Appendix — Orchards v. United States, 106 S. Ct. 64 (1985) (No. 84-1702)

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piss oe |S Office-Supreme Court,

34-1702” FILED

APR 29 1985

No.

— ALEXANDER L. STEVAS,

CLERK

In the Supreme Court—

OF THE

United States

OCTOBER TERM, 1984

H. F. ALLEN ORCHARDS, et al., ELBERT B. SCHINMANN, et al.,

R. E. REDMAN & Sons, INC.,

Petitioners,

VS.

THE UNITED STATES,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BURTON J. GOLDSTEIN

COUNSEL OF RECORD

MEMEL, JACOBS, PIERNO, GERSH

& ELLSWORTH

650 California Street, 33rd Floor

San Francisco, CA 94108

Telephone No. (415) 433-3000

BRYAN G. EVENSON

HALVERSON, APPLEGATE &

McDONALD, INc., P.S.

311 North Fourth Street

P.O. Box 526

Yakima, Washington 98907

Telephone No. (509) 575-6611

Attorneys for Petitioners

BOWNE OF SAN FRANCISCO. INC. « 190 NINTH ST. + S.F., CA 94103 + (415) 864-2300

Sa) Si Soe

TABLE OF CONTENTS TO APPENDIX

Appendix A

Opinion of United States Court of Appeals for the

Federal Circuit, December 10, 1984 .............

Appendix B

Opinion of the United States Claims Court, February

RAE eg cee 5 ne

Appendix C

Judgment of the United States Court of Appeals for the

UE IE ho boc r SCRA OWENS oh ewh ates

Order of United States Court of Appeals for the Fed-

eral Circuit Denying Petition for Rehearing, January

ES a ces rea E RATE L RAEN WoO

Order of United States Court of Appeals for the Fed-

eral Circuit Extending Time Within Which to File

Pe I ec os ek obs ewkseeseeanen

Appendix D

Cmaeene Last OF POUGONETS . ww. 6k cee ee aass

Appendix E

Review of 1977 Water Supply Estimates—Yakima

River Basin, June 1977 (Vissia Report) and accom-

panying Department of Interior memorandum .....

Appendix F

Judgment in Kittitas Reclamation District v. Sunnyside

Valley Irrigation District, Civil No. 21, District Court

of the United States for the Eastern District of

Washington, Southern Division, January 31, 1945

Eee pe eee trae

Appendix G

“Guesstimate” memorandum from Yakima Project

Superintendent to Regional Director.............

Appendix H

icra pa kea ka hiae KEK AEL RK Ore

Appendix I

Roza Irrigation District Amendatory Repayment Con-

IE eS eee. cs A ae waneace ae sneaked

Page

A-33

A-34

A-43

A-77

A-110

A-112

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Appendix A

United States Court of Appeals

for the Federal Circuit

Appeal No. 84-937

H. F. Allen Orchards, et al.,

Elbert B. Schinmann, et al.,

R. E. Redman & Sons, Inc.,

Appellants,

The United States,

Appellee

Decided: December 10, 1984

Before Markey, Chief Judge, Nichols, Senior Circuit Judge, and

Newman, Circuit Judge.

Nichols, Senior Circuit Judge.

This is an appeal from a judgment by the United States Claims

Court denying appellants’ motions for summary judgment and

allowing appellee’s cross-motions for summary judgment. The

jurisdiction of that court was invoked under the Tucker Act, 28

U.S.C. § 1491. Appellants seek damages from the United States

based on the United States Bureau of Reclamation’s (Bureau)

asserted breach of a contractual obligation to inform appellants

accurately in February 1977 of the total amount of water expected

to be supplied to them from the Yakima water project during the

\°77 growing season. The Claims Court found that (1) the

Bureau had no contractual obligation to forecast the water supply

and (2) the appellants were neither parties to any contract with

the Bureau nor third-party beneficiaries of contracts between the

Bureau and the irrigation districts from which the appellants were

furnished their water.

Although we disagree with the Claims Court’s assessment

concerning appellants’ right to sue as third-party beneficiaries to

the district-Bureau contracts, we conclude, as the court below did,

that the Bureau has undertaken no contractual obligation to

furnish accurate water supply projections. Therefore, we affirm

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the Claims Court’s granting of appellee’s motion for summary

judgment and its dismissal of the complaints.

Facts

The circumstances from which this litigation arose have been

set forth in detail by the court below in Orchards v. United States,

4 Cl. Ct. 601, 602-04 (1984). Therefore we recount only briefly

the most salient facts of this case. Appellants, who farm parts of

the eastern section of the State of Washington, are members of

the Yakima Project Irrigation District. In 1905, the Secretary of

Interior, acting pursuant to the Reclamation Act of 1902, 32 Stat.

390 (codified throughout 43 U.S.C. ch. 12 (1976)), authorized

the construction of the Yakima Project, which stores, diverts, and

delivers irrigation water from the Yakima River. The Bureau

contracts to deliver water from the Yakima Project to irrigation

districts organized under Washington State law. The districts, and

ultimately the water users, are charged by assessment to repay the

costs of the project’s construction and for government operating

and maintenance costs.

The method of determining the proper allocation of water for

various irrigation districts is founded upon a consent decree

entered by the United States district court in Kittitas Reclamation

District v. Sunnyside Valley Irrigation District (Eastern District

of Washington, Southern Division, Civil Action No. 21). The

decree sets forth the normal ailotment of water as well as the

procedure for allocation of water in times of shortage. In such

times the “Total Water Supply Available” (TWSA), defined as:

that amount of water available in any year from natural flow

of the Yakima River, and its tributaries, from storage in the

various Government reservoirs on the Yakima watershed and

from other sources, to supply the contract obligations of the

United States to deliver water and to supply claimed rights to

the use of water on the Yakima River, and its tributaries,

heretofore recognized by the United States [,]

is to be allocated first to those with senior, nonproratable water

rights and then to the extent possible to those holding junior,

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proratable nghts. Appellants base their claims on the irrigation

districts’ contracts with the Bureau which incorporate this consent

decree by reference and on the decree itself.

The Yakima area experienced a water shortage in the first

months of 1977 due to drought and low snow pack. On February

7, 1977, the Bureau issued a TWSA estimate projecting that the

districts would receive 100 percent of their nonproratable entitle-

ments and only approximately 7 percent of their proratable

allotments. Farmers having proratable water rights reacted to the

estimate by planting less water-intensive crops, allowing lands to

lie fallow, selling off livestock prematurely, and generally acting to

reduce water consumption.

In the months following the original TWSA estimate, the

Bureau upgraded the TWSA several times. Ultimately those with

proratable rights received 70 percent of their entitlements, the

correct amount under the circumstances. Nevertheless, by the

time the farmers learned that they would receive this water,

allegedly it was too late to avoid losses in the millions of dollars.

Appellants allege that the Bureau breached its contracts by

estimating the TWSA negligently in February 1977. The Bureau

counters that its February estimate, provided by the Bureau as a

sovereign act, was as accurate as possible given the information

available and thus not negligent, and that the upgrading of the

TWSA several times was a result of unforeseen precipitation and

return flow. The appellants believe and would attempt to show

that incorrect forecasting of future weather was not the sole cause

of the errors; that it was due also to errors as to the extent water,

once delivered to users of it, returns to the system and is again

available to downstream users.

Discussion

In reviewing the Claims Court decision granting summary

judgment, we note that appellants receive the benefit of all

applicable presumptions, inferences, and intendments and that

summary judgment is appropriate only when there is no genuine

issue of material fact. Adickes v. S. H. Kress and Company, 398

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U.S. 144 (1970). We agree with the Claims Court’s determina-

tion that there is no genuine issue of material fact and that

appellee is entitled to judgment as a matter of law as the Bureau

was under no coniractual obligation to accurately estimate the

TWSA. Appellants’ action sounds not in contract, but in tort, if it

lies at all, and the Tucker Act, which was the source of jurisdic-

tion, confines it to “cases not sounding in tort.” Section

1491(a) (1).

Appellants assert that their contract right to receive a properly

estimated TWSA is premised upon the Kittitas consent decree,

and contracts which incorporate that decree. The farmers con-

strue the decree as including an implied requirement to commu-

nicate TWSA computations; the requirement is allegedly

necessitated by the farmers’ need to know their allocations in

order to plan correctly which crops to plant and the acreage to be

planted. Thus the right to water is conditioned on timely notice of

the allocation.

We discover no contractual duty to project the TWSA cor-

rectly, or at all, or warranty that any projection made will be

correct. A consent decree is construed as a contract for enforce-

ment purposes, and aids to construction, such as circumstances

surrounding formation of the decree and the technical meanings

words may have had to the parties, may be considered. United

States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975).

Still, the “scope of a consent decree must be discerned within its

four corners, and not by reference to what might satisfy the

purposes of one of the parties to it or by what might have been

written had the plaintiff established his factual claims and legal

theories in litigation.” Firefighters Local Union No. 1784 v. Stotts,

52 U.S.L.W. 4770, 4779 (U.S. June 12, 1984) (quoting United

States v. Armour & Co., 402. U.S. 673, 681-82 (1971)).

Appellants cannot point to, nor can we find, any provision of

the consent decree which expressly obligates the Bureau to

forecast the TWSA. The consent decree specifies that the “obli-

gations of the United States to deliver water from the * * *

Yakima River” are set forth in the agreement, and in paragraph

18, provides for the instance when a shortage occurs.

Steet tain

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If for any cause it is impossible to supply fully [the normal

water] quantities, the water subject to proration * * * shall

be proportionably diminished. The pro rata share of that

water which each of the parties to this judgment shall receive

during a period of insufficient supply shall be an amount in

the same proportion to the quantity of water subject to the

proration that each of the parties is entitled to under this

judgment as the total water supply available, as hereinafter

defined * * *.

This paragraph and the definition of TWSA are the sum and sole

expression of the government’s decree-based obligation in the

event of a water shortage. Indeed, the parties characterized and

limited the decree in the final paragraph which says that the

“judgment shall constitute a final determination of the obligation

of the United States to deliver water." (Emphasis supplied.)

There is no provision in any subsequent contract which increases

the government’s duties in the event cf a shortage to include

forecasting. Thus, after examining the four corners of the consent

decree, this court can discern no obligation to project the TWSA

accurately. All that is evident is an undertaking by the govern-

ment to deliver water to various water owners.

Looking to the aids of contract construction, we find nothing in

the history surrounding the formation of the contract which

buttresses appellants’ characterization of the decree. The 1945

consent decree was entered ending a suit for declaratory judgment

to determine the obligation of the Bureau to deliver water to the

Sunnyside irrigation district and to determine the respective water

rights of all the users of the Yakima River. The case was settled

following the decision of Fox v. Ickes, 137 F.2d 30 (D.C. Cir.

1943), where the court held that the water users had property

rights and that the Bureau was obligated to distribute the avail-

able water according to priorities established under State of

Washington law. Considering this litigation history from which

the “contract” arose, we note that at the time of contract

formation, only the government's obligation to deliver the Yakima

River water and the farmers’ respective property rights to that

water were at issue. There is nothing surrounding the contract

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formation which suggests that the government sought to expand

the issues resolved in the decree beyond those which were the

subject of the litigation. We also note that prior to the entrance of

the decree, indeed prior to 1977, the government had never

computed a TWSA nor projected any allocations of water in

times of shortage. Thus there is nothing in the circumstances

surrounding the entrance of the decree or in any custom or usage

to suggest that the decree was formalizing any prior act or

obligation of the government to forecast the TWSA. Construing

the consent decree as a contract, as we must for enforcement

purposes, we find that at the time of contract formation the

parties did not intend to obligate the Bureau to forecast accurately

the TWSA. Such an obligation cannot now be added by this

court. (We also have considered appellants’ brief argument that

the February TWSA estimate amounted to an anticipatory breach

of the consent decree; we find this argument unpersuasive. )

Appellants also assert that the government’s obligation is

founded upon an implied-in-fact contract, and that this issue,

which is premised upon disputed facts proving the intent of the

parties to contract, should have been reserved for trial. We agree

with the Claims Court’s determination that summary judgment

wus appropriate in this instance. We can assume that the Claims

Court has jurisdiction over implied-in-fact contracts, as it has

held. Pacific Gas & Electric Co. v. United States, 3 Cl. Ct. 329,

338 (1983). To prove that an implied-in-fact contract exists,

claimants bear the burden they had to bear in the former Court of

Claims. They have to show mutuality of intent to contract, offer

and acceptance, and that the officer whose conduct is relied upon

had actual authority to bind the government in contract. See

generally City of Alexandria v. United States, 737 F.2d 1022

(Fed. Cir. 1984); Cutler-Hammer v. United States, 441 F.2d

1179, 1182 (Ct. Cl. 1971) {the contract “must be stated in the

form of an undertaking, not as a mere prediction or statement of

opinion or intention”). Appellants contend that the authority io

make a contract to forecast the TWSA accurately can be found in

the consent decree to which the government is a signatory.

Appellant has not asserted a basis showing any government

agent’s authority to obligate the governznent to potential liability

—

A-7

for faulty projections of the TWSA separate from the consent

decree. Having considered the decree under the rules of contract

construction, we have found that no term exists in the decree.

Since the government signed only that decree, its authority to

bind itself flows only to that decree and only to that which is

agreed within the decree. The party moving for summary judg-

ment has the burden of proving that no genuine issue of material

fact exists. Where, as here, the moving partv meets that burden,

the nonmoving party must show that an issue of material fact does

exist. (“[Al]lthough the moving party be unaided by any pre-

sumption, when he has clearly established certain facts the

particular circumstances of the case may cast a duty to go forward

with controverting facts upon the opposing party, so that his

failure to discharge this duty will entitle the movant to summary

judgment.” 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal

Practice § 56.15[3] (2d ed. 1984).) Here the government met its

burden; appellants did not.

Appellants’ claims, arising from a predicted natural disaster

that did not happen, is actually the kind of governmental error

which may cause heavy loss, but cannot be placed in the context

of jurisdiction under the Tucker Act, 28 U.S.C. § 1491, that we

must deal with here. City of Manassas Park v. United States, 633

F.2d 18 (Ct. Cl.), cert. denied, 449 U.S. 1035 (1980); Eastport

Steamship Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967).

We are aware, and appellants correctly point out, that “an action

may be maintained * * * which arises primarily from a contrac-

tual undertaking regardless of the fact that the loss resulted from

the negligent manner in which defendant performed its contract.”

Bird & Sons, Inc. v. United States, 420 F.2d 1051, 1054 (Ct. Cl.

1970) (quoting Chain Belt Co. v. United States, 115 F.Supp. 701,

711-12, 127 Ct. Cl. 38, 54 (1935)). Moreover, “[t]he absence of

Government tort liability has not been thought to bar contractual

remedies on implied-in-fact contracts, even in those cases also

having elemenis of a tort.” Hatzlachh Supply Co. v. United

States, 444 U.S. 460, 465 (1980). Here, however, no contractual

duty exists; negligent performance of a noncontractual duty can-

not be the basis of a breach of contract claim. Rather, the

negligent disclosure of information by the government, when the

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government had no contractual duty to supply such information

may sound in tort. See United States v. Neustadt, 366 U.S. 696,

706 (1960) (“the duty to use due care in obtaining and commu-

nicating information upon which that party may reasonably be

expected to rely in the conduct of his economic affairs, is * * * the

traditional and commonly understood legal definition of the tort of

negligent misrepresentation * * *.”)

Finally, we disagree with the Claims Court’s determination that

appellants were not correct parties to sue under the consent

decree and subsequent alleged implied contracts. It is undisputed

that appellants have a property right in the water to the extent of

their beneficial use thereof. Fox v. Ickes, supra. 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.” Claims Court R. 17(a). Here the farmers, owners of the

water and beneficiaries of the irrigation projects, are the true

parties in interest.

Conclusion

The judgment of the Claims Court granting appellee’s motion

for summary judgment is affirmed.

AFFIRMED

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Appendix B

In the United States Claims Court

(February 21, 1984)

No. 113-80C

H. F. Allen Orchards, et al.

The United States

No. 226-80C

Elbert B. Schinmann, et al.

The United States

No. 36-81C

R. E. Redman & Sons, Inc.

The United States

Contract between irrigation district and Bureau of Reclama-

tion; implied terms; Bureau not contractually obligated to inform

district members accurately of total water supply to be available

for growing season; irrigation districts not mere agents of their

members, and members not contract principals; members not

third-party beneficiaries of districts’ contracts with Bureau.

