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Case 1:01-cv-00591-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) KLAMATH IRRIGATION DISTRICT, et al., ) ) Plaintiffs, ) ) v. ) No. 01-591 L ) ) Judge Francis M. Allegra UNITED STATES OF AMERICA, ) ) Defendant, ) ) PACIFIC COAST FEDERATION OF ) FISHERMEN'S ASSOCIATIONS, ) ) Defendant-Intervenor. ) ______________________________________ ) DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE STANDING OF THE DISTRICTS TO BRING THESE CLAIMS ON BEHALF OF THEIR WATER USERS KELLY A. JOHNSON Acting Assistant Attorney General Environment & Natural Resources Division KRISTINE S. TARDIFF Attorney of Record for Defendant United States Department of Justice Environment & Natural Resources Division 53 Pleasant Street, 4th Floor Concord, NH 03301 Tel: (603) 230-2583/Fax: (603) 225-1577 STEPHEN M. MACFARLANE United States Department of Justice Environment & Natural Resources Division 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 8th Floor, 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 514-7300/Fax: (202) 307-0972 OF COUNSEL: STEPHEN PALMER U.S. Department of the Interior Office of the Regional Solicitor Sacramento, CA MEGAN WALLINE U.S. Department of the Interior Office of the Solicitor Washington, D.C. CHRISTOPHER KEIFER U.S. Department of Commerce NOAA Office of General Counsel Long Beach, CA

Dated: May 4, 2005

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TABLE OF CONTENTS I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE DISTRICTS PLAINTIFFS HAVE FAILED TO ESTABLISH THEIR CONSTITUTIONAL STANDING TO ASSERT EACH CLAIM IN THIS CASE AS REPRESENTATIVES OF THE WATER USERS . . . . . . . . . . . . . 3 A. The District Plaintiffs Lack Standing to Assert Any Takings Claim In this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The District Plaintiffs Lack Standing to Assert a Contract Claim Other Than In their Own Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Plaintiffs' Efforts to Cast the Representational Standing Issue as Merely a Procedural Device Is Without Merit and Should Be Rejected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B.

C.

III.

THE DISTRICT PLAINTIFFS CANNOT REPRESENT THE WATER USERS UNDER RCFC RULE 17 EITHER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. B. Real Parties in Interest Under RCFC 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The Plaintiff Districts Lack Authorization Under State Law to Bring Claims Against the United States on Behalf of Water Users . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The Plaintiffs Do Not Have Standing as Trustees for Their Water Users . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 The District Plaintiffs Do Not Have Associational Standing to Sue the United States in this Case on Behalf of Individual Water Users . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 The Districts May Not Assert Claims Against the United States as Parens Patriae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

C.

D.

E.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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TABLE OF AUTHORITIES CASES Aldridge v. United States, 59 Fed. Cl. 387 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 19 Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 39 Anderson v. United States, 344 F.3d 1343 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 33 Applegate v. United States, 35 Fed. Cl. 406 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Blaze Construction, Inc. v. United States, 27 Fed. Cl. 646 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Block v. North Dakota, 461 U.S. 273 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Board of Supervisors of Fairfax County, Va. v. United States, 408 F.Supp. 556 (E.D. Va. 1976), appeal dismissed, 551 F.2d 305 (4th Cir. 1977) . . . . 36 Board of Supervisors of Warren County v. Virginia Dep't of Social Serv., 731 F. Supp. 735 (W.D. Va. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Boeing Airplane Co. v. American Trade Ins. Co., Ltd., 322 F.2d 589 (8th Cir. 1963), cert. denied, 375 U.S. 984 (1964) . . . . . . . . . . . . . . . 18, 21 California v. Federal Power Comm'n, 296 F.2d 348 (D.C. Cir. 1961), rev'd on other grounds, 369 U.S. 482 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 California v. United States, 438 U.S. 645 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Castle v. United States, 301 F.3d 1328 (Fed. Cir. 2002), cert. denied, 123 S. Ct. 2572 (2003) . . . . . . . . . . . . . . 13 Caviness v. La Grande Irrigation Co., 119 P. 731 (Or. 1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

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Chancellor Manor v. United States, 331 F.3d 891 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 City of Chino v. Superior Ct. of Orange County, 255 Cal. App. 2d 747 (Cal. Ct. App. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 City of Olmstead Falls, OH v. Federal Aviation Admin., 292 F.3d 261 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 36 City of Rohnert Park v. Harris, 601 F.2d 1040 (9th Cir. 1979), cert. denied, 445 U.S. 961 (1980) . . . . . . . . . . . . . . . . . 36 Coachella Valley County Water Dist. v. Stevens, 274 P. 538 (Cal. 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 Connecticut v. Cahill, 217 F.3d 93 (2nd Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Creppel v. United States, 33 Fed. Cl. 590 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Eastern Minerals Int'l v. United States, 36 Fed. Cl. 541 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Emerald Int'l Corp. v. United States, 54 Fed. Cl. 674 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 Entergy Nuclear Indian Point 2, LLC v. United States, ___ Fed. Cl. ___, 2005 WL 579525 at 6 (Mar. 9, 2005) . . . . . . . . . . . . . . . . . . . . . . 4, 12 Erickson Air Crane Co. v. United States, 731 F.2d 810 (Fed. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Friends of the Earth, Inc. v. Laidlaw Env't. Serv. (TOC), Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Glass v. United States, 258 F.3d 1349 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13 Guam v. Federal Maritime Comm'n, iii

