# Appendix — Orchards v. United States, 106 S. Ct. 64 (1985) (No. 84-1702) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0151%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 ## Text 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 oe aa 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 Gs + a ; : - 7 f a7 abo ms ate "ah Sp el as 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, v. 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 A-2 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, A-3 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 A-4 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 A-5 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 A-6 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 A-8 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 A-9 Appendix B In the United States Claims Court (February 21, 1984) No. 113-80C H. F. Allen Orchards, et al. Vi The United States No. 226-80C Elbert B. Schinmann, et al. v. The United States No. 36-81C R. E. Redman & Sons, Inc. v. 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 A-10 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 A-13 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 I 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. (c) The provisions of many of the post-1945 contracts as well 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 II 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 4 3 4 4 a P : . 2 i 7 a 7 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 ea ee * 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). eT 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. i 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, V. 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, v. 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 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 Sunnyside Roza and Sunnyside Roza and Sunnyside Roza and Sunnyside Roza and Prosser Roza and Prosser Roza and Sunnyside Roza—Union Gap Roza—Union Gap Wapato Wapato Project 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) 3 A-45 REVIEW OF 1977 WATER SUPPLY ESTIMATES YAKIMA RIVER BASIN YAKIMA PROJECT, WASHINGTON U.S. BUREAU OF RECLAMATION PACIFIC NORTHWEST REGION JUNE 1977 NOLONINSTM LOALOUd VNIMVA ‘ MOuitmerotw 70 Heine 4 > PT Fe Me Stecer © WED BOIL! Dee 49 ENDL wVEDO SBivas O2ann NONLUNW Tax BEST AVAILABLE COPY Beene St bance bee 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 CO 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. “TOTEM 10y 199fo1g VUIYeA UOdN yUApUddap JOU 199f01g ovede A 94) JO stu, 209WIS-Yysiusddoy pur WNURIYY 9q) Ul adeaoy (¢) ‘S1OJORIJUOD JY udsuEAA puke jeIosds (7) ‘MOY WINIOI puR ‘9deIO]S ‘MOY [BANJLU WOIJ SIUWOD SBOIE [|B 1OJ Ajddns 19eAy (1) Sjenpiaipul pure SHOAIASAI ‘savurdwod ‘s}d1iSIp Wold JBM ITRIOIS S¥JOM IeuUleIp pue (Z)seuy uONRSWI SNOLIBA pue moy [rumen ‘s]BURD ‘SUOISIDAIP SNOJIWINAY OO8*Sh PXUINLIG snosURTjIOSIPY SIIOA JOA JO (ueipuy) SHEYYV -19891 199f01g SyJOM IeUIeIp yinos Arye A woloig uripuy jo neoing eunyeA ITV pue ‘sjeue> dung pue uew = (¢)000°9E1 PUTyYe A 1IMO7} orede Moy [eanjeu sainquisip pue YI9Z seajO ‘Suidwing uo] uoTHRWRIIY JO Neng IesOIS SaKINIIy ‘UIN[A IO ‘ssaxydey ‘SNJIYIIOy *SIIOAINSIY 23e101S (Moy Uinjal jeued ule, Ayuno, uojwsg >) WOUISIG Ajaauey ing yormouuay ‘sjuejd Surduind ‘AaOA BUTYR A ” uONPaUIy YOIMOUUIyY ‘aBeIOIS IWIOS ) ‘yeued Jo[pueyD ‘weg UoIsIZAIG J98SO1g 07°61 JOMOT IWIIIXA YOUMIULIY opiskuung ‘weg uolssoatg episkuung 000'r0! BUNYE A JIMO F apisAuuns jouIsiq UONRS] ADIIEA UOJAL] -BWIYR A HOAIISIY UO! | jeued UOIa] Weg UOISIIANIG UNA, 00O'LZ eurye A soddy uoIat psig SHOAIISIY SS9yYIVY sjeues Yyoueig YyINog puv YON Bingsuaijy seou uONPWRIIIY SRY pure snjoyoooy ‘yeues ulepy ‘weg UOISIDAIG UOISey OOO'LS Area sey sey uOIEZIUETIQ) (14278 PETALS | (saa38) U01}8I0'] valy 