OPINION ON CROSS-MOTIONS FOR SUMMARY

JUDGMENT

Miller, Judge:

In these three consolidated cases approximately 160 plaintiffs

seek damages from the United States for breach of claimed

contract obligations by the United States Bureau of Reclamation

(the Bureau) to inform them accurately in February 1977 as to

the total quantity of water it expected to be able to supply to them

for irrigation purposes during the 1977 growing season. Plaintiffs

assert that because the Bureau understated the quantity of water

available it caused them to plant fewer crops than they could have

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had they received accurate estimates, to their financial detriment.

The government defends upon a number of grounds, including:

(1) That the Bureau had no such contractual obligation; (2) that

plaintiffs neither had a contract with the Bureau nor were third-

party beneficiaries entitled to sue under the contracts of their

irrigation districts with the Bureau; (3) that plaintiffs failed to

exhaust the administrative remedies provided for in the contract

between the districts and the Bureau; (4) that under the terms of

such contracts the government is absolved from liability for the

claimed breach; (5) that this court lacks jurisdiction because the

claims sound in tort; and (6) that to the extent plaintiffs rely on

the terms of a consent decree in a district court action for the

meaning of the contract provisions, exclusive jurisdiction to inter-

pret the decree is reserved by the decree to the district court.

It is determined herein that defenses (1) and (2) are valid.

Accordingly, it is unnecessary to rule on the validity of the other

defenses.

FACTS

Plaintiffs are both natural persons and corporations who farm in

an area of eastern Washington state drained by the Yakima River.

They are some of the members of ten Yakima Project irrigation

districts.

The Yakima Project consists of 250 miles of rivers in the

Yakima Basin system. It includes six man-made or enhanced

storage reservoirs with storage capacity of approximately

1,070,700 acre-feet (a.f.) of water and benefits approximately

500,000 acres of irrigated land. The Project stores, diverts, and

delivers irrigation water through its Project works into the works

of the various participating irrigation districts. Water is channeled

from storage reservoirs and the Yakima River and its tributaries,

to the head gates of the districts. The districts then channel the

' Such irrigation districts are: Grandview, Granger, Kennewick, Kitti-

tas, Outlook, Prosser, Roza, Sunnyside Valley, Yakima-Tieton and

Zillah.

A-11

water into their main irrigation district canals, allocate it among

their members and deliver it through their own distribution

systems to the individual farms and fields. The United States is

not involved in the delivery to, or the allocation of water among,

or assessment of members by the districts. Individual water users

within the districts are not billed by the United States but by the

districts proportionately for the water used.

The Yakima Project was first authorized by the Secretary of

the Interior in 1905, pursuant to the Reclamation Act of 1902, 32

Stat. 390 (now embodied throughout 43 U.S.C. ch. 12 (1976)).

Although originally the Bureau contracted directly with some

individual Project water users for a period of time, it now

contracts with water user organizations only, usually irrigation

districts organized under Washington State law. The charges

made by the Bureau to the districts cover amortization of project

construction costs as well as the federal government’s operating

and maintenance costs.

In 1939 a suit for declaratory judgment was instituted in the

United States District Court for the Eastern District of Washing-

ton (Kittitas Reclamation District v. Sunnyside Valley Irrigation

District, Civil No. 21) to determine the obligation of the Bureau

to deliver water to the Sunnyside Valley Irrigation District.

Thereafter, a cross-complaint was filed in.the case requesting the

district court to determine the respective water rights of all the

users of the waters of the Yakima River and its tributaries.

During the pendency of this action, a decision was issued by the

Court of Appeals for the District of Columbia which dealt with

the same Yakima Reclamation Project. Fox v. Ickes, 137 F.2d 30

(D.C. Cir.), cert. denied 320 U.S. 792 (1943). It held that under

the Reclamation Act, the water rights of the irrigation districts

and water users were property rights to the extent they could

beneficially use the water and, accordingly, the Secretary of the

Interior was barred from posting charges for water usage in order

to pay for additional construction costs in excess of the construc-

tion charges authorized by statute. While the Bureau was not

obligated to furnish any more water than was available, the court

determined that the Bureau was obligated to distribute the

A-12

available water according to the priorities of the parties that had

been established according to the law of the State of Washington.

After the decision in Fox v. Ickes, the parties in the Kittitas

Reclamation case elected not to continue the adjudication of the

issue of the actual priorities of the individual water users, but

instead agreed in 1945 upon a consent decree to be entered by the

United States District Court for the Eastern District of Washing-

ton. The decree set forth both the allotment of water to the

various irrigation districts in normal years and a procedure for

allocation of the total water supply available in times of water

shortage. It defined the “Total Water Supply Available”

(TWSA) as:

That amount of water available in any year from natural flow

of the Yakima River, and its tributaries, from storage in the

various Government reservoirs on the Yakima watershed and

from other sources, to supply the contract obligations of the

United States to deliver water and to supply claimed rights to

the use of water on the Yakima River, and its tributaries,

heretofore recognized by the United States.

Irrigation districts holding senior contract rights and others

holding historically recognized rights, designated as “non-prorat-

ables”, were to receive all of their decreed amounts to the extent

possible from TWSA prior to those holding junior or “proratable”

rights. Some districts are entirely non-proratable; others have

both non-proratable and proratable rights. Plaintiffs all claim to

be members of proratable districts.

After the entry of the 1945 consent decree redefining the

irrigation water supply entitlements to the various districts and

establishing the proratable classifications, the Bureau executed

new or amended contracts with all irrigation districts within the

Yakima Project. The contracts referred to the consent decree and

incorporated portions of it either verbatim or by reference.

In 1977 there was a water shortage in the Yakima area because

of drought and low snow pack. Precipitation averaged only about

one-third of normal for several months prior to March. At the

beginning of 1977, the Yakima area snow pack was only 4 percent

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of normal. Although the Bureau generally puts little or no

reliability on forecasts in any year until April or May, the

irrigation districts, with which the Bureau had several meetings,

were eager to know what the Bureau’s preliminary estimate would

be. Accordingly, on February 7, 1977, the Bureau issued a TWSA

estimate of 1,220,000 a.f., including 860,000 a.f. of storage and

360,000 a.f. of runoff. The Bureau’s TWSA forecast projected

continuation of the approximately one-third of normal precipita-

tion which it had been experiencing for several months. Under

this preliminary TWSA estimate the districts would receive 100

percent of their non-proratable entitlement and 6 to 7 percent of

the proratable allotment. Recognizing that more favorable precip-

itation had occurred in March, generating increased snow pack,

on April 7, 1977, the Bureau upgraded the TWSA forecast to

1,390,000 a.f., with proratables projected to receive approximately

13 percent of their normal supply of water. Due to increased

precipitation in March, April and May, greater runoff resulting

from warm April temperatures, greater percentage of return flow

than had been projected and diversions of water well below the

usual amount at that time of the year, on May 17, 1977, the

Bureau updated its TWSA estimate by approximately 350,000

a.f., to a total of approximately 1,740,000 a.f., projecting a 50

percent supply for the wholly proratable districts. By July 1, 1977,

the Bureau’s estimate of the TWSA made available from Febru-

ary to July 1, 1977 was 2,070,000 a.f., an increase of 850,000 a.f.

over the February estimate. This resulted from revised findings as

to return flow, smailer diversions and 500,000 a.f. added by

additional precipitation, throughout the spring and summer. For

the entire irrigation year the proratables received 70 percent of

their normal water supply.

Plaintiffs concede that they received all of the water to which

they were entitled during 1977. Their complaint is only with

respect to the underestimate in February. Plaintiffs claim that the

low forecast of TWSA made in February 1977 was due to the

Bureau’s failure to include projected excess return flow from the

irrigation canals and ditches. Plaintiffs contend that the contracts

between the Bureau and the various irrigation districts of which

they are members obligate the Bureau to make accurate forecasts

A-14

of TWSA and that the failure to make such an accurate estimate

in February 1977 was a breach of the various contracts.

Defendant denies that there was any such contractual obliga-

tion. It asserts that it made the forecast in February 1977

voluntarily as a sovereign act rather than as a contractual require-

ment, in order to accommodate the farmers; that the forecast did

not omit any pertinent factor in estimating the TWSA; that it was

as accurate as could reasonably be accomplished with the infor-

mation available in February; and that the revisions thereafter

were made in the light of changed circumstances.

DISCUSSION

After the parties had submitted their briefs in support of their

cross-motions for summary judgment, on August 30; 1983, the

court filed an order, which, after taking note of plaintiffs’ admis-

sion in their brief that “This is not a case in which the damage

was really caused by a shortage of water’, stated in part as

follows:

Plaintiffs allege that defendant breached an obligation to

each plaintiff to furnish a proper estimate of total water

supply available. Plaintiffs are directed to file a statement

containing the appropriate record references to the provisions

in each contract supporting the existence of such an

obligation.

In their responses plaintiffs asserted the following as the basis

for their allegation: /

(a) The obligation of the United States to furnish a proper

estimate of total water supply available has its genesis in the

consent decree of January 31, 1945, in the case of Kittitas

Reclamation District, etc. v. Sunnyside Valley Irrigation District,

et al., (E.D. Wash., Civil Action No. 21). The decree provides

that in the event the TWSA is insufficient, the Bureau is to

diminish proportionately the amount of water going to each of the

irrigation districts of which the plaintiffs are members.

eee ee

A-15

(b) All the irrigation districts to which the plaintiffs belong are

subject to the provisions of the 1945 consent decree, and in many

instances the post-1945 contracts between their districts and the

United States refer to the consent decree.

as the consent decree necessarily impliedly require the govern-

ment’s Project officer to compute TWSA because it is essential in

order to make the proper prorations to the districts.

(d) Communication of the Bureau’s TWSA computations to

the farmers is also an implied requirement of the consent decree

and the water supply contracts, because (i) they specify that

water deliveries are to commence generally in April of each

irrigation season, and because (ii) the farmers must know how

much water will be available to them well before April | so that

they may be able to plan crops and acreage to be planted, the

irrigation methods to be used and other crucial farming decisions.

Therefore the value of the farmer’s contractual right to irrigation

water is conditioned upon timely notice of the amount of water to

be allocated to them.

Plaintiffs’ reasoning is not persuasive.

Plaintiffs fail to point to a single provision in any of the

contracts wherein the Bureau expressly obligated itself or the

United States to furnish to plaintiffs any advance estimate or

forecast of the total water supply available for irrigation purposes

during the entire growing season.

Contracts are, of course, the expressions of mutual intent and

agreement, and, in the absence of any express provision therefor

in these contracts, there is no basis for imputing to the United

States the assumption of an obligation not merely to make such

forecasts but to do so with accuracy or else subject itself to

liability for large sums in damages.

Lacking an express promise by the government, plaintiffs argue

that because such an accurate annual forecast would be valuable

to the farmers a promise by the government to furnish it or pay

damages should be implied. But the major obstacle to such an

A-16

argument is that there is no proof that the government ever

agreed to such an obligation or ever intended to do so.

With respect to the situation where there is no written contract

whatsoever between the parties, Pacific Gas & Elec. Co. v. United

States, 3 Cl. Ct. 329, 338-39 (1983), aptly summarizes the

requirements for the United States to be deemed to have entered

into an implied contract as follows:

A contract implied-in-fact requires a showing of the same

mutual intent to contract as that required for an express

contract. The fact that an instrument was not executed is not

essential to consummation of the agreement. It is essential,

however, that the acceptance of an offer be manifested by

conduct that indicates assent to the proposed bargain. The

requirements of mutuality of intent, and the lack of ambigu-

ity in offer and acceptance, are the same for an implied-in-

fact contract as for an express contract; only the nature of the

evidence differs. The officer whose conduct is relied upon

must have had actual authority to bind the Government in

contract. It is plaintiff's burden to prove that an implied-in-

fact contract was made. Extensive negotiations in which the

parties demonstrate hope and intent to reach an agreement

are not sufficient in themselves to establish a contract im-

plied-in-fact. [Citations omitted. ]

And see also Baltimore & Ohio R.R. v. United States, 261 US.

592, 597 (1923); Porter v. United States, 204 Ct. Cl. 355, 365,

496 F.2d 583, 590 (1974), cert. denied, 420 U.S. 1004 (1975);

and Prevado Village Partnership v. United States, 3 Cl. Ct. 219,

223-24 (1983).

Plaintiffs’ burden of establishing an implied promise is all the

more difficult where the parties contemplate that their contractual

relationship arises by means of a written agreement. As one

authority states:

Only the least thought is necessary to realize that a “gap”

in an agreement should not be filled merely because a gap

exists. * * * A promise that is not there in language, or an

unexpressed condition of an express promise, shou!d be put

A-17

in by process of implication only when the conduct of the

parties reasonably interpreted already has expressed it.

(3 A. Corbin on Contracts, § 569, at 341 (1960).)

The pertinent case law on implied promises is similarly summa-

rized in 17 Am. Jur. 2d, Contracts, § 255, at 651-52 (1964):

where a contract is reduced to writing, it is generally held, in

the absence of mistake or fraud, that the written contract

includes or embodies the whole agreement of the parties and

all material provisions, and that, therefore, no additional

agreements, obligations, or warranties can be implied. If

there is to be any implication, it must result from the

language employed in the instrument or be indispensable to

carry the intention of the parties into effect. Terms are to be

implied in a contract, not because they are reasonable, but

because they are necessarily involved in the contractual

relationship so that the parties must have intended them and

have only failed to express them because of sheer inadver-

tence or because they are too obvious to need expression.

Insofar as it indicates anything, the absence of a particular

provision from a contract indicates an intention to exclude it

rather than intention to include it. No implied obligation can

exist under a contract upon a point which it is apparent was

not in the minds of the parties when the contract was

executed, and nothing can be implied from a contract which

could not have been lawfully expressed therein.

And see also Somerville Technical Services v. United States, 226

Ct. Cl. 291, 300, 640 F.2d 1276, 1281 (1981); Somali Develop-

ment Bank v. United States, 205 Ct. Cl. 741, 751, 508 F.2d 817,

822 (1974); Hudson Canal Co. v. Penna. Coal Co., 75 U.S. (8

Wall) 276 (1868); Danciger Oil & Re,” Co. of Texas v. Powell,

137 Tex. 484, 154 S.W. 2d 632 (1941); Ives v. City of Williman-

tic, 121 Conn. 408, 185 A. 427 (1936); and Domeyer v.

O'Connell, 364 Ill. 467, 4 N.E. 2d 830 (1936).

Plaintiffs have failed to supply any factual predicate from

which it may be concluded that the Bureau impliedly obligated

itself to make such advance estimates or forecasts. Periodic

A-18

computation of the TWSA may be necessary to enable the

Bureau to make the proper prorations of the water among the

irrigation districts as it becomes available. But plaintiffs have not

demonstrated any discernible need for an advance estimate or

forecast for the whole growing season in order to enable the

Bureau to distribute the water properiy. Nor have plaintiffs

demonstrated any other reason why the Bureau would have been

willing to obligate itself to make such a forecast on pain of

liability for damages if it is mistaken or inaccurate.

Finally, even if such a promise could be implied, it would not

be binding on the government, since plaintiffs have failed to show

that any government officer had authority to obligate the United

States to an agreement to make accurate advance forecasts of the

total water which would be available for the growing season in the

Yakima River basir or to pay damages for its breach. The

authority of the Secretary of the Interior to enter into contracts

with state irrigation districts for payment of charges is contained

in 43 U.S.C. §§ 511-26 (1976). Nowhere do these sections

authorize the Secretary or his delegate to bind the government to

the making of accurate annual advance forecasts of the total

water to be made available for the growing season.

The officer whose promise is relied upon by plaintiffs must have

had actual authority to bind the government to that promise.

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947);

Schweiker v. Hansen, 4... J.S. 785, 788-89 (1981); Haight v.

United States, 209 Ct. Cl. 698, 538 F.2d 346, cert. denied, 429

U.S. 841 (1976). “The claimant for money damages for breach of

an express or implied in fact contract must show that the officer

who supposedly made the contract had authority to obligate

appropriated funds.” Kania v. United States, 227 Ct. Cl. 458, 465,

650 F.2d 264, 268, cert. denied, 454 U.S. 895 (1981). It is a

“time-honored principle that the Federal Government is not

bound by its agent acting beyond his authority * * * .” National

Bank of South Carolina v. United States, 223 Ct. Cl. 573, 577,

621 F.2d 1109, 1111 (19890).

oy ee T.,.C.

A-19

Assuming that the irrigation contracts could be construed to

provide for the making of the advance estimates, plaintiffs would

still not be entitled to recover herein, because the contracts give

them no enforceable rights against the United States. Even where

a person receives a substantial financial benefit from the govern-

ment’s performance of a contract, he is not entitled to recover for

its breach absent a showing that he has privity of contract with

the United States or that he is a direct third-party beneficiary of

such contract. United States v. Johnson Controls, Inc., 713 F.2d

1541, 1550-51 (Fed. Cir. 1983); Somerville Technical Services v.