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329 F.2d 251 (D.C. Cir. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 H.F. Allen Orchards v. United States, 749 F.2d 1571 (Fed. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Hansen v. United States, 2005 WL 832332, 55 (Fed. Cl. Apr. 11, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Harney Valley Irrigation Dist. v. Weittenhiller, 198 P. 1093 (Or. 1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Home Sav. of America v. United States, 51 Fed Cl. 487 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060 (Fed Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8, Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31 In Re Multidistrict Vehicle Air Pollution, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045 (1973) . . . . . . . . . . . . . . . . . . . 34, 36 Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Kansas v. Colorado, 533 U.S. 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 37 Kansas v. United States, 16 F.3d 436 (D.C. Cir.), cert. denied, 513 U.S. 945 (1994) . . . . . . . . . . . . . . . . . . . 36, 39 Karras v. Teledyne Indus., 191 F. Supp. 2d 1162 (SD Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Kingsbury v. United States, 215 Ct. Cl. 136, 563 F.2d 1019 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Library of Congress v. Shaw, 478 U.S. 310 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Lujan v. Defenders of Wildife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 iv

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Marina Management Serv., Inc. v. Vessel My Girls, 202 F.3d 315 (D.C. Cir.), cert. denied, 531 U.S. 985 (2000) . . . . . . . . . . . . . . . . . . . . . 18 Massachusetts v. Mellon, 262 U.S. 447 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 McKinney v. U.S. Dep't of Treasury, 799 F.2d 1544 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Missouri v. Illinois, 180 U.S. 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Nat'l Leased Housing Ass'n v. United States, 105 F.3d 1423 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990), cert. denied sub nom . . . . . . . . . . . . . . . . . . . . . . . . . 36, 39 Nevada v. Jamison, 500 U.S. 932 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 New York v. United States, 331 U.S. 284 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Orange County Water Dist. v. City of Riverside, 343 P.2d 450 (Cal. Ct. App.1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Oregon Const. Co. v. Allen Ditch Co., 69 P. 455 (Or. 1902) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Orff v. United States, 358 F.3d 1137 (9th Cir.), petition for certiorari granted, 125 S. Ct. 309 (2004) . . . . . . . . 33 Pacrim Pizza Co. v. Pirie, 304 F.3d 1291 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Payette-Oregon Slope Irr. Dist. v. Coughanour, 91 P.2d 526 (Or. 1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Philips Petroleum v. Wisconsin, 347 U.S. 672 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Powers v. Ohio, 499 U.S. 400 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Puerto Rico v. Federal Maritime Bd., v

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288 F.2d 419 (D.C. Cir. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Ransom v. United States, 900 F.2d 242 (Fed. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Redmond Realty Co. v. Central Oregon Irr. Dist., 12 P.2d 1097 (Or. 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 River Road Water Dist. v. City of Eugene, 492 P.2d 812 (Or. Ct. App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ruttenburg v. United States, ___ Fed. Cl. ___, 2005 WL 757172 at 7 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sacramento Mun. Util. Dist. v. United States, 63 Fed. Cl. 495 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Saladino v. United States, 62 Fed. Cl. 782 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Schwartz v. United States, 16 Cl. Ct. 182 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 California v. United States, 438 U.S. 645 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38 Singleton v. Wulff, 428 U.S. 106 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Smith v. Enterprise Irrigation Dist., 85 P.2d 1021 (Or. 1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Snyder v. United States, 63 Fed. Cl. 762 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Standard Mfg. Co. v. United States, 42 Fed. Cl. 748 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Stearns Co. v. United States, 34 Fed. Cl. 264 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 vi

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Sun Oil Co. v. United States, 572 F.2d 786 (Cl. Ct. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 Twohy Bros. Co. v. Ochoco Irrig. Dist., 216 P. 189 (Or. 1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United Healthcare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 United States v. Dow, 357 U.S. 17 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 United States v. Idaho, 508 U.S. 1 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21 United States v. Shannon, 342 U.S. 288 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. W.R. Grace & Co.-Conn., 185 F.R.D. 184 (D. N.J. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Washington Util. & Transp. Comm'n v. Federal Communications Comm'n, 513 F.2d 1142 (9th Cir.), cert. denied, 423 U.S. 836 (1975) . . . . . . . . . . . . . . . . . . . 38, 39 Wisconsin v. Federal Power Comm'n, 373 U.S. 294 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Westlands Water Dist. v. United States Dep't of Interior, 1994 U.S. Dist. LEXIS 6276 (E.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 36 Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

STATUTES 43 U.S.C. 390uu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Anti-Assignment Act, 31 U.S.C. 3727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 vii

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31 U.S.C. 3727(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 31 U.S.C. 3727(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Cal. Water Code 22654-22655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 McCarran Amendment, 43 U.S.C. 666(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 National Environmental Policy Act (NEPA), 42 U.S.C. 4321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Omnibus Adjustment Act of 1926, 44 Stat. 649, U.S.C. 423e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Or. Rev. Stat. 545.025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 31 Or. Rev. Stat. 545.225(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Or. Rev. Stat. 545.239(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Or. Rev. Stat. 552.305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Tucker Act, 28 U.S.C. 1491(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 RULES Fed. R. Civ. P. 12(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fed. R. Civ. P. 17(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 RCFC 12(h)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 OTHER AUTHORITIES 4 Moore's Federal Practice, 17.10 (3d ed. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 5C Charles Alan Wright, et al., Federal Practice & Procedure Civil 3d, 1393 (2004) . . . . . . . 8 29A C.J.S., Eminent Domain 383 (ed. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1542 . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1541 . . . . . . . . . . . . . . . . . . . . . . . . . 18 Wright, Miller and Kane, 6A Fed. Prac. & Proc. Civ. 2d 1543 . . . . . . . . . . . . . . . . . . . . . . . . 19

