Reply Brief — Klamath Drainage District v. Patterson

TS at eek SO ee ee ee

Supreite Court, US.

FILED

i

4)

JUL 14 2000

No. 99-1723

ELERK

IN THE

Supreme Court of the Gnited States

KLAMATH DRAINAGE DISTRICT;

KLAMATH WATER USERS PROTECTIVE ASSOCIATION;

SAM HENZEL; HENZEL PROPERTIES, LTD.

Petitioners,

Vv .

ROGER PATTERSON; KARL E. WIRKUS; ELUID MARTINEZ;

PATRICIA BENEKE; BRUCE BABBITT; UNITED STATES

BUREAU OF RECLAMATION; UNITED STATES OF AMERICA;

PACIFICORP; YUROK TRIBE

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITIONERS’ REPLY BRIEF

Of Counsel: DONALD B. AYER

PAUL S. SIMMONS Counsel of Record

JOHN A. MENDEZ SEAN G. SAXON

SOMACH, SIMMONS & DUNN, PC JONES, DAY, REAVIS & POGUE

400 Capitol Mall 51 Louisiana Avenue, N.W.

Suite 1900 Washington, D.C. 20001

Sacramento, California 95814 (202) 879-3939

sa dl Counsel for Petitioner

Yee

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES

California v. United States,438 U.S. 645

COIN saicticcdekaverieiscteessctnnicediginiiatedidateamnaaiess 2

Colorado River Water Conservation District v. United

Seatas, 424 U.S. 800 C197E) ...:ccrcsocerscccsssesscccsenee 6, 7

Joint Board of Control of the Flathead, Mission and Jocko

Irr. District v. United States, 646 F. Supp. 410

GI, SI aaiscccsctsesesinsncnasnseaiacgatateadipiee 7

Joint Board of Control of the Flathead, Mission and Jocko

Irrigation Districts v. United States, 832 F.2d 1127

CGE COPED sicsciciesceseepsisiscisciipaaissicibictedvesapeluapiaaiceiis 7

Klamath Water Users Protective Association v. Patterson,

204 F.3d 1206 (9th Cir. 2000) ..............ccccccccssssecees 8

Nevada v. United States,

QED UIE. FEO CRIED wicccescistccseieinsicticieeasiipinamlininiaaions 7

Pacific Coast Federal of Fisherman's Ass'ns v. Bureau of

Reclamation,. No 00-1955 (N.D. Cal. (Oakland

butane Ge. GOB GSS sescstninssciitinesssestintlicuanaiion 8,9

Thermtrom Products v. Hermansdorfer, 423 U.S. 336

(1976), overruled on other grounds, Quackenbush v.

Allstate Insurance Co., 517 U.S. 706 (1996) ......... 3

Thiel v. Southern Pacific Co., 328 U.S. 217

Cy issnernsiseonscossinitngneitincitiensjitimasiicabeede asia diesneaei ts 3

United States Department of Interior v. Klamath Water

Users Protective Association, petition for cert. filled,

68 U.S.L.W. 3741 (U.S. May 22, 2000) ..........000 9

STATUTES

SUBL. 6 SUNONSY onissccicccuoaamseaa 9

SS UBL. OES nssicicsen :-citecicveceaaane 7

BS CBI, © YVR CY an eiocesicieuiisnicecascSiapnasetesa teem maa 7

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MISCELLANEOUS

7C Wright & Miller, Federal Practice and Procedure §

1920 (2d 1986)(D. Cal. 1954))

The Petition for Certiorari demonstrated that the Ninth

Circuit went far beyond the contract dispute before it to decide

important, unlitigated questions of federal agency authority

and contested water rights. The decision below arose from

litigation between PacifiCorp, the operator of a federally-

owned dam on the Klamath River in Oregon, and Petitioner

irrigators who include longstanding users of water from the

Klamath River Project, of which the dam is a part. As

presented to and resolved by the district court on PacifiCorp's

counterclaim for declaratory relief against Petitioners, the sole

issue was whether Petitioners have rights against PacifiCorp,

as third party beneficiaries under the 1956 dam operation

contract. The district court held that they had no such rights

under the contract, and that Petitioners thus had no basis to

object to an amendment of that contract or to sue PacifiCorp

under the 1956 contract for actions taken by it in managing the

Klamath Project.