United States, supra, 226 Ct. Cl. at 301, 640 F.2d at 1282;

Housing Corp. of America v. United States, 199 Ct. Cl. 705, 712-

13, 468 F.2d 922, 925-26 (1972); D. R. Smalley & Sons, Inc. v.

United States, 178 Ct. Cl. 593, 372 F.2d 505, cert. denied, 389

U.S. 835 (1967). The contracts upon which plaintiffs rely are

contracts between the United States and the irrigation districts of

which plaintiffs are only some of the members, not between the

United States and plaintiffs. Hence there is no privity between the

plaintiffs and the United States.

Plaintiffs contend that they are actually the principals and that

the irrigation districts are merely their agents in the contracts with

the United States. But for this to be true, the districts would have

to be mere agents; agree with the principals to follow their

directions exclusively; own no property of their own; and have no

authority to make independent decisions through their own of-

ficers. See National Carbide Corp. v. Commissioner, 336 U.S. 422

(1949); Moline Properties, Inc. v. Commissioner, 319 U.S. 436

(1943); and Vaughn v. United States, 3 Cl. Ct. 316 (1983).

There is little or nothing in the record which can support such a

scenario. It is well established that irrigation districts are public

corporations or local governmental units organized under author-

ity of state statutes for the purpose of appropriating, regulating,

controlling, and distributing water for irrigation, by the owners of

the land to be irrigated. Fallbrook Irrigation District v. Bradley,

164 U.S. 112 (1896); and see Salyer Land Co. v. Tulare Water

A-20

District, 410 U.S. 719, 723 (1973); and 3 C. Kinney on Irrigation

and Water Rights, § 1404 (2d ed. 1916).

In the State of Washington the organization of an irrigation

district is strictly controlled by state law (Wash. Rev. Code Ann.

§ 87.03.030 (1962)). It requires the county commissioners to

supervise the election and approval by two-thirds of the qualified

landholders in the proposed district (§ 87.03.035-050). It is

operated by a board of directors elected by the landholders, who

in turn elect the officers (§ 87.03.115). The board is granted the

usual powers to make contracts and all necessary rules and

regulations for the conduct of the affairs of the district (§

87.03.115). It is also given the power to acquire, “either by

purchase or condemnation, or other legal means, all lands, and

waters, water rights, and other property necessary” for irrigation

projects (§ 87.03.140). Money may be borrowed and bonds issued

for the payment of the same upon approval of the voters

(§ 87.03.200). All of the real property in the district may be

assessed for the purposes of the district (§ 87.03.240). The

boundaries of the district may be changed and lands added or

excluded (§ 87.03.555-03.695). A district is specifically author-

ized “To construct, repair, purchase, maintain or lease a system

for the sale or lease of water to the owners of irrigated lands

within the district for domestic purposes” and “To assume, as

principal or guarantor, any indebtedness to the United States

under the federal reclamation laws, on account of district lands”

(§ 87.03.015).

Title 43 U.S.C. §§ 511 and 523 (1976) authorize the Secretary

of the Interior to contract with such legally authorized irrigation

districts for the impounding, storage, distribution and delivery of

water to such districts in return for payments by the districts for

the construction and maintenance of reservoirs, irrigation works,

canals and distribution systems. Section 423(e) pro'iibits the

delivery of water upon the completion of any new project or new

division of a project initiated after May 25, 1926, until a contract

in a form approved by the Secretary shall have been made with an

irrigation district providing for payment by the district of the cost

of constructing, operating and maintaining the works during the

a N

A-21

time they are in control of the United States. All of the contracts

at issue were entered into or amended after 1926, and plaintiffs do

not contend that they are not subject to § 423. Thus, plaintiffs

have failed to demonstrate that the Secretary of the Interior or his

delegate was even authorized to contract with the individual

plaintiffs as principals, let alone intended to do so.

Moreover, the contracts themselves are entirely inconsistent

with any such theory. There is no evidence of any agreements

between the members or water users and the irrigation districts

that the latter are to act as mere agents of the former. Each

contract is executed by the irrigation district in its own name and

specifically designated as a contract between the United States

and the district. In each contract the United States agrees to

deliver water to the irrigation district, and it is the latter which has

the responsibility for the allocation and distribution of the water

to the members of the disicict. In turn the district agrees to repay

the United States periodically and in installments for the govern-

ment’s construction of its reservoirs, dams and irrigation works

and its operating and mainterance costs in connection with the

water supply, distribution and delivery systems. The method of

allocation and distribution of the water to the individual users is

not provided for in the contract, but is the respensibility of the

district. While, of course, the district obtains its funds from its

members or water users, there is no necessary correlation between

the amounts paid the United States and the amounts assessed by

the district or levied against the users, since the district may also

have its own operating and maintenance cost. Furthermore, in

each of the contracts there is a clause which in substance states

the following: “Nothing in this contract shall be deemed to relieve

the District in any way of its general obligation to pay the United

States the full amount owed to the United States hereunder,

regardless of delinquencies in payment of assessments and

charges by the landowner to the District.’”

? From contract between the United States and the Prosser Irrigation

District, executed November 25, 1949, par. 24.

A-22

Plaintiffs claim that they are principals and the irrigation

districts mere agents because the contracts recite that the district

is “the duly authorized representative” of the user. However, even

if this could be equated to “agent”, it would not control over the

substance of the contracts. Fair analysis of the contracts requires

the conclusion that the irrigation districts are representatives of

the water users only in the sense that municipal corporations

generally represent the residents of a municipality or membership

corporations represent their members.

Plaintiffs’ claim that they are entitled to sue the United States

as third-party beneficiaries of the contracts between the govern-

ment and the irrigation districts is also meritless. While this court

has jurisdiction of a suit on a contract by an intended third-party

beneficiary of the contract (Hebah v. United States, 192 Ct. Cl.

785, 792, 428 F.2d 1334, 1339 (1970) ), an individual who is not a

party to an agreement does not have the right to sue for breach of

that agreement merely because he would benefit from its per-

formance or because it would be beneficial to him to have the

right. German Alliance Ins. Co. v. Home Water Supply Co., 226

U.S. 220, 230 (1912); Robo Wash, Inc. v. United States, 223 Ct.

Cl. 693, 697-98 (1980); Ables v. United States, 2 Ct. Cl. 494, 500

(1983), aff'd, __ F.2d _ (Fed. Cir. Jan. 17, 1984). And see also

4 A. Corbin on Contracts, § 775, at 8 (1951) and 17 Am. Jur. 2d,

Contracts, § 304.

Plaintiffs’ claim is based on nothing more than the reasoning

that, because the contracts for the orderly distribution of water by

the United States to the districts were designed to enable the

districts to make sub-distributions to their members, the individ-

ual members are the ultimate beneficiaries of the contracts, and

hence each is entitled to sue the United States individually for

any breach of the contract between the district and the United

States.

The major fallacy in the plaintiffs’ reasoning is that it ignores

the fact that in incorporating the districts to contract in belialf of

their members collectively with respect to their water nights, the

members exchanged their rights to enforce and protect their

individual interests for interests in the public corporations, in the

A-23

same way that members or shareholders generally do when they

combine their interests in to membership or business corpora-

tions. Most corporate contracts are entered into for the benefit of

their members or shareholders, but if for that reason alone each

member was entitled to sue individually for an alleged breach

affecting all, irrespective of whether the corporation or a majority

of the members thought there was such a breach, it would

authorize multitudinous litigation and be destructive of the con-

ception of the corporation as an entity separate from its members

or shareholders

Members or shareholders are not per se excluded from being

third-party beneficiaries of corporate contrats entitled to enforce

their individual rights against promisors. But obviously more than

the mere inuring of benefit from performance is required for them

to be entitled to do so. There must be some manifestation of

intent between the parties to the contract that if the promisor

defaults the members or shareholders will be compensated di-

rectly by the promisor. W. Fletcher, Cyclopedia of the Law of

Private Corporations, §§ 5911, 5923 (rev. perm. ed. (1980) and

1983 Supp.). Schaffer v. Universal Rundle Corp., 397 F.2d 893,

896 (Sth Cir. 1968); Robo Wash, Inc. v. United States, 223 Ct.

Cl. 693, 697 (1980); Howell v. Fisher, 49 N.C. App. 488, 272

S.E. 2d 19 (1980), pet. for review denied, 302 N.C. 218, 277 S.E.

2d 69 (1981); Sutter v. General Petroleum Corp., 28 Cal. 2d 525,

170 P 2d 898 (1946).

This rule is given particular emphasis where the claimed third-

party beneficiary is asserting his right as one of many members or

inhabitants of a governmental entity, such as the United States, a

state, a municipality, or an irrigation district as is here involved.

As is pointed out in Calamari & Perillo on Contracts, § 247 (ai

387 (1970)) “Every contract made by a governmental unit is

made for the benefit of its inhabitants. If a city contracts to have a

police station, firehouse, tax office or park built, it does so to

enhance the general welfare and, thus, to benefit the public. Yet,

in such a case, no individual inhabitant has a right to enforce the

contract on his own behalf.” Accordingly, it is only where the

contact between the public corporation and the promisor

A-24

manifests the specific intent to give the individual an enforceable

right to compensation for its breach that he may sue thereon.

The leading case with respect to this rule is German Alliance

Ins. Co. v. Home Water Supply, 226 U.S. 220 (1912). There an

insurance company as assignee of the owner of a number of

houses, brought suit against a water company for losses caused by

a fire which it claimed were attributable to the water company’s

failure to comply with its contract with the city of Spartanburg to

furnish adequate water supplies and pressure for city fire hydrants.

In denying the right of the plaintiff to sue as a third-party

beneficiary of the city’s contract with the water company, the

court explained (226 U.S. at 230-31):

Before a stranger can avail himself of the exceptional privi-

lege of suing for a breach of an agreement, to which he is not

a party, he must, at least show that it was intended for his

direct benefit. * ° °

Here the city was under no obligation to furnish the

manufacturing company with fire protection, * . -

but, like other municipal contracts, was made by Spartan-

burg in its corporate capacity, for its corporate advantage,

and for the benefit of the inhabitants collectively. The

interest which each taxpayer had therein was indirect—that

incidental benefit only which every citizen has in the per-

formance of every other contract made by and with the

government under which he lives, but for the breach of

which he has no private right of action.

The underlying rationale of German Alliance Ins. Co. was

restated succinctly by Justice Cardozo, as a member of the New

York Court of Appeals, in a case involving similar facts (H. R.

Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 164-65, 159

N.E. 896, 897 (.928)):

In a broad sense it is true that every city contract, not

improvident or wasteful, is for the benefit of the public. More

than this, however, must be shown to give a right of action to

a member of the public not formally a party. The benefit, as

_——

A-25

it is sometimes said, must be one that is not merely inciden-

tal and secondary. * ° * It must be primary and

immediate in such a sense and to such a degree as to bespeak

the assumption of a duty to make reparation directly to the

individual members of the public if the benefit is lost. The

field of obligation would be expanded beyond reasonable

limits if less than this were to be demanded as a condition of

liability. * ° °

By the vast preponderance of authority, a contact between a

city and a water company to furnish water at the city

hydrants has in view a benefit to the public that is incidental

rather than immediate, an assumption of duty to the city and

not to its inhabitants.’

The American Law Institute’s Restatement of the Law Con-

tracts, Second (1981), codifies this rule as follows:

§ 313. Government Contracts

* * * *

(2) In particular, a promisor who contracts with a govern-

ment or governmental agency to do an act for or render a

service to the public is not subject to contractual liability to a

member of the public for consequential damages resulting

from performance or failure to perform unless

(a) the terms of the promise provide for such liability; or

(b) the promisee is subject to liability to the member of

the public for the damages and a direct action against the

promisor is consistent with the terms of the contract and with

the policy of the law authorizing the contract and prescribing

remedies for its breach.

Comment:

’ For other cases following the majority rule that private citizens may

not bring a breach of contract action against a water company for a loss

by fire because of the water company’s failure to perform its contract

with a municipality to furnish an adequate supply of water, see 78 Am.

Jur. 2d, Waterworks and Water Companies, § 51 (at 938-39 (1975)).

A-26

a. Rationale. * . * Government contracts

often benefit the public, but individual members of the

public are treated as incidental beneficiaries unless a differ-

ent intention is manifested. In case of doubt, a promise to do

an act for or render a service to the public does not have the

effect of a promise to pay consequential damages to individ-

ual members of the public unless the conditions of Subsec-

tion (2)(b) are met.*

Recent cases applying the same rule include Miree v. United

States, 538 F.2d 643 (Sth Cir. 1976), per curiam on rehearing en

banc, adopting the dissenting opinion of Judge Dyer in the same

case at 526 F.2d 679, 686-88 and Miree v. United States, 242 Ga.

126, 249 S.E.2d 573 (1978) (Persons suffering injury in an

airplane accident at a county operated airport not entitled to sue

the county for breach of a contract between the county and the

Federal Aviation Administration to operate the airport safely,

because the contract did not manifest an intention that members

* The original Restatement of the Law Contracts (1932) is similar. It

provides:

§ 145. Beneficiaries Under Promises To The United States, A |

State, Or A Municipality. |

A promisor bound to the United States or to a State or munici-

pality by contract to do an act or render a service to some or all of )

the members of the public, is subject to no duty under the contract

to such members to give compensation for the injurious conse-

quences of performing or attempting to perform it, or of failing to

do so, unless,

(a) an intention is manifested in the contract, as inter-

preted in the light of the circumstances surrounding its forma-

tion, that the promisor shall compensate members of the

public for such injurious consequences, or

(b) the promisor’s contract is with a municipality to

render services the non-performace of which would subject the

municipality to a duty to pay damages to those injured thereby.

A-27

of the public be compensated);> Commonwealth of Pa. v. Na-

tional Ass'n of Flood Ins., 378 F.Supp. 1339 (M. D. Pa. 1974),

aff'd in part and rev'd in part, 520 F.2d 11 (3rd Cir. 1975), and.

Schell v. National v. National Flood Insurers Ass'n, 520 F. Supp.

150 (D. Colo. 1981) (Contract between Secretary of Housing

and Urban Development and insurers provided no basis for suit by

third-parties against latter for breach of duty to publicize availa-

bility of flood insurance, because of absence of manifestation of

intent to compensate or to be liable to members of public for

breach of any such duty); Martinez v. Socoma Companies, Inc.,

11 Cal. 3rd 394, 521 P.2d 841 (1974) (Persons certified by

federal government as disadvantaged not entitled to sue corpora-

tion for breach of contract with United States to provide job

training and employment to such class of persons, because the

contracts manifested no intent that defendant compensate plain-

tiffs or other members of public for nonperformance): Matternes

v. City of Winston-Salem, 286 N.C. 1, 209 S.E.2d 481 (1974)

(Plaintiff suing city for wrongful death of minor caused by

accumulation of ice on a bridge not entitled to recover under

city’s contract with state to maintain the state highway system

because of absence of specific intent to make plaintiff third-party

beneficiary of such contract); Davis v. Nelson-Deppe, Inc., $1

* After the decision of the Sth Circuit in Miree, at 538 F.2d 643, vie

Supreme Court vacated the judgment and remanded the case to the

court of appeals for consideration of the claim under Georgia law rather

tives federal commen law, for lack of a federal interest in the case. Miree

v. Dekalb County, 433 U.S. 25 (1977). On remand the court of appeals

certified the question of state law to the Georgia Supreme Court. Miree

v. United States, 565 F.2d 1354 (Sth Cir. 1978). The latter then held

that under Georgia law likewise the mere fact that a member of the

public would have benefited from the performance of the contracts does

not create third-party intended beneficiary status, and that there was no

intention manifested in the contracts that the country compensate any

member of the public for injurious consequences. Miree v. United States,

242 Ga. 126, 249 S.E.2d 573 (1978). Thereupon the court of appeals

affirmed the decision of the district court dismissing the plaintiffs’ suit

against the county. 588 F.2d 453 (Sth Cir. 1979).

A-28

Idaho 463, 424 P.2d 733 (1967) (Truck owner could not main-

tain contract action as third-party beneficiary for damages to

equipment which went off a highway being reconstructed by

defendant under contract with state highway department, because

of absence of third-»arty beneficiary intent in contract); United

Dispatch v. E. J. Albrecht Co., 135 W.Va. 34, 62 S.E. 2d 289

(1950) (Building owner not entitled to recover for damage to

building as third-party beneficiary of defendant’s contract with

United States for construction of concrete wall and levee along

river bank for flood protection to city, absent evidence of specific

intent).