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT The issue before the court, on plaintiffs' motion for partial summary judgment, is whether

the district plaintiffs have standing to assert the takings and contract claims in this case against the United States in a representative capacity on behalf of individual water users within their boundaries. The district plaintiffs ground their arguments on RCFC 17(a), which requires that plaintiffs be real parties in interest. Sidestepping the threshold jurisdictional issue of constitutional standing, the district plaintiffs assert four grounds which allegedly give them prudential standing to bring "these claims" on behalf of individual water users: (1) that the districts have such authority under state statutes; (2) that the districts are trustees of express trusts; (3) that the districts have standing to sue under the concept of associational standing; and (4) that the districts can sue the United States in a parens patriae capacity. Not only are these arguments unpersuasive, they highlight the failure of the district plaintiffs to establish their own constitutional standing to assert the takings claim in this case, and their inability to assert the breach of contract claim other than in their own right. Plaintiffs confuse the question of proper party status (which Rule 17 addresses) with the question whether the district plaintiffs have standing to sue the United States for either an alleged takings or an alleged breach of their repayment contracts. The issue of standing in this case, when properly framed, is governed by federal law, unlike the question of proper party status in which either federal or state law may authorize a party to represent an absent party in a suit. The standing issue, moreover, involves more than simply the "prudential" standing of the districts, as plaintiffs frame it, and questions of efficient judicial administration. Rather, it involves a fundamental jurisdictional question: whether the district plaintiffs have suffered an injury to a legally protected interest fairly traceable to government conduct and redressable by this court. 1

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For example, if the district plaintiffs cannot establish an injury-in-fact to an alleged property interest that they own in their own right, then the district plaintiffs lack constitutional standing to assert a claim for a taking of that interest against the United States. The application of Rule 17 to the district plaintiffs does not resolve this jurisdictional question, and plaintiffs cannot avoid it by relying on that rule. This confusion is compounded by plaintiffs' failure to distinguish between the two claims they have asserted against the United States in this case. The alleged holders of the interest sued upon are quite distinct as between the takings and contract claims. On the takings claim, plaintiffs contend that the Klamath Project water users own compensable property interests in project water deliveries. They do not claim that the districts themselves own an alleged property interest that was allegedly taken by the federal government in 2001. Thus, the district plaintiffs lack standing to assert a claim for an alleged taking of property interests that the districts did not own or claim to own in 2001. On the contracts claim, it is undisputed that all but one of the district plaintiffs is a party to a repayment contract with the Bureau of Reclamation, and that none of the individual water users are signatories to those contracts. Accordingly, while the districts with repayment contracts have standing to sue for an alleged breach of those contracts in their own right, their authority to assert the contract claim in this case in a representational capacity turns, first, on whether the individual water users were intended to have enforceable rights as third-party beneficiaries under those contracts, and then on whether there is some basis such as associational standing or class action that would enable the district plaintiffs to represent the alleged rights of the individual landowners. Whether individual plaintiffs have rights they can enforce under those contracts is the subject of the separate, and fully briefed, cross-motions for 2

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summary judgment on third-party beneficiaries, which this court has stayed pending a decision by the U.S. Supreme Court in the case of Orff v. United States. Moreover, not only are there jurisdictional defects arising from the district plaintiffs' lack of standing, the question whether the districts are proper parties to advance the claims in this case in a representational capacity is by no means as clear cut as plaintiffs assert. Contrary to plaintiffs' contentions, no state statute authorizes any of the district plaintiffs to bring takings or contract claims against the United States. The notion that the districts' authority resembles the authority of trustees of express trusts is unsupported by any citation to district by-laws or articles of incorporation. The districts' associational standing argument fails for reasons inextricably tied to their lack of standing. And it is settled that the districts, to the extent they are local governmental entities, cannot bring claims in a parens patriae capacity against the United States. In short, and for the reasons set forth more fully below, plaintiffs' instant motion for partial summary judgment should be denied with respect to the takings claim, and deferred on the contract claim. II. THE DISTRICTS PLAINTIFFS HAVE FAILED TO ESTABLISH THEIR CONSTITUTIONAL STANDING TO ASSERT EACH CLAIM IN THIS CASE AS REPRESENTATIVES OF THE WATER USERS "A fundamental jurisdictional consideration for any federal court, including Article I courts, is whether the plaintiff has constitutional standing." Aldridge v. United States, 59 Fed. Cl. 387, 388 (2004) (citing, inter alia, Glass v. United States, 258 F.3d 1349, 1355-56 (Fed. Cir. 2001)).1 "`Fundamentally,' the Federal Circuit has stated, `the question of standing involves the

Plaintiffs include a lengthy quotation from Aldridge in their brief, and cite the case for the proposition that constitutional standing and the real-party-in-interest inquiry under RCFC 17 are not the same, see Pls' Memo at 5 n.2, but they proceed to ignore the requirements of constitutional standing as these pertain to the district plaintiffs. 3

