Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00591-FMA

Document 272

Filed 03/15/2006

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA ) ) Defendant, ) ) PACIFIC COAST FEDERATION OF ) FISHERMEN'S ASSOCIATIONS, ) ) Defendant-Intervenor ) __________________________________________) KLAMATH IRRIGATION DISTRICT, et al.,

No. 01-591 L

Judge Francis M. Allegra

AMICUS NATURAL RESOURCES DEFENSE COUNCIL'S NOTICE OF SUPPLEMENTAL AUTHORITY Amicus Natural Resources Defense Council, Inc. ("NRDC") respectfully requests the Court to grant NRDC leave to file a copy of the decision issued by the California Court of Appeals on February 9, 2006, in State Water Resources Control Board, 39 Cal.Rptr.3d 189 (Cal.Ct.App. 2006). NRDC `s lead counsel was unaware of this decision at the time of its last filing in this case. In this decision, consistent with the decision of the U.S. Court of Appeals for the Ninth Circuit in O'Neill v. United States, 50 F.3d 677 (9th Cir. 1995), the Court ruled that modifying the operations of a Bureau of Reclamation project to address environmental concerns did not interfere with a water user's contract rights. See Cal. Rptr. at 293-94. In addition, although the Court did not directly address the application of the public trust doctrine to the case, it observed: "It should be noted, however, that because the rights of an appropriator are always subject to the public trust doctrine (see National Audubon Society v. Superior Court []), the same is true of the rights of a person who contracts with an appropriator for the use of the water appropriated. An appropriator cannot give away more rights than he or she has." Id. at 294 n.54. This recently issued decision discussing reclamation contracts and the relevance of background principles of state law in the context of defining contract rights may be of assistance

Case 1:01-cv-00591-FMA

Document 272

Filed 03/15/2006

Page 2 of 2

to the Court in reaching its decision in this case. For these reasons, NRDC respectfully requests the Court to grant leave to file this supplementary authority.

Respectfully submitted,

/s/John D. Echeverria John D. Echeverria Georgetown Environmental Law & Policy Institute Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 662-9850 Hamilton Candee Natural Resources Defense Council 111 Sutter Street, 20th Floor San Francisco, CA 94104 (415) 777-0220 Counsel for Amicus Curiae NRDC

March 15, 2006

-2-