Pe ——-

For a variety of reasons it is perfectly clear that in entering into

the irrigation contracts neither the United States nor the irriga- |

tion districts intended that an individual member of the district be |

entitled to maintain an action against the United States for a

breach.

First, there is no express provision in any of the contracts

manifesting any such intent.

Second, 43 U.S.C. § 423(e) (1976) provides that every federal

contract for the delivery of water must be made with an irrigation

district organized under state law. Thus no officer had authority

on behalf of the United States to contract with an individual

member of such a district. What the federal officers have not been

authorized to do directly they may not be deemed to have been

authorized to accomplish indirectly by making district members

third-party beneficiaries entitled to enforce the contracts on their

own behalf. United States v. National Surety Corp., 309 U.S. 165

(1940); Ables v. United States, 2 Cl. Ct. 494, 501 (1983), afd,

__F.2d__ (Fed. Cir. Jan. 17, 1984); Frangella Mushroom

Farms, Inc. v. United States, 229 Ct. Cl. 578, 582 (1981), cert.

denied, 456 U.S. 916 (1982).

Third, the various contracts contain a clause making the

Secretary of the Interior arbiter of disputes between the parties

arising out of the contract involving questions of fact, and his

A-29

decision is to be conclusive as against the parties. The con-

tracting parties could hardly have intended that the irrigation

district be subject to such clause while at the same time any

member or the district may disregard it by asserting the same

claim as a third-party beneficiary.

Fourth, the contracts contain an exculpatory clause, holding the

United States harmless from liability for damages arising by

reason of shortages in irrigation water resulting from distribution

or any other causes.’ To allow a member of a district to:circum-

vent this restriction on the district by bringing suit in his own

name would also be inconsistent with the intent of the signatories

to the contract.

Fifth, absent an express provision entitling a third person not a

party to a contract to enforce the provisions of the contract on his

*The Amendatory Contract between the United States and the

Prosser Irrigation District contains the following typical provision:

Secretary Arbiter of Disputes Involving Questions of Fact

44. In the event of disputes between the parties hereto arising

out of this contract involving questions of fact, and, so far as the

provisions hereof require a determination of fact to be made, the

Secretary is hereby designated as the arbiter of such questions and

as the one required to make such determination of facts and his

decision thereon shall be conclusive as against the parties hereto.

"The same Prosser contract sets forth the following typical clause:

33. No liability shall accrue against the United States or any of

its officers, agents or employees for damage, direct or indirect,

arising by reason of shortages in the quantity of water available

through the irrigation system or interruptions in water deliveries to

lands in the District resulting from drought, inaccuracy in distribu-

tion, hostile diversion, prior or superior claims, accident to or failure

of facilities of the irrigation system, whether or not attributable to

negligence of officers, agents or employees of the United States, or

_other causes of whatsoever kind. Nor shall the District’s obligations

to the United States under this contract be reduced by reason of

such shortages or interruptions. In the event of such shortages or

interruptions, the United States will, however, make every reason-

able effort to remove promptly the cause thereof.

A-30

own behalf, in determining whether or not it could reasonably

have been implied it is fair to consider the consequences of such

an implied provision. It would subject the United States to the

cost of defending multitudinous individual suits of varying natures

with different measures and allocations of damages.* Moreover, it

would allow individual members to assert claims for breach of

contract which the contracting districts themselves and a majority

of their members do not believe are proper. It is noteworthy that

not a single district has joined in or otherwise supported plaintiffs’

claims herein.” These are consequences which Congress obviously

sought to avoid by the enactment of 43 U.S.C. § 423(e).

Conclusion

The pleadings, depositions, affidavits, admissions and other

documents in the record show that there is no genuine issue as to

any material fact and that defendant is entitled to judgment as a

matter of law. Accordingly, plaintiffs’ motions for summary judg-

ment are denied. Defendant’s cross-motions for summary judg-

ment are allowed. It is ordered that judgments be entered

dismissing the complaints, with costs to be awarded to defendant.

/s/ Puivip R. MILLER

Philip R. Miller, Judge

8 Plaintiffs do not state how many members or water users the ten

irrigation districts have, but defendant asserts and plaintiffs do not deny

that there are many thousands. Plaintiffs concede that they are a

minority in each of the districts since they have been unable to persuade

any district to bring suit on the same claim.

* Cf. United States v. Johnson Controls, Inc., 713 F.2d 1541, 1549

(Fed. Cir. 1983): “If direct access were allowed to all Government

subcontractors, contracting officers might, without appropriate safe-

guards, be presented with numerous frivolous claims that the prime

contractor would not have sponsored.”

res en Re

A-31

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 84-937

113-80C

226-80C

36-81C

H. F. Allen Orchards, et al.,

Elbert B. Schinmann, et al.,

R. E. Redamn & Sons, Inc.,

Appellants,

The United States,

Appellee.

JUDGMENT

ON APPEAL from the U. S. Claims Court

This CAUSE having been heard and considered, it is OR-

DERED and ADJUDGED: AFFIRMED.

Dated: December 10, 1984.

Petition for Rehearing,

Denied, January 30, 1985.

Entered by Order of the Court

George E. Hutchinson, Clerk

/S/ GEORGE E. HUTCHINSON

Clerk

Issued as a Mandate: February 21, 1985.

A-32

United States Court of Appeals

for the Federal Circuit

No.84-937

H. F. Allen Orchards, et al.,

Elbert B. Schinmann, et al.,

R. E. Redman & Sons, Inc.,

Appellants,

The United States,

Appellee.

ORDER

A petition for rehearing having been filed in this case,

UPON CONSIDERATION THEREOF, it is Ordered by the

court that the petition for rehearing be, and the same is hereby,

Denied.

For the court:

/s/ GEORGE E. HUTCHINSON,

George E. Hutchinson, Clerk

January 30, 1985

Date

A-33

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Date: December 21, 1984

Appeal No. 84-937, H.F. Allen Orchards, et al.

v. The United States

Dear Mr. Goldstein:

Pursuant to motion, the time to file the following paper has

been extended to and including January 18, 1985.

( ) Brief/Appendix for Appellant/Petitioner

( ) Brief for Appellee/Respondent

( ) Brief for Amicus Curiae

( ) Reply Brief

(X) Petition for Rehearing for Appellants

( )

For The Court

George E. Hutchinson, Clerk

/s/ELIZABETH J. CARROLL

By Elizabeth J. Carroll

Deputy Clerk

A-34

Appendix D

LIST OF PETITIONERS

The Petitioners in this proceeding, and the reclamation districts

to which they belong are:

H-F. Allen Orchards, et al. v. United States, United States

Claims Court No. 113-80C.

Petitioners Irrigation District

H.F. Allen Orchards.............. Yakima—Tieton

3 ae | Prrrererer rer ir ee Yakima—Tieton

aS ee ee Yakima—Tieton

Law FOGE AMID o.oo s ces cence Roza

Kathryn Allsop ..........--.0000- Roza

~~ FEROS Teer ere eee Roza

Mons AMWOFGE ... 06... cscs cccsee Roza

B 3 Enterprises, Inc............... Sunnyside and Roza

B 3, Inc./Willard Farms .......... Sunhaven Farms

errr er rer rT Roza and Wapato

vo Aree eer Wapato

Diariorte OPER «5. cc cece Wapato

ff 0 RS AP eee ee eee Roza and Wapato

Claude C. Bartsma..............- Kittitas

a er eer rrr er Kittitas

Courtney BR. Gaze ........ 2.22.5. Roza

Gwendolyn Baze ..........:.....: Roza

| | Pee Terre ee eee rr Roza and Sunnyside Valley

PET CT CTE Tee _. Roza and Sunnyside Valley

0 Peers Teer’ CET e Sunhaven Farms

Benton City Mint Farms, Inc....... Roza and Kennewick

POI 5 ok ceases baieoasane Kittitas

Blazing Tree Ranches ............ Kittitas

Claudia Bowehey...... 2... 520550, Wapato

Delmar E. Bouchey and Steven

Bouchey, a partnership.......... Wapato

Delmar E. Bouchey ...........«». Wapato

en Peer re reer eerer Wapato

| er Wapato

Arnold O. Brulotte ............... Roza

ACO POS. cece cnns Roza

Bennett G. Brulotie .............. Roza

Tracey Brulotte ... 2... cc cseccees Roza

Petitioners Irrigation District

Brulotte Farms (a partnership)... .. Wapato

Rosalie M. Brulotte (individually and

as personal representative of

Roland E. Brulotte, deceased) ... Wapato

Richard D. Brulotte .............. Wapato

Ronald L. Grulotte ............... Wapato

Burkholder Farms, Inc. ........... Roza

Cameron Bros. Ranch ............ Roza

PU I ov ia cc cnceceues Roza

MO Tr SOD bc cc ccccccances Roza

eee Roza

Carp-Land Co., a partnership...... Roza

petty Je Carpentér............... Roza

Wht COPORNR . cece ea. Roza

Carpenter Improvement District.... Roza

Thomas Carpenter, Jr............. Roza

Violet I. Caspenter............... Roza

Charron Company, Inc............ Roza

IN bb va io 'e'n dv caw ew Roza

eee Roza

NEE wih n'y 6 a's'b ie bv do Roza

ME I Gk oi cdc ctccdacecs Roza

Fred Christen, D.D.S. and Neil

Bisyak, a partnership ........... Kittitas

Pe IS oe sk sw dacs aces Kittitas

re Roza

MINE, ons sos caseeasees Roza

WO evs k eck scwicces ces formerly Horn Rapids

SPIN sac ck en ccdvedes formerly Horn Rapids

Nd iss 3s Gino cab vm ede Roza

ee ee Roza

pmemere G. Collies ............... Roza

Pee Ge MN cade ae cs Roza

Mee vay cdmaddunwed Wapato

OO Be” a ee Wapato

| ee Roza

Earl Crawford & Sons, Inc., a

iis Web ua ean doe Roza

Earl W. Crawford & Sons, Inc. .... Roza

eee eee Roza

eee rere Roza

a eee Roza

Earn en rere Roza

A-36

Petitioners

aba hen Roza

To ECT EET ee oe Roza

oe Le Aer ee ee Roza

ll, Re ee re Roza

SE ME a ncaa ncdcseun vanws Roza

PEE aie cas ccevvensensccass Roza

Wesley J. DenBeste .............. Roza

PORT Roza

Pr rer errr s

ES Msn g as bbav eben

Irrigation District

Sunnyside Valley

Drake Land & Cattle Co. ......... Roza

SM, CED oa vce ceeecsoures Roza

Se ee ee Roza

I Ges co ccevosusases Rosa

5 gE iris Roza

oo A errr rr rrr Roza

PPE Roza

Margaret M. DuFault............. Roza

Pk eee Roza

, 2 6 ere rrr: Roza

ED wa ciecesnceseusa Roza

Er Roza

PUI cbc ccsccéscscccees Kennewick

ES accccuwedeccvassas Roza and Sunnyside

James Durfey ............ Re TTY,

PRR TIN, BBs ga cc cc cccusseces

ac cccisewscevesecuans

CE Soc evaeccéseveecads

PE pi ChE Ws ceveseues hoes

PE NE nese ccvcneveccecs

Se ¢ SP rerrr ies

Elizabeth Farms, Inc..............

Glenna Mae Enquist ............. Roza

Bonnie Euteneier ................ Roza

Max W. Euteneier ............... Roza

if 4 8 EA rr

EE, Es ok pe aasneaeae

Farwestern Farms, Inc. ...........