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determination of whether a particular litigant is entitled to invoke the jurisdiction of a federal court to decide the merits of a dispute or of particular issues.'" Emerald Int'l Corp. v. United States, 54 Fed. Cl. 674, 677 (2002) (quoting McKinney v. U.S. Dep't of Treasury, 799 F.2d 1544, 1549 (Fed. Cir. 1986)). Furthermore, a federal court must resolve threshold jurisdictional issues before it addresses the underlying merits of a case, to ensure that the particular plaintiff has presented an actual case or controversy to the court. See Entergy Nuclear Indian Point 2, LLC v. United States, ___ Fed. Cl. ___, 2005 WL 579525 at *6 (Mar. 9, 2005) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998)).2 Although the Court of Federal Claims has jurisdiction over takings claims and contract claims under the Tucker Act, 28 U.S.C. 1491(a)(1), the question presented in the context of the present motion, when properly framed, is whether the district plaintiffs have the requisite constitutional standing to assert those claims against the United States in this case as representatives of the individual plaintiffs.3 The answer The threshold standing inquiry itself breaks down into constitutional and prudential components which are addressed sequentially. As this court has explained, the court must first determine that the litigant "satisfies the core standing requirements to assure itself that it has the judicial power to address the litigant's claims." Emerald Int'l Corp., 54 Fed Cl. at 677 n.4. After this threshold constitutional determination is made, the court then determines if there are any prudential limitations that would restrain the exercise of that power. Id. In the context of takings and contracts claims brought against the United States, the requirement that a plaintiff demonstrate constitutional standing overlaps conceptually to a degree with the waiver of sovereign immunity under the Tucker Act. The United States, as sovereign, is immune from suit unless it waives that immunity. See Library of Congress v. Shaw, 478 U.S. 310, 315 (1986). "The Tucker Act both confers jurisdiction upon the United States Court of Federal Claims and waives sovereign immunity [ ] for monetary relief brought against the United States." Ruttenburg v. United States, ___ Fed. Cl. ___, 2005 WL 757172 at *7 (2005) (citing United States v. Mitchell, 463 U.S. 206, 212-18 (1983)). With respect to such claims against the United States, the Tucker Act, 28 U.S.C. 1491(a)(1), provides in pertinent part that [t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not 4
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to that question is "no." There are three elements to constitutional standing. To have constitutional standing, a litigant must demonstrate, first, that it has suffered an injury in fact, that is, "`an invasion of a legally protected interest' that is `concrete and particularized,' and `actual or imminent.'" Aldridge, 59 Fed. Cl. at 388 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The plaintiff must then establish a causal connection between the injury-in-fact and the challenged conduct. Lujan v. Defenders of Wildife, 504 U.S. 555, 560 (1992). Finally, the plaintiff must demonstrate that it is likely, and not merely speculative, that the injury will be redressed by a favorable decision. Id. Application of these elements to the district plaintiffs shows that the districts lack constitutional standing to assert takings and contracts claims in a representational capacity, although for different reasons depending on the claim in question. A. The District Plaintiffs Lack Standing to Assert Any Takings Claim In this Case

It is well settled that "a Fifth Amendment takings claim is unique to the individual landowner who allegedly has been affected by governmental action." Creppel v. United States, 33 Fed. Cl. 590, 598 (1995). See also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295 (1981) (takings inquiries are "`ad hoc, factual inquiries' [that] must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant to the unique circumstances."); Blaze Construction, Inc. v. United

sounding in tort .... Thus, although the Tucker Act provides jurisdiction in the Court of Federal Claims over claims "founded ... upon the Constitution" (e.g., Fifth Amendment takings claims), or "upon any express ... contract with the United States," the court must scrutinize the claim at issue to determine if the party asserting the claim, as well as the claim itself, falls within the scope of the Tucker Act's jurisdictional grant and waiver of sovereign immunity. 5

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States, 27 Fed. Cl. 646, 657 (1993) ("The question of whether there is a fifth amendment taking cannot turn simply on general principles of law; it must be based on the particular circumstances of each case."). In every Fifth Amendment takings case, each plaintiff must prove as a threshold matter that it had an ownership interest in the property allegedly taken on the date of the alleged taking. See, e.g., United States v. Dow, 357 U.S. 17, 20-21 (1958) (only the owner of the property at the time of the taking is entitled to compensation under the Fifth Amendment); Applegate v. United States, 35 Fed. Cl. 406, 421 (1996) (holding that the plaintiffs were precluded from recovering damages for any property taken before the date that they acquired each affected property). See generally 29A C.J.S., Eminent Domain, 383, p. 757 (ed. 1992) (noting that the "general rule . . . is that where property is taken or injured under the exercise of the power of eminent domain, the owner thereof at the time of the taking or injury is the proper person to initiate proceeding or sue therefor."). In short, a takings claim, by its very nature, requires that each plaintiff establish ownership in his or her or its right of the property interest allegedly taken in order to establish the requisite constitutional standing. See, e.g., Hansen v. United States, 2005 WL 832332, *55 (Fed. Cl. Apr. 11, 2005) ("The standing principle is related to a fundamental takings rule: `[i]t is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.'" (citations omitted)); Eastern Minerals Int'l v. United States, 36 Fed. Cl. 541, 547 (1996) ("Only the owner of property at the time of a taking is entitled to compensation. ... Plaintiff Bernos is the sole shareholder of plaintiff corporations, but he did not hold any personal interest in the leases at the time of the taking. ... Bernos does not have standing via his position as president and sole shareholder of the companies. A shareholder does not have standing to assert a claim in his own name for a wrong to a corporation."). In this 6