1. PacifiCorp, Petitioners and the United States all framed

the issue before the Ninth Circuit as limited to the question of

Petitioners’ rights under the 1956 contract. (Pet. 7-9). The

circuit court first acknowledged that limited focus of the case

(Pet. App. 2a), and ruled unambiguously that Petitioners had

no rights under the 1956 contract. (Pet. App. 9a-10a). The

presence or absence of asserted tribal water rights has no

bearing on the resolution of that question. Having resolved the

only matter pled or litigated, the court below nonetheless

proceeded, in a section headed "3. Indian Water Rights,” to

endorse the conduct of the Bureau of Reclamation in allocating

water from the Project to tribal claims of the Yurok and Hoopa

Tribes. (/d. at 12a-13a) as well as the Klamath Tribes in

Oregon.

In the section at issue, the Ninth Circuit announced

definitively—but incorrectly—that it had previously found that

the water rights of the Yuroks and other Klamath Basin Tribes

“carry a priority date of time immemorial." (Pet. App. 12a).

2

Although it did not assert that those supposed time-

immemorial rights had ever been quantified, the court further

announced, without analysis or discussion, that “[b]Jecause

Reclamation maintains control of the Dam, it has a

responsibility to divert the water and resources needed to

fulfill the Tribes’ rights, rights that take precedence over any

alleged rights of the Irrigators.” (Pet. App. 12a-13a).

Petitioners ask this Court to summarily vacate these

extraneous pronouncements by the Ninth Circuit, on the

grounds that they exceed the authority of an Article II Court

by opining on important questions of government authority

and tribal rights in a case where those rights were not in issue,

and do so in a manner certain to sow “legal confusion.”

California v. United States, 438 U.S. 645, 669 (1978).

The appropriateness of this relief is further demonstrated by

the oppositions to certiorari that have been filed by the United

States and by the Yurok Tribe, and by the fact that PacifiCorp,

for whom judgment was entered below, has seen no need even

to enter an appearance in this Court.

a. The United States concedes that the Ninth Circuit’s

recognition of Bureau of Reclamation responsibility to allocate

water based on asserted water rights of the Tribes “may not

have been strictly necessary” to the disposition of the case.

(U.S. Opp. 9-10) But it seeks to make a virtue of the

extraneous character of the challenged ruling, by pointing out

that its deletion would have no effect on the judgment of the

appellate court, and thus arguing that no action is required of

this Court. (/d. at. 8). Petitioners certainly agree that the

contract interpretation issue posed by PacifiCorp's counter-

claim presented no occasion for the court below to opine on

the matters addressed in Section 3, and that the summary relief

Petitioners request could not conceivably effect the judgment

in favor of PacifiCorp on the matter in issue.

3

Petitioners submit, however, that the Ninth Circuit's

purported resolution of two issues of great sensitivity and

importance that were neither presented nor litigated before it

is the principal justification for the exercise of this Court's

supervisory powers under Supreme Court Rule 10(a). The

Rule recognizes as reasons for the grant of certiorari the fact

that an appellate court “has so far departed from the accepted

and usual course of judicial proceedings . . . as to call for an

exercise of this Court’s’supervisory powers.” These powers

are inherently flexible and adaptable to the circumstances of

each case. E.g., Thermtrom Products v. Hermansdorfer, 423

U.S. 336 (1976) (supervisory powers invoked to rule that

removal may not be denied due to heavy caseload), overruled

on other grounds, Quackenbush y. Allstate Ins. Co. 517 US.

706 (1996); Thiel v. Southern Pac Co., 328 US. Zi 1, 400

(1946) (supervisory powers invoked to regulate manner by

which jury panels are constituted).

Here, the Ninth Circuit's unsolicited musings can be vacated

summarily, Rule 16(1), with no effect on the judgment and

only a modest expenditure of this Court's time and energy.