et ccceesnseane

se esis eueene

Roza and Sunnyside

Roza and Prosser

Roza and Sunnyside

Roza—Union Gap

Wapato

Wapato Project

Forrest Johnson Orchards, Inc...... Roza

EEE PO PO Pe Kennewick

OS ey eee Kennewick

A-37

Petitioners Irrigation District

Nicholas J. Friend ............... Sunnyside Valley

Norma Jean Friend .............. Sunnyside Valley

Leo Gasseling & Sons, Inc......... Wapato

voese, Roza and Wapato Project

WN Vd a'cs vadeccecsces Roza and Wapato Project

Gordon A. Geffe................. USIS—Wapato Project

IN Svc ncc dda scenes USIS—Wapato Project

WE IID. «vnc acueiccccc cues Kittitas

WI DiS one ose deed andeca; Kittitas

Goldcrest Orchards, Inc. .......... Roza

Golob & Sons, Inc................ Sunnyside Valley

Jocelyn L. Goodwin .............. Roza

Quentin G. Goodwin ............. Roza

Green Acre Farms, Inc............ Wapato

Dorothy Groszhans............... Wapato

UII cco cc cvc ce ssc Wapato

cc DIP ARN Wapato

Common BE. Bieta ... 5... c cc ccs Wapato

Gilbert Dean Hata ............... Wapato

ME eal eos os Vads aces Wapato

re Wapato

Hattrup Farms, Inc. .............. Roza

Wareen ©. Plamen ... 06.50.0006 505s Roza

E.T. Hearron Company, Inc........ Roza

Charlotte E. Hensley ............. Roza

i A. Roza

a Roza

ie Kittitas

Nedra M. Hobbs................. Kittitas

me Roza—Sunnyside Valley

MTL a............:.. Roza—Sunnyside Valley

Houghton Farms................. Roza

J a Perr ree Roza

Robert W. Catterall .............. Roza

WIEN RPh a'a.n o.0's o Sa ¥ Semen Wapato

Cyt oe ss arate te) Wapato

8. ERE ore. Kittitas

PN is 6. cae to. Kittitas

CS a chee ee Wapato Project

EUR sd pn \pWececwecan Wapato Project

Elizabeth C. Johnson, individually

and as Executrix of the Estate of

Lawrence W. Johnson, deceased.. Roza

SOP NOS s =

A-38

Petitioners Irrigation District

Vivian T. JORasom .......cccccceee Roza

Jones Building Co. ............... Roza

Kendall Farms, Inc. .............. Roza

Alan R. Kiebaum ..........0.000. Wapato Project

Eileen F. Klebaum ..............- Wapato Project

Harvey Krueger............--+++- North Prosser

Ruth F. Krueger ...........ceeees North Prosser

Masuo Kuribayashi............... Wapato

Sue Kuribayashi ................. Wapato

Phyllis Leach. ......ccccccccccces Roza

Peabert BH. Leeeh. .. 2. ccc ctec cence Roza

Leiske & Son Orchards, a partnership Sunnyside

Leiske & Son Orchards, Inc........ Sunnyside

Berman G. Loektiee. .....ccccccccccss Sunnyside

Marilyn Leiske .........cccccess Sunnyside

Rodney J. Leiske ............000. Sunnyside

TOR F. TMMID go oc cc ccccenccss Sunnyside

i RE in oc cc ciccncccses Roza

Déetetins BD. Lame... ...ccccsccces Roza

Bee WH. BOMONE. . wc kTicccecss Roza

Walter O. Leonard ............... Roza

DR, TE ccc csncdccceccans Kittitas

Beets WH. BAUS... occ ctccccsacs Roza

Elizabeth E. Lewis ..............- Roza

Meme TE. TOU ow cw ccccecccccce Roza

Namey Lewis ........cccccccccees Roza

Lombard Loop Ranches........... Roza

Double M. Ranch.............+5: Roza

errr Roza

Helen L. Mahre ...........0-00: Roza

Norma A. Marquard ............. Roza—Sunnyside Valley

Richard L. Marquard............. Roza—Sunnyside Valley

Arnold Lee Martin .............-. Roza

Eileen M. Martin ...............- Roza

ee RTT Roza

Robert J. Martim..... ccc cecccees Roza

Elizabeth H. McCune ............ Kittitas

Stanley McCune ..........6..0005 Kittitas

Medina Land Co. ..............5: Roza

Framk R. Meyer .......cccccceces Wapato

ee ET Roza

A SE occ ccccccascscnes Roza

erie Roza

A-39

Petitioners Irrigation District

ES Kennewick

Joanne Mare Nashem ............ Roza

a heck ee sss sec 0a’ Kittitas

Joan Elizabeth Nelson ............ Kittitas

EE a Roza

Nickoloff Orchards, Inc. .......... Wapato

ESSE Sao ae Wapato

Ee ee Wapato

SS RE ao Wapato

SE ee eee Wapato

ee we vab ae cas asecas Wapato

EE Wapato

a Wapato

Northwest Building Co............ Roza

ES ere Roza

George M. Oldfield............... Roza

I Roza

Caroline Onstot......... vetiwwkes Kittitas

Frank G. Onstot .......... ME es ath Kittitas

Pacific Coast Nursery............. a

Patnode Hops, Inc................ Grandview

Judith Pierce

(aka Judith Finkbeiner)......... Kittitas

Co Kittitas

a Roza

Plensamt Acres, lac. .............. Roza

a Cacccccaneccscevce Roza and Sunnyside

ee Roza and Sunnyside

EE Roza and Sunnyside

es ok a 66 « bone 4 ais Roza and Sunnyside

_- + aa Kittitas

CO ee ee Kittitas

Frances J. Puterbaugh ............ Sunnyside

Martin R. Puterbaugh ............ Sunnyside

RO tr CN rcs Wapato

Lucille H. Rasmussen ............ Wapato

Robert A. Rasmussen............. Wapato

Rattlesnake Ranch ............... Roza

Roskamp Farming Co., Inc. ....... Roza and Sunnyside Valley

Ree I as oc cicnicnccece Kittitas

Ee Kittitas

IID cic cnccctececcces Roza

A-40

Petitioners Irrigation District

Helen Gene Sabin ..........0005. Kittitas

Pe EN che vo ceNeaa awe Kittitas

ge ee rr Wapato

I oo iver anbeneececas Wapato

ER TED vig nccn cc evadawaste Kittitas

Robert D. Schnebly .............. Kittitas

Harold S. Schrotenboer........... Roza

Thelma S. Schrotenboer .......... Roza

ee eer ree Sunnyside Valley

eS SS rere rrr rrr Sunnyside Valley

Perr reer es Roza and Sunnyside Valley

C&D A ee eee Roza and Sunnyside Valley

I kok Sean nieuesees ches —-

Myra Babee oi ci cere eres —-

Donna Scymanski .............0.. Roza

Peter Scymanski, Jr............... Roza

PPT TET Tee eee _

pS PPP eee ee _

pS A Pe Ty eee Kittitas

oS ere rere Kittitas

I a ssc cece n wes cnsas Kennewick

(lf er ere Kennewick

Charlene Seymour ............... Roza

Nicholas J. Seymour ............. Roza

Willem V. SROMON...... 06 ccecceas Kittitas

Sherandre Farms, Ltd......... toes) ORS

I ED bias odaveewan sce na Roza and Sunnyside Valley

. 0 eee Roza and Sunnyside Valley

Bee PUT odie cto eansdesones Wapato

ee rer ee Roza

BITS TI 5 o.v os ccceccccceuss Roza

Norval W.-Sparks i535 ccvrevcce ce. Roza

PU ID ocr sc cc dccnanncsans Kittitas

er OID on. 5 cc cdiccevccns Kittitas

Seopples P, Ime. ... nc ccccc ences Sunnyside

8k SAAC re irae rs Roza

es oes pis. ay ee aoe Re Roza

OS err Roza

EPPS eT eT Cee ye Roza

ee eee Roza

PE IO os sven cdices cee Roza

Ee rere re Roza

TOR Ben NIN oa nn cn kcdascccs Roza

—————— ee ee Oe

Petitioners Irrigation District

ee eee Roza and Sunnyside Valley

3. Aare ee Roza

I i Ch RG Ceaabcaaesadas Roza |

PS OS cee ice creas Roza and Sunnyside Valley |

Barbara M. Trabant .............. Roza

I acces daeeveees Roza

Triple R. Ranches, Inc. ........... Roza

ES Oe Roza

Ds cane bsb.e vadswaaan Roza

Tudor Hills Vineyards, Inc......... Roza

TR ics ccacccsssce Wapato

Umemoto Farms, Inc. ............ Wapato

Rodney N. Van Allen ............ Kittitas

(. A eee Kittitas

Van Klinken Bros., Inc............ Roza

Clifford R. VanBelle.............. Roza and Sunnyside

Dale Allen VanBelle.............. Roza

SP II ss cece cccsacame Roza |

og” rrr rere Roza and Sunnyside |

Bre Roza |

re Roza and Sunnyside Valley |

UT EEE wa ncaccccaccaces Roza and Sunnyside Valley

Co reer Roza and Sunnyside Valley

Margery Wagner. .............00. Roza

WOME I occ ccc ccccese Roza

DI ook os ca ude nance c Roza

fe Cen = ge Roza

ge er ee Kittitas

Mary Ellen Watson .............. Kittitas

Florence Ann Weaver ............ Kittitas

PU hong ons Suavnwees Kittitas

POE Is Sic ec cc cciscccsan Kittitas

MiG. Wes... Kittitas

SMT DE. WMO occ cccccceen Roza

POE SU rs vc sawn acaccacad Roza

PUI vs Gennes cctsacss Roza

oe ee Roza

Wee Wet, EAE. oo cece eene Roza

ca a hs acigdecss dani 8a Roza

esac ccakas sedans Sunhaven Farms

A Kittitas

eT eee Roza

NE Ba PIR s vevcdancsuusees Roza

Petitioners Irrigation District

VOURRS. TUN Wok dics nicdu Sanus Roza

ST er Sunnyside Valley and Snipes

Mountain

L. & S. Woodworth, Inc. Sunnyside Valley and Snipes

dba Woodworth Bros............ Mountain

3 SK Pe Roza

2 8a, 4 eee! Roza, Sunnyside Valley and

North Outlook

Elbert B. Schinmann, et al., v. United States, United States

Claims Court No. 226-80C.

Petitioners Irrigation District

Elbert B. Schinmann ........ .... Roza and Sunnyside Valley

Teddie Marie Schinmann ......... Roza and Sunnyside Valley

R.E. Redman & Sons, Inc. v. United States, United States

Claims Court No. 36-81C.

Petitioners Irrigation District

R.E. Redman & Sons, Inc. ........ Wapato

‘ea 0A sa AA AE et i tae

A-43

Appendix E

United States Department of the Interior

(Letterhead)

Bureau of Reclamation

Pacific Northwest Region

Federal Building & U.S. Courthouse

Box 043-550 West Fort Street

Boise, Idaho 83724

In reply refer to: 700

Memorandum

To: Commissioner

From: Regional Director, Boise, Idaho

Subject: Yakima Project Water Supply Projections

Enclosed is our report on the review of the water supply

projections for the Yakima Project. As a result of the review, we

are implementing the following actions to improve our forecasting

procedure for the Yakima Project:

1. Procedures for computing the total water supply available

in the Yakima River basin and for distributing this suppiy to

water rights recognized in the 1945 Consent Decree will be

defined in operating instructions for the project. A process will be

developed to resolve any differences in forecasts and computed

water supplies which occur between Yakima Project Office and

Regional Office hydrologists prior to publication uf the data.

2. Review of forecasting procedures in the Yakima River

basin with the National Weather Service, the Soil Conservation

Service and the Washington State Department of Ecology.

3. The effort to develop a computer model for use in operat-

ing the Yakima Project, now underway as a study in the Yakima

Valley Water Management Study, will be expedited.

4. Consideration will be given to providing to water users

variable TWSA estimates which project both “conservative” and

“normal” forecasts.

A-44

We have just reviewed the current water supply situation of the

Yakima Project using the most recent runoff and water use data

available. The current estimate of total water supply fog the period

of July through October is 1,260,000 acre-feet. This estimate

assumes that (1) natural runoff will be equal to the smallest . uly,

August, September, and October of record; (2) return flows will

amount to about 50,000 acre-feet per month, flows realized in

July through October, 1963, the minimum which occured for the

period of 1960-75; (3) an estimated storage content on July 1 of .

900,000 acre-feet, and (4) estimated spills past Parker of 20,000

acre-feet.

The current estimate represents an increase in supply from

previous estimates. Some of the increase is attributed to addi-

tional natural flows over that previously forecasted and some to

the fact that the diversions by the water users during the preced-

ing months have been less than their decreed rights. It appears

that the 1,260,000 acre-feet estimate will be adequate to fully

meet average historical July through October diversions.

Converting our most recent forecast to compare with our mid-

May estimate of April through October proratable water supply of

about 50 percent results now in a 70 percent April through

October proratable water supply.

Rop VISSIA

ENCLOSURE (2)

cc: PROJECT SUPERINTENDENT, YAKIMA WASHINGTON

W/ENCLOSURES (2)

A-45

REVIEW OF 1977

WATER SUPPLY ESTIMATES

YAKIMA RIVER BASIN

YAKIMA PROJECT, WASHINGTON

U.S. BUREAU OF RECLAMATION

PACIFIC NORTHWEST REGION

JUNE 1977

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A-47

INTRODUCTION

Extremely dry conditions occurred in the Yakima River basin

from October 1976 through January 1977. The outlook was for

the drought condition to continue during the remaining months

preceding the 1977 irrigation season when precipitation normally

occurs. Because of this, water users in the Yakima River basin,

local and State agencies, and Federal agencies such as the Bureau

of Reclamation became concerned about the availability of an

adequate irrigation water supply to maintain agricultural produc-

tion in the basin.

In February 1977, the Bureau of Reclamation provided an

estimate of the total water supply available (TWSA). The Febru-

ary estimate of TWSA for the period April | through September

30, 1977, was 1,220,000 acre-feet. This volume is about 50

percent of the water required to satisfy all entitlements under the

1945 Consent Decree which is used to allocate supply among

parties recognized in the decree. Allocation of the 1,220,000 acre-

feet pursuant to the decree resulted in a projection that holders of

proratable, or junior, water rights would witness severe shortages.

The Kittitas Reclamation District and Roza Irrigation District,

whose entire water supplies are proratable, would receive about 7

percent of their water entitlement.

The extreme deficiency in the Western United States water

supply, including the Yakima River basin, resulted in the enact-

ment of the Emergency Drought Act of April 7, 1977, an act to

provide financial as well as technical assistance to relieve the

impacts of the drought.

In April, Reclamation revised its TWSA estimate from

1,220,000 acre-feet to 1,390,000 acre-feet to reflect the favorable

precipitation conditions that occurred in March. This resulted in a

slightly improved water supply outlook for the basin and gave the

proratable rights a 13 percent supply.

In May, there was evidence that irrigation diversions were

being met with less demand on natural flow and storage than had

been anticipated. This necessitated a review of the initial Febru-

ary TWSA estimate. As defined in the 1945 Consent Decree, the

major components included in the computation of TWSA are:

A-48

(1) forecasted natural runoff, (2) available reservoir storage, and

(3) other scurces including diverted water which returns to

streams for reuse—return flows. The review showed that the

return flow component had not been adequately accounted for,

and that this resulted in underestimating the available water

supply by about 350,000 acre-feet. Addition of the 350,000 acre-

feet to the April estimate resulted in a revised May TWSA of

1,740,000 acre-feet for a comparable April through September

period. This change impacted primarily upon the Kittitas Recla-

mation District and the Roza Irrigation District because the

decree’s priority water rights had been satisfied and all newly

projected water accrued to districts holding junior water rights.

The result was an estimated water supply to these districts of

about 50 percent of their entitlement, rather than the February

estimate of 7 percent.

The purpose of this report is to discuss the procedure used in

estimating the TWSA, to summarize a chronology of events froin

October to May, and to identify reasons for the change in the

TWSA estimate.

SETTING

The Yakima River basin, located in south-central Washington,

covers an area of about 6,000 square miles or about 4,000,000

acres. The basin centers around the city of Yakima and includes

most of Yakima, Kittitas, and Benton Counties. Topography is

characterized by a series of long, rather hilly ridges extending

eastward from the Cascades and encircling flat valley areas.

Elevations in the basin range from over 12,000 feet in the

Cascades to about 350 feet at the confluence of the Yakima and

Columbia Rivers.

The Yakima River and its tributaries drain the area. The

Yakima River heads near the crest of the Cascade Range, above

Keechelus Lake at elevation 2,517 and flows for 175 miles

generally south-eastward to its confluence with the Columbia

River near Richland. Major tributaries include the Kachess, Cle

Elum, and Teanaway Rivers in the north and the Naches River,

which has two major tributaries—Bumping and Tieton Rivers.

ee ee eas

A-49

Ahtanum, Toppenish, and Satus Creeks join the river in the lower

portion of the basin. Natural runoff for the basin above Parker

averaged about 3.5 million acre-feet annually over the period

1940-1976. Natural runoff usually peaks in May and June and

drops to its lowest point in August.

About 500,000 acres are now irrigated in the basin, of which

approximately 460,000 acres receive service from federally con-

structed facilities. The major irrigation areas and their facilities

are shown in table 1.

In 1975, the total gross crop value of crops produced on

irrigated land on the Yakima Project was $233 million; an average

of $586 per irrigated acre. Table 2 shows that of the 388,952 acres

irrigated in 1975, perennial crops (hops, mint, asparagus, nursery

stock, seeds, and fruits) accounted for 131,200 acres (34 per-

cent). Perennial crops, if lost, can take from 2 to 8 years to

reestablish, depending on whether they are special seed crops or

fruits.

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A-51

The water supply for the Yakima Project comes from natural

flow, storage, and return flows. The six Federal reservoirs in the

basin which help regulate this supply have a total storage capacity

of 1,070,000 acre-feet—Bumping Lake (33,700 acre-feet),

Keechelus Lake (157,800 acre-feet), Kachess Lake (239,000

acre-feet), Cle Elum Lake (436,900 acre-feet), Rimrock Lake

(198,000 acre-feet), and Clear Lake (5,300 acre-feet). Other

principal features include several diversion dams, two

hydroelectric generating plants, canals, laterals, and pumping

plants.

The Yakima Project is primarily an irrigation project with

hydroelectric power generation an associated function. Project

reservoirs do provide incidental flood control and recreation

benefits, and project operation does provide some flows for fish.

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A-54

YAKIMA PROJECT OPERATION

The six project reservoirs are the key to the regulation and

utilization of the Yakima basin water supply. Operation of these

reservoirs provides the control necessary to meet the basin’s

irrigation needs by the storage of winter and spring runoffs for

subsequent use during the months of July, August, and Septem-

ber when natural runoff is low and irrigation demands are high.

The carryover of water supplies in storage from one irrigation

season to the next is an essential ingredient in assuring a contin-

ued supply in water deficient years.

Yakima Project operation depends upon the magnitude of the

TWSA.

Irrigation districts begin to prime and test their systems as early

as March 20. The irrigation of crops normally commences April

1, and terminates about October 15.

At the close of the irrigation season, reservoir releases are

stopped to provide opportunity for structural inspection and

maintenance.

Winter storage releases are dependent on the amount of carry-

over storage and fall precipitation. Rain-on-snow floods can occur

during this period. Following a flood, reservoirs are lowered to

levels that, based on studies of past record, will provide space for

future flood flows and yet assure that reservoirs can be filled for

irngation if precipitation ceases to occur.

Fishery flows are provided in normal water supply years below

Prosser Diversion Dam. During the period July 11 through

August 31 and December | through February 28, this flow is 50

cubic feet per second,. The flow is increased to 200 cubic feet per

second during the period March | though July 10 and September

i through November 30. Also, in September, flows are made

available at Easton Dam for fish propagation.

Key data points for water control in the basin are gaging

stations on the Yakima River near Umtanum and Parker and on

the Naches River near Naches. Inflow to reservoirs and discharge

at these points is monitored to assure that proper operation for

irrigation, flood control, and other functions is being achieved.

A-55

1945 CONSENT DECREE

Rights to divert waters of the Yakima system for irrigation were

allocated by the United States District Court at Yakima January

31, 1945, in Civil Action No. 21, commonly referred to as the

1945 Consent Decree.

Parties to the decree are:

1. Sunnyside Division including:

Sunnyside Valley Irngation District

Prosser Irrigation District

Snipes Mountain Irrigation District

Grandview Irrigation District

Zillah Irrigation District

Granger Irrigation District

Outlook Irrigation District

Sunnyside Irrigation District

Tieton Division

Kittitas Division

Roza Division

Selah & Moxee Irrigation District

West Side Irrigating Company

Union Gap Irrigation District

Broadway Irrigation District

ome NDR HA PF wD

Cascade Irrigation District

Terrace Heights Irrigation District

—

. Moxee Ditch Company—Sub A

—

Naches-Selah Irrigation District

. Yakima Valley Canal Company

A-56

The Wapato Indian Project is not a party nor signatory to the

decree, but its rights are recognized and defined. The parties to

the “ecree and the Wapato Indian Project represent 85-90 per-

cen of the water used in the basin. There are about 40 other

disiricts or water using entities which are not party to the decree

but belong to a group defined in Article 19 of the decree as “users

of natural flow rights from the Yakima River and its tributaries,

which have heretofore been recognized by the United States

whether or not such users are parties to this action...”