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case, the district plaintiffs conspicuously fail this test. The district plaintiffs possess no property interest, or even a claim to a property interest, that is asserted in plaintiffs' takings claim. Plaintiffs' takings claim alleges instead that the curtailment of water deliveries to the Klamath Project in 2001 constituted a compensable taking of property owned by individual Klamath Project landowners, not the water districts. See Pls' Second Amended Complt. 22 (alleging that each of the plaintiffs is a landowner or a legal representative of a landowner "who possess appurtenant water rights"); id. 32 (alleging a taking of "the water rights of plaintiffs or the landowners they represent"). Of course, defendant contends that none of the plaintiffs in this case has a property interest in Klamath Project water deliveries that rises to the level of a compensable property right against the United States. That issue is the very subject of the cross motions for summary judgment which were argued on March 30 and are now under submission. It appears undisputed, therefore, that the district plaintiffs own no property interests that were allegedly taken by the government in 2001.4 Yet, in order to assert a takings claim against the United States, the district plaintiffs must establish that they are owners in their own right of the property interest allegedly taken by the government. See Dow, 357 U.S. at 20. Because the district plaintiffs neither own nor claim to own protectable interests that are the subjects of the takings claim in this case, the curtailment of water deliveries to the Klamath Project in 2001 did not cause an injury-in-fact to the district plaintiffs. Moreover, the court could direct no relief to

Although the contracts to which most of the district plaintiffs are parties are "property," because the United States is one of the contracting parties any "interference with such contractual rights generally gives rise to a breach claim not a taking claim." Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060, 1070 (Fed Cir. 2001) (quoting Sun Oil Co. v. United States, 572 F.2d 786, 818 (Cl. Ct. 1978)); see also Home Sav. of America v. United States, 51 Fed Cl. 487, 494-95 (2002). 7

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the district plaintiffs based on that claim. The district plaintiffs, therefore, satisfy neither the injury-in-fact nor the redressability elements of a constitutional standing analysis in relation to the takings claim in this case. Accordingly, the district plaintiffs simply lack constitutional standing to assert a takings claim against the United States in this case.5 If the district plaintiffs lack standing in their own right to assert a takings claim against the United States, they assuredly lack standing to assert a takings claim on behalf of individual water users. The district plaintiffs do not, for example, meet the requirements of third-party standing. As explained in Saladino v. United States, 62 Fed. Cl. 782, 793 (2004), "[w]here a plaintiff asserts the injury of another, [the] plaintiff must overcome a presumption against thirdparty standing." Despite the presumption against third-party standing, third-party standing is authorized in limited circumstances: [t]he litigant must have suffered an `injury in fact,' thus giving him or her a `sufficiently concrete interest' in the outcome of the issue in dispute, the litigant must have a close relation to the third party, and there must exist some hindrance to the third party's ability to protect his or her own interests. Id. at 792 (quoting Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112 (1976))). The district plaintiffs, who have no ownership interest in the property

This court must monitor its own jurisdiction, and may at any time during the litigation dismiss a jurisdictionally defective claim, either upon the court's own motion or on the suggestion of a party. See RCFC 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action."). "[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (citing Fed. R. Civ. P. 12(h)(3), and Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-95 (1998)); See generally 5C Charles Alan Wright, et al., Federal Practice & Procedure Civil 3d 1393 (2004) (discussing the purpose of and practice under Rule 12(h)(3), and citing cases). In this instance, defendants suggest that the two pending cross-motions for summary judgment, on the plaintiffs' alleged threshold property interest and on the alleged status of individual plaintiffs as intended third party beneficiaries of district repayment contracts, also will provide an opportunity for the court to address its jurisdiction over claims and parties. 8

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allegedly taken, have not suffered the requisite "injury in fact." Moreover, although the district plaintiffs may be said to have a "close relation" with their landowners, plaintiffs have not established that some hindrance to the landowners' ability to protect their interests exists in this case. To the contrary, the fact that several individual landowners are named as plaintiffs in this action suggests that no such hindrance exists.6 Rule 17(a) of the Rules of the Court of Federal Claims, which we discuss in more detail below, is not to the contrary. The concept of "real party in interest" is not the same as that of constitutional standing. The former principle "is a means to identify the person who possesses the right sought to be enforced." Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1542. Rule 17(a) is thus addressed to proper plaintiff status among parties who have already established their constitutional standing to sue. The district plaintiffs cannot rely on the real party in interest determination under Rule 17(a) to circumvent the constitutional standing requirements necessary to establish jurisdiction over a particular takings claim. The district plaintiffs' lack of constitutional standing to assert the takings claim in this case is further underscored by the Anti-Assignment Act, 31 U.S.C. 3727. The AntiAssignment Act prohibits the "transfer or assignment of any part of a claim against the United States Government or of an interest in the claim . . . ." 31 U.S.C. 3727(a)(1). Instead, such a transfer or assignment "may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for the payment of the claim has been issued." 31 U.S.C. 3727(b). "This Act precludes even unintentional assignments...." Emerald Int'l Corp., 54 Fed. Cl. at 682. The notion that the district plaintiffs have standing in a representational capacity to assert a

Indeed, this court's Order of April 21, 2005, concerning improper joinder of the plaintiffs, appears to reflect similar concerns. 9