Such action would eliminate the risk posed by the decision

below as a derelict in the field of water law. That risk stems

from the probability that unconditional assertions of federal

legal rights and powers, by a panel of a United States Court of

Appeals, are likely to be taken seriously.

b. As the opposition of the Yurok Tribe illustrates, there

will be no shortage of interested parties ready to urge, on

whatever grounds, that the court below acted properly in

deciding the matters raised in Section 3. The Yuroks contend

that the issue of Reclamation authority was raised in

Petitioners’ initial complaint, and further, absurdly, that the

dismissal of that complaint “did not change the nature of the

case or the scope of the issues raised.” (Yurok Op. 9). The

Tribe further contends that the same issue was raised in

4

PacifiCorp’s counterclaim. (/d. at 9-10). In this it is simply

wrong, as was amply demonstrated in the Petition. (Pet. 7).

Finally, the Yurok’s claim that since the Petitioners did not

oppose the Yurok's intervention in the counterclaim, the

"petitioners cannot now be heard to complain that the Yurok

Tribe raised issues petitioners knew or should have known

would be raised." (Yurok Opp. 11). This argument is equally

meritless. Although the Yuroks were allowed to intervene in

the action, they did not file a counterclaim or cross claim

requesting any relief or seeking a declaration as to the limits of

Reclamation's authority. It is no answer to the Petitioners’

argument to say that we "should have known" this issue would

be raised. (/d.). Here again, it is black letter law that an

intervener, simply by filing briefs containing arguments,

"cannot change the issues framed between the original

parties." 7C Wright & Miller, Federal Practice and

Procedure § 1920 (2d 1986) (quoting Hartley Pen Co. v.

Lindy Pen Co., 16 F.R.D. 141 (D. Cal. 1954)).

2. With regard to its statement that the asserted water

rights of the Yuroks and Hoopas run from time immemorial,

the Ninth Circuit clearly rested on a misreading of the Adair

decision. The United States so concedes, and expressly

acknowledges that Adair dealt only with the rights of the

Klamath Tribes of Oregon, and not with the Klamath Basin

Tribes, which include the Yuroks and Hoopas. (U.S. Opp. 11).

The United States also acknowledges that Interior’s Regional

Solicitor has not even asserted Hoopa and Yurok water rights

as found by the court below, with a priority date of time

immemorial, but only with priority dates "at least as early as

1891"—a critical difference in view of the claims of many

irrigators to rights arising before 1891. (/d. at 12-13 n.2).

The Yurok’s brief also acknowledges that Adair did not

address the rights of the Hoopa and Yurok Tribes, but

nonetheless asserts that its reasoning applies “with equal force

—-

5

to the water rights of the Yurok Tribe.” (Yurok Opp. 15-16).

It makes this claim notwithstanding the distinction between the

priority dates of Indian water rights conferred upon the tribe

by statute or executive order, and running from that date—as

claimed by the Yurok—and of rights retained by the Tribe in

a treaty, which by definition pre-date the treaty—as in Adair.

(See Pet. 21-22 n.16). It is no answer to say, as do the Yuroks,

that water rights arising in either manner “are entitled to the

same legal protection.” (Yurok Opp. 17). The critical

question is the priority date that the rights are assigned within

the prior appropriation system, which clearly is affected by

whether they are created by treaty or executive order.

3. With regard to the authority of Reclamation to allocate

water on an interim basis to unadjudicated tribal claims, this

issue is complex and dificult, falling at the juncture of several

sensitive legal areas, and should not be off-handedly resolved

in a case where the question is not presented. The United

States does not dispute that the issue is novel and previously

undecided. Instead, the United States points out that

Reclamation’s allocation decisions are made on an interim

basis only, and do not usurp the role of the Oregon judicial

stream adjudication. (U.S. Opp. 10). It further contends that

Reclamation has no practical alternative but to use its own best

judgment pending the resolution of state proceedings to

distribute water from federal projects in the West. (/d. at 11).

However, the claimed necessity referenced by the

Government is met by a larger list of equally compelling issues

and problems that arise if such authority is in fact recognized.

Some of these issues are highlighted in the Petition, at 20 n.15

and neither the United States nor the Yuroks has addressed any

of them. Most of these concerns have no answers that are

wholly satisfactory, and among the most serious stem from the

fact that Reclamation is only able to reallocate water from

those users, like Petitioners, who rely on water coming directly

from the Klamath Project. Thus, when Reclamation uses its

6

"best judgment" to reallocate water to the tribes, junior users

who are free from Reclamation's control may continue to take

water, while the Petitioners must answer the call of the tribes.

