Free Response - District Court of Federal Claims - federal

Case 1:01-cv-00591-FMA

Document 239

Filed 06/21/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________________________ ) KLAMATH IRRIGATION DISTRICT, et al., ) ) Plaintiffs, ) ) No. 01-591 L v. ) ) Judge Francis M. Allegra UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) DEFENDANT'S RESPONSE TO PLAINTIFFS' NOTICE OF POSSIBLE FORTHCOMING OREGON ATTORNEY GENERAL'S MEMORANDUM On June 15, 2005, plaintiffs filed a notice that the Oregon Attorney General's Office, in its capacity as legal counsel for the Oregon Department of Water Resources (ODWR), has indicated its intent to submit a "guidance memorandum" in the Klamath Basin Adjudication by July 15, 2005. Although plaintiffs have long urged this Court to act more expeditiously on pending motions and have taken the position that this case need not be stayed or deferred because of the ongoing Adjudication, plaintiffs now suggest that the Court should defer ruling on the motions pending in this case to allow for consideration of the ODWR memorandum. Defendant disagrees. The State of Oregon has participated in this litigation through the submission of amicus briefs on a number of occasions. See Oregon Amicus Briefs, dated June 24, 2002 (Doc. No. 51), and July 30, 2002 (Doc. No. 61). The State has sought leave to appear as an amicus curiae when, for example, it has found it necessary "to respond to the positions of all parties regarding the predicate issues uniquely within the State's expertise to the extent the State believes those positions do not accurately reflect Oregon law or facts relating to the Klamath Basin water rights 1

Case 1:01-cv-00591-FMA

Document 239

Filed 06/21/2005

Page 2 of 3

adjudication." Oregon's Mot. for Leave to Appear as Amicus Curiae, dated June 24, 2002 (Doc. No. 45). In addition, as an amicus participant in this case, the State of Oregon now receives electronic notice of all filings by the parties, the defendant-intervenor and other amici participants such as the Natural Resources Defense Council (NRDC) and the Yurok Tribe and Klamath Tribes. Although the other amici participants filed status reports in response to the Court's Order of December 17, 2004, and appeared and participated in the oral argument held by the Court on March 30, 2005, the State of Oregon did not avail itself of these opportunities. Presumably, if the State of Oregon found it necessary or appropriate to submit a further amicus curiae brief on matters of Oregon state law or related to the Adjudication, it would have done so. Moreover, as set forth in Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment on the Standing of the Districts to Bring Claims on Behalf of Their Water Users (Doc. No. 232), the question of whether the district plaintiffs have standing to bring Fifth Amendment takings claims or contract claims against the United States on behalf of their water users is a question of federal law. The question of whether these same districts can bring claims and contests on behalf of their water users in the Klamath Basin Adjudication is a question of state law that has no bearing on the standing questions before this Court. Accordingly, plaintiffs' notice presents no valid basis for deferring a ruling on the pending motions because of the proceedings in the Adjudication. Although the parties have agreed that a ruling on the plaintiffs' motion on standing should be deferred pending the Supreme Court's ruling in Orff v. United States, the question of whether the plaintiffs have a compensable property right in Klamath Project water is fully briefed and the Court's ruling on that question need not be deferred.

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Case 1:01-cv-00591-FMA

Document 239

Filed 06/21/2005

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Dated: June 21, 2005 Respectfully submitted, KELLY A. JOHNSON Assistant Attorney General Environment & Natural Resources Division s/Kristine S. Tardiff KRISTINE S. TARDIFF Attorney of Record for the Defendant United States Department of Justice Environment & Natural Resources Division Natural Resources Section 55 Pleasant Street, 4th Floor Concord, NH 03301 Tel: (603) 230-2583 Fax: (603) 225-1577 E-Mail: [email protected] STEPHEN M. MACFARLANE United States Department of Justice Environment & Natural Resources Division Natural Resources Section 501 I Street, Suite 9-700 Sacramento, CA 95814-232 Tel: (916) 930-2204 Fax: (916) 930-2210 REGINALD T. BLADES, JR. Commercial Litigation Branch Civil Division United States Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 514-7300 Fax: (202) 307-0972

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