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takings claim on behalf of individual water users, given the individualized nature of takings claims discussed above, runs afoul of the provisions of this statute. The primary reasons for the enactment of the Anti-Assignment Act are as follows: (1) the prevention of claim trafficking by persons of influence who might improperly urge them upon government officers, (2) the prevention of multiple payment of claims, (3) the elimination of the necessity of reviewing alleged assignments, (4) enabling the government to deal only with the original claimant, and (5) preserving the government's defenses against the assignor which might not be applicable to the assignee. Standard Mfg. Co. v. United States, 42 Fed. Cl. 748 779-80 (1999) (citing United States v. Shannon, 342 U.S. 288, 291-92 (1952)). See also Stearns Co. v. United States, 34 Fed. Cl. 264, 270 (1995); Kingsbury v. United States, 215 Ct. Cl. 136, 563 F.2d 1019, 1024 (1977). Consistent with these goals all of which are intended to protect the United States courts have rejected attempts by plaintiffs to circumvent the statute through narrow or restrictive interpretations of its provisions. See, e.g., Schwartz v. United States, 16 Cl. Ct. 182 (1989) (holding that a claim against the United States that was based on a contingent fee agreement between another government claimant and her attorney was barred by the Anti-Assignment Act where the agreement/assignment was executed before the underlying claim was allowed). Although plaintiffs do not point to a formal assignment of claims to support their standing arguments, by seeking to bring takings claims on behalf of the landowners within their districts, the district plaintiffs are, in effect, seeking to bring the claims of other parties in a manner that is inconsistent with the Anti-Assignment Act. In short, a takings claim can only be asserted against the United States by an owner of the alleged property interest alleged to have been taken. The district plaintiffs are not such owners. Therefore, they lack constitutional standing in their own right to assert the takings claim in this 10

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case. And because they lack standing in their own right to assert the takings claim, they have no standing to assert that claim in any representational capacity. B. The District Plaintiffs Lack Standing to Assert a Contract Claim Other Than In their Own Right

The analysis is somewhat different with respect to the contract claim in this case, although the ultimate result is the same: the district plaintiffs lack standing in a representational capacity to assert a contract claim against the United States on behalf of water users who are not in privity with the government under the terms of the contracts at issue in that claim. If individual landowners are not intended third-party beneficiaries of repayment contracts between the United States and the district plaintiffs, then these individuals simply have no contract claims in this case for the district plaintiffs to represent. The inquiry into the "representational standing" of the districts ends there with respect to the contract claim. If, on the other hand, the Court determines that individual landowners are intended third-party beneficiaries of those repayment contracts, then it becomes necessary to determine whether there is some basis on which the district plaintiffs can represent the contract claims of individual landowners. The pivotal first step, however, is determining whether the individual plaintiffs in this case can assert claims for breach of the repayment contracts in their own rights against the United States. Just because a "public contract" exists doesn't mean that a particular plaintiff is entitled to sue the government under that contract. Privity of contract between the plaintiff and the government is required for the plaintiff to bring suit against the government on the contract. See, e.g., Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990) ("To maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the government . . . ."); Chancellor Manor v. United States, 331 F.3d 891, 899 (Fed.

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Cir. 2003) ("This court has consistently held that for the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States"). Indeed, there is no waiver of sovereign immunity under the Tucker Act without privity of contract with the federal government. See, e.g., Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) ("The government consents to be sued only by those with whom it has privity of contract"). Otherwise stated, privity of contract with the United States is "an undisputed prerequisite for standing to sue in the Court of Federal Claims under the Tucker Act." Nat'l Leased Housing Ass'n v. United States, 105 F.3d 1423, 1435 (Fed. Cir. 1997); Entergy Nuclear, 2005 WL 579525 at *7 ("[t]o have standing to bring a breach of contract claim, plaintiffs must ... be in privity of contract with the government or a third party beneficiary of a contract with the government" (citing Anderson v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003), and Sacramento Mun. Util. Dist. v. United States, 63 Fed. Cl. 495, 500 (2005))). The individual plaintiffs in this case have no privity of contract with the United States and thus have no standing to bring a contract claim based on the district plaintiffs' contracts unless they can establish that they are intended (not incidental) third party beneficiaries. See Glass v. United States, 258 F.3d 1349, 1354 (Fed. Cir. 2001); Castle v. United States, 301 F.3d 1328, 1337-39 (Fed. Cir. 2002), cert. denied, 123 S. Ct. 2572 (2003). Defendant has addressed this precise question in its pending cross-motion for summary judgment regarding the status of the individual plaintiffs as third party beneficiaries. In this case, the district plaintiffs, with one exception,7 are parties to repayment contracts with the United States pursuant to federal reclamation law, and are therefore in privity with the It is undisputed that the Klamath Hills District Improvement Company has no contract with the United States for water delivery. See Def's Resp. to Pls' Proposed Findings of Uncontroverted Fact (dated March 14, 2005), Proposed Finding No. 6 and response thereto. 12
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federal government as to those contracts. Defendant does not contest the standing of those signatory district plaintiffs to assert the claim in their own right for alleged breaches of those contracts arising out of the curtailment of water deliveries to the Klamath Project in 2001. Whether the district plaintiffs can assert the contract claim in this case as representatives of individual water users, however, is a different matter, and depends initially on whether the individual water users are intended third party beneficiaries of the repayment contracts between the United States and the districts. Only if the court determines that individual plaintiffs are intended third-party beneficiaries can the court then determine whether grounds have been established for the district plaintiffs to represent individual landowners in asserting claims that those landowners would otherwise be able to assert individually. We discuss plaintiffs' views on the class action mechanism under RCFC 23 in the next subsection of this brief, and respond to plaintiffs' arguments over associational standing in Part III (D) below. Simply stated, however, the individual plaintiffs cannot avoid the question of whether they have standing to bring a contract claim by having the district plaintiffs bring that claim on their behalf. The court will decide whether the individual plaintiffs are intended third party beneficiaries when it rules on the currently-stayed cross motions on that issue. C. Plaintiffs' Efforts to Cast the Representational Standing Issue as Merely a Procedural Device Is Without Merit and Should Be Rejected