It is no answer that Reclamation's reallocation decisions

apply only in the interim years, pending resolution of the

Oregon stream adjudication. All water allocations are passing

events whose effects may be unimportant in abundant years

and devastating in dry ones. The power of Reclamation to

allocate water away from one set of users, while leaving others

unrestricted, is obviously highly significant during the years or

decades in which it is exercised. (Of course, in this case, the

Yurok and Hoopa Tribes reside in California and are not even

parties to the Oregon adjudication.)

It may or may not, at the end of the Pad be determined,

either judicially or legislatively, that Reclamation should use

"its best judgment" to distribute water pending state adjudi-

cation. If so, it may or may not be determined that certain ©

procedural safeguards attend that process or that judicial

review of a particular type must be available. But such con-

clusions are certainly not obvious, and raise numerous import-

ant questions requiring careful consideration. Here, the issue

of that power has been decided ipse dixit, in a case where it

was not presented for decision, let alone litigated by the parties

or others with an interest in the outcome of the question.

4. In seeking summary relief from this Court, Petitioners

do not in any way suggest, as the Yuroks contend (Yurok Opp.

12-13), that the abstention doctrine enunciated in Colorado

River Water Conservation District v. United States, 424 U.S.

800 (1976), inflexibly precludes any federal determination of

water allocation pending state adjudication. . (Pet. 14-15).

Instead, the Petition explains that “[w]hile Colorado River did

not announce an inflexible rule against federal court involve-

ment in determining water rights issues, it recognized a ‘clear

federal policy’ rooted. in the McCarran Amendment, of

7

avoiding ‘piecemeal adjudication of water rights.’”” (Jd.

(quoting 424 U.S. at 819)). This policy is a counsel of

restraint to be weighed in the balance against other factors that

may press for immediate resolution. Thus, a conceivable

alternative that is preferable in several respects to

Reclamation’s exercise of the asserted allocation power — if

it believes that tribal rights exist that require protection —

would be a separate lawsuit brought by the Government to

determine and protect the rights of the tribes and the Klamath

Project irrigators against junior diversions. Nevada v. United

States, 463 U.S. 110, 113 (1983).

Nor is there existing case law, as the Yuroks—but not the

United States—suggest, making the question of Reclamation’s

allocation authority as recognized by the Ninth Circuit a

foregone conclusion under the test articulated by Colorado |

River. The Yuroks rely upon Joint Board of Control of the

Flathead, Mission and Jocko Irrigation Districts v. United

States, 832 F.2d 1127 (9th Cir. 1987), as establishing the

power and duty of federal agencies to allocate water based on

their own assessment of tribal water claims. (Yurok Opp. 12)

But the issue of agency authority was never challenged or

discussed by the court. Even if it had been, in that case the

Bureau of Indian Affairs acted pursuant to an express statutory

mandate to Interior to regulate use of irrigation waters on the

reservation. 832 F.2d at 1131; 25 U.S.C. § 381. In addition to

that statutory directive, there was a specific regulation, which

delegated authority to an “Officer-in-Charge” responsible for

__ exercising his judgment in the proper operation of the project.

25 CFR § 171.1(c); Joint Bd. of Control of the Flathead,

Mission and Jocko Irr. Dist. v. United States 646 F. Supp. 410

(D.Mont. 1986). Given that express grant of regulatory power,

it does not at all follow that the recognition of such authority

in the BIA where reservation water is concerned would mean

that Reclamation necessarily possesses a parallel allocation

authority over water flowing through a federal dam. The

8

special problems relating to Reclamation’s inability to control

all users, (see Pet. 20 n.15), argue to the contrary.

5. The disruptive effects of the language in issue stem

from the unambiguous nature of the Ninth Circuit’s assertions

about Reclamation’s allocation authority and responsibility,

and about the adjudicated existence and priority of tribal water

rights, and the court’s clear error on the last point. Such

statements by a federal appellate court on matters governed by

federal law are likely to carry substantial weight.

There is no need to imagine when or how parties will

invoke the authority of this gratuitous language in support of

the propositions that it asserts. Obviously, the Tribe that

actively solicited and is directly benefitted by the language can

be expected to view it as dispositive of these issues, and the

Yurok brief does not disappoint in this regard. (E.g., Yurok

Opp. at 7-11).