10 SurjesadgQ JO 391n0SG uonediuy s0fey,y Bay jesoua’y UOISIAIG] arqusuy seoly poyeloossy pure yoofoig BMIyeA—'| IGP L 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. a a i eer eT eae OSA, (ieee dea ces soindy dois jeiuusied sajousg , 6LL'9S p8E's9 SLEL I8S‘bs 09P'S 118‘tl S]RIOL 7S6 68E 88S OE L9107 8 vb Ipl‘Z >88'l wd 6ST08 NOP CLI 9¢ 98 Sl OL SPI9$ SILT 78 8SP - - ras 67 A19sINN 988 + 6ST 7 ¢09°7 ae = vil 1S sndviedsy O9TTI oe SET Circ 167 1 TIS‘ St €7 $3]qQu1999 A BLE EZ '— () 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 ‘SLOI-ph6I SI YoIyM ‘ssoyoey idoox9 pouiod ¢/61-0P61 (Z) ‘Ayoedes o8esoys sande waysks 1af01g eUIYe A dy} JO Wed we se A[UO Popnjou! st sxe] JvI]D ‘uoseas SuNesodo ay} SuLNp suoneNiony jewWIUIW pur Ayioedes a8v10)s poy sy jo osnvoog ‘suonesodo ur ajo1 [jews AI9A & skejd 1 ‘994-2198 QOL'OLO'! JO Auoedes ades0js wiaysAs [e101 Oy) Ul J99j-a19k QOE'S JO Aloeded advs0}s Date UP YAK “UONL[NGe) IY) Ul POpNjoul JOU st “Wed UOJ] 20ge isnf ‘ayey sega (1) on op z01 09 of Op of BET eee test ese ete eeeee reece nea sees jewou jg i€'8 99°71 79°07 0787 66 Ob RRP I I'S€ 98°07 Trrerr cera CC Le ee oe ee oe a (Z)|PWION 816 ors 96°02 1691 ted 19°91 oszI + EEE tL61-OL6t [R10.L 971 61 101 is P 97 91 gy erect eteteetenteneaee sen ens feusou ju2919q £6 C7'l soz L67 9p 98'b Ol’ 9172 eceoaeeoeeen ee eseeeeseesescoeseeCeseeecerae es envuseees (Z) |BuON it or" 102 OCI 7" ol co” IQ rece ec est eseese esses eee es ees ens cen 11-9161 ye] YOOMUY iol ey iz CL 8¢ zs Sp OG reteset ee eee seen eee es fewsou ju90I9q i¢'Z Sor 079 +r0'8 Z0'1 i Ls'l I 666 6£°9 rer n eee ee a ee ee re ee (Z) [Buon 09° 96'1 06‘! 9n'c +I" *0°9 Si 2 SES 1161-9161 : aye] snpsysooy 01 ze 001 19 g¢ yy oy pe Tetra eeseeeseeeeeeneeee eens jewuou 12912 681 LOE C8 b 199 ZL'6 S'6 CLL r3'? ‘oe ee VRP eeC PRR BC ROA ES ee ee ee ee fF (Z)jewson 81 16 ony ore ore 62° ace CO] It eet eet esteetessesenegecaessecce ses 1161-9461 aye] ssoyory 69 S¢ 06 mn op ey S¢ QE rect eeteeteseteeeeeseseree es - + euuou qw29!9g ZI SLI ZOE RPP L3°9 3'9 OLS REE Tree Re Tee eS a Oe es eS (Z)jeudON es" 29° Lz ore 91-2 00'¢ 602 OC Tenens estes eae TL6t-9L61 aye] wayy AD Sc1 Is 91 6s ¥ 62 ¥2 Geter ee ete eset eens nea eees jewuou 120104 CLI 9¢°7 tS +r0'9 SL’8 L0°6 3 60°? wTeuereeraertyraeeLeEaee ec See wee ee eee ek (Z)jeuON ee +e, aye oF? 92'I SO'z 6L'I CE] rete ee esse eseeceeseeeescesceseesees 1161-9461 oye] Suidwng Av Indy your ‘4 ‘uer ‘2d “AON ‘PO (1)sjouasay (sayout) uopBuryse ay Wdaforg BUTYEA “BIB UOHENdIPIAIG—"E 248] A-66 = as ee a ee SSOENEEn nn an ‘OBPIOAR 7161-8561 (Z) ‘Auoedes a8esojs aarjoe Wajsks Joafo1g PUILYR A dy} JO Wed B se AJUO papnyout st oye] IBD ‘uoseas SuNnviodo 9y) SuLNp suoneNony jetUIW pue AjIOedeo WRIOIS PW] Si JO ssnvoog ‘suoNviado UI JJOI [JEWS AIDA & Skeid Wt ‘199J-2198 YOL‘OLO'I JO Aitoedes o8es0}s wayss [e10) ay) Ul J9aJ-O19e YOE'S JO Ailoedes a8vs0js daNov UP YIIAA ‘VOHE[Ne} SIYy) UI popnjou! jou si ‘Weg UOJ], aaoge isnf ‘aye JeaD (1) tb 98 $s 6S 6L rs 8b TS TEE eee eter eee ea jewuou 3U90194 7 9SE €°991 9601 rsil 7 6II LOZI O€EZI Tel SeCeee Mensa stesePes CA VOW ee Cale se Ve os 6 4S (Z)jeusoN 8'6bI 8'9F I r'09 €°89 6'£6 bo 0°66 ORE eet LL61-9L61 [BIOL Le 8° S¢ ge Lb bb rs 1) errr jewou ju90I94 L¢9 TEE £67 1°97 ee 74 6 €Z 67 791 Cee he ee ee ne ee eee ee ee a eo ee ee ey ee (Z)jeus0oN "bz 16 Ol 66 CH SOL ZI eS) eer: LL-9L6I Oe] YOOIWTY Sb Z01 lL EL 66 IL $s Te jewuou 1U9919g 0 6r 697 oe | C6l CizZ fiz I'p7 6 £1 28 € 6.00266 ORD ® 26.66 690 CO 4 O06 4 OO 6.4 Oe Oe (Z)jeusoN 12Z C17 ZH ZI IZ PSI aa UG TN e eect eee c ene neeeeceseneees LL61-9L61 dyCy snjayooay tb Sg 69 99 08 99 bb Ps ere jewsou 1U90194 OStb a 6 O91 SLI P'6l 9gI 981 66 RE REEE RRR eee Ree ee ee ee ee ee ee a oe eo ee (Z)jewoN 061 FIZ Ol fat 97°C] 771 2° Serre LL61-9L61 aye} ssoyor y zp z01 £9 OL 86 rs 8b ry eer errr jeuOU 1U99I94 