In arguing that the district plaintiffs have standing to assert "these claims" as representatives of individual Klamath Project water users, plaintiffs make several arguments which attempt to portray the representational standing issue as a mere procedural matter intended only to streamline the litigation. As our discussion of constitutional standing above demonstrates, however, plaintiffs cannot ignore, and have not satisfied, threshold issues of

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standing implicating not merely procedure but the heart of the court's jurisdiction over the takings and contract claims in this case. Before responding more fully to plaintiffs' use of RCFC 17, we respond directly and briefly to plaintiffs' procedural arguments. First, plaintiffs cite to statements made by the Assistant to the Solicitor General during oral argument before the Supreme Court in Orff v. United States to the effect that the Westlands Water District had the authority to act in a representational capacity on behalf of all its members. See Pls' Memo at 1-2 & Exh. A. Plaintiffs take those statements out of context. As the transcript of the oral argument makes clear, the questions posed by the justices to government counsel concerned the terms of the waiver of sovereign immunity under 43 U.S.C. 390uu, and whether the Orff petitioners had standing, apart from Westlands Water District, to sue the Bureau of Reclamation under that waiver for an alleged breach of the 1963 contract between Westlands and the United States. In the particular colloquy referenced by plaintiffs in Attachment A to their memorandum, government counsel was explaining why Congress had limited the scope of the waiver of sovereign immunity under Section 390uu to suits involving disputes over a contract entered into pursuant to federal reclamation law between the United States and a "contracting entity," i.e., Westlands. While Orff may be relevant to the issue of whether the individual plaintiffs in the instant case are intended third-party beneficiaries of the repayment contracts between irrigation districts and the United States (depending, of course, on what the Supreme Court ultimately decides), plaintiffs' attempt to treat the remarks of government counsel during oral argument as a broad concession regarding a general representational status of Klamath Project irrigation districts is unpersuasive and should be rejected. Second, plaintiffs assert the existence of an agreement in Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001), whereby the parties "agree[d] that the 14

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districts [in that case] have standing to represent their water users, obviating the need to retain individual water users as plaintiffs, either individually or as a class." Pls' Memo at 3. The case is inapposite for several reasons. First, it is fundamental that parties cannot create jurisdiction of a federal court by agreement. See, e.g., Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) ("no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant"); Pacrim Pizza Co. v. Pirie, 304 F.3d 1291, 1294 (Fed. Cir. 2002) ("only Congress can grant waivers of sovereign immunity; parties may not by contract bestow jurisdiction on a court"). Thus, any alleged "agreement" in Tulare is not germane to the question whether the district plaintiffs have constitutional standing in this case. Second, the United States is unaware of any such agreement that the state water districts in Tulare could "represent" their water users, and the decision cited by plaintiffs makes no mention of such an agreement. Pls' Memo at 3 (citing Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001)). Third, the court found in that case that a taking had occurred of the districts' property rights in deliveries of particular quantities of water specified in contracts between those districts and the California Water Resources Department as part of the California State Water Project. The property interest found to have been taken was not an alleged property interest in project water deliveries held by individual landowners, but rather an interest found to have been owned by the districts themselves. See Tulare, 49 Fed. Cl. at 318. Thus, Tulare provides no support for plaintiffs' representational standing argument. Third, plaintiffs' very premise that the representational standing of the district plaintiffs would obviate the need for a class action is itself flawed. Representational standing by the district plaintiffs in this case is not a surrogate for a class action procedure. Because the relief available in the Court of Federal Claims involves a money judgment against the United States, 15

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the scope of class actions under RCFC 23 is narrower than under Rule 23 of the Federal Rules of Civil Procedure. See Rules Committee Note, 2002 Revision, RCFC 23. In particular, RCFC 23 was extensively rewritten in 2002 to limit class actions to "opt-in" classes, and to exclude "optout" classes. See id. Thus, a class action in the Court of Federal Claims is not an "alternative" procedure (see Pls' Memo at 1), and the restriction in RCFC 23 to "opt-in" class actions underscores the limitations on "representative" claims against the United States.8 In short, the district plaintiffs must establish their constitutional standing to assert the takings and contract claims in this case, including in a representational capacity. This the district plaintiffs have failed to do. None of the procedural shortcuts advocated by plaintiffs can remedy these jurisdictional defects. III. THE DISTRICT PLAINTIFFS CANNOT REPRESENT THE WATER USERS UNDER RCFC RULE 17 EITHER Not only do the district plaintiffs lack constitutional standing to represent the water users in the takings and contract claims in this case, Rule 17(a) of the Rules of the Court of Federal Claims, on which plaintiffs principally rely, provides no support for their motion either. Plaintiffs rely on language in the Rule which accords real party in interest status to parties "authorized by statute to sue" in their own name on behalf of an absent party, and to trustees of The district plaintiffs do not explain the scope of their claimed representative capacity; they do not explain what it would mean for them to "represent" each of the individual landowners. The district plaintiffs appear to claim that they have capacity to prosecute collectively the individual claims of all of the individual landowners, without regard to the individual desires or interests of any individual landowner. The district plaintiffs apparently want to make each of the individual landowners a plaintiff without actually identifying each landowner or naming each a plaintiff, or identifying each individual claim, or determining whether each landowner chooses to join with the districts and any others to pursue a claim. The district plaintiffs do not identify the legal authority that requires or, at least, allows the individual landowners to surrender any individual claims in favor of a collective, representative action by the district. Nor do they identify the legal authority that allows the districts to appropriate the individual claims to create a collective action. 16
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express trusts. In addition, plaintiffs argue that the district plaintiffs have associational standing to represent individual landowners, and may also assert claims for monetary relief against the United States in their capacity as "parens patriae." In addition to the constitutional standing problems of the district plaintiffs addressed above, none of these arguments has merit on its own terms, as we now explain. A. Real Parties in Interest Under RCFC 17