At the same time, even as it is imploring this Court to deny

certiorari on the ground that the challenged language is dicta,

the United States has recently cited this section of the Ninth

Circuit's opinion as support for the very proposition that it here

claims the case does not stand for. See Pacific Coast Fed. of

Fisherman's Ass'ns v. Bureau of Reclamation, No. 00-1955

SBA (N.D. Cal. (Oakland Div.)) Federal Def.'s Opp. to Pits.’

Mot. for Prelim. Inj. at 6 (June 12, 2000). In that case,

Reclamation is contesting a motion for preliminary injunction

brought by environmental groups who claim they have been

adversely effected by the way that the Klamath Project is being

operated. In defending the reallocation decision embodied in

the project operation plan, Reclamation argued to the district

court that "[t}he Ninth Circuit recently affirmed that

[Reclamation] must operate consistent with . . . Indian water

rights . . .' Klamath Water Users Protective Ass'n v.

Patterson, 204 F.3d 1206, 1214 (9th Cir. 2000).”

The potential disruptive effects of the Ninth's Circuit's

misstatement on the reach of its opinion in Adair are no less

serious. The United States acknowledges to this Court the

opinion's "imprecision," but inexplicably argues that this error

is “unlikely to have meaningful, practical consequences."

(U.S. Opp.13). But this attempt to minimize the impact of this

error is also belied by its submission to the Northern District

of California in the suit noted above. Pacific Coast Fed. of

Fisherman's Ass’ns v. Bureau of Reclamation, supra. In the

same sentence in which it claims that the issue of

Reclamation's authority has been settled, the United States

notes that the decision below “affirmed . . . that the Indian

[Yurok and Hoopa] water rights are senior to those held by the

United States for the Project." Fed. Def.'s Opp. to Pit.'s

Motion, supra. (emphasis added) (citing Klamath Water Users

Protective Ass'n. v. Patterson, 204 F.3d 1206, 1214 (9th Cir.

2000)).

Never does the United States advise that court, as it urges

here, that the language in issue is mere dicta.

6. The sensitive character of the issues raised in this

Petition has been accentuated by the recent petition for

certiorari filed by the United States in United States Dep’t of

Interior v. Klamath Water Users Protective Ass'n, petition for

cert. filled, 68 U.S.L.W. 3741 (U.S. May 22, 2000) (No. 99-

1871). That case presents the question whether information

provided to the Government, and specifically the Bureau of

Reclamation, by Indian tribes in connection with tribal water

claims—indeed the very tribal claims at issue in this case—is

protected against public disclosure under Exemption 5 of the

Freedom of Information Act, concerning internal agency

deliberations. 5 U.S.C. § 552(b)(5). The Ninth Circuit there

rejected the Government's attempt to avoid public disclosure.

If certiorari is granted and the United States prevails in that

case, then the power of Reclamation to make water allocation

decisions based on unadjudicated tribal claims which was

10

recognized by the court below can be exercised under cover of

secrecy, with tribal submissions in support of their claims free

from any scrutiny by the public or by competing water

claimants. Such a procedure is a far cry from the due process

granted in a judicial adjudication of rights, and would put the

power recognized below in a new light. Reclamation would

thus be authorized to allocate water rights by a process in

which ex parte agency contacts by Tribal claimants only would

be permitted.

If, and only if, this Court declines on the present record to

act summarily, as Petitioners request, to strike the offending

language of Section 3 of the Ninth Circuit’s opinion,

Petitioners urge in the alternative that the Court hold this

Petition on its docket pending the resolution of the United

States's petition in case no. 99-1871, for further consideration

at that time.

CONCLUSION

Petitioners pray that the petition for certiorari be granted,

and an order issued directing that Section I.B.3 of the decision

below be vacated.

Respectfully submitted,

Of Counsel: DONALD B. AYER

PAUL S. SIMMONS Counsel of Record

JOHN A. MENDEZ SEAN G. SAXON |

SOMACH, SIMMONS & JONES, DAY, REAVIS

DUNN, PC & POGUE

400 Capitol Mall 51 Louisiana Avenue, N.W.

Suite 1900 Washington, D.C. 20001

Sacramento, California 95814 (202) 879-3939

(916) 446-7979 Counsel for Petitioner

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