclamation from
depriving water users in Nevada’s Newlands Project of their
property right to receive water. This Court opened its
analysis by stating: “We are bound to say that the
Government’s position, if accepted, would do away with half
a century of decided case law relating to the Reclamation Act

of 1902 and water rights in the public domain of the West.”
Id. at 121.

After reviewing its prior holdings in Jckes and
Nebraska, this Court then stated:

In the light of these cases, we conclude that
the Government is completely mistaken if it
believes that the water rights confirmed to it
by the Orr Ditch decree in 1944 for use in
irrigating lands within the Newlands
Reclamation Project were like so many
bushels of wheat, to be bartered, sold, or
shifted about as the Government might see
fit. Once these lands were acquired by
settlers in the Project, the Government’s
“ownership” of the water rights was at most
nominal; the beneficial interest in the rights
confirmed to the Government resided in the
owners of the land within the Project to
which these water rights became
appurtenant upon the application of Project
water to the land. As in Jckes v. Fox and
Nebraska v. Wyoming, the law of relevant
State and the contracts entered into by the
landowners and the United States make this

18

point very clear.
Id. at 126.

The United States itself has affirmed the vitality of
these holdings that reclamation project water users own a
property right in the project’s water. See Filings of Claims
for Water Rights in General Stream Adjudication, Op.
Solicitor, Dep’t of Interior, 97 Interior Dec. 21, 25; 1989 WL
506913 at *1, 5 (July 6, 1989) (“[T]he water user who puts
the project water to beneficial use obtains a vested property
interest in the water right.”). This interpretation is entitled to
great weight. California v. United States, 438 U.S. 645, 676
n.30 (1978).° _

® This Solicitor’s Opinion is, in fact, binding on all Interior Department
officials. As the Department of Interior, Department Manual states:
A. The responsibilities of the Solicitor in 209 DM 3.1A
include but are not limited to the authority:

(11) To issue’ final legal

interpretations, in the form of M-

Opinions published in Decisions of

the United States Department of the

Interior, on all matters within the

jurisdiction of the Department, which

shall be binding, when signed, on all

other Departmental offices and

officials and which may be overruled

or modified only by the Solicitor, the

Deputy Secretary, or the Secretary.
Department of Interior, Departmental Manual, 209 DM 3.2, Authority in
Specified Matters, available at http://elips.doi.gov/elips/release/3537.htm
(last visited November 19, 2004). In Kentucky Resources Council, Inc. v.
Office of Surface Mining, 155 IBLA 354 (2001), the Interior Department
Board of Appeals stated that under this provision, it was bound to follow
the analysis of a prior Interior Solicitor’s Opinion: “Because we are

19

Petitioners hold water rights that entitle them to
receive all the water from the reclamation project that they
can beneficially use. CAL. CONST. Art. X, § 2. In Western
water law, any right to the use of surface water for irrigation
water is appurtenant to the land, subject to beneficial use.
Nevada v. United States, 463 U.S. 110, 126 (1983) (“Once
these lands were acquired by settlers in the Project, the
Government’s ‘ownership’ of the water rights was at most
nominal; the beneficial interest in the rights confirmed to the
Government resided in the owners of the land within the
Project to which these water rights became appurtenant upon
the application of Project water to the land.”).

“The Supreme Court has determined that for water
rights obtained by the Bureau in the name of the United
States, the water user who puts the project water to beneficial
use obtains a vested property interest in the water right.” 97
Interior Dec. 21, 25; 1989 WL 506913 at *1,5. The
Solicitor’s 1989 opinion comprehensively analyzes the
property right in the water use arising from the beneficial use
of the water:

Since Ickes v. Fox, the principal that the
proprietary interest in the project water right is
in the project water users who put the water to

bound by the Solicitor’s Opinion, as approved by the Secretary, see 209
DM 3.2A(11), we review the OSM Assistant Director’s July 20, 1994,
decision in accordance with the analysis in that Opinion.” Jd. at 355.

20

beneficial use has been reaffirmed by the
Supreme Court on two occasions. In
Nebraska v. Wyoming, 325 U.S. 589 (1045),
the Court . . . found that individual
landowners who had put the project water to
beneficial use, thereby “perfecting” the water
right obtained by the United States, had
“become the appropriators of the water rights,
the United States being the storer and the
carrier.”

** *

Finally, in Nevada v. United States, the
Supreme Court addressed Government
arguments that water decreed to the United
States for the Newlands reclamation project in
Nevada could be reallocated to an Indian
reservation.

* * *

With the issuance of Nevada v. United States,
the Supreme Court, conclusively reaffirmed
the concept that beneficial ownership of
reclamation project water right is in the water
users who put the water to beneficial use.

97 Interior Dec. 21, 26-27; 1989 WL 506913 at *1, 6
(citations omitted).
Further, in connection with passage cf the McCarran

Amendment’ in 1951, the Justice Department told the Senate

’ The McCarran Amendment was enacted to permit the joinder of the
United States as a party defendant in any suit for the adjudication of
rights to the use of water. Act of July 10, 1952, § 208(d), 66 Stat. 560.