Rule 17(a) states in pertinent part that: (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. ... RCFC 17(a). This Rule, identical to Rule 17 of the Federal Rules of Civil Procedure in all ways relevant here, "requires that the party who brings an action actually possess, under the substantive law, the right sought to be enforced." United Healthcare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 569 (8th Cir. 1996). See also Boeing Airplane Co. v. American Trade Ins. Co., Ltd., 322 F.2d 589, 591 (8th Cir. 1963) (the "real party in interest" rule under Rule 17(a) "is the one who, under applicable substantive law, has the legal right to bring the suit"), cert. denied, 375 U.S. 984 (1964); Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1541 (Rule 17(a) "states clearly that the action should be brought in the name of the party who possesses the substantive right being asserted under the applicable law, whether that be state or federal."). The Rule performs a valuable function with respect to claim preclusion, in that it "protects a defendant against subsequent claims for the same debt underlying a previously entered judgment." Marina Management Serv., Inc. v. Vessel My Girls, 202 F.3d 315, 318 (D.C. Cir.), cert. denied, 531 U.S. 985 (2000); see also Karras v. Teledyne Indus., 191 F. Supp. 2d 17

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1162, 1170 (SD Cal. 2002) ("The 'real party in interest' provision is intended to protect defendants from multiple liability in actions by subsequent claimants and to ensure that the judgment will have preclusive res judicata effect."); Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1541. "[T]he modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata." Advisory Committee Note to the 1966 amendment to Fed. R. Civ. P. 17(a). The function and limitations of Rule 17(a) are thus distinct from those of constitutional standing. A party may have constitutional standing to sue, but still not qualify as a real party in interest under the Rule. See, e.g., Aldridge, 59 Fed. Cl. at 390 (stating, "Lack of real-party-in-interest status is not a jurisdictional defect. ... [N]ot every party who meets standing requirements is a real party in interest. 4 Moore's Federal Practice, 17.10 (3d ed. 2000)," and indicating that a trustee's ability to sue in the name of the trust's beneficiary may deny to that beneficiary real party in interest status). As this court observed in Aldridge, once one moves beyond the threshold jurisdictional issue of constitutional standing, prudential considerations can still play a role in limiting access to the courts to those litigants "who are best suited to assert a claim." 59 Fed. Cl. at 389. Plaintiffs rely particularly on the second sentence of Rule 17(a), which provides a nonexclusive list of persons who may be real parties in interest. The purpose of this enumeration of persons in the second sentence of Rule 17(a) "is to provide guidance in cases in which it might not be clear who the real party in interest is and to emphasize that he might not be the person beneficially interested in the potential recovery. Of course, the language assumes that the applicable substantive law gives the persons named in the rule the right to sue." Wright, Miller 18

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and Kane, 6A Fed. Prac. & Proc. Civ. 2d 1543. Plaintiffs claim that the district plaintiffs qualify as real parties in interest because they are allegedly "authorized by statute [who] may sue in that person's own name without joining the party for whose benefit the action is brought," and also because they are analogous to "trustees of an express trust." Pls' Memo at 2. Thus, in order to determine if any of the district plaintiffs can assert claims as real parties in interest on behalf of absent water users as plaintiffs allege, the court must look to the law which authorizes the district plaintiffs to act. And when one examines that law closely, the status of the district plaintiffs to assert takings and contract claims against the United States as real parties in interest evaporates. Plaintiffs' use of Rule 17 does no more than remind us that if an applicable statute creates the right to sue in the name of another, such an action is permissible under the procedural rules of the federal court. The argument that such a right exists under Oregon or California law simply does not, however, hold up under a detailed analysis. B. The Plaintiff Districts Lack Authorization Under State Law to Bring Claims Against the United States on Behalf of Water Users

Plaintiffs first argue that the district plaintiffs, as irrigation or other districts organized under state law, have the authority to bring claims on behalf of water users within their boundaries with respect to water rights. Pls' Memo at 7-15. An irrigation district "is a creature of the statute and possesses only those powers expressly or impliedly granted to it by the legislature." Payette-Oregon Slope Irr. Dist. v. Coughanour, 91 P.2d 526, 527 (Or. 1939). An irrigation district "has no powers, either governmental or proprietary, except those granted to it by the legislature, either express or by clear implication." Redmond Realty Co. v. Central Oregon Irr. Dist., 12 P.2d 1097, 1099 (Or. 1932). See also Twohy Bros. Co. v. Ochoco Irrig. Dist., 216 P. 189, 190 (Or. 1923) (same). Thus, the question here is whether any of the district

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plaintiffs has the authority, under state law, to bring takings or contract claims on behalf of individual landowners within the district. The answer is clearly no, and particularly not against the United States in this court. Plaintiffs' entire Rule 17 analysis ignores the question of sovereign immunity, and role of limited waivers of sovereign immunity, such as that found in the Tucker Act, in defining the terms u