671 t'>9 tLe 6 RE OIr O7P orp LZ Bake Eee ERS Pere eee ne CC er ee se Pe) ee ee (Z)jeu0N L'€9 9°69 bez Viz Ob 22 2°12 Pot ccc ee LL61-9L61 oye] winyy aD Lb 08 Ip Ip Ip 87 €¢ , eee jeuoU U20I9q Opp 99] ee el 7 El Stl TEI 69 SERRE ROP eee eee ee ee a he ea oe ee (Z)jewsion 6-02 ae Sp rs rs Ib eb ye ee cere LL61-9L61 aye] surdwng kew judy your "q24 “uve 29q AOR] ‘~O (1) s410uasay (3993-2498 OOO) UOPSuIYysE A 4d2fo1g eUNTYEA ‘eIEG youny—'p aqe A-67 199J-3198 OOO'OEL' | =—IWas-judy sWessay (9) 199j-2198 OOO'IOL' | =Aing-judy aessay (¢) 199j-3298 OOO'OSS' | =Ajng-Ae Wesaay 199j-249k Q00'N9S' | =Aln¢-udy wWessy 199J-9198 OOO'9ST'Z7=—AjNf-yuRrP Wey 199j-2198 OOO 1 pS‘7=A[ng-Aueniqa4 s8eiaay 192j-9498 OOO'Z6L'7=Alnp-Auenues a8es9ay (p) ‘saquiaidag ysnosy) judy=pouad iseod10j SMN (€) ‘Jaquisidag yInosy) judy pur Ainge y8nosy) [udy—spouad ses910) SDS (7) ‘Ain YBnosy) Nep=—poudsd yseosss0) YSN (1) (9) (¢) (p) pb Sb Sz Lt rl Rb7Z saquisidag-judy raé 067 Aing-judy €Z 6bE Ainp-Aew Aw Is S88 i€ 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. (c) SNIPES MOUNTAIN — IRRIGATION _ DIS- 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 + 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 +e Ses as ae TN | SOP MET ET OTICRET OTS EE 2% ETT OTTRE CTL Ee 17% 8 SOE PTT UTTER Le 21% IES ab Win dd0, 00004 1 b0ecen ee eeee 21% | TE Te ieee 20% OUT ones win ant 0 Cue ks ees 13% NG sis ocatvnsvasew ev euehs vhs 6% The foregoing obligation of the United States to deliver water is subject to the conditions and limitations set forth in said contracts. The Kittitas Reclamation District has released, pursuant to the foregoing contract, as amended, to the United States 20,000 acre- feet of water in the months of April, May and June, and 10,000 acre-feet of water during the months of July, August, September and October from its water supply provided for in said contract, as amended, such water to be sold by the United States to the following irrigation districts in the amounts set opposite the respective districts: Yakima-Ticion Irrigation District..... 18,000 acre-feet Granger Irrigation District........... 1,800 acre-feet Outlook Irrigation District........... 4,500 acre-feet Grandview Irrigation District ........ 3,000 acre-feet Prosser Irrigation District ........... 2,500 acre-feet Zillah Irrigation District ............ 200 acre-feet 7. ROZA DIVISION (Roza Irrigation District).—The United States shall deliver to the District, pursuant to a contract dated July 8, 1921, between the United States and the Yakima- Benton Irrigation District (now Roza Irrigation District), as amended by the contract of April 15, 1935, at a point opposite the headworks of the District located in Section twenty-eight (28), Township fifteen (15) North, Range nineteen (19) East, W.M. 375,000 acre-feet of water measured at or near said diversion works for use upon lands within the boundaries of the District. The annual irrigation season for the delivery of water shall be from April | to October 31, inclusive; and the mean monthly supply of water shall not exceed the following schedule of per- centages of the total annual diversion as hereinafter set forth. ES bcvvnrd du caves usueeanes 10% IE 5 55's bbs 4 0 6p 6x0sd ehamwnan 15% i PPP ree oe 19% | PTET C Teer eer Tr 19% EE as dS seducenedssskbeueun 19% "PPP PET CCRC err er 12% IE IN CASE OF DEFAULT 28. (a) No water from the project water supply shall be delivered to or for the District if the District is in arrears in the advance payment of operation and maintenance charges owed to the United States, if any, or more than twelve (12) months in arrears in the payment of construction charge obligation instal- ments, or more than twelve (12) months in arrears in the payment of any other amounts owed to the United States under this contract. The District shall refuse to deliver