The decree sets out the rights and responsibilities of the United

States acting through the Bureau of Reclamation which are (1)

the United States can divert flood waters, (2) the United States is

responsible for making certain prescribed amounts of water avail-

able at the points of diversion (head gates) of irrigation districts,

and (3) the United States is responsible for determining amount

and assuring availability of water necessary for fish passage over

Sunnyside Dam during periods of flood water diversions in item 1.

The decree states that waters of the basin shall be meted out

from the “total water supply available” (TWSA) which is defined

as “that amount of water available in any year from natural flow

of the Yakima River, and its tributaries, from storage in the

various Government reservoirs of the Yakima watershed and from

other sources, to supply the contract obligations of the United

States to deliver water and to supply claimed rights to the use of

water on the Yakima River, and its tributaries, heretofore recog-

nized by the United States.” The rights of the parties are

classified as nonproratable and proratable. Nonproratabie rights

are held by those water users with the earliest developed lands,

and these rights aré to be served first from the total water supply

in the basin. the nonproratable rights and related water quantities

are identified in Article 49.of the decree as follows:

1. 720 cfs for the Wapato Indian Project which was

provided for by the Act of August 1, 1914 (38 Stat. 604).

2. 250 cfs for the Tieton Division for the months of May,

June, July, August, and September.

3. 700 cfs April | through October 20 for lands within

the Sunnyside Valley Irrigation District.

seeds BA tere te ee -

A-57

4. 35 cfs of water for Kennewock (sic) lands served from

the Sunnyside Canal.

5. 26 cfs for use on Peity Flat lands served from the

Sunnyside Canal.

6. 25 cfs in accordance with a contract dated September

24, 1910, between the United States and the Prosser Falls

Land & Power Company, said water delivered from Sunny-

side Canal.

7. 5 cfs for the Town of Prosser, also served from the

Sunnyside Canal.

8. 150 cfs for the Cascade Irrigation District from March

15 to July 20, and 16,800 acre-feet of water from July 20 to

October 15 provided by a contract of December 12, 1906,

and 30 cfs of stock water from October 15 to March 15.

9. Amounts claimed by other water users or natural flow

rights from Yakima River and its tributaries which have

heretofore been recognized by the United States whether or

not such users are parties to this action, and the summation

of said amounts shall also be deducted from the total water

supply available subject to proration.

With the nonproratable water uses identified and quantified,

the decree implies that all other waters available are proratable

and that all proratable waters are of equal priority.

The basis in proratable water right totals about 1,284,000 acre-

feet. About 83 percent of the proratable water is held by the Roza

Irrigation District, the Kittitas Reclamation District, and the

Wapato Indian Project. A distribution of the proratable water is:

A-58

Area Proratable Right

acre-feet

Kittitas Reclamation District . . 336,000 (100 percent of supply)

Roza Irrigation District... .... 375,000 (100 percent of suppiy)

Wapato Indian Project ....... 350,000 (53 percent of supply)

Sunnyside Division .......... 142,684 (31 percent of supply)

Yakima-Tieton Irrigation Dis-

Bs kedeawedanndnneawees 38,181 (33 percent of supply)

Other small holdings ......... _ 42,295 (5-10 percent of supply)

ME cxkaninarienecas 1,284,160

Because all of the rights held by the Kittitas and Roza districts

are proratable, these two districts are especially affected in years

of short water supply.

The Kittitas Reclamation District and the Roza Irrigation

District recently submitted a motion to the U.S. District Court to

reopen and interpret the 1945 Consent Decree. The Court, on

April 26, 1977, rendered its opinion that while it had no authority

to reopen the decree, it did by the terms of the decree, have

jurisdiction to interpret and administer it. The Court ordered and

agreed that (1) the motion of the defendants to reopen the 1945

Consent Decree was denied, (2) the interpretation of the decree

by the Bureau of Reclamation as to priority and scheduling of

water delivery is reasonable and correct, and (3) the order was

without prejudice to the rights of the parties to seek further

interpretation or administration of the provisions of the decree.

Subsequently, the Yakima Project Superintendent was appointed

to act as watermaster under the decree.

The hydroelectric plants in the s:stem do not have storage

water rights; the plants operate on flows subordinate to irrigation

rights.

COMPUTATION OF TOTAL WATER SUPPLY

AVAILABLE

The Consent Decree provides a means of distributine ater

among the parties thereto in years of deficient supplies. Since the

effective date of the decree, the water users in the Yakima River

basin have enjoyed, in most instances, years of adequate supplies.

LP a AOE ee 0 ait

A-59

This, combined with the fact that actual diversions have histori-

cally totaled less than entitlements, has made a strict allocation of

the water supply under the decree unnecessary.

This section of the report consists of two parts: Part I describes

the correct procedure that should be used for computing the

TWSA if the provisions of the Consent Decree are to be applied

for distributing deficient water supplies, and Part II describes the

procedure which was followed in computing TWSA for 1977.

The Yakima River basin schematic illustrates principal drain-

age, project storage, and points of diversion to major diverters.

A-60

KEECHELUS LAKE KAC cae

1S7,800AF A Shy oO0AF

"=> () CLE ELuw LAKE

} 436,900 4.F

aCe Chem

LEGEND

SCHEMATIC

A-61

PART I

The computation of TWSA for the Yakima River basin con-

sists of three major ingredients—(1) a forecusted runoff of the

natural flows which would be realized at the Parker gage’, (2) the

water accumulated in storage, and (3) water that has been

diverted for use and returns to the streams for reuse (return

flows). It is necessary that the components be calculated to cover

compatible time frames; e.g., February through July.

The forecasted runoff of natural flows is computed as follows:

1. The historical snowpack, precipitation, and antecedent

runoff’ data are correlated with historical natural flow data

observed at the Parker gage over a 37 year period of record.

(1940-1976) to provide, for the current period of October

through July, a volume forecast of natural runoff which will

pass the Parker gage.

2. In order that the forecast of natural runoff at the Parker

gage might approximate predevelopment conditions, several

adjustments, based upon historical data over the 37-year

period, are made in its computation. An adjustment is made

to account for natural runoff, which entered the system but

was retained in storage (plus) o: flows in the river that were

attributed to releases of stored runoff (minus); an adjust-

ment is made to recognize the historical diversions of the five

major water users (Kittitas Reclamation District, Roza Irri-

gation District, Sunnyside Division, Wapato Indian Project,

and the Yakima-Tieton Irrigation District) and the numer-

ous small canals upstream of the Parker gage which would

have otherwise, prior to irrigation development, been ob-

served at the gage (plus); and an adjustment is made to

' Parker is the point of regulation on the Yakima River for flood

control and the lowest point on the river which requires storage or

natural flow water to meet irrigation diversions during summer opera-

tions. Diversions below Parker are satisfied by return flows; therefore,

any water passing the Parker gage is essentially lost to the system.

? Antecedent runoff is the late summer runoff of the previous year

which serves as an indicator for the current year base flow.

A-62

account for flows from irrigation diversions which have

historically returned to the stream (minus).

Once the forecast of natural runoff is computed, the quantity of

water available in storage is added as a second component of

TWSA.

The third component in the TWSA computation is the volume

of return flows that can, on the basis of the water supply

anticipated to be available for diversions during the current

irrigation season, be expected to enter the Yakima River system

above Parker. Return flow can be defined as that portion of

diverted water that will return to the stream and be available to

downstream users.

The forecast of natural runoff, water available in storage, and

return flows are combined to yield the total water supply availa-

ble. A simplified example would be:

EE 100 acre-feet

Reservoir storage available .................... 100 acre-feet

ne conn ncdnedassnwned 100 acre-feet

Total water supply available (TWSA) .... 300 acre-feet

Part Il

In the past, the primary purpose of the forecast of natural

runoff, the first ingredient in computing TWSA, has been to

formulate reservoir operations directed at (1) filling reservoirs for

irrigation and (2) providing adequate reserve of storage space for

flood control without jeopardizing irrigation supplies. Due to

normal or above normal water conditions usually with considera-

ble carryover in storage, the emphasis has been on the routing of

the forecasted runoff of natural flows to prevent flooding rather

than on the computation of TWSA and its distribution under the

Consent Decree. Therefore, the procedure discribed (sic) in Part

| has, in the past, been modified in the following respects.

1. In computing the forecasted runoff of the natural flows,

the diversions of the small canals upstream of the Parker

gage and the return flows have not been specifically identi-

fied. Historically, these diversions and return flows have been

approximately equal in volume and have had an offsetting

A-63

affect in the computation of the forecasted natural flow. The

adjustments which have been included, however, have been

sufficient to result in forecasted natural flow reasonably close

to predevelopment conditions for the purpose for which the

forecast has been used, the routing of natural runoff.

2. The concept has been that the third component of the

TWSA, return flows, was accounted for in the computation

of the forecasted natural flow runoff since they were consid-

ered an offsetting factor to the small canal diversions. There-

fore, in the past, this component has not been included as a

specific addition to the TWSA estimate.

In order that the water users would be aware of the anticipated

supplies that they would have available for use in 1977, the

TWSA was computed and distributed under the Consent Decree.

The February, March and April computation of TWSA followed

the procedure outlined in Part II. The fact that the return flows

are not included in the TWSA estimate using this procedure

results in an underestimate of the water supply when making a

distribution under the Consent Decree. Consequently, an errone-

ously lower water supply was projected for proratable water right

holders since these rights are only satisfied after the nonproratable

rights are fully met. In May, TWSA was computed by the

procedure outlined in Part I, which includes return flow as a

specific addition, and the supply available for distribution to the

proratable water rights increased by about 350,000 acre-feet from

the April estimate.

1977 TOTAL WATER SUPPLY AVAILABLE

ESTIMATE AND REVISIONS

This section presents a monthly chronology of conditions and

events related to the 1977 TWSA estimate through May 1977.

Tables 3 and 4 summarize monthly precipitation and runoff data

for the period October 1976 through May 1977 and contrast

precipitation and runoff actually experienced during this period

with normal levels. Table 5 presents runoff forecasts made at the

beginning of each nonth by the Bureau of Reclamation, Soil

Conservation Service, and National Weather Service.

A-64

This section also discusses Reclamation’s February TWSA

estimate, subsequent revisions to that forecast in April and May,

and factors related to those revisions. Table 6 summarizes these

estimates.

October 1976

Major canal diversions for the 1976 irrigation season had

terminated by October 20.

Precipitation levels in October were extremely low. Records

show that precipitation ranged from 28 percent of normal at the

Rimrock measuring station to a high of 50 percent at the

Keechelus station. Total precipitation measured at the five major

reservoirs averaged only 38 percent of normal.

Keechelus Dam was closed for gate replacement, and all inflow

was being stored. The gates at Bumping Lake were open and

inoperable because of damage resulting from a fire at the gate-

house on Labor Day. However, Bumping Lake closure was not a

concern at this time since the dam usually is not closed until later

in the water year. Cle Elum Dam was closed for inspection of

cylinder gates. Kachess and Tieton Dams were operating at a

controlled release of 40 cubic feet per second.

November 1976

November precipitation levels remained extremely low. Rim-

rock station recorded precipitation at 16 percent of normal.

Precipitation measured at Keechelus station was 48 percent of

normal. Precipitation at all reservoirs averaged 36 percent of

normal. October through March precipitation levels in the

Yakima basin bear heavily on calculation of the water supply

forecasts, and one-third of this time period had passed with

critically low recordings.

A-65

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Bumping Lake Dam remained open in accordance with usual

winter operating procedure. Keechelus and Cle Elum Dams

remained closed for construction and maintenance. Releases of

about 40 cubic feet per second continued at Kachess and Tieton

Dams.

December 1976

The Rimrock station recorded precipitation was 28 percent of

normal, and the Keechelus station had 52 percent. Of even

greater concern was the fact that accumulated precipitation levels

since October were only about 35 percent of normal. December is

usually a high yield month for precipitation in the basin. How-

ever, snow courses observed at White Pass and Bumping, Cle

Elum, and Keechelus Lakes were bare. Bumping Lake Dam

remained open. Keechelus, Kachess, Cle Elum, and Tieton dams

were closed.

January 1977

Drought conditions in January caused great alarm. The Rim-

rock station recorded precipitation levels were 5 percent of nor-

mal. Precipitation recorded at Keechelus was 38 percent.

Precipitation during the month at the five reservoirs averaged

about 30 percent of normal. The snow water content at the end of

the month for the six snow courses used in Reclamation forecasts

was only 10.6 percent of the 1940-1971 average. The October

through January precipitation accumulation was about 35 percent

of normal. These values were lower than any year since complete

recording began in 1940.

February 1977

The initial estimate of TWSA for 1977 was made in February.

As discussed previously, the forecast of natural runoff is a major

component in computing TWSA. Early in February, application

of the customary Reclamation methodology resulted in a natural

runoff forecast of 1,077,000 for the period February through July.

This forecast recognized the low precipitation levels that had

occurred since October but assumed that normal precipitation

vere

hepithies dia iat nit atet Ne

see dads sitin aeitanted

A-69

levels would occur over the balance of the forecast period. This is

the usual procedure followed in the forecast.

Weather conditions were deviating drastically from normal

levels. Drought conditions were unprecedented in basin records.

Because of this, there was concern about adopting the initial

1,077,000 acre-foot runoff forecast which assumed that normal

precipitation levels would be realized during the forthcoming

months.

Runoff forecasts of the National Weather Service and Soil

Conservation Service indicated an extremely low runoff condition

(table 5). The National Weather Service’s February forecast

covered a range of three runoff conditions—minimum probable,

most probable, and maximum probable runoff for the period April

through September. The minimum probable forecast was 332,000

acre-feet, or 19 percent of normal; the most probable was 549,000

acre-feet, or 32 percent of normal; and the maximum probable

was 879,000 acre-feet, or 51 percent of normal. The Soil Conser-

vation Service’s February forecast was 640,000 acre-feet, or 36

percent of normal.

A direct comparison of these forecasts could not be made. For

example, Reclamation’s 1,077,000 acre-foot forecast covered the

period February through July, while the National Weather Ser-

vice and Soil Conservation Service forecasts covered the period

April through September. Therefore, the Bureau’s 1,077,000

acre-foot estimate was adjusted to April by taking out anticipated

February and March runoff contributions. This resulted in a

residual estimate of 847,000 acre-feet for the April through July

period. This estimate still exceeded the National Weather Ser-

vice’s most probable estimate of 549,000 acre-feet and the Soil

Conservation Service’s forecast of 640,000 acre-feet. The effect of

extending the Reclamation forecast to September to be consistent

with the National Weather Service and Soil Conservation Service

was not computed. This adjustment would have had the effect of

increasing the Reclamation forecast which was already high in

comparison.

Water users witnessing the unprecedented drought conditions

were anxious to know what supply could be expected so that they

MMI

A-70

could make adjustments in their operations. In recognition of (1)

extremely low precipitation levels since October, (2) the likeli-

hood that the drought conditions would continue into the foresee-

able future, and (3) the fear of promising more water than could

be delivered, Reclamation adopted a conservative or “bottom-

line” runoff forecast of 360,000 acre-feet.

The forecast of natural runoff for the period April through

September (360,000 acre-feet) was added to an estimated April |

storage available (860,000 acre-feet) to produce a TWSA esti-

mate of 1,220,000 acre-feet. Since water users were anxious to

know the effect of the low TWSA estimate on their operations,

Reclamation made a tentative distribution of the water supply

(1,220,000 acre-feet) in accordance with the 1945 Consent De-

cree allocation. Reclamation had not in earlier years related

TWSA to the decree because the water supply had been sufficient

since 1945 to preclude disasterous water supply conditions even

though some irrigators had experienced significant shortages.

The 1,220,000 acre-feet was allocated among all rights recog-

nized in the Consent Decree. It was assumed that the nonprorat-

able users would use 100 percent of their entitlement. The effect

of this allocation was felt most severely by holders of proratable

rights since they are the junior rights in the valley. Because the

water supply for the Kittitas Reclamation District and the Roza

Irrigation District is entirely proratable, the projected water

supply for these districts was critically low. The February TWSA

estimate indicated that the water supply available to the two

districts would be 7 percent of decree entitlements. Subsequently,

irrigators began to initiate actions to obtain supplemental water

supplies and adjust cropping programs.

Precipitation for the month of February remained below nor-

mal. Precipitation levels at the reservoirs averaged 60 percent of

normal. Precipitation accumlation for the October through Feb-

ruary period was 40 percent of normal. All reservoirs were storing

inflow. Bumping Lake gates were closed, and the reservoir subse-

quently filled May 12. May through June is the usual filling

period for Bumping Lake.

A-71

March 1977

Weather conditions during | ebruary did little to improve run-

off, and the March | estimate of TWSA remained unchanged

(1,220,000 acre-feet).

Improved precipitation levels and snowpack during March were

encouraging. Precipitation at the five major reservoirs totaled 102

percent of normal.

April 1977

With the improved precipitation conditions in March, the

estimated TWSA of 1,220,000 acre-feet was increased to

1,390,000 acre-feet (table 6). The forecast of natural runoff was

increased from 360,000 acre-feet to 500,000 acre-feet, and the

storage content was adjusted from 860,000 acre-feet, to 890,000

acre-feet.

The new TWSA estimate was allocated to all water rights

recognized in the 1945 Consent Decree. This increased the supply

to the Roza and Kittitas districts from 7 to 13 percent of their

decree entitlements.

Late in the month, there began to be evidence that irrigation

diversions were being met with less depletion of the TWSA than

had been anticipated. This improved water supply condition was

attributed to water conservation by irrigators.

May 1977

Operational data continued to show that diversions were being

met with less demand on storage and natural flow than had been

anticipated. A significant part of the demand was being satisfied

by return flows. It was apparent at this time that the water supply

available and the demand were seriously out of balance.

A review of the February, March, and April TWSA estimates

and a comparison of the procedure used in their computation

(described in Part II of the previous section) with the correct

computation procedure (described in Part 1) showed that return

flows had not been properly accounted for if the provisions of the

A-72

Consent Decree are to be applied. As previously mentioned, the

historical diversions of the small canals and return flows to th

system have been approximately equal and thus in the forecast

computation were not specifically identified since they had a

cancelling effect. However, since the intent of the forecast is to

provide an estimate of the natural runoff which is anticipated to

occur in the year being analyzed, and since the TWSA as defined

in the decree includes natural flows, stored water, and waters from

other sources, it is necessary to add to the forecasted natural flows

and stored waters the waters which, after diversion and applica-

tion by the users, return to the waterways for subsequent reuse by

others. This was not done under the procedure followed in

computing TWSA in February, March, and April. This was the

error and resulted in an artificially high projection of shortages to

holders of proratable water rights.

It was estimated that the return flow contribution to TWSA for

1977 would be approximately 350,000 acre-feet. It is not possible

to precisely forecast return flow volumes. Dry soil conditions,

reduced irrigation diversions, and onfarm conservation, as antici-

pated at the beginning of the 1977 irrigation season, would tend to

reduce return flows. However, warm temperatures in April pro-

duced a favorable runoff pattern which could offset the above

effects.

Even though the snowpack was critically low, April weather

produced a runoff pattern that made it possible to utilize or divert

over 90 percent of the snowmelt water. With this runoff condition,

near-normal irrigation diversions were possible throughout the

valley. These full diversions combined with above-normal precipi-

tation levels in March and May improved soil moisture and

ground water conditions. A review of annual estimates from 1960-

1975 shows that return flow volumes were about 400,000 acre-feet

for 12 of the 16 years. Volumes of 450,000 to 500,000 acre-feet

occurred during 2 years of the 16-year period, and in 2 years the

volume was estimated at slightly less than 350,000 acre-feet.

Adding the estimated return flow volume of 350,000 acre-feet

to the natural runoff forecast (500,000 acre-feet) and storage

content (890,000 acre-feet) produced a May TWSA estimate of

1,740,000 acre-feet for the April through September period.

A-73

Allocation of the revised TWSA estimate (1,740,000 acre-

feet) to all rights recognized in the 1945 Consent Decree resulted

in a major improvement in water supply outlook. Since nonprorat-

able rights are satisfied first from TWSA, all of the increase in

TWSA accrued to proratable water right holders. Two large

districts (Kittitas Reclamation District and Roza Irrigation Dis-

trict) hold 55 percent of the proratable rights; and since that is the

only type of water right held by these two districts, their entire

water supply is affected. Because all of the increase in TWSA was

allocated to proratable water right holders, the supply to the

Kittitas and Roza districts increased cramatically from 13 percent

to 50 percent. This 385 percent increase for these two districts

compares to a 25 percent increase in the total project water supply

as a result of the revision.

A-74

Table 6.—Total Water Supply Estimate

and Revisions (million acre-feet)

Feb. March April May

USBR initial forecast natural runoff .. 1.077(1)

TWSA estimate

Adopted forecast of natural runoff(2) .360 .360 S00 .500

Storage contents(3) .............6. .860 .860 890 =.890

gn a unde e ae ek sie ae _— — — .350

TWSA estimate ........... 1.220 1.220 1.390 1.740

(1) 1.077 represents February through July forecast. This figure ad-

justed to an April through July forecast would be .847.

(2) Forecast for April through September.

(3) April | storage (estimated prior to April |, actual thereafter).

CLE ELUM LAKE STORAGE

The anticipated shortages in the supply of water for the Kittitas

Reclamation District and the Roza Irrigation District prompted

the districts and the Bureau of Reclamation to seek alternative

sources of water. One possibility which both districts were inter-

ested in was the evacuation of water from the dead storage pool of

Cle Elum Lake. The active reservoir capacity of the lake is

436,900 acre-feet; approximately 100,000 acre-feet of water could

be obtained by installing facilities to pump from the dead storage

pool. The proposed plan, accepted by the districts through resolu-

tions of the directors indicating their willingness to enter into

repayment contracts, involved the installation and operation of

facilities on barges to pump from the dead storage pool. The

estimated cost of $3 million was to be financed by a grant-loan

from the State of Washington and funds provided under the

Federal Emergency Drought Act. Kittitas was scheduled to repay

47 percent of the cost and Roza 53 percent.

As a result of the May TWSA estimate, the pumping of

100,000 acre-feet of water from the dead pool would provide

Kittitas with a water supply of 64 percent of its decree rights and

Roza 64 percent in lieu of the 50 percent both districts are now

A-75

estimated to receive. However, the Kittitas directors have indi-

cated their desire not to participate in the pumping plan. The

Roza directors and possibly the Wapato Indian Project are

interested in securing the Kittitas Reclamation District share.

Discussions are ongoing with these two entities.

Water from the dead storage pool will be used this year as

needed and next year if drought conditions persist. There is also a

potential use during the replacement of the outlet works cylinder

gates which is scheduled for 1978. When the gate replacement is

initiated, the only way to evacuate water from the reservoir will be

by means of the spillway which will preclude the evacuation of

about 150,000 acre-feet of active capacity in addition to the dead

storage pool. The use of the pumping installation could permit the

withdrawal of the 150,000 acre-feet.

CONCLUSIONS

1. Prior to February, 1977, unprecedented drought conditions

existed in the Yakima Basin. The Bureau of Reclamation made a

1977 water supply forecast. This was compared with the forecasts

made by the Soil Conservation Service and the National Weather

Service. These forecasts were lower than the Bureau’s and be-

cause of the unprecedented drought conditions, the Bureau re-

duced its forecast by projecting a continuation of drought

conditions throughout 1977.

2. Distribution of the total water supply available to all water

right diversions recognized in the 1945 Consent Decree had not

been necessary previously because of more favorable water supply

conditions. This is the first time that a detailed TWSA computa-

tion and distribution had been necessary to project water supply

availabie to parties recognized in the decree.

3. Bureau of Reclamation computation of the TWSA in the

February through April estimates did not adequately account for

return flows. This resulted in a significant underestimate of

TWSA. This short supply, when related to the allocation specified

in the 1945 Consent Decree, had the result of producing a

forecast of severe water shortages for holders of proratable, or

junior, water rights recognized in the decree.

A-76

4. The May estimate of TWSA resulted in a 25 percent

increase in the total project water supply. However, this additional

supply all accrued to those holding proratable or junior water

rights since senior water right holders had already been satisfied.

The two districts most affected are the Kittitas Reclamation

District and the Roza Irrigation District since all of their water

supply is from proratable water rights. Therefore, the revised

estimate resulted in a 385 percent increase in projected supply for

these two districts.

5. The May TWSA estimate resulted in a major improve-

ment in the supply outlook for proratable water right holders. The

May TWSA estimate of 1,740,000 acre-feet represented about 70

percent of the total project water supply requirements.

ee ee

A-77

Appendix F

January 31, 1945

In the District Court of the United States for the

Eastern District of Washington, Southern Division

Civil Action No. 21

Kittitas Reclamation District:

Selah & Moxee Irrigation District: and

United States of America

Plaintiffs,

VS.

Sunnyside Valley Irrigation District:

Christina Marina Eder:

Luis Luccolini and Ruffemia Luccolini, his wife:

Mazine A. Fox and Josie R. Fox, his wife:

Elmer A. Bacon and Artie Bacon, his wife:

Philip Louis Parks and Ollie D. Parks, his wife:

Roza Irrigation District:

Yakima Reservation Irrigation District:

Yakima-Tieton Irrigation District:

Tieton Water Users’ Association:

Grandview Irrigation District:

Granger Irrigation District:

Prosser Irrigation District:

Snipes Mountain Irrigation District:

Sunnyside Irrigation District:

Zillah Irrigation District:

Broadway Irrigation Company:

Moxee Ditch Company Sub-A:

Naches-Selah Irrigation District:

Terrace Heights Irrigation District:

Union Gap Irrigation District:

West Side Irrigating Company:

Yakima Valley Canal Company:

Outlook Irrigation District: and

Cascade Irrigation District.

Defendants

A-78

JUDGMENT

The above-entitled cause having come on for hearing and it

appearing to the Court that the plaintiffs and the defendants have

concluded and settled all issues in this cause: that the parties

hereto have joined in a Motion for Entry of Judgment: that the

provisions hereafter set forth in this judgment constitute the

agreement of the parties with respect to such issues; and that

upon consideration of the record herein and the Motion for Entry

of Judgment the Court finds that the Motion for Entry of

Judgment should be granted:

NOW, THEREFORE, it is ordered, adjudged and decreed as

follows:

1. The defendants, Christina Mariea Eder, Luis Luccolini and

Ruffenia Luccolini, his wife, Mazine Z. Fox and Josie R. Fox, his

wife, Elmer A. Bacon and Artie Bacon, his wife, Philip Louis

Parks and Ollie D. Parks, his wife, and the Yakima Reservation

Irrigation District are dismissed as defendants in this cause.

2. The obligations of the United States to deliver water from

the natural flow of the Yakima River, and its tributaries, from

storage in its various reservoirs on the Yakima watershed, and

from other sources, to the plaintiffs, to the defendants, and to the

lands within the Wapato Indian Irrigation Project, are as set forth

hereafter in this judgment.

3. SUNNYSIDE DIVISION.—The United States shall di-

vert each year into the Sunnyside Main Canal, hereafter referred

to as the Sunnyside Canal, to supply the water rights of the

parties entitled to receive water from the Sunnyside Canal in the

Sunnyside Division, a total quantity of 449,520 acre-feet of water

on the following monthly schedule:

A-79

Average Rate of

Diversion in Cubic Diversion in

Feet per Second Acre-feet

FER CR EG RR 895 53,230

rere or 1,209 74,340

MN pc ee kews aa 5 1,280 76,150

| See err ee re 1,290 79,300

I wescnccesi% 4 1,290 79,300

September .......... 995 59,190

| I er rane 456 28,010

449,520

The foregoing schedule of diversions shall be increased com-

mensurate with the quantities of water to be acquired from the

United States by the Grandview, Outlook, Granger, Prosser and

Zillah Irrigation Districts, as set forth in paragraph 6 of this

judgment: Provided, however, that the water acquired by those

Districts shall not be diverted into the Sunnyside Canal when to

do so would augment the schedule of diversions in excess of the

safe carrying capacity of the Canal.

(a) SUNNYSIDE VALLEY IRRIGATION _ DIS-

TRICT.—The United States shall divert annually into the Sun-

nyside Canal a total quantity of 340,944 acre-feet of water to

supply the water rights of said District and the water users within

the District, including water users who have no water right

applications or contracts with the United States, on the following

schedule:

Average Rate of

Delivery in Cubic Delivery in

Feet per Second Acre-feet

| SE ee ee ree 658 39,159

DOR iris kesean cases 901 55,409

(Se erutey ee 960 57,089

| Pye Sa Ree 973 59,798

SMa i ooh an aoe 983 60,439

September .......... 753 44,780

AEP ee van 612 24,270

340,944

(b) PROSSER IRRIGATION DISTRICT.—The United

States shall divert into the Sunnyside Canal 7,347 acre-feet of

A-80

water annually, which quantity of water includes estimated losses

in said Canal between the point of diversion and the point of

delivery, and the United States or its successor in the operation of

the said Canal shall deliver pursuant to the contract dated

December 1, 1917, with the Prosser Irrigation District, at Mile

55.05 and Mile 59.32 of the Sunnyside Canal in an amount not

exceeding the following schedule:

Acre-feet

Month per acre

MS Se eSe ced de cas sek eae 0.40

Se ry erry Tey 0.48

ME i 0k ot ka leas as wane 0.56

| FEAR ee ee ice ee ar 0.58

LR err re hee 0.58

IE ss spas nck bavscee bee 0.40

, 0 Re ee 3.00

The annual irrigation season shall be from April to September,

inclusive, and the maximum rate of flow at the said points of

delivery during any one month shall not exceed the following

schedule:

Rte 14 second-feet

My o0 oko kwh anda ewes ee 7

RA ra nrg sere > eis z

aes 5 ak tN caren Oe _ i

MIS ck caw ascw Kens eee p

I ae .

Provided, however, that water solely from the natural flow of

the Yakima River will be delivered by the United States during

October, if desired by the District and found available by the

officer in charge of the administration of the water supply for the

Yakima project.

The United States or its successors in the operation of the said

Canal, in accordance with the contract of June 1, 1925, with the

Grandview Irrigation District and the Prosser Irrigation District,

shall deliver to the Prosser Irrigation District for use upon the

15.21 acres of land, to which reference is made in said contract,

2.75 acre-feet of water per acre; and the amount of water to be

delivered to the Grandview Irrigation District pursuant to its

ee ee ee

1 onctln” Seat

A-81

contract with the United States, dated August 4, 1916, shall be

reduced by the proportional amount applicable to the said 15.21

acres and the amount of water to be delivered by the United

States pursuant to its contract with the Prosser Irrigation District

dated December 1, 1917, shall be correspondingly increased.

The foregoing quantities of water for the Prosser Irrigation

District shall be increased 2,500 acre-feet upon the execution of a

contract for the acquisition of that quantity of water by the

District and the United States as provided in paragraph 6 of this

judgment. The increased quantity of water shall not, however, be

diverted into the Sunnyside Canal when to do so would augment

the schedule of diversions in excess of the safe carrying capacity

of the Canal.

The foregoing obligation of the United States to deliver

water is subject to the conditions and limitations set forth in said

contracts.

TRICT.—The United States shall divert into the Sunnyside

Canal 9,247 acre-feet of water annually, which quantity of water

includes estimated losses in said Canal between the point of

diversion and the point of delivery, to supply the amounts of water

provided for by contracts between the United States and the

Snipes Mountain Irrigation District dated November 16, 1914,

and July 11, 1931. There shall be delivered by the United States

or its successor in the operation of the Sunnyside Canal a total of

5,265 acre-feet, pursuant to the contract dated November 16,

1914, between the United States and the Snipes Mountain

Irrigation District, at the following points on the Snipes Mountain

Canal: (a) at Mile 9.05, (b) at Mile 10.20, and (c) near Mile

6.42. The annual irrigation season shall be from April to Septem-

ber, inclusive; the maximum rate of flow at the said points of

delivery which the District may demand during any one month,

based on the following schedule, shall be 17.7 cubic feet per

second and the monthly supply of water shall not exceed the

following monthly schedule of deliveries:

A-82

Acre-feet

Total of

Month Contract

ROM aC EAE 685

Pere rer ees srr per ras? oo" 840

PS Sc Saka ee es hs 1050

LEO Ee Pee err e re yee 1055

Ie ois. as Ba ee 950

WE occ hi ciec sc dorceens _685

WOE a cc ch ebeas PART e ae 5265

Provided, however, that water solely from the natural flow of the

Yakima River will be delivered by the United States during

October, if desired by the District and found available by the

officer in charge of the administration of the water supply for the

Yakima project.