21

that the water users’ water rights are compensable property

rights:

Mr. Veeder: Certainly they have a legal
remedy in damages always where the United
States has taken more water than it should
have. The fifth amendment of the
Constitution is the greatest guaranty to a
water user that he is not going to be
damaged.

Senator Watkins: How can he enforce it?
Mr. Veeder: He simply goes into the
Federal district court and sues the United
States if it is not over $10,000. If it is over
$10,000 he goes to the Court of Federal
Claims. We are confronted with that all the
time. The Gerlach case [United States v.
Gerlach Live Stock Co., 339 US. 725
(1950)] is a historic case. They came in and
sued us and we paid them.

** *

Senator Watkins: Suppose it interferes
substantially with the rights of others when
they impound it? If it does, what happens
then?

Mr. Veeder: I think, then, if any act that we
do transgresses the rights of any individual,
in my estimation the fifth amendment
protects them completely, and they can sue
us.

A Bill to Authorize Suits Against the United States to
Adjudicate and Administer Water Rights Before a

Subcommittee of the Committee on the Judiciary of the
United States Senate, 82nd Cong. (Apr. 25, Aug. 3 and 8,

22

1951) (statement of William H. Veeder, Special Assistant to
Attorney General, DOJ).

Thus, as the Government has previously conceded on
numerous occasions, water users’ rights in this water are
compensable property, and the very legislative scheme that
permits the government to contract with irrigation districts
was created specifically to help landowners manage that
property. The Fifth Amendment requires that those
landowners have the ability to vindicate the taking of those
property rights by an action for just compensation. See First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304 (1987) (holding state
constitutionally required to provide just compensation
remedy); City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687 (1999) (holding plaintiff had right to jury
trial to determine just compensation).

Ill. As Beneficial Owner of the Water Right and

Beneficial User of the Water, the Irrig..0 Must

Be Provided a Legal Process To Vindicat: This

Right.

In California, as in the other western states, “[a]ll
water within the State is the property of the people of the
State, but the right to the use of water may be acquired by
appropriation in the manner provided by law.” Cal. Water

Code § 102 (2004). Thus, the term “water right” denotes the

23

legal right in California “to use the water.” Fullerton v. State
Water Resources Control Board, 90 Cal. App. 3d 590, 598
(1979); Rancho Santa Margarita v. Vail, 81 P.2d 533, 11
Cal.2d 501, 554-55 (1938); Eddy v. Simpson, 3 Cal. 249, 252
(1853).

Since 1914, the manner provided by California law
for the acquisition of surface water rights has been
appropriation by the State Water Resources Control Board
and its predecessors, which possess sole authority to grant
rights to divert and store appropriated surface water in
California. Cal. Water Code §§ 1201, 1202, 1225; see also
Cal. Water Code § 1253 (“The board shall allow the
appropriation for beneficial purposes of unappropriated water
under such terms and conditions as in its judgment will best
develop, conserve, and utilize in the public interest the water
sought to be appropriated.”’).

Because water is a scarce commodity, California, like
the other Western states, has adopted the doctrine of
beneficial use, which “prohibits waste of water, requires
reasonableness of use, method of use, and method of
diversion for all uses of water. . . .To the extent the use is
wasteful or otherwise unreasonable, it is not part of a water
right.” Arthur L. Littleworth & Eric L. Garner, California
Water 28 (1995). Under this doctrine it is the water users,

not Reclamation, who make beneficial use of the irrigation

24

water, and this is the sine qua non of the water right permits
issued by the California State Water Board. See, e.g.,
California v. United States, 438 U.S. 645, 650-52 (1978) (“If
the term “cooperative federalism” had been in vogue in 1902,
the Reclamation Act of that year would surely have qualified
as a leading example of it... . The history of the relationship
between the Federal Government and the States in the
reclamation of the arid lands of the Western States is both
long and involved, but through it runs the consistent thread of
purposeful and continued deference to state water law by
Congress.”).

Congress, in the Reclamation Act itself, established
that:

The right to the use of water acquired under
the provision 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.
Reclamation Act of 1902, ch. 1093 § 8, 32 Stat. 388 (1902)
(amended and codified in 43 U.S.C. § 372 (2003)).

Accordingly, in Ickes, this Court determined that an :
arbitrary contractual limit on the quantity of water to be
delivered to Yakima Project irrigators was superceded by the
beneficial use rule embedded in both the Reclamation Act
and state law because “Under the Reclamation Act, . . . as

well as under the law of Washington, ‘beneficial use’ was

25

‘the basis, the measure, and the limit of the right.’” Jckes v. put the water to beneficial use.” 97 Interior Dec. 21, 27; 1989

Fox, 300 U.S. 82, 94 (1937) (citation omitted). WL 506913 at *1, 6.
On remand, the D.C. Circuit Court of Appeals With respect to the Government’s mere legal title to
expanded on this holding: project water, the Interior Solicitor observed:

The water-rights of appellants are not
determined by contract but by beneficial use.
The Secretary of the Interior in operating the
project is in the position of a carrier of water
to all entrymen in the Reclamation project.
He is not obligated to furnish any more water
than is available. Under the Reclamation Act
he is not authorized to furnish any water at all
except for beneficial use. He must distribute
the available water according to the priorities
among the different users which are
established by the law of the State of
Washington.

At first glance, the pronouncement of the
Supreme Court in Ickes and Nebraska would
appear to indicate that upon application by
water users of project waters to beneficial
uses, all interests incident to the water right
flow to the project water users. However, as
pointed out in Nebraska v. United States,
these cases “discuss[] the beneficial
ownership of water rights in irrigation
projects build pursuant to the Reclamation
Act.” Nevada likewise clarifies that where
project water rights are obtained by and
remain in the name of the United States, the

Federal Government retains legal title. This
point is important because the Court in
Nevada speaks of “obligations that
—_ necessarily devolve upon [the United States]
Fox, the principle that the proprietary interest in the project from having mere title to water rights . . .”

Fox v. Ickes, 137 F.2d 30, 33 (D.C. Cir. 1943).

As the Interior Solicitor noted in 1989, “Since Ickes v.

water right is in the project water users who put th t
Pro) ae ee 97 Interior Dec. 21, 27; 1989 WL 506913 at *1, 6 (citations

omitted). After recognizing the limited claim the United
States had to this water, the Solicitor noted the obligations

beneficial use has been reaffirmed by the Supreme Court on
two occasions.” 97 Interior Dec. 21, 26; 1989 WL 506913 at
*1,6. The Interior Solicitor also stated that “[w]ith the

, incumbent upon the Government by virtue of possession of
issuance of Nevada v. United States, the Supreme Court,

that title:

conclusively reaffirmed the concept that beneficial ownership First, it appears clear that the Court in
i

of a reclamation project water right is in the water users who Nevada was referring to the obligation of
this Department to obtain necessary water
rights for authorized projects pursuant to

26 27

section 8 [of the Reclamation Act]. The
Court, in reviewing the dual responsibilities
that Congress placed upon the Secretary to
represent Indian interest and also obtain
project water rights stated: “ . . . Congress
has imposed upon the United Stats in
addition to its duty to represent Indian tribes,
a duty to obtain water rights for reclamation
projects...”

Beyond the obligation to obtain water, we
also find support in Nevada for the
proposition that the United States is
obligated at least to do what is necessary to
preserve, maintain, protect, or have
confirmed project water rights that are held
in the name of the United States. While less
explicit than the obligation to obtain initially
the water right, we believe the Court’s
further discussion of the United States’
general obligations to deliver water to the

Reservation use with an earlier priority.” In
rejecting the Government’s position, the
Court pointed out that the argument that
water decreed to the United States in the Orr
Ditch decree for project purposes could be
reallocated away from those purposes,
“seems wholly to ignore . . . the obligations
that necessarily devolve upon [the United
States] from having mere title to water rights
for the Newlands Project, when the
beneficial ownership of these water rights
resides elsewhere.” Thus, in attempting to
reallocate water away from the project, the
Federal Government was ignoring and
failing to meet its obligation, as titleholder
of the project water right, to maintain the
project water supply in the amount which
had previously been decreed to the project
and to which the water users had acquired
beneficial ownership.

97 Interior Dec. 21, 28; 1989 WL 506913 at *1, 7 (citations
omitted).
In sum, Reclamation is constrained by the fact that

title to the water is divided. As noted, the federal

beneficial owners of project water rights
indicates this result. In Nevada, the Court
specifically held that the Government could
not reallocate project water in a manner that
would impair its obligation as legal
titleholder to deliver project water to project

beneficiaries . .. . government retains only legal title to reclamation water.
97 Interior Dec. 21, 27-28; 1989 WL 506913 at *1, 7 Nevada v. United States, 463 U.S. 110, 127 (1983); 97
(citations omitted). Interior Dec. 21, 29, 1989 WL 506913 at *1, 8. Reclamation

The Federal Government opened its brief in is not the beneficial user of the water, a point that it has long-
Nevada by stating: “The court of appeals has
simply permitted a reallocation of the water
decreed in Orr Ditch to a single party — the

United States — from reclamation uses to a

since conceded. That beneficial interest in the water is a
vested property right appurtenant to petitioners’ lands, and

beneficial use is the “measure and limit” of that right.

28 29

Therefore, because the law recognizes both the beneficial
interest and the property interest of landowners in the water
(of which they make beneficial use), the Fifth Amendment
requires a procedure by which that right can be vindicated.
See, e.g., Jacobs v. United States, 290 U.S. 13, 16 (1933)
(“The-suits were based on the right to recover just
compensation for property taken by the United States for
public use in the exercise of its power of eminent domain.
That right was guaranteed by the Constitution.”).
CONCLUSION

For all of these reasons, amici curiae urge this Court

to reverse the decision below.

Respectfully submitted,

Nancie G. Marzulla*

Roger J. Marzulla
MARZULLA & MARZULLA
1350 Connecticut Ave., N.W.
Suite 410

Washington, DC 20036

(202) 822-6760

Dated: November 26, 2004 *Counsel of record for Amici
Curiae

—

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0002%3A14. Public record. Not legal advice.