water to lands or parties who are in arrears in the advance payment of operation and maintenance charges due from such lands or parties to the United States or to the District, or to lands or parties who are in arrears for more than twelve (12) months in the payment of amounts due from such lands or parties to the United States or to the District for construction charge obligations or for any other amounts owed by the District to the United States under this contract. The provisions of this article are not exclusive and shall not in any manner prevent the United States from exercising any other remedy given by this contract or by law to enforce the collection of any payments due under the terms of this contract. (b) The United States may enter on the transferred works or any part thereof in possession of the District to shut off water being delivered in violation of the provisions of this article or article 31. In the event the United States enters onto the trans- ferred works or any part thereof in possession of the District, neither the United States nor its officers or employees shall be liable for any damages resulting directly or indirectly from the refusal to deliver water which had been heretofore delivered in violation of the provisions of this article or of article 31. PENALTY FOR DELINQUENCY IN PAYMENT 29. Every instalment or charge required to be paid to the United States under this contract and which remains unpaid after A-138 it shall become due and payable shall be subject to and the District shall pay a penalty at the rate of one-half per cent per month from the date of delinquency. ALL BENEFITS CONDITIONED UPON PAYMENT 30. (a) Should the District fail to levy the assessments, tolls, or other charges against any lands in the District required to be levied to meet the District’s obligation to the United States under this contract, or, hav _. levied, should the District be prevented from collecting such assessments, tolls, or other charges by any judicial proceedings, or otherwise fail to collect them, such lands shall not be entitled to receive water from the project supply, and the District, except as otherwise ordered by a court of competent jurisdiction, shall not deliver water to such lands from the project water supply unless and until arrangements for its delivery satis- factory to the Secretary have been made. (b) As to any such lands the District is hereby authorized, as a fiscal agent of the United States, to collect whatever charges may be required under the delivery arrangements made as provided in this article. Payment shall be required as a condition precedent to the delivery of water. Collections so made by the District shall be paid promptly to the United States in the manner directed by the Secretary. (c) No action taken by the Secretary under the provisions of this article shall in any manner relieve the District of the obliga- tions assumed by it under this contract. LANDS FOR WHICH WATER IS FURNISHED; LIMITATIONS ON AREA 31. (a) The water delivered under the terms of this contract shall be used solely for distribution by the District to water users for irrigation and domestic uses incidental thereto. (b) The District (and the United States while it is operating and maintaining the transferred works) will operate the irrigation system to the end of making available to each irrigable acre of A-139 land in the District, during each irrigation season, that quantity of water to which it is entitled. (c) Pursuant to the provisions of the Federal Reclamation Laws, water made available hereunder shall not be delivered to more than one hundred sixty (160) irrigable acres of land in the project in the ownership of any one person or other entity, except that [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0151%3A2. Public record. Not legal advice.