In addition to the water supply provided for in said contract of

November 16, 1914, the United States or its successors in the

operation of the Sunnyside Canal pursuant to a contract dated

July 11, 1931, with the District, shall deliver annually a total of

2674 acre-feet at the following points; (a) Mile 9.05 of the Snipes

Mountain Canal; (b) at Mile 1.15 of the West Branch of the

Snipes Mountain Canal; and (c) near Mile 6.42 of the Snipes

Mountain Canal. The annual irrigation season shall be from: April

1 to September 30, inclusive, and the mean monthly supply of

water to be furnished under said contract shall not be in excess of

the following schedule of percentages of the total annual

diversion:

Acre-feet

Per Total of

Month Cent Contract

Pa eee oy ewe Pee es 10 287.40

SEPP Ey ers Pe re ee 16 459.84

PEs gad cas CO as ees ea Se 19 546.06

A Pree Doe para ge maar drier a 21 603.54

ry ee ers oe ee 20 574.80

i AER e ee re, 14 402.36

pS emireys Ja ot 100 2,874.00

LSA LLIN Gc FOE HS Rew we ATO

A-83

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said

contracts.

(d) GRANDVIEW IRRIGATION DISTRICT.—The

United States shall divert into the Sunnyside Canal 14,586 acre-

feet of water annually which quantity of water includes estimated

losses in said Canal between the point of diversion and the point

of delivery, to supply the amounts of water provided for in

contracts between the United States and Grandview Irrigation

District dated October 4, 1916, and February 21, 1933. The

United States or its successor in the operation of the Sunnyside

Canal shall deliver water pursuant to the said contracts at Mile

50.35 of the Sunnyside Canal and at Mile 2.87 of the Rocky Ford

branch canal of the said Sunnyside Canal in an amount not

exceeding the following monthly schedule:

Acre-feet

Month per acre

alae iar pe Rr pram pegee epe 36

ARS ee Sura ae 45

RN Rn Ss ee gs Cia 52

ta a5 os vers haeda dae 53

(SSNS Gare rn, re eer aor BX

RAST TET ETE eer erS _.36

rR ae RAE aa page 2.75

Provided, however, that water solely from the natural flow of the

Yakima River sha!! be delivered by the United States during

October, if desired by the District and found available by the

officer in charge of the administration of the water supply for the

Yakima project.

The annual irrigation season shall be from April to September,

inclusive, and the maximum rate of flow at the said points of

delivery which the District may demand during any one month,

based on the above schedule, shall be 34 c.f.s.

There shall be delivered by the United States or its successor in

the operation of the Sunnyside Canal in accordance with the

contract of June 1, 1925, with the Grandview Irrigation District

and the Prosser Irrigation District, to the Prosser Irrigation

A-84

District for use upon the 15.21 acres of land, to which reference is

made in said contract, 2.75 acre-feet of water per acre; and the

amount of water to be delivered to the Grandview Irrigation

District pursuant to its contract with the United States, dated

August 4, 1916, shall be reduced by the proportional amount

applicable to the said 15.21 acres and the amount of water to be

delivered by the United States pursuant to its contract with the

Prosser Irrigation District dated December 1, 1917, shall be

correspondingly increased.

The United States or its successor in the operation of the

Sunnyside Canal shall also deliver each year, in addition to the

water supply provided for in the foregoing contract of August 4,

1916, pursuant to its contract of February 21, 1933, with the

District, .1970 acre-feet of water at Mile 50.35 of the Sunnyside

Canal. The annual irrigation season for the delivery of water shall

be from April 1 to October 31, inclusive, and the mean monthly

supply of water to be furnished under said contract shall not

exceed the following schedule of percentages of the total annual

diversion:

Acre-feet

Per Total of

Month Cent Contract

AOE iss innisgae iene 9 184

Seerrrrr er res ry yr ri 26 501

DE fg is ikke 8 151

BO kk cecndcndanae see ne ae 9 186

ROE 5 i x cc io Va ee 9 186

DINE 663 CS er 18 362

I oo cae cacaccetna nee a _ 400

TO. fea ree 100 1,970

The foregoing quantities of water for the Grandview Irrigation

District shall be increased 3,000 acre-feet upon the execution of a

contract for the acquisition of that quantity of water by the

District and the United States as provided in paragraph 6 of this

judgment. The increased quantity of water shall not, however, be

diverted into the Sunnyside Canal when to do so would augment

the schedule of diversions in excess of the safe carrying capacity

of the Canal.

eee

A-85

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said contract.

(e) ZILLAH IRRIGATION DISTRICT.—The United

States shall divert into the Sunnyside Canal 362 acre-feet of

water annually, which quantity of water includes estimated losses

from the point of diversion to the point of delivery, to supply the

amounts of water provided for in a contract dated September 29,

1922, as amended by the contract of June 22, 1931, between the

United States and the Zillah Irrigation District. The United

States or its successor in the operation of the Sunnyside Canal

shall deliver water pursuant to the said contracts at turnouts

numbered 15.47 and 15.62 and 16.82 on the Sunnyside Canal and

the mean monthly supply of water shall not exceed the following

schedule of percentages of the total diversion:

Month Per Cent

ae sala eck 4's 'da 9

ac Wx Geb d nak 0-046» x5 15

AER ea 19

Nas Siwicis <b ees ee 0s 19

sea TS a ane ree 19

Siig ooo. 5 Ssh caine ees 13

SE ain a''x 0b Wan ay ain a'ers'e |

Rees Peer 100

The annual irrigation season for the delivery of water shall be

from April | to October 31, inclusive, each year.

The foregoing quantities of water for the Zillah Irrigation

District shall be increased 200 acre-feet upon the execution of a

contract for the acquisition of that quantity of water by the

District and the United States as provided in paragraph 6 of this

judgment. The increased quantity of water shall not, however, be

diverted into the Sunnyside Canal when to do so would augment

the schedule of diversions in excess of the safe carrying capacity

of the Canal.

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said

contracts.

A-86

(f) GRANGER IRRIGATION DISTRICT.—The United

States shall divert into the Sunnyside Canal 5,454 acre-feet of

water annually which quantity of water includes estimated losses

from the point of diversion to the point of delivery, to supply the

amounts of water provided for in a contract dated November 20,

1922, between the United States and the Granger Irrigation

District. The United States cr its successor in the operation of the

Sunnyside Canal shall deliver water pursuant to said contract

during the irrigation season from April 1 to September 30,

inclusive, at the head of the pressure pipe at Mile 23 of the

Sunnyside Canal, said water to be delivered to the District in

amounts not to exceed the following schedule:

Acre-feet

Month per acre

See bin diut ce cuca aekeeeicn. 0.40

radi akn't kW ain vk Ske 0.48

ras ihak ceca ue nwne cova ay 0.56

Red en tr das a kas kl wk ie 0.58

NES Udd aoe Wao 4 4% oh OO 2 NS 0.58

DN ob iSuwsaedakocnens 0.40

DEF iti di nnaseues ok ees 3.00

The maximum rate of flow which the District may demand

during any one month shall be as follows:

Month Rate of flow

SE Sad cede epee i skdues 10.9 c.f.s.

DU Wk ck Dance oan enna ewe 26 ("

| Pao ere or rs > + ile

SERIA A ap etyth aete A tx > led

EG bt knb.cd he Soe Kas oe ae | 5 il

EN cats sas Wane ck oe heed

Provided, however, that water solely from the natural flow of the

Yakima River shall be delivered by the United States during

October, if desired by the District and found available by the

officer in charge of the administration of the water supply for the

Yakima project.

The foregoing quantity of water for the Granger Irrigation

District shall be increased 1,800 acre-feet upon the execution of a

contract for the acquisition of that quantity of water by the

n ellie

A-87

District and the United States as provided in paragraph 6 of this

judgment. The increased quantity of water shall not, however, be

diverted into the Sunnyside Canal when to do so would augment

the schedule of diversions in excess of the safe carrying capacity

of the canal.

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said contract.

(g) OUTLOOK IRRIGATION DISTRICT.—The United

States shall divert into the Sunnyside Canal 17,855 acre-feet of

water annually, which quantity of water includes estimated losses

from the point of diversion to the point of delivery, to supply the

amount of water provided for in the contract between the United

States and Outlook Irrigation District dated November 23, 1914,

as amended by the contracts of August 1, 1916, and July 1, 1919,

and the contract dated December 20, 1932. The United States or

its successor in the operation of the Sunnyside Canal pursuant to

the said contract of November 23, 1914, as amended, shall deliver

14,530 acre-feet at Mile 30.25 on the Sunnyside Canal. The

annual irrigation season for the delivery of water shall be from

April to September, inclusive, and the maximum rate of flow

which the District may demand during any one month, based on

the following schedule, shall not exceed 46 c.f.s. and the monthly

supply of water shall not exceed the following schedule of

deliveries:

Acre-feet

Total of

Month Contract

cs va Seka caae se swonawn 1,890

PN se ticgieiesterdeen<sias 2,380

BE a ia sas fanaa eee 2,730

SPE PES ERE TT TC eee 2,820

WR ccs eccepen taaneneee 2,820

I o's oc ke cde daeevess 1,890

We hast soi adveuag seas 14,530

Provided, however, that water solely from the natural flow of the

Yakima River shall be delivered by the United States during

October, if desired by the District and found available by the

A-88

officer in charge of the administration of the water supply for the

Yakima project.

The United States or its successor in the operation of the

Sunnyside Canal, pursuant to the contract dated December 20,

1932, with the District, in addition to the water supply provided

for in said contract of November 23, 1914, as amended, shall

deliver annually 1,185 acre-feet at the headworks of the District

in the Sunnyside Canal. The annual irrigation season for the

delivery of water shall be from April 1 to October 31, inciusive,

and the mean monthly supply of water to be delivered under the

terms of said contract shall not exceed the following schedule of

percentages of the total annual diversion:

Acre-feet

Per Total of

Month Cent Contract

Bs sade udeaaveans sen een 6 70

MU 9.0% 060.4 e¥ au be daca bau Aaeee 11 130

MTS 65.008 ¢as bowke wens beeen 16 185

EE NT TET ST erie ees 15 180

NE Sh Sa cinds cokeveuuneawars 15 180

PE ns wh decvevsadebetwa 12 145

GE Diciusesencineneeuenaae _25 _ 295

Ms 6G ss 500 84a ase boeken 100 1,185

The foregoing quantities of water for the Outlook Irrigation

District shall be increased 4,500 acre-feet upon the execution of a

contract for the acquisition of that quantity of water by the

District and the United States as provided in paragraph 6 of this

judgment. The increased quantity of water shall not, however, be

diverted into the Sunnyside Canal when to do so would augment

the schedule of diversions in excess of the safe carrying capacity

of the Canal.

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said

contracts.

(h) SUNNYSIDE IRRIGATION DISTRICT.—The

United States shall divert into the Sunnyside Canal 21,044 acre-

feet of water, which quantity of water includes estimated losses

between the point of diversion and the point of delivery, to supply

ee or ee

A-89

the amounts of water provided for in a contract dated October 6,

1914, between the United States and the Sunnyside Irrigation

District. The United States or its successor in the operation of the

Sunnyside Canal shall deliver water pursuant to said contract to

the headworks of the District, which are located on the West line

of Section thirteen (13}, Township nine (9) North, Range

twenty-five (25) East, W.M., eleven hundred fifty-four and five-

tenths (1154.5) feet North of the Southwest corner of said

section, and the point at which said Canal enters said District.

The annual irrigation season for the delivery of water shall be

from April to September, inclusive, and the monthly supply of

water shall not exceed the following schedule of deliveries:

Acre-feet

Total of

Month Contract

PE cekdsceCRsavbccsedasvsetousen 2,410

DE Kwavuchecpounsddescadneuseaus 2,960

Pe iesaleViccuedtesdisasactasen 3,700

Bt eiihk pdedtsntnckasddanesdonave 3,690

REE fecadsncntvasdeneesscudtunen 3,350

RE oc puss eau Wande ceed 2,410

MG so nc adbsuscdaeeanate dies 18,520

The maximum rate of flow which the District may demand during

any one month, based on the above schedule, shall not exceed 60

c.f.s. Provided, however, that water solel, from the natural flow of

the Yakima River shall be delivered by the United States during

October, if desired by the District and found available by the

officer in charge of the administration of the water supply for the

Yakima project.

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said contract.

(i) Nothing in this decree shall preclude the Prosser Irrigation

District, Snipes Mountain Irrigation District, Grandview Irriga-

tion District, Zillah Irrigation District, Granger Irrigation Dis-

trict, Outlook Irrigation District or Sunnyside Irrigation District

from the permissive use of surplus water in the Sunnyside Canal

if available in the month of October, to the same extent and under

the same conditions as prior to the entry of this judgment.

A-90

4. WAPATO INDIAN IRRIGATION PROJECT.—The

United States shall deliver, pursuant to the Act of August 1, 1914,

38 Stat. 582, in perpetuity for lands within the Yakima Indian

Reservation, hereinafter referred to as the Wapato Indian Irriga-

tion Project, at the northern boundary thereof, a total of 720 cubic

feet of water per second.

The United States shall, pursuant to the agreement dated

September 21, 1943, between the Bureau of Reclamation and the

Office of Indian Affairs, which superceded the agreement of

March 9, 1921, as amended by an agreement dated September 3,

1936, divert from the Yakima River 250,000 acre-feet of water

each year for the lands of the Wapato Indian Irrigation Project,

such water to be measured at the diversion works of the Wapato

Indian Irrigation Project. The irrigation season for the delivery of

the 20,000 acre-feet of water shall be from April | to September

30, each year, except as the season may be by the United States

extended to include the month of October. The diversion of the

said 250,000 acre-feet of water shall be in accordance with the

following basic schedule:

Percent of

Month Season Total

DGesustuhddcaecnaneanseeenea wks 9

DES, seer ssa inadbe ctu canses oe ee 21

DE. JURY oe bs lub cde ocak ovleknees 20

SU Malt onth thas backs coenin & yee s 23

Ms thetehenen ads ke hidandeeeeds 21

SE oo. bit na a a aaa ake _ 6

I a ee 100

The foregoing basic schedule, as provided in the agreement of

September 21, 1943, may be revised for a particular irrigation

season or part of a season by agreement to be entered into prior to

or during the irrigation season affected, between the Project

Superintendent of the Bureau of Reclamation and the Project

Engineer of the Office of Indian Affairs, to permit an interchange

of quantities of water available at such time as storage is being

released for use below Union Gap during the months of June,

July, August and September and to permit the use of part of such

available quantities during the month of October. The revision in

A-91

such schedule shall be effective only as to the months of June,

July, August anc September in the same irrigation season as the

making of the agreement and only from the date of storage

release.

The United States shall divert each year in addition to the

water supply hereinabove set forth for the Wapato Indian Irriga-

tion Project, in accordance with the agreement dated September

3, 1936, between the Office of Indian Affairs and the Bureau of

Reclamation, and the Act of July 1, 1940, 54 Stat. 707, 100,000

acre-feet of water from the Yakima River, to be measured at the

diversion works of the Wapato Indian Irrigation Project. The

annual irrigation season for the delivery of such water shall be

from April | to September 30 each year and the diversion of said

100,000 acre-feet shall be in accordance with the following basic

schedule:

Percent of

Month Season Total

DE Anuhadeavebsraiseusacsbesaneees 9

Schade eda kePAE eetbeeene aaa rs 21

Dinos cua iucde sav esees 5080 000890 20

DR Rideddkeysaveisebesuasacaesaers 23

Rc eeGahynswwese be Kee daaaad es 21

SEE Dich peauseakeensnee as ceuee ca

AAS pe ey rer ee 100

The foregoing schedule, as provided in the agreement of Septem-

ber 3, 1936, may be revised by agreement between the Project

Superintendent of the Bureau of Reclamation and the Project

Engineer of the Office of Indian Affairs to permit, subsequent to

the date of storage release, for use below Union Gap in the

months of June, July, August and September, the use of water

interchangeably during said months in an amount not to exceed

70,000 acre feet.

The foregoing obligation of the United States to deliver water is

subject to the conditions and limitations set forth in said

agreements.

A-92

5. TIETON DIVISION (Tieton Water Users’ Association and

Yakima-Tieton Irrigation District). The United States shall di-

vert annually into the Tieton Main Canal, to supply the water

rights of parties entitled to receive water from the said Canal, for

use on the Lands within the boundaries of the Yakima- Tieton

Irrigation District, 96,000 acre-feet on the following monthly

schedule:

Average

Rate of

Delivery in

Cubic Feet _ Delivery in

Month per Second Acre-feet

ee foe oe 293 18,000

PD inane RCE eaten 336 20,000

oy Ae ae 325 20,000

MR Svan Nak cue deennkbeae 325 20,000

EE soi kav ae acaneeees 302 ~=—:18,000

9é 000

The foregoing schedule of diversions shall be increased com-

mensurate with the quality of water to be acquired from the

United States by the Yakima-Tieton Irrigation District as pro-

vided in paragraph